Structure of Properties when divorcing?

[Truly Exotic]

Prenups orBinding Financial Agreements are legally binding and must be followed by the courts. But there are circumstances where they won't work - they may be defective, assets not disclosed, interests in trusts not discclosed, wording not meeting the legislation, independant legal advice not obtained, lawyer not explaining certain aspects etc.

see s 90k
http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s90k.html

+1

prenups are an american thing,

binding financial agreements (is this the full terminology) are not worth the paper they are written on if cricumstances change, eg kids.

Just protect yourself as best you can from day one OR be prepared to lose it OR find someone richer!!!

 

[Terry_w]

+1

prenups are an american thing,

Prenup terminology doesn't work well in Australia either.

BFAs can also be entered into pre, during, or post a relationship whether marriage or defacto, same sex or opposite sex.

 

[TMNT]

Legally I don't think it matters who files, but if infidelity is involved, you have more leverage in your personal negotiations. just my opinion. Happy to be corrected, but in our case the filer paid for legal documents to be filed with the court.

for the purpose of asset splitting, the reason for the divorce is irrelevant,

whether who cheated on who, who is the bad guy, and who filed for divorce

if the judge took into consideration who's fault it was, it would never end

 

[Mr. Fabulous]

The best way to protect your assets is to not get married. It's as simple as that.

 

[techie]

for the purpose of asset splitting, the reason for the divorce is irrelevant,

whether who cheated on who, who is the bad guy, and who filed for divorce

if the judge took into consideration who's fault it was, it would never end

It must count for something. Otherwise Australia would be a gold digger's haven

After reading this thread, my choice on potential partners has changed.

 

[Mr. Fabulous]

It must count for something.

I suggest you start doing some serious research.

http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Family+Law+Principles/No+fault+divorce/

No fault divorce

The Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that a court does not consider which partner was at fault in the marriage breakdown. The only ground for divorce is the irretrievable breakdown of the relationship, demonstrated by 12 months of separation.

 

[property_girl]

for the purpose of asset splitting, the reason for the divorce is irrelevant,

whether who cheated on who, who is the bad guy, and who filed for divorce

As I qualified: 'your personal negotiations'.

 

[thatbum]

It must count for something. Otherwise Australia would be a gold digger's haven

After reading this thread, my choice on potential partners has changed.

One of my old posts in a previous thread might be useful to you:

Your best courses of action to "protect" your assets from the family court are:

1. Don't get married or enter into a de facto relationship for more than 2 years.

2. Burn or dump all your assets and quit your job. Permanently disable your earning capacity as well.

3. Marry or enter into a relationship with someone with more assets and/or financial resources than you.

4. Don't carry on a relationship in way where you encourage your partner to handicap his or her earning capacity for the sake of the relationship.

5. Understand the factors that the family court look at when determining a fair and equitable division of assets, so you understand what your liability is.

...in that order.

Seriously, there's not really much that can be done for most people to "protect" their assets. The laws are there so that people can't just elect to have their cake and eat it too. See point 4 especially.

 

[techie]

I suggest you start doing some serious research.

http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Family+Law+Principles/No+fault+divorce/

No fault divorce

The Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that a court does not consider which partner was at fault in the marriage breakdown. The only ground for divorce is the irretrievable breakdown of the relationship, demonstrated by 12 months of separation.

No wonder divorce rates are so high, its bloody easy to divorce! I'd like to select Option 3 please, from ThatBum's list

 

[property_girl]

However, the less contribution made by a person the less change they will get a slice. Contributions can be financial or non financial.

property_girl do you remember the legislation your lawyer referred to?

What my lawyer gave me said something about 'contributions being financial or otherwise'.

So if, going into a marriage, you have investment property that is paid off, the partner cannot really lay a claim to it, as he/she hasn't contributed either financially or otherwise (unless he/she has renovated it or helped manage it). The same with property that is gifted.

 

[Terry_w]

What my lawyer gave me said something about 'contributions being financial or otherwise'.

So if, going into a marriage, you have investment property that is paid off, the partner cannot really lay a claim to it, as he/she hasn't contributed either financially or otherwise (unless he/she has renovated it or helped manage it). The same with property that is gifted.

That simply is not true, unfortunately. assets acquired prior to the relationship can be taken into account as property of the marriage and as a financial resource.

 

[Terry_w]

Here is a nice short article about divorce and pre-marital assets:
http://www.swaab.com.au/knowledge/publications/are-pre-marital-assets-treated-differently-to-mari/

 

[Mr. Fabulous]

"When considering the division of assets, the court considers the contribution of both parties. It takes into account such considerations as who was the primary caregiver of the children, who was the primary financial provider, did one party renovate the property, who did the greater share of the cooking, cleaning, gardening and so forth."

It would be cheaper to hire a maid.

 

[property_girl]

That simply is not true, unfortunately. assets acquired prior to the relationship can be taken into account as property of the marriage and as a financial resource.

I agree with you: if there was some contribution, property acquired before the marriage can be taken into account. But can they be taken into account if there was no contribution, either financially or otherwise?

IN any event, I kept all mine.

 

[wylie]

"When considering the division of assets, the court considers the contribution of both parties. It takes into account such considerations as who was the primary caregiver of the children, who was the primary financial provider, did one party renovate the property, who did the greater share of the cooking, cleaning, gardening and so forth."

It would be cheaper to hire a maid.

Unless you are a multi-millionaire, that just isn't so. You do know how much a 24 hour maid would be?

 

[Mr. Fabulous]

Who said anything about a 24 hour maid? The average house takes a couple of hours to clean a week. Most anyone can learn to cook at least the basics. You just have someone come in one day a week (or even day a fortnight) to clean.

 

[thatbum]

I agree with you: if there was some contribution, property acquired before the marriage can be taken into account. But can they be taken into account if there was no contribution, either financially or otherwise?

IN any event, I kept all mine.

You're speaking in terms of contributions on an asset by asset basis. Sometimes the court calculates it on this basis, especially if there are few assets.

However, what is much more common is that the contributions are determined globally in respect to the entire asset pool. This is much more common with larger asset pools and/or longer relationships.

 

[wylie]

Who said anything about a 24 hour maid? The average house takes a couple of hours to clean a week. Most anyone can learn to cook at least the basics. You just have someone come in one day a week (or even day a fortnight) to clean.

You should have been a comedian.

 

[property_girl]

You're speaking in terms of contributions on an asset by asset basis. Sometimes the court calculates it on this basis, especially if there are few assets.

However, what is much more common is that the contributions are determined globally in respect to the entire asset pool. This is much more common with larger asset pools and/or longer relationships.

Is 20 years a long time?

 

[property_girl]

Who said anything about a 24 hour maid? The average house takes a couple of hours to clean a week. Most anyone can learn to cook at least the basics. You just have someone come in one day a week (or even day a fortnight) to clean.

Fine, if you live alone, are never at home and are happy to live on baked beans and toast and in a not-very-clean home.

Put three children and a husband into the mix, then it's a different story.