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Frequently Asked Questions

I have separated from my partner of 30 years, 6 months ago, what do I do now?

If you are and your partner are able to come to an agreement as to how the property you both own will be split between you, then that obviously will make the process of separation much easier and quicker.  Once agreement has been reached you should both seek independent legal advice.

A solicitor can advise you as to whether the agreed split is fair and whether a Court would approve the agreed distribution of the assets.

If you are not in agreement, you should see a solicitor as soon as possible to find out your rights and the best way to progress the matter.

A friend told me that I need to provide full financial disclosure even though we agree on the property settlement, is this correct?

Yes.  Even if there is an agreement as to the split of the matrimonial property both parties must provide full financial disclosure.  This includes the following:

I am going through a divorce at the moment, is this the same as a property settlement?

No.  A divorce and a property settlement are different.

A property settlement is a split of the matrimonial property including houses, bank accounts, shares, superannuation etc and should be finalised soon after the relationship has broken down.

The granting of a divorce does not decide issues about property and maintenance or parenting arrangements for your children.  A divorce is the legal dissolution of a marriage by a Court.  You cannot apply for a divorce until you have been separated for over 12 months.

Do we need to have the property settlement finalised in order to get a Divorce?

No.  However, if you want to apply for a division of the matrimonial property, you must file a separate application with the Court within 12 months from the date the divorce becomes final.  Otherwise, you will need the Court’s permission to apply.

Generally, at the settlement of the matter, funds become available through settlement payments or the sale of assets, which can then be used to pay the deferred fee.

In deceased estate matters a deferred fee is often used as the executor and beneficiaries under the will might not have the funds to pay as they go. The legal fees are be paid when the estate is finalised, or in the event that estate assets are converted to cash.

The downside of the deferred fee arrangement is that a higher hourly rate is charged, as the firm ordinarily has to wait months, if not years, to get paid for the work that it is doing.

Security for payment is ordinarily required, which may be in the form of a right to caveat over property, or by way of a mortgage secured over a party’s share in the real estate.

If you are on a deferred fee retainer you might still be required to pay any of the upfront costs such as Court filing fees and property valuation fees.

I haven’t got a Will and I have just separated from my husband, what would happen to my estate if I passed away all of a sudden? Who would look after my children, as I don’t want my ex having full custody?

You should have your Will updated whenever your personal circumstances change especially if your relationship has broken down.  The other party to the separation may still have some rights to your Estate if you are not yet legally divorced.  After you are divorced your Will could be invalid.