LL.B; BA; Dip App Sc; GDLP
Rebecca LewisP: (08) 8216 3330
Rebecca is a specialist family lawyer with many years of experience. She advises on all aspects of matrimonial and de facto matters, including complex property and superannuation issues. Rebecca also deals with sensitive issues regarding children and parenting arrangements.
Rebecca is a skilled negotiator and has experience and training in mediation. She is admitted to practice as a Barrister and Solicitor in the Supreme Court of South Australia, the Federal Court of Australia and the High Court of Australia.
Member – Law Society of South Australia
Member – Law Council of Australia – Family Law Section
Member – Australian Institute of Family Law Arbitrators and Mediators
Post separation assets
The law in regards to assets accumulated after separation can cause some confusion. Many clients hold the strong view that what comes into their hands after separation should be excluded when calculating the division of property. Unfortunately, this is not the case. The relevant value of the net assets of each party is at the date of settlement, or trial. This means that superannuation, savings, inheritances, employment payouts, compensation, lottery winnings and other assets including motor vehicles and furniture accumulated after separation do form part of the net assets available for division.
In the midst of confusion there is good and bad news. The party who has accumulated the assets after separation will in most cases be able to retain a high portion of those assets, as the assets were solely contributed by them. The other party will receive a small percentage more of the overall property than he or she otherwise would have. If the matter is decided at court, parties must expect some adjustment in favour of the less well-off party.
Of course, the other important issue to watch for is the accumulation of debt after separation. A party who accumulates debt after separation will not necessarily bear sole responsibility for that debt if the division of property has not been formally settled. When determining the net assets for division, the debts of each party form part of those calculations. Again the party who has not contributed to the post separation debt cannot rely on debt incurred by the other party being excluded. The party who has not incurred or contributed to the debt will to a certain extent share in that debt when the division is calculated.
There is a requirement to make ongoing disclosure of all assets, liabilities and superannuation until settlement, or trial. Non-disclosure may be grounds for having an order for property division set aside with serious consequences for the offending party.
There is no exact science to the calculations for the division of assets. Circumstances vary from one case to the next and the Family Law Act 1975 (Cth) sets out a wide range of considerations to be taken into account when property is divided. Importantly the requirement that the division of property is just and equitable in all the circumstances must be addressed.
To best avoid the situation of post separation assets or debts being factored into your property settlement, make every endeavour to formally settle your property sooner rather than later after separation. Contact DBH Family Lawyers by free calling 1800 324 324, or send us a message to arrange a no obligation appointment.
De Facto Breakdown: Your rights after a de facto relationship breakup
De facto relationships are now much the same as marriage when it comes to dividing property after the relationship breaks down.
After you have lived together for two years you are in a de facto relationship, you will need advice about what to do to protect your property and what you will be entitled to in your particular circumstances.
The length of your relationship is one important consideration but there are others.
If you have a child together then you can make a claim for a division of property even if you have not lived together for two years.
Also, if one of you made a large contribution to the assets, or you own property together, then you will have rights to property even though you have not lived together for two years.
Couples who do not live together full time may still be in a de facto relationship, particularly if they share or mix their finances.
If you are unsure then be safe and get advice as to whether your relationship will be defined as a de facto relationship.
The division of property for de facto couples comes under the Family Law Act 1975. There is no discrimination against same sex couples in regard to the division of property and the provisions for de facto couples will also apply to same sex couples.
You will need to know the value of all assets, liabilities and superannuation in your individual and your joint names.
There may be property held by businesses, companies or trusts that will need to be valued.
Find out what your partner earns including all benefits and employment entitlements.
Keep your most precious items safe, even if you don’t know who is keeping what.
If you have children, think about how much time they will spend with you and how this will affect your ability to earn and accumulate savings and superannuation in the future. This will affect the amount of property you should retain.
It essential that when you separate you get advice before making decisions about your property so that you know what you are entitled to and that you are set up for your future in the best way possible.
If you are currently going through a de facto relationship breakdown and need advice, contact the DBH Family Law team today on 1800 324 324 or via our contact page.
Splitting your property: how to start the property settlement process
The division of property can start from the moment you separate. Make sure you keep items that are most precious to you safe, even if you don’t know who will be keeping what.
Find out what you are entitled to in your particular circumstances.
Know exactly what there is to be divided. Sometimes property is held by companies, businesses and trusts. There may be other family members or business partners. You will need to know the value of everything.
Superannuation can be complicated and the relevant value may not be entirely clear.
Make up a list of all assets, liabilities and superannuation that you know of for everything in your own name, your partner’s name and in your joint names.
You will need to find out what your partner earns, including all the added benefits and employment entitlements.
Your lawyer will want bank statements, super statements, tax returns, employment contracts and financial records for any business.
Think about the children if you have any and where they will spend most of their time as this may affect the amount of property you will get to keep.
Be wary about discussions with your partner until you have had advice and you have an idea about what you are entitled to. It is not easy to work out the best way to divide everything up, what to keep and what to let go.
The prospect of one household becoming two separate entities is not always rosy and particularly so when dividing finances. You need to be completely sure that you are setting up your own future as well as you possibly can.
Discuss all aspects of your separation and your financial concerns with your lawyer so that you have comprehensive advice and that important details are not overlooked.
Although it is a stressful and expensive time, your property settlement is a major financial decision that can affect your future for a long time. A measured approach is best.
For more advice about the divorce process, contact one of our experienced family lawyers via our contact page or call 1800 324 324 for a no obligation interview.
When distance really matters
Family relationships breakdown and families move on. Sometimes work, or a new relationship may mean moving to a country far from where you have lived with your children.
If your children are under 18, this will need proper measures to be put in place to ensure that their relationship with you and their living arrangements are secure and protected.
If you have come to live in Australia with your children and are separated from your partner who lives in another country, the law may quickly become very complicated.
You and your ex-partner may have some informal arrangements for the children. This may work perfectly well, but what if things change?
If you do not have a formal arrangement with your ex-partner, there is a risk that they will take the initiative to have the children returned to them and this can be traumatising for everyone.
If this happens, locating the children and returning them to you may quickly become a complex and costly legal action in two separate countries.
Remember too, that the laws in the two countries may be quite different when it comes to decisions about where and with whom children are to live and therefore there is no certainty in the outcome.
Australia is a member of the Hague Convention, an international treaty that provides for matters including child abduction, protection and co-operation in respect of parental responsibility.
If your former partner obtains passports for the children and they are taken from you, it is possible that they may leave Australia very quickly.
Urgent measures can be taken to locate the children and have them returned to you. You will also need to apply urgently to the Family Court or Federal Circuit Court of Australia for children’s orders.
If the children are out of Australia, significant time may lapse in this process before they are returned to you and even then the outcome is not certain.
The good news is that one of our DBH Family Lawyers can assist you to have a court order in place in Australia. This will help prevent a disastrous result if the absent parent has a change of mind and decides to take action.