FAQs & Guides

Before embarking upon what can often be time-consuming and costly litigation, it is important wherever possible to attempt to settle your matter without the intervention of the Court. At Selvaggio Lawyers, we will guide you through the various alternate dispute resolution options available to you. These may include out of court counselling, out of court mediation or the use of the collaborative law process to name a few.

Whilst some people get confused, or use the terms incorrectly, a divorce and a property settlement are two entirely different processes.

A divorce refers to the official termination of a marriage. You must be separated for more than one year before you can make the Application to divorce in the Court. Once the divorce is finalised (a Decree Absolute) you will be entitled to re-marry.

A property settlement is the formal division of your assets and liabilities following the breakdown of either a marriage or a de-facto relationship.

Most importantly, a property settlement can be finalised at any time, particularly after separation, and irrespective of whether you are applying for a divorce. It enables you to divide your property and crystallises the division of your financial affairs so that each of you can move forward financially.

If you and your former spouse or partner are able to reach an agreement yourselves then that can be a very positive step. However, to reduce potential future ambiguity or disputes, it is always in your best interests to document your agreement and ensure that it is recognised by the Court. Whilst things may be amicable now, there is always the potential for issues to arise in the future.

There are a number of ways in which a solicitor can help you with documenting your agreement. For example, we can help you to prepare a document detailing your agreement that is then sent to the other party and their solicitor. Once both parties are happy with the documentation (and have sought independent legal advice to ensure that it is fair and equitable), they both sign it and the documents can then be lodged in the Family Court. The documents come before a Registrar of the Family Court who will then vet the documents and, if there are no outstanding issues or requisitions, will make Orders in accordance with the documents. A sealed copy of the Orders are then issued from the Court which have the same validity as if the parties had litigated their matter before a Judge.

This is highly inadvisable. We will only act for one party, however, if the other party is unrepresented we will obviously do our best to ensure that the documents are as complete as possible and in plain language. We will encourage the other spouse to obtain independent legal advice and will try to ensure that the agreement proceeds to the making of Orders as smoothly as possible.

The term “custody” is no longer applicable under the Family Law Act. Recent cases suggest that a “shared care” arrangement is favoured by the Courts because it is usually in the best interest of the children that they spend consistent time with each parent. This does not necessarily mean equal time with each parent. Each case is decided on the particular circumstances and what is best for the children.

Generally speaking, the Court favours superannuation being split between the parties. After a long marriage, if one party has a much greater superannuation entitlement than the other, then that party may be required to “split” some of their superannuation into their spouse’s name as part of an overall property settlement.

Sometimes it is possible to negotiate a change to this situation, particularly when one party wants to keep most of his or her superannuation entitlements and the other party needs more cash to re-establish themselves and re-house themselves.

The collaborative law process involves both parties negotiating the outcome of their separation, face-to-face at scheduled meetings and in the presence of their lawyers. It allows couples to retain control of the decision-making process and determine any necessary arrangements regarding the division of their property or care of the children.

Lawyers help the couple to negotiate an agreement that is then ratified by the Court and becomes legally binding. If issues arise during the negotiations that cannot be easily resolved, the couple can utilise the expertise of specialist advisors such as financial planners, and psychologists, to help them reach a decision.

Historically the answer to this question would have been “yes”, but for a number of years now, parties who were in a de facto relationship are treated in the same way by the Family Court and Federal Circuit Court as parties who were married. There is no distinguishable difference in what parties could have received by way of property settlement or Orders in respect of the arrangements for their children.

It is not mandatory that you change your Will after you separate but it is advisable to do so. Once you have obtained a divorce, or obtained Orders for the division of property, or in relation to children, this may void your previous Will so it is highly advisable that you make a new Will.

Our firm assists clients by making a new Will free of charge after the conclusion of their matter so that they can rest assured that they will move forward with their lives with no outstanding significant estate issues.

If you are using a Real Estate Agent, you must first appoint one to act as your agent on the sale (usually this entails signing an Agency Agreement).

Once you have appointed an Agent you should then contact a Solicitor to draw up a Contract for Sale on your behalf. The Solicitor will then forward the Contract for Sale to the Agent so that the agent may begin marketing the property for sale.

If you decide not to use a Real Estate Agent, simply contact a Solicitor to draw up the Contract for Sale on your behalf. You or your Solicitor may then issue the Contract for Sale to any potential purchasers directly.

“Exchange” occurs when a Vendor and Purchaser each sign an identical Contract containing the agreed terms of the sale, the Contracts are dated and the Purchaser pays a deposit.

You may exchange either with or without a cooling off period. If you exchange with a cooling off period the Contract becomes unconditional once the cooling off period expires. If you exchange without a cooling off period the Contract becomes unconditional as soon as exchange is effected. A Solicitor will need to provide a Section 66W Certificate and advise you of the effect of this prior to Contracts being exchanged without a cooling off period.

A cooling off period is a five (5) business day period following the exchange of contracts (ten (10 business days in the case of an off the plan residential purchase), whereby a Purchaser can take the time to decide if they still want to proceed with the purchase. The cooling off period may be extended by agreement between the Vendor and Purchaser if necessary.

A Purchaser can also use this time to carry out further investigations on a property (such as a Pest and Building Report or Strata Title Inspection Report) and obtain their final loan approval.

If you are exchanging with a cooling off period, a Purchaser is only required to pay a 0.25% deposit on the exchange of Contracts. If they proceed with the purchase, they must then pay the balance of the deposit (usually 10%) prior to the expiry of the cooling off period. If the Purchaser decides not to proceed with the purchase, they forfeit their 0.25% deposit to the Vendor.

No, settlements are now transacted electronically using the e-coveyancing system PEXA.

Electronic conveyancing (e-conveyancing) is the digital completion of conveyancing transactions. PEXA is online system where e-conveyancing is completed. PEXA stands for Property Exchange Australia. Selvaggio Lawyers is a proud member of PEXA and have completed hundreds of transactions in PEXA since it was first introduced.

You are required to pay a deposit on the exchange of Contracts.

If exchanging with a cooling off period, you are only required to pay a 0.25% deposit on exchange of Contracts. If you proceed with the purchase, you must pay the balance of the deposit (usually 5% or 10%) prior to the expiry of the cooling off period. If you decide not to proceed with the purchase, you forfeit your 0.25% deposit to the Vendor.

If exchanging without a cooling off period, you are required to pay the full 5% or 10% deposit on exchange of Contracts (this amount can be negotiated with the Vendor prior to exchange).

Stamp Duty is a tax imposed by Revenue NSW (Office of State Revenue) on the transfer of land. The liability for payment of Stamp Duty falls with the Purchaser of a property. Stamp Duty must be paid in addition to the purchase price and is paid to the Revenue NSW (Office of State Revenue). The amount of Stamp Duty is based on the purchase price or value.

Duty must be paid on settlement of the purchase, or 3 months from the liability arising (i.e. from the date of exchange) – whichever is earlier.
When purchasing property ‘off the plan’ (where the property being purchased will be built prior to settlement), the duty must be paid on the earlier of settlement of the purchase, or 15 months from the liability arising (i.e. from the date of exchange). This is subject to eligibility requirements. Off the plan vacant land is not eligible for off-the-plan benefits.

Revenue NSW offers certain grants with regards to Stamp Duty, subject to eligibility requirements. If you are eligible for one of the grants you may receive a concession or exemption from Stamp Duty.

When your electronic transfer is lodged with the NSW Land Registry Service (LRS) during a settlement in PEXA, a document called an eNOS will also be lodged (which we prepare). This eNOS will have the effect of notifying Council, the water authority and the Registrar General that the property has been transferred to you and they will update their records accordingly.

However, you will need to contact other service providers directly including electricity, gas, telephone and internet providers.

This applies if you purchase a property with another person/s.

‘Joint Tenants’ is where the property is owned jointly by the persons. If one person dies the property will immediately pass to the surviving joint tenant. This will occur irrespective of what a person’s Will might say. Joint tenants is a common form of owenership between married or de-facto couples and related persons.

‘Tenants in Common’ is where each owner owns a share of the property separately from the other owners. The shares can be equal or unequal shares. That share can then be sold or can be left to someone in a Will. This is common between business partners and non-related persons.

Yes, if it is clear from the documents that the parties intended the Heads of Agreement to be legally binding e.g. if the document itself expressed that clear intention by using words such as:

“The parties intend this document to be legally binding…”

OR

No, if the Heads of Agreement clearly state for example that enforceability of the document is subject to Contracts being entered into by both parties.

Yes, the new changes to the Retail Leases Act have removed the requirement for a 5 year minimum term.

There are 10 minimum employment entitlements that comprise the National Employment Standards (NES). The NES apply to all employees in Australia. Casual employees only receive a few NES entitlements.

The NES state the minimum entitlements. Your Employment Contract or Award may have greater entitlements over and above the NES, howver it cannot have terms and conditions below the NES.

The NES cover:

If you were dismissed from your job in a harsh, unjust or unreasonable manner you may (subject to eligibility requirements) be entitled to make a claim to the Fair Work Commission for unfair dismissal.

A claim must be made within 21 days after the dismissal takes effect. If you worked for a small business (less than 15 employees) the Small Business Fair Dismissal Code may apply which may affect an unfair dismissal claim.

Long service leave is governed by the NSW Long Service Leave Act 1955. It provides employees with 2 months (8.67 weeks) paid long service leave following 10 years’ service with the same employer. If the employer sells their business this does not break the continuity of service, neither will parental leave.

A genuine redundancy is when a person’s job is no longer required to be done by anyone. It can occur if a business experiences a downturn or closes down. There are minimum notice periods and redundancy pay entitlements however these depend on your particular situation. Some employees are not eligible for redundancy payments e.g. if you have worked with the employer for less than 12 months.

You can find more information about your rights and obligations at the following websites:

fairwork.gov.au
industrialrelations.nsw.gov.au
fwc.gov.au

If you have any questions, contact Selvaggio Lawyers for advice.