Viewing entries tagged
Property Orders

I’m going through a property division - should I quit my job to get more?

We get this question, or a variant of this question very commonly. Part of the stages of a property division in Australia is considering each party’s future earning capacity. In response, people often have some ideas about how they might maximise the funds they receive.

Someone might ask whether they should quit their job, as getting 5% more of a million dollar pool of assets seems attractive. Or they might decide not to start looking for work very hard during the course of the proceedings. Sometimes opportunities come up and clients think about whether they should postpone taking up those opportunities. It can happen that there is deliberate contact to reduce your earnings just to try to get a bigger slice of the pie. Sometimes clients are, unfortunately, not completely honest with their lawyers or with the Court, and may be earning cash from jobs that they do not declare.

In all of these situations, the Court is obliged to look at your earning capacity, not necessarily what you are earning right here and now on paper. A skilful lawyer will be able to identify a pattern of earnings you’ve had, and if those earnings suspiciously drop around separation, you will have to have an excellent answer for why that happened for your Judge. You may be compelled equally to reveal to your ex-partner and the Court what attempts you have made to get a job, and your efforts in that regard (or otherwise) could become a significant issue.

Not only that, but by not working if you are otherwise able to, and not earning what you genuinely are able to for the work you do, you are depriving yourself for potentially years of litigation while you await a decision, all while gambling on whether a Judge will find your actions to have been believable. It’s not a bet I would risk my house on!

My view is that you should take the work you can get, can reasonably perform with your health and skills, for fair pay. You will have more money in your pocket from salary and appear as an honest, sensible person to any Court looking through your affairs.

This is of course a general observation and you should always seek advice specific to your circumstances. If you suspect your former partner isn’t playing by the rules, or you need advice about your reported earnings, call our lawyers on 03 9614 7111 to speak with someone now.

Significance of Abiding by Property Orders

Significance of Abiding by Property Orders

It is vitally important for parties in proceedings to strictly comply with property settlement Orders.

If a Court Order required you to make a cash payment to the other party in the proceeding by a certain date, you should avoid making a late payment given the potential risks and negative impact involved to your case.

For example, in the case of Blackwell & Scott [2017] FamCAFC 77 a Consent Order provided that the Husband is to pay the Wife $130,000 within 90 days (so as to achieve an equal property division). The Husband was late in making the payment by approximately 13 months and over this period, the value of the property increased in value from $860,000 to $1 million. The Wife argued that the Order should be set aside as the increase meant that she would receive far less than an equal division of assets. The Family Court Judge granted her application. The Husband filed an Appeal which the Full Court dismissed noting that “The Husband’s delay in complying with the Orders was… substantial… By reason of the Husband’s default, the agreed equal division of the parties’ property did not take place”.

On the same note, it is equally important to ensure that you abide by Court Orders requiring you to maintain properties, or demonstrate that you are able to keep up with expenses involved – as otherwise you might face a serious risk of sale.

For example, in the case of Narkis & Narkis [2018] FamCA 1083 Consent Orders were made for the Wife to pay expenses for the said property including land tax, building insurance premium, and expenses relating to repairs. The Wife, unfortunately, left the land tax bill unpaid and outstanding for seven months. The Wife failed to provide an explanation for her non-compliance. Though the Wife ultimately paid the bill, she had deposed to the fact that she had borrowed funds from friends to pay outstanding expenses, which the Court found concerning. The Judge found that the Wife had ample opportunity to do what she was obliged to do. The Judge further noted that the Wife’s indication that she had to borrow monies points to the fact that she does not have the resources to keep this property. In all these circumstances, the Judge found that it was just and equitable to make Orders for the sale of the said properties.

In short, it is important that you engage a lawyer who sees the bigger picture and able to assist you in understanding exactly what you are signing up for to avoid a costly enforcement Application being made against you. Our lawyers at Nevett Ford Melbourne are fully across these issues and will be able to provide you with the advice you need to get the outcome that is appropriate. Call us on 03 9614 7111, or email us out of hours on melbourne@nevettford.com.au to discuss your circumstances or for more information.