Everything you need to know about conveyancing

National Conveyancing GuideA fair share An introduction to family law property settlements

OverviewConveyancing refers to the sale of real estate from a vendor (seller) to a purchaser (buyer).

Conveyancing can also refer to the process under which a mortgagor (usually a property purchaser) gives a mortgage to a mortgagee (usually a bank or other lender).

Understanding “solicitor talk”Exchange - when a binding legal contract to buy and sell land comes into existence. A deposit of 5% or 10% of the purchase price is usually paid at the time of exchange and usually held by a stakeholder (the vendor’s real estate agent, solicitor, or conveyancer) until completion of the contract.

Completion or Settlement - when the balance of the purchase money is paid over, the title is transferred to the purchaser and (usually) the purchaser takes possession of the land.

Property - can refer to any kind of asset at all including land (also called real estate), goods (also called chattels), fixtures (goods which are attached to land), choses in action (rights to sue people) and non-physical rights such as intellectual property and confidential information.

Accordingly, when referring to real estate it is better to use the term real estate or land rather than the general term property.

Person - means any legal entity. This includes individuals (i.e. human beings), companies, strata bodies corporate and statutory corporations (e.g. local councils).

The need for writingGenerally a binding contract to buy, sell, or mortgage real estate can only be created by written agreement. Contrast this with many other transactions that do not require writing (e.g. buying goods at a shop, agreeing to get married).

A contract to buy or sell real estate is probably the largest and most important transaction into which most individuals will ever enter, other than marriage vows. It is also a contract about which there is often much dispute (“you didn’t tell me that the views would be blocked”). Accordingly, it is important to be very precise about when the obligation to buy and sell arises. If there is any correspondence about a proposed sale that is not intended to create a binding contract, it is important to say “subject to formal contract”.

General Information...

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About this document

This guide has been prepare for the purpose of providing general information on the property settlement process and does not constitute legal advice.

If you have any particular concerns or queries, please contact our office for general or specific advice.

This guide relates primarily to family law property settlements.

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Contents

General Information 4

Do the laws apply to me? 5

Things to consider… 7

Why choose Robertson Hyetts Solicitors 8

General Information…

What kinds of things are property?There are many things that make up your business or personal life that may be considered assets for the purposes of family law. These include companies, trust entities, superannuation and employment entitlements to name a few. We simplify it for you.

Examples include:

• Superannuation

• Self-Managed Super Funds

• Real property, i.e. land and houses

• Intellectual property (refers to inventions; literary and artistic works; designs; and symbols, names and images used in commerce.

• Motor vehicles

• Mortgages

• Personal loans

• Companies

• Shares

• Investments

• Bank accounts

• Trusts

These are assets too…

• Leave entitlements accrued (depending on whether “cashed out” or not)

• Compensation and damages

• Licenses and permits (e.g. taxi licenses)

• Livestock

• Machinery

• Realisation (e.g. Capital Gains Tax) and Tax credits

• Family debts (owed to you)

• Debts owed (owed to you)

• Inheritances

• Lottery wins (and other windfalls)

• Gifts

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Do the laws apply to me?

In recent times significant changes have been made to Family Law. Now the Commonwealth Family Law regime applies to all couples – married, unmarried (de facto) and same sex.

NegotiationParties broadly are (subject to some exceptions) required to attempt negotiation and exchange disclosure.

This includes exchanging documents evidencing their assets, liabilities and resources. For many people they often have a fairly good idea of what is at stake, however typically documents are exchanged in the negotiation process to confirm the instructions.

Offers are often put on a “without prejudice” basis in the negotiation stage so that they cannot be raised in proceedings, this enables parties to put offers, where they may be conceding an argument or area of dispute for the sake of resolution without fear of that being raised in subsequent court proceedings.

If offers are exchanged and the matter cannot be resolved still, then litigation is the next step.

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Exchange documents

Agreement

Binding Financial Agreement

Litigation

Application for Consent Orders

Disclosure

accountant/ financial advisor

Negotiation

LitigationParties can come to an agreement whether negotiated between themselves or with lawyers or mediation being part of the process. There are several courts that have jurisdiction, however by and large most people will deal with:

• Federal Circuit Court of Australia

• Family Court of Australia

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Litigation

Mediation/ Conciliation Conference

Final HearingMediation/ Conciliation

Conference

Interim Hearing

Final Hearing

Family Court

Case Assessment Conference

Transfer to Fedral Circuit Court

Mediation

Final Hearing

Conciliation Conference

Final Hearing

Conciliation Conference

Interim Hearing

Family Circuit Court

Mediation

Things to consider…

Common issues

Trusts:

Family Trusts are common and commonly they are the alter ego of parties to a marriage / relationship.

Court will consider:

• Who has control of the trust?

• Who are the beneficiaries of the trust?

• Key case is Kennon V Spry [2008] HCA 56 where the High Court of Australia considered that the assets of the trust to be assets of the marriage, despite neither the Husband Wife being beneficiaries of the trust at the time the matter came before that Court.

Business interests:

People sometimes (incorrectly) consider that because the business is a separate legal entity (e.g. Pty Ltd) that it is not matrimonial assets.

Real property:

The party not on title should register a caveat particularly if the property is not encumbered by a mortgage.

Inheritances, gifts, windfalls, lottery wins:

In respect of gifts, the Court may consider what the intentions of the gift giver were, did they intend it as a gift to one party, or both parties jointly?

Bank accounts/share trading accounts/mortgages/credit cards:

A party separating from another should make enquiries about freezing or restricting accounts.

Superannuation:

Amendments to the Family Law Act in 2002 allowing superannuation splitting orders elevated superannuation to becoming property, rather than simply a resource.

Leave entitlements:

Can be an asset if a party has “cashed in” their entitlements and/or a party is close to retirement and will have their entitlements paid out.

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Why choose Robertson Hyetts Solicitors

We know that a relationship breakdown can be emotionally stressful.

At Robertson Hyetts our solicitors are sensitive at this emotionally difficult time, providing you with sensible and considered advice. We provide legal advice and guidance to protect your interests and achieve the best outcome for you.

THIS IS CAROLINE

Caroline joined the firm’s family law team as a consultant lawyer from Granger Legal. She has experience in property settlements, binding financial agreements, consent orders and binding child support agreements, mediation and conciliation conferences, children’s matters including relocation and superannuation splitting orders and family violence matters.

Principal areas of practice

Caroline’s principal areas of practice are:

• Family Law;

• Property Law;

• Commercial Law;

• Conveyancing; and

• Wills and Deceased Estates Administration.

QualificationsCaroline was admitted to practise in 2006 and has the following qualifications:

• Bachelor of Laws

• Bachelor of Arts

Outside of work hours Caroline is a volunteer Solicitor at Loddon Campaspe Community Legal Centre. She is also a tutor in several law subjects at La Trobe University and is a member of the Bendigo Positive Ageing Action Group.

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Caroline Granger SOLICITOR caroline.granger@robertsonhyetts.com.au

We provide a complete range of family law services, for peace of mind contact Peter.

03 5434 6666 386 Hargreaves St, Bendigo

03 5472 1588 157 Barker St, Castlemaine

Visit Office (by appointment) Level 1, 6 Riverside Quay Southbank, Melbourne