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Is your ex entitled to property that you acquire after separation?

August 20th, 2020

Updated 20 August 2020

The simple answer to this question is – yes.

Generally any property that is acquired after separation and before a final property settlement will be included as an asset in the property pool available for distribution even if the asset is held in only one party’s name.

A recent case examined this question in the context of an inheritance by the husband of $715,000.00 from his late brother’s estate after separation.

Whilst the parties had separated almost five years prior to the husband receiving the inheritance they had not applied for a divorce nor finalised their property settlement at the time the inheritance was received.

The court included the inheritance in the property pool that was available to be distributed to the parties in their property settlement.  This case serves as a warning that just because assets are acquired after separation does not mean that they are immune from the property settlement process.

It is not uncommon for clients who see us to have acquired significant assets after separation, such as purchasing a new house.

We recommend that parties seek legal advice and formalise their property settlement early after separation to prevent situations like the above from arising.  Contact our Cairns family lawyers today to obtain strategic legal advice on your family law property settlement.

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Commercial Landlords and Tenants: Renegotiating your lease in a pandemic

August 6th, 2020

At Miller Harris, we know that local businesses are feeling the impact of COVID-19.  The Commonwealth government previously announced a “code of conduct” to allow business tenants to negotiate rent relief with their landlords during the pandemic.   That code of conduct did not have any legal force, but after a considerable delay, the Queensland government passed regulations to put it into effect.

There are some myths going around about what rights tenants and landlords have in the pandemic.  In particular, there is no automatic right to a 50% rent discount.  Read on to find out how the system works.

If a tenant requests renegotiation of the rent or conditions under the lease, parties must enter into negotiations provided that:

  1. the tenant has an annual turnover of less than $50 million, or is not-for-profit; and
  2. the tenant is eligible for the JobKeeper scheme.

The landlord and tenant must share enough information with each other to enable them to negotiate in a fair and transparent way.  During the negotiations, both the landlord and tenant must cooperate and act reasonably and in good faith. At the end of the negotiations, the landlord is obliged to make an offer to the tenant.  If agreement cannot be reached, or a party does not negotiate, the matter can be referred to the Small Business Ombudsman.

For affected tenants:

  • Start the renegotiation process.
  • Do not simply stop paying your rent or expect your landlord to stop charging rent.
  • Get your business records in order so that you can demonstrate the impact of the COVID-19 measures on your business.

For affected landlords:

  • Do not increase the rent payable before 1 October 2020.
  • Be cautious about taking action against a tenant for failure to pay rent during this period.
  • Speak with your bank about what options are available if your tenants are unable to pay the full rent.

Finally, make sure that any agreement you reach is recording in writing and that changes to the lease are reflected in formal, enforceable documentation.

If you have any questions or concerns regarding your rights and obligations you should contact our experienced commercial and property law team as soon as possible on 4092 3555, or feel free to see us in our Mareeba office at 222 Byrnes Street, Mareeba.

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