A client came contract to sell us recently having been served with an application for leave to proceed with property settlement orders. The application had been made several years after the standard time limit for commencing these proceedings had expired. The parties had not formally documented their property settlement upon separation but had divided up their assets informally. This case demonstrates some of the dangers of failure to document a property settlement. Under the Family Law Act (1975), there are two ways of formally documenting a property settlement. Orders can either be made by a Judge or Registrar in Court proceedings or if an agreement is reached without the need for Court intervention, with an Application for Consent Orders. An Application for Consent Orders can be made to the Family Courts, and once filed, the proposed Orders and supporting Application are reviewed by the Court (without the need for an appearance) and if approved, Orders will be made.
Even in the context of a dispute, they are not always enforceable. An alternative is to provide that a party can terminate the agreement if the other party challenges its IP. Because settlement and co-existence agreements don’t generally have a fixed term, we recommend including an express right to terminate for unremedied material breach or insolvency. But also consider what other termination rights should be included. Should a party be able to terminate if the other party ceases to use the trade mark the agreement relates to? We generally provide that the terms of the settlement are confidential. But you should consider whether there is any other confidential information that has passed between the parties that should be protected. As you negotiate, you should consider whether the settlement terms give rights to any competition or anti-trust law issues. What should happen if one party transfers its trade marks to a third party? Should it have to ensure that third party is bound by the agreement?
Then use this information to make your final decision. To get a business loan, you will also need a business plan. Writing a business plan for a franchise, however, is slightly different from writing one for your own new business startup. Not only do you have to detail the business strategy and projections of the franchise, you also have to detail the reasons why you are qualified to run the business. While the franchisors may provide some assistance in helping you get the financing you need, they probably won’t provide much in the way of helping to write a business plan. This is because they can’t take the liability risk of helping you make projections on sales. If those projections fall short, there is the chance of a lawsuit. You may be provided with a template for a business plan, but this is usually provided after you have signed the agreement and gone into their training program.
They were extremely professional in judging the situation and facts and responded in a way that I felt the matter was going to be resolved with their assistance. The entire team was very approachable, knowledgeable and confident in the area of employment law. Once the property settlement details have been signed off in the form of consent orders, and those orders have been issued by the court, then they are final and legally binding and can only be changed in rare exceptional circumstances. In theory, it is possible. But there are multiple moving parts involved in a property settlement, such as conveyancing and making an application for consent orders to the family court, which make the process complicated and very time-consuming. It’s therefore highly recommended that you seek professional advice and assistance in relation to your property settlement. This field is for validation purposes and should be left unchanged. Copyright 2022 Owen Hodge Lawyers.
