Australian society has long recognised the existence of non-traditional domestic partnerships. This has been reflected across various laws, with de facto relationships holding significant weight from a legal perspective. This can be a confusing area, especially when it comes to understanding what a de facto relationship actually is and why it matters from a legal stance.

So, why is this important, and what does it mean for you?

This article breaks down what constitutes a de facto relationship in Australia, how the law determines if one exists, and why this status is so relevant, particularly in areas like family law and financial matters. The information is general only and is not intended to be legal advice. If you need guidance, we recommend consulting an experienced lawyer.

What is a De Facto Relationship?

The Latin term “de facto” simply means “in fact” or “in reality”. In a legal sense, it means a couple is living together on a genuine domestic basis, even though they aren’t married.

The definition of a de facto relationship is found in section 4AA of the Family Law Act 1975 (Cth). The Act is a federal law, and its principles are applied across Australia, although some states have their own specific laws that also deal with de facto relationships, particularly in areas outside of family law.

According to the Family Law Act, a person is in a de facto relationship with another person if:

• They are not legally married to each other.
• They are not related by family.
• They live together on a genuine domestic basis.

The third point is the one that often requires the most thought, and the law looks beyond simply sharing a house. To determine if a genuine domestic basis exists, a court will consider various factors. No single factor is more important than another, and a court will look at all of them to get a complete picture of the relationship.

These factors include:

• The duration of the relationship: How long have you been together? Generally, a de facto relationship needs to have lasted for at least two years. However, this is not a strict rule, and there are exceptions.

• The nature and extent of your common residence: Do you live together? Do you have shared responsibilities for the home?

• Whether a sexual relationship exists: This is one of the factors, but it is not a defining one. A couple can be in a de facto relationship even if they no longer have a sexual relationship.

• The degree of financial dependence or interdependence, and any arrangements for financial support: Do you share bank accounts, split bills?

• The ownership, use, and acquisition of property: Do you own assets together, like a car or a house?

• The degree of mutual commitment to a shared life: Do you consider yourselves a couple and present as such to the world?

• Whether the relationship is registered under a prescribed law of a state or territory: In some states, you can register a relationship, which provides formal legal recognition.

• The care and support of children: Do you have children together, or do you care for each other’s children?

• The reputation and public aspects of the relationship: Do friends, family, and the community see you as a couple?

The law looks at the combination of these factors to decide whether a de facto relationship exists.

Why a De Facto Relationship is Relevant in Australia

The legal recognition of de facto relationships is a big deal because it grants de facto couples many of the same rights and responsibilities as married couples. This is most obvious in two key areas: family law and financial matters.

Family Law

For many years, couples who were not married had limited legal recourse if their relationship ended. That changed with reforms to the Family Law Act that came into effect in 2009. These changes gave de facto couples the right to ask a court to make orders about property settlement and spousal maintenance after a relationship breakdown, just like a married couple.

The principles for dividing assets in a de facto relationship are largely the same as for a married couple. A court will consider:

• The assets and debts of the relationship.

• The financial contributions each person made, such as income, savings, and assets brought into the relationship.

• The non-financial contributions. These can include caring for children, looking after the home, or supporting the other person’s career.

• The future needs of each person, such as their age, health, income, and who has care of the children.

This legal recognition means that if you are in a de facto relationship and it ends, you are protected by the same legal framework as a married couple when it comes to property division.

Financial Matters

Beyond family law, being in a de facto relationship can impact a range of other financial and legal areas:

• Superannuation: Many superannuation funds recognise de facto partners as beneficiaries for death benefits.

• Wills and inheritance: In some cases, a de facto partner can make a claim on a deceased partner’s estate, even if they were not included in the will. The law in each state and territory varies on this point.

• Social security and government benefits: Your de facto status can affect your eligibility for benefits from Centrelink, as they assess your combined income and assets.

Key Takeaways

The concept of a de facto relationship acknowledges that many people choose not to marry but still want the same legal protections and recognition as married couples.

If you are in a relationship that you think might be a de facto relationship, it is important to understand your rights and obligations, especially if you are considering buying property together or if the relationship ends. The law’s purpose is to ensure that both partners are treated fairly and that any children of the relationship are properly cared for.

The detailed and comprehensive definition of de facto in the Family Law Act ensures that the unique circumstances of each couple are taken into account, providing a flexible framework for addressing a wide range of situations.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

The financial impact of divorce and separation can be huge. There are legal costs to consider, and how the mortgage and associated bills and childcare costs are going to be paid moving forward. Your employment and earning prospects may be limited especially if you are the main carer for the children of the relationship. This may all seem very overwhelming, but there are things you can do to help reduce the impact your financial burden.

Obtain good financial and legal advice

Ensuring you get good financial advice when divorcing or separating can be extremely beneficial. We recommend you speak with both a family lawyer and an accountant/financial planner to get advice on the most efficient way to move forward.

We cannot stress the long term value of obtaining legal representation from an experienced family lawyer, as it can help you receive a more favourable property settlement. There are numerous ways you can help keep your legal feels as low as possible, our family lawyers are happy to discuss this with you during your first appointment.

Attempt Alternative Dispute Resolution

Legal costs involved in reaching a property settlement can be further minimised by attending ADR. ADR minimises legal fees and avoids going through a costly court process. It can provide a speedy resolution and assist you to work out a viable short term plan while you are finalising your property settlement. Even if you plan to reach a property settlement without going to court, it is important that you seek legal advice as it can help reduce stress by providing you with an understanding of your rights and entitlements.

Plan how bills will be paid and set a budget

If separating couples are on amicable terms and there is no family violence, both parties can continue to reside in the family home. You can still finalise your property agreement during this period and attend ADR. This will allow both parties to plan and prepare for their future financial needs without the burden of an extra mortgage, rent and living expenses.

It is also important to discuss who will pay what regarding any debts obtained during the relationship and ongoing costs of maintaining the property of the relationship, as soon as possible. This will help minimise penalties or costs associated with non-payment of debts. Although you may wish to remain in the family home for emotional reasons, consider options involving obtaining a smaller home, ways you can fill any income gaps such as finding better paid work, starting a business from home, or applying for Centrelink payments.

Preparing a budget and discussing what each party can afford to pay ensures that both parties know exactly where they stand financially. Moneysmart.gov.au has tools and information on how to manage your money on a low income, financial counselling, and urgent help with money if you’re struggling or in crisis.

Know your superannuation entitlements in divorce or separation

Superannuation has become one of the largest marital assets and can be shared as part of the property settlement. Financial contributions are not the only factor considered when assessing the value of a Superannuation split. Non-financial contributions such as, care of children of the relationship and the family home may also be considered. Splitting Superannuation as part of a property settlement can be complex. This is why we recommend seeking further advice and guidance from an experienced family lawyer.

Getting a share of the other parties’ superannuation can help provide long term financial security and ensure you have money for retirement.

Don’t be afraid to ask for help!

Separation and divorce can be very overwhelming, especially if you have not handled the family finances previously. It is important to reach out and find someone who can help guide you through the maze of finances and separation.

If you need financial support, contact Centrelink who can recommend which payment/s you may be entitled to.

It is also important to look after your mental wellbeing so you’re able to make important decisions about your future! If you need emotional support, speak to your GP who can recommend appropriate counselling services.

Conclusion

The financial impact of divorce and separation can be overwhelming, ensuring you get good legal and financial advice early on when divorcing or separating is critical.

Planning how debts and bills will be paid, setting a budget and knowing your superannuation entitlements is important in keeping on top of your changing financial circumstances. Attempting ADR is another important factor in minimising legal costs throughout settlement negotiations.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Family law issues can be disruptive to a business entity, with the potential to adversely affect its activities, cashflow, and financial viability. Problems can stem from a relationship breakdown between domestic co-owners, or the divorce or separation of a third-party business partner or shareholder.

Protecting a business from potential loss and disruption in the wake of family law proceedings requires proactive measures. Whether a person owns a business interest individually, jointly, or through a partnership, company or trust, that interest must be disclosed if he or she is party to a property law matter and considered in the pool of assets available for division between the separated parties.

This article looks at some strategies business owners might consider to help safeguard their business from the impacts of a family law matter. The information is of a general nature only, and we recommend seeking professional advice relevant to your circumstances.

Proactive steps to safeguard your business from divorce or separation

Risk management is about implementing strategies to minimise the adverse effects of an unforeseen event. As the name suggests, risk management is proactive and should take place at the planning phase of a business. There are certain steps that all business owners can take to minimise the impact a separation or divorce can have on their business.

Consider the business structure and its ownership

Choosing the best legal structure for your business will take into consideration a range of factors – the size and nature of the business, its anticipated growth and the personal and financial circumstances and objectives of the owners.

Although the Court has discretion to make a range of orders in family law proceedings, different business structures may be treated differently. For example, businesses wholly owned by one or both spouses / de facto partners are generally treated similarly to the other matrimonial assets of the parties, with consideration given to the parties’ respective contributions and involvement when making orders. When a business is owned in partnership with third parties or other shareholders, a Court may be less likely to make orders that fracture the business interests of the other owners.

Trusts, when properly created and managed, can assist in safeguarding assets in certain circumstances, however do not guarantee their protection in a family law property settlement.

Talking to your lawyer and understanding the different types of business structures can help you choose the most appropriate one for your circumstances.

Binding Financial Agreements

A financial agreement is a legal contract between a couple and may be entered before or during a marriage or de facto relationship, or after a relationship ends. These are sometimes referred to as ‘pre-nups’. The agreement predetermines the division of a couple’s assets in the event of, or after separation, and can deal with a range of financial matters, including the treatment of business interests.

A financial agreement can help keep the activities of a business on track in the event of separation by stipulating who should continue running the business, with provisions enabling one party to buy out the other at an agreed price, or based on an agreed method of valuation.

There is, however, a risk that a financial agreement could be subsequently voided by a court post-separation. Your lawyer can advise about the applicable law and risks of entering a financial agreement.

Partnership / shareholder / buy-sell agreements

Many people do not realise the impact that a third-party business partner’s family law matter can have on a business. A carefully drafted agreement can help keep the ‘status quo’ of a business and preserve its value in the event of such circumstances.

Partnership agreements, shareholder agreements and buy-sell agreements deal with a range of matters governing the relationship between business owners. In particular, these agreements can include provisions setting out what will happen should a specified event occur, such as the death, retirement or separation / divorce of a partner.

A buy-sell agreement includes rights and provisions for acquiring and disposing of interests in the business and specifies certain events that will trigger the right to exercise such options. The triggering events usually include the death, retirement, separation or divorce of a partner. Effectively, the agreement can restrict the ownership interests in the business to the existing parties, preventing an ex-spouse of an owner from acquiring an interest in the business as a result of a property settlement. Typical provisions include:

• prohibitions on departing partners, or their estates, from transferring / selling an interest to a third party without the prior written consent of all remaining owners;
• mandatory rights or right of first refusal for a remaining owner or owners to acquire interests from a departing owner, his or her estate or ex-spouse;
• methods for valuing a departing owner’s interest in the business;
• the automatic conversion of an interest to a non-voting interest upon the triggering of a certain event;
• funding / instalment arrangements for the acquisition of the business interests from a departing owner.

Similarly, where the business partners are also domestic partners, the agreement can stipulate the division of business interests in the event of separation or divorce (including which partner shall ultimately own the business) and how interests are to be valued.

Maintain accurate records

As well as making good business sense, maintaining sound financial and other records can be very beneficial for attributing contributions made between spouses / de facto partners to a business post-separation. These numbers and records will be important when determining respective interests if negotiating a property settlement and can greatly assist your lawyer when advising on the division of assets.

If a business owned outright between spouses or de facto partners is profitable, one of the parties may wish to retain it and ‘pay out’ the other. Alternatively, the business may be sold to a third party as a going concern while it is performing well. The more profitable the business is, the more likely the parties may dispute its future direction and the division of interests. Typical considerations will be the respective contributions of each party to the success of the business, whether financial or non-financial, and determining its value. In such cases a formal business valuation by a qualified expert can be beneficial.

In hindsight…

Many business owners do not realise the impact a family law matter can have on their business, and it is not uncommon that planning for these contingencies is overlooked. In such cases, a sensible and cooperative approach is required to safeguard the business as it is in nobody’s interests to jeopardise its value because of intractable negotiations.

Preferably, the parties should explore alternative dispute resolution processes with the aim of achieving a fair outcome, remembering that the Court has discretionary powers to order a ‘just and equitable’ division of property including interests in the family business.

Talking to your lawyer and taking the time to plan for unexpected events can greatly assist in protecting the value and longevity of a business

If you or someone you know wants more information or needs help or advice, please contact us on 07 32816644 or email mail@powerlegal.com.au.

Mediation is a valuable and widely utilised method for resolving legal matters. This alternative form of dispute resolution is particularly valuable when it is desirable to maintain a relationship with the other party after the dispute, as is often the case in family law matters. Mediation offers a collaborative and less adversarial approach to addressing family law issues related to separation, divorce, parenting, property division, and more. This article explores how mediation works, when it can be used, the benefits it offers, what to do when it does not work or may not be appropriate, and how to prepare for family law mediation.

How Does Mediation Work?

Mediation is a structured process in which an impartial third party, known as a mediator, assists parties in reaching agreements on various legal issues. Typically, there are several different stages of mediation.

The first stage is the initial meeting between the parties and the mediator. The mediator will explain their role in facilitating communication and negotiation and describe the mediation process. The mediator may also use this opportunity to ask each party to outline their understanding of the issues in dispute.

The next stage of the mediation is information sharing. The mediator will prompt the parties to share relevant information, documents, and concerns about the issues. Transparency and open communication are crucial for effective mediation. For this reason, mediation is often undertaken on a “no prejudice” basis, meaning that the parties can freely share information to try and reach a solution, without this information being used against them in any later court action.

After the key information has been shared by both parties, the negotiation stage will begin. The mediator will guide discussions and help the parties to explore possible solutions. Skilled mediators use various techniques to foster communication and encourage compromise. This stage is usually the longest in duration and may take several hours or an entire day to try and reach a solution.

Of course, the final stage of the process – the agreement – does not occur in every case. However, if the parties do manage to reach an agreement on one or more issues, the mediator will assist in documenting the agreement.

Parties who were not represented by a lawyer during the mediation will often seek independent legal advice at this stage to review the agreement before finalising it. Once the agreement is reviewed and accepted, it may be presented to the court for formalisation as a legally enforceable agreement.

When Can Mediation Be Used in a Family Law Matter?

Mediation can be used for a range of family law matters but is mostly used to negotiate parenting and property disputes.  Even if mediation does not result in a complete resolution for these matters, it often helps narrow down the issues in dispute, making court proceedings more focused and efficient.

Mediation is not only useful when there is a conflict, it can also be a good environment for separated co-parents to create parenting plans, make decisions about parenting, and agree on how to parent their children. Even parents with otherwise good co-parenting relationships may find mediation useful when dealing with some issues. For instance, co-parents who struggle to agree on one or two matters where each feel strongly (such as whether or not to raise their child in a particular faith) may benefit from the presence of a neutral third party guiding them to a compromise that works for both.

Separated parties can also use mediation to negotiate the division of assets and liabilities, including the family home, finances, investments, and superannuation. Mediation can be particularly helpful when a property settlement involves complex issues. For instance, if a main asset in the property pool is a family business that must continue to operate to retain its value, dividing this asset may require complex negotiation to enable a fair and equitable outcome. Mediation can also allow discussion of issues such as spousal support, especially when this forms part of a broader agreement about the division of the property pool.

The Benefits of Mediation

Mediation offers numerous benefits. Perhaps most importantly, parties in a mediation have greater control over the outcome compared to other options such as applying to the courts for a decision about their family dispute. This control can give the parties a sense of empowerment and ownership of the solution, as they have actively participated in crafting an agreement that works for their unique situation.

The collaborative nature of mediation can also help to reduce animosity and improve post-separation relationships. This is particularly important for co-parents, who will potentially need to continue to work cooperatively for many years. Because mediation prioritises the best interests of the children and promotes child-focused solutions, it is consistent with the approach of the courts to parenting disputes. Of course, even in family cases where no children are involved, most parties will benefit from participating in a system which is less adversarial and inflammatory than traditional litigation.

Mediation often leads to a quicker resolution compared to lengthy court processes, which can take months or even years. As a result, mediation is generally more cost-effective than litigating in court, as it typically requires fewer legal fees and court-related expenses. Mediation is also more flexible than litigation, as it allows the parties to decide which issues are important and need to be explored.

Finally, as mediation sessions are confidential, they generally foster open and honest communication between parties. For some parties, the confidential nature of this process is of the utmost importance, as the issues included in a court case are a matter of public record.

When Mediation Doesn’t Work or May Not Be Appropriate

While mediation is effective in many family law cases, it may not always be appropriate or successful in every situation. For instance, if there is a significant power imbalance between the parties, mediation may not provide a fair forum for negotiation. In particular, mediation is often not safe in situations involving domestic violence, intimidation, or threats. Similarly, in cases where urgent decisions are needed, such as child safety concerns, immediate court action may be necessary. In such cases, seeking legal protection should be the priority.

In addition, mediation requires both parties to be committed to the process and willing to compromise. If one or both parties are unwilling to negotiate in good faith, mediation may not be productive. Finally, in some highly complex financial or legal matters, mediation may not be the most suitable vehicle for resolution. Such cases may require the expertise of a family lawyer and, potentially, court intervention.

Preparing for Your Family Law Mediation

It is advisable for all parties to seek legal advice prior to mediation. Even in cases when lawyers will not be at the mediation, it is still wise for each party to consult with a family lawyer before mediation to understand their rights, responsibilities, and the potential legal outcomes.

Both parties should ensure that they collect all relevant documents, financial records, and information about the issues to be discussed. A solution is much more likely to be reached on the day if exact figures and facts can be provided.

There is also emotional and mental preparation required prior to a mediation. A successful mediation is more likely when the parties have prepared emotionally for the process, understanding that mediation may involve difficult discussions and compromises. Each party should identify their goals and priorities for mediation, including what outcomes they hope to achieve (the “best case” scenario) and the outcome that they can accept (the “worst case” scenario).

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Divorce is almost always a difficult and disruptive life event. For couples who own a family business, the stakes are particularly high, as the fate of the business often becomes a central point of contention during divorce proceedings.

In Australia, a family business is considered part of the asset pool of the relationship, regardless of whether it was established before or during the relationship. Navigating the complexities of separating business and personal interests after separation requires careful planning and help from the right professionals.

Death of a Business

It is realistic to acknowledge that not all family businesses survive the upheaval of divorce. Some businesses may struggle to weather the financial strain and operational disruptions caused by the separation, leading to their eventual closure or liquidation.

Others may be irreparably damaged by acrimony and conflict between the spouses, making it impossible to continue operating in any meaningful capacity. In such cases, the spouses may be forced to sell off the business assets and divide the proceeds as part of the property settlement.

When this happens, the realised value of the liquidated business (if there is any) is simply added to the spreadsheet that tracks the total property pool of the relationship. The separating parties then need to agree on what percentage split each person is going to receive from the property pool. If they cannot agree then the Federal Circuit and Family Court of Australia will decide for them. In making this decision, the Court will consider things such as the length of the relationship, the contributions of each party to acquiring and keeping the assets of the relationship, and each person’s future needs.

Dividing a Living Business

If the business is to continue to operate, then the first step is to determine its value as a going concern. This can be a complex process, especially for businesses with significant assets, intellectual property, or goodwill. Valuation methods vary depending on the nature of the business and may involve assessing factors such as revenue, profits, market trends, and industry benchmarks. In some cases, forensic accountants or business valuation experts may be enlisted to provide impartial assessments of the business’s worth.

Once the value of the business has been determined, the next step is to decide how it will be divided between the parties. This can be particularly challenging when both spouses are actively involved in the business or have made significant contributions to its success.

The Court has broad discretion to make orders for the division of property. For instance, one spouse may be ordered to buy out the other’s interest in the business, either through a lump-sum payment or a series of instalments over time. This option allows one spouse to retain ownership and control of the business while compensating the other for their share of its value.

Alternatively, it may order the sale of the business and the equitable distribution of the proceeds between the spouses taking into account the distribution of other assets of the relationship (such as the family home or superannuation accounts).

While selling the business may not be in the financial best interests of either party or the business itself, the Court will make this order if it is the only equitable way to ensure that the property pool is divided between the parties.

In most cases, the Court prefers there to be a clean and final separation of all marital assets after the breakdown of a relationship. However, in some cases, the best option is for the spouses to continue operating the business together post-separation, either as joint owners or through a partnership or corporate structure. While this arrangement can be fraught with challenges, particularly if the spouses have a contentious relationship, it may be the best option for preserving the value of the business and ensuring its ongoing viability.

In such cases, it is essential to establish clear guidelines and protocols for decision-making, conflict resolution, and the division of responsibilities to minimise friction and maximise cooperation.

Conclusion

Ultimately, the fate of a family business after a couple separates in Australia depends on a variety of factors, including the value of the business, the contributions of each spouse, and the willingness of the parties to cooperate and compromise. While the process can be fraught with challenges and uncertainties, seeking the guidance of experienced legal and financial professionals can help couples navigate the complexities of dividing assets and planning for the future.

By approaching the situation with pragmatism, transparency, and a commitment to fairness, couples can mitigate the impact of divorce on their business and lay the groundwork for a successful transition to the next chapter of their lives.

This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

When someone passes away, questions often arise about inheritance. In cases where a person believes that they have not been adequately provided for by a deceased family member (whether or not a Will was left), certain laws may enable them to make a family provision claim to help make the situation fairer.

This article discusses common questions people may have about contesting a Will in Queensland. The information is general only and we recommend obtaining legal advice tailored to your circumstances.

1. Am I Eligible to Make a Family Provision Claim?

In Queensland, the Succession Act 1981 gives the court discretion to order provision from the estate of a deceased person on the application of an eligible spouse, child or dependant, if adequate provision has not been made from the estate for the person’s proper maintenance and support.

A spouse includes married, de facto and civil partners and a child includes biological children, adopted children and stepchildren. A dependant includes someone who was wholly or substantially maintained or supported by the deceased person at the time of their death and was a parent of the deceased, the parent of a surviving minor child of the deceased, or a person under the age of 18 years.

An experienced estate lawyer can assess your relationship with the deceased and the surrounding circumstances to help determine your eligibility to make a family provision claim.

2. Are There Time Limits to Make a Family Provision Claim?

Yes, strict time limits apply. An applicant must give notice of their intention to make a family provision claim to the estate’s legal representative within six months of the deceased’s death, and the application must be made within nine months of the date of death.

It is essential to act promptly and seek legal guidance to ensure this deadline is met. Only in limited circumstances, might the court grant an extension of time, and an out-of-time application is at the court’s discretion and is not guaranteed.

3. Can I Make a Family Provision Claim if there is no Will?

Yes. If someone dies without a valid Will in Australia, they are said to die intestate and the law in the relevant jurisdiction sets out how their assets will be distributed. Whether or not a family member will receive an inheritance under these laws depends on their relationship with the deceased, and the specific circumstances.

If a person dies intestate, an eligible person may be able to make a family provision claim if the proposed distribution under the intestacy laws does not adequately provide for their proper maintenance and support.

4. Will I Have to go to Court for a Family Provision Claim?

Some family provision claims end up in court, however, many are resolved through negotiation or mediation. Mediation usually offers a less formal and more cost-effective way to reach an agreement. The executor of the Will has the power to negotiate and settle claims, however, in doing so, should be guided by a lawyer experienced in family provision claims.

If an agreement cannot be reached, court proceedings may be necessary.

5. What Does a Court Consider When Determining a Family Provision Claim?

When deciding a family provision claim, the court considers a range of factors to determine whether adequate provision has been made for the applicant’s proper maintenance and support and whether they should be provided for, or further provided for, from the estate.

Each case is different and must be assessed on its specific circumstances. Typical factors that may be considered include:

• The applicant’s circumstances – age, health and financial needs
• The applicant’s character and relationship with the deceased
• The size of the estate
• The financial needs and resources of other beneficiaries or the strength of any competing claims
• Any contributions the applicant made to the deceased’s welfare

The court aims to achieve a fair and equitable outcome for all parties involved.

6. How Much Will It Cost to Make a Family Provision Claim?

The costs of making a family provision claim can vary depending on the circumstances, the complexity of the case and whether the matter proceeds to court. It is important to discuss fees and potential costs upfront with your lawyer. If the matter proceeds to litigation, the court has discretion regarding how costs will be awarded.

7. How Long Will a Family Provision Claim Take?

The timeframe for resolving a claim can vary significantly. Many claims are resolved within a few months, especially if settled through negotiation or mediation. However, if court proceedings are required, the process can take longer. Seeking professional advice early from an experienced estate lawyer can help ensure the best possible outcome and potentially expedite the process.

Conclusion

This is general information only and you should obtain professional advice relevant to your circumstances. Family provision claims can be complex, and the families involved are usually also dealing with emotional and other challenges. Whether you are making or defending a family provision claim, it is important to consult an experienced lawyer specialising in estate law to discuss your specific circumstances and receive personalised advice.

If you or someone you know wants more information or needs help or advice, please call 07 32816644 or email mail@powerlegal.com.au.

The breakdown of a relationship, whether by choice or circumstance, can be complex and challenging. In Australia, the Family Law Act 1975 sets out the legal framework for divorce, the division of property and parenting arrangements after a relationship breaks down. An experienced family lawyer can provide valuable legal advice and guidance when it comes to navigating these laws.

Family law matters are not just legal problems, in addition to navigating the law and the emotional aftermath, addressing the practical side of separation can be equally important to transition into your new phase of life. There are a host of considerations, many of which will need immediate attention. Following are some typical practical matters that may need to be dealt with.

Living Arrangements

• Accommodation and housing will naturally be a concern. You’ll need to decide who stays and who leaves the family home which might be influenced by employment needs, children’s schooling, and nearby family support.
• If you are renting, decide who will stay in the current home, notify your landlord and have the rental agreement updated. If you have a mortgage, inform your bank of your separation and any decisions made regarding mortgage responsibilities.
• If you are moving out, you will need to explore housing options that fit your budget and lifestyle, which can be particularly difficult in the current market. Ask friends and family for referrals and support.
• If you are relocating, make sure you change your address with various organisations, and for added security, you may want to consider renting a post office box.

Children and Schooling

• For families with children, their well-being and continuity in learning and development are paramount. Keep your children’s best interests in mind – try to put differences aside to work out arrangements that will cause them the least disruption and, where possible, foster a meaningful relationship with both parents.
• If you can, establish a temporary agreement as a starting point, which can lead to a more formal arrangement later. Maintaining consistency is likely desirable in most cases. If possible, stick to your children’s current schooling and childcare arrangements to maintain stability in their lives.
• Meet with school and childcare administrators to inform them about the separation and keep them notified of any changes so they are aware of the situation and can help. Schools often offer support and resources to help children cope with the change.
• Coordinate with your ex-partner to work out a plan for childcare/school pickups, extracurricular activities, and parent-teacher meetings. Consistency and cooperation in these areas can significantly reduce stress for children.

Banking and Accounts

• Contact your bank to discuss your mortgage, joint loans, savings accounts, credit cards, and every other aspect of your banking. You will likely want to open a separate savings account and close or put a hold on credit card facilities, lines of credit, etc. Major banks generally have online resources and checklists to help those who have separated to work through their banking needs.
• Protect and help safeguard your privacy by updating passwords and login details for online banking accounts, email, social media platforms, etc.

Property and Record Keeping

• Secure your personal documents and items. Ensure you have all necessary identification, financial records, and personal valuables in a safe place. Obtain originals or copies of important documents like passports, marriage certificates, birth certificates and insurance policies.
• Ensure that your property (your home, other real estate, motor vehicles, boats, etc.) remains insured. Failing to retain insurance, should the unforeseen happen, can have devastating financial effects. Work out with your ex-partner who is paying for what and keep accurate records.
• Prepare a list of assets and liabilities (and account balances as of the date of separation). Property, shares, investments, bank accounts, superannuation, mortgages, loans, and credit card accounts will all be relevant when it comes to finalising your property.
• Document your agreed date of separation and keep a journal to record other significant events and timelines. This is important information when it comes to applying for a divorce and determining deadlines for filing court proceedings, if this becomes necessary later.

Support and Assistance

• Contact the Department of Human Services to learn about child support and whether you are entitled to financial assistance.
• Create a trusted support network and enlist help from friends and family as well as professional counselling or therapy, if needed. Family Relationships online – https://www.familyrelationships.gov.au/ provides various resources and information to help families and relationships.
• Lean on your support network. Friends, family, support groups, and professional counselling can provide the emotional support needed during this challenging time. Remember, it’s okay to ask for help, and reaching out for professional guidance is a prudent way to navigate the complexities of separation.

Moving Forward

Don’t put off getting quality legal and financial advice from qualified professionals.

Consider making or updating your Will and other documents such as a power of attorney. You should also review your superannuation and life insurance policy, as relevant, as you may wish to make changes to the beneficiaries. Your lawyer can provide guidance and advice in these important estate planning areas.

Separation demands both emotional and practical resilience and working out some of the preliminary steps to take after a relationship breaks down can be difficult when you are emotionally charged. Fortunately, there are resources available to help you navigate these difficult times. We understand the sensitivity and intricacies inherent in family law matters – the legal and the practical issues – and our goal is to provide comprehensive support and guidance to all our clients.

This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Understanding how your finances will be divided after a divorce or separation can be complex. In Australia, where pursuing higher education is common, many couples grapple with how HECS/HELP debt is treated during a property settlement.

What is HECS/HELP?

HECS/HELP (Higher Education Contribution Scheme/Higher Education Loan Program) is a government initiative that assists eligible Australian students in paying for their tertiary education. This assistance comes in the form of a loan, that is repaid gradually through the tax system once an individual’s income exceeds a certain threshold. While the scheme enables many to access higher education, it often results in a significant debt that can linger for years.

Increasingly, separating couples are bringing substantial HECS/HELP debts into their relationship or accumulating them during their time together. This raises the question of how these debts are treated within the framework of family law property settlements.

HECS/HELP and Family Law Property Settlements

The Family Law Act 1975 governs the division of property after a couple separates and aims for a just and equitable outcome for both parties. Generally, in reaching such an outcome:

• all assets and liabilities, whether held jointly or individually are considered
• the financial and non-financial contributions made to the relationship by each party are relevant – non-financial contributions include domestic contributions such as childcare, performing household duties and providing emotional support
• the future needs of each party are taken into consideration

The existence of a HECS/HELP debt is relevant during a property settlement. However, whether it is included or excluded from the overall property pool and how it impacts the final property settlement depends on various factors.

How is a HECS/HELP Debt Viewed in a Property Settlement?

HECS/HELP loans are unique in a family law property settlement. Unlike many other liabilities, the obligation to repay a HECS/HELP loan does not arise until the party owing the debt earns above a certain threshold. Further, a HECS/HELP loan can be viewed as substantially increasing one party’s future earning capacity.

Generally, HECS/HELP debt can be seen as a:

• joint liability to be included in the property pool
• personal liability to be excluded from the property pool

Factors in Assessing the Role of HECS/HELP Debt in a Property Settlement

There is no one-size-fits-all approach to treating HECS/HELP debt after separation, and each case must be assessed on its merits and the specific circumstances. Some of the factors that may be used to determine how HECS/HELP debt is treated in a family law property settlement include:

• Who incurred the debt/when was the debt incurred? Was it one party before the relationship, or was it incurred during the relationship?
• Have the studies been completed? Has the party who incurred the debt completed their studies or are they ongoing?
• Was there a mutual understanding or agreement about the study and debt? Did both parties agree on the course of study and how the debt would be managed?
• How has the qualification benefited the relationship? Has the qualification achieved through the debt led to a higher household income or improved lifestyle for the family? Alternatively, is one party likely to benefit exclusively from the qualifications post-separation?
• How have repayments been managed? Has one or both parties contributed to repaying the debt? Have additional repayments been made beyond the mandatory repayments from income? If both parties have a HECS/HELP debt has (only) one party’s debt been paid off or substantially paid off? Will the debt actually need to be repaid?
• How is the qualification being utilised? Is the party who accrued the debt using or likely to use their qualifications through employment?

A joint liability might apply when both parties benefit from the qualification. For example, suppose a couple agree that one partner should study, and the resulting qualification leads to a higher household income benefiting the family unit. In that case, the court may consider the debt a joint liability and divide it between the parties.

Personal liability is more likely to apply when the degree is considered to solely increase the earning capacity of the individual who incurred the debt, and there’s no evidence of a shared benefit. For example, if one party completes (or is likely to complete) their university studies post-separation and the qualification will contribute solely to that party’s earning capacity afterwards, there would be no joint benefit from incurring the debt and the court may deem it a personal liability.

Conclusion

HECS/HELP debt can be a significant consideration in many family law property settlements. While the law aims for a just and equitable outcome, how these debts are treated depends on the specific facts of each case and consideration of a range of factors.

This is general information only, and you should obtain professional advice based on your circumstances. Seeking legal advice can help you navigate your family law property settlement with greater clarity and confidence.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

After separation, a parent or guardian may decide to move the children of the relationship overseas. However, this can only be done with the fully informed consent of the other parent, guardian or a court order. International child abduction occurs when a parent or guardian takes their children from their home country without this permission.

The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) provides a process for seeking the return of children who have been abducted either from or to Australia. The information below provides a guide on this process, however we strongly recommend you seek legal advice immediately as this area of law can be complex.

International Relocation

If you are separated from your partner and want to relocate overseas with your children, you must have the consent from your ex-partner or a court order, otherwise your ex-partner can request the Australian Central Authority to make an application to have your children returned to Australia. This is the Department responsible for administering the Hague Convention.

If your ex-partner does not consent to an overseas relocation, you can apply to the court for an order allowing you to relocate. When the court decides an Application for International Relocation, they are deciding on a parenting matter and like all other parenting matters, the most important concern for the court is determining the child’s “best interests”. For example, if the parent who is the main caregiver wishes to relocate overseas with the children, one of the main concerns for the court is to ensure the children maintain a meaningful relationship with the other parent whilst they are living overseas. The court’s decision can also be affected by circumstances such as family violence, substance abuse, the child’s views and specific needs.

In preparing your Application for international relocation, you need to demonstrate to the court what life will be like when living overseas, for example, where you will be living, working, your potential income and the type of school your children will attend. You should also demonstrate what the children’s social lives would look like and what type of support will be available for the children and more importantly, how the children will maintain and develop a relationship with the other parent.

As mentioned above, international relocation cases are a complex area of law so we strongly recommend you seek legal advice.

The Hague Convention and abducted children

The Hague Convention is the main international agreement that covers international parental child abduction and provides a process through which a parent or guardian can seek to have their child returned to Australia, (if that country is also party to the Hague Convention).

What can I do if my child has been abducted from Australia?

You should carry out the following steps immediately:

1. Contact the Australian Federal Police for advice on placing your child’s name on the “Family Law Watchlist.” You will need to apply for a court order for this to happen. Your child might still be in Australia so their abduction may still be prevented.
2. Seek legal advice from an experienced lawyer who can assist with obtaining recovery orders and provide you with legal guidance.
3. If your child has been taken to a country that is a member of the Hague Convention, contact the Australian Central Authority. For a list of countries who are party to the Hague Convention, visit the Hague Convention webpage.
4. If you believe your child has been taken to a country not a member of the Hague Convention, contact the Consular Branch of the Department of Foreign Affairs and Trade who will be able to assist you.

Time is of the essence in international abduction cases. As this area of law is complex, we strongly recommend you seek legal advice from an experienced lawyer immediately.

Conclusion

The law regarding international relocation of children is complex, and the outcome of any dispute is dependent on each family’s own set of unique circumstances. Relocating children overseas can only be done with the fully informed consent of the other parent, guardian or a court order.

When children are taken overseas without the consent of the other parent or the court, the Hague Convention provides a process through which a parent can seek to have their child returned to Australia. If the country that the child has been abducted to is a not a member of the Hague Convention, the Consular Branch of the Department of Foreign Affairs and Trade will assist in attempting to bring the abducted children back home.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.