Archive for the ‘Family Law’ Category

Affordable break-ups – the sensible approach to dividing property

If you have recently separated, one of the concerns you will probably have is the size of your legal bill after your property matters are sorted.

Below are our top tips for keeping your family law property costs down without skimping on sound legal advice.

Tip 1 – do the groundwork yourself

A specific process is used when negotiating a property settlement. The first step is to identify the parties’ assets, liabilities and financial resources. This information is critical to determine the division of your property.

Compiling your financial information early in your matter and presenting it in an organised fashion has many benefits. It can be used at any stage – from negotiations, during dispute resolution and if necessary, for Court proceedings. As well as having a snapshot of your asset pool to assist in negotiations, you will likely save on costs associated with others having to arrange the information on your behalf.

When listing assets include their approximate value. Most local agents will provide a written market appraisal for real estate at no cost. For motor vehicles, you can visit www.redbook.com.au and obtain a printout of private sale figures for particular models.

Remember to include all assets – those that are jointly and individually held as well as those that are held with a third party. Assets comprise real estate, motor vehicles, furniture, art, antiques and collectables, shares, investments, superannuation, cash and business interests.

When listing liabilities include mortgages, loans, overdraft facilities and credit cards and for financial resources include wages, and income from other sources such as rental properties, dividends, business and company interests. Bank statements, share information and superannuation statements can easily be downloaded from the internet.

If relevant, financial returns for companies or partnerships should also be included and, if possible, the last three years’ tax returns for each party.

Tip 2 – Don’t avoid or put off getting legal advice

The sooner you know your rights the better. Many separating couples attempt to finalise their own property settlement or avoid settling their financial matters altogether. This is dangerous for several reasons. Failing to close joint accounts or to transfer assets is messy, leaves the parties vulnerable to future claims and makes it difficult for them to move on. It may also preclude them from getting credit with a subsequent partner and opens the potential for dispute.

Do It Yourself property agreements made in the absence of legal advice, often contain ambiguous provisions and are unenforceable. Without a complying Financial Agreement or Consent Orders (see below) parties are generally unable to access important stamp duty and tax concessions when it comes to transferring real estate from one to the other.

Family law is discretionary, and no two cases are the same. Investing in an initial interview with a family lawyer will provide guidance as to a likely settlement outcome and a basis from which to start negotiations.

Your lawyer will recommend any urgent measures you may need to take to protect property, advise you of your legal rights generally, and discuss the financial and other implications of a likely settlement. Your lawyer will explain the impact that your separation has on your Will and provide guidance on reviewing your estate plan.

Money spent early after separation on sound legal advice can return significant savings down the track.

Tip 3 – If possible, avoid going to Court

Generally, Court proceedings should be an option only when urgent orders are critical, the matter is highly complex, or when one or both parties are intractable, and a settlement is impossible.

Court proceedings exhaust time, money and emotions, and can usually be avoided. Most matters can be (and are) resolved and legally finalised by entering into a Financial Agreement or Consent Orders.

A Financial Agreement is a legal contract between the parties that sets out how their property matters will be resolved.

The agreement may provide for the closing of bank and loan accounts, the payment of money by one party to the other, the retention by one party of certain property such as a motor vehicle or furniture, transfer of the family home in exchange for a sum of money or the marketing and sale of real estate and distribution of the proceeds.

The parties are expected to cooperate in good faith and to uphold their obligations under the agreement and fulfil all requirements.

Financial Agreements are not approved or registered in Court – to be enforceable they must comply with the formalities prescribed by legislation. Each party will need to obtain independent legal advice before signing the agreement.

Consent Orders are considered more formal than Financial Agreements because they must be approved by a Registrar of the Court. An application for Consent Orders must include full financial disclosure by both parties and will be approved if the Court is satisfied that the orders are just and equitable.

Consent Orders will provide for the same types of matters as a Financial Agreement and can also include orders concerning any children of the relationship.

Tip 4 – Don’t stress the small stuff

You should never forfeit your legal rights however there are times when it is practical to agree to disagree, let things slide and move on. When emotions are involved it’s easy to get bogged down in minor issues that get in the way of a resolution and ultimately have little impact on the outcome.

For example, the difference argued in the value of a motor vehicle can soon be depleted by the costs of disagreeing, particularly if lawyers are instructed to get involved. Formal valuations cost money and are justified in many cases, however unless the motor vehicle is an irreplaceable classic, a middle-range figure obtained from Redbook should usually suffice.

Of course, there is little you can do if your ex-partner is antagonistic and fails to relent but maintaining composure should eventually prevail.

Conclusion

In between an informal or non-existent property settlement and a protracted battle where the parties refuse to budge, lies a fair and effective resolution that keeps legal fees in check.

These are just some of the ways you can use your time and resources wisely to help finalise your matter cost-effectively.

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.

We’re still friends, why do we need a ‘legal’ property settlement?

Many couples separate on good terms, which is great. The breakdown of a relationship can be difficult, however putting differences aside to move forward can be beneficial, particularly where children are concerned.

Ex-partners who remain on good terms may choose to make informal arrangements regarding the division of their property. However, the failure to legally document a property settlement can be unwise, particularly where the parties have acquired assets and / or liabilities, or where either have had their own assets prior to the relationship.

In most cases, even if you are a ‘happily separated couple’, there are many reasons to seek independent advice and have your financial affairs legally finalised. Following are some of these reasons.

Stamp duty concessions

The transfer of certain property, particularly real estate, is generally liable to stamp duty. However, certain exemptions from duty apply for transactions that are documented in a financial agreement or consent orders pursuant to the Family Law Act 1975 (Cth).

The exemptions are reflected in stamp duty legislation across different jurisdictions in Australia and can result in substantial savings. An informal agreement does not meet the prescribed requirements to obtain these concessions.

Taxation implications

Understanding the tax implications of a proposed property settlement and structuring the division of assets accordingly can have a significant impact on the net result for both parties.

Capital Gains Tax (CGT) is the financial gain made on the disposal of an asset. It is assessable income and must be included in a tax return.

Although the transfer of a matrimonial home between a separating couple does not generally attract CGT under the main residence exemption provisions, CGT liabilities may be triggered when transferring assets such as investment properties, collectables and certain other personal items. The Income Tax Assessment Act 1997 (Cth) however provides roll-over relief pursuant to a financial agreement or consent orders made under the Family Law Act. This means that any CGT liability is deferred until such time as the asset is later transferred by the party acquiring it, although the asset will remain subject to the same CGT conditions as it was before the transfer.

A potential future CGT liability is an important consideration when negotiating a property settlement. Care should also be taken when dealing with companies and trusts where various transactions could raise CGT issues.

Although family lawyers do not provide financial advice, they can flag potential tax issues and recommend working with an accountant to ensure a property settlement delivers the most viable results and avoids, wherever possible, unexpected tax liabilities.

Claims on post-separation assets

An informal property settlement is not legally recognised as bringing the couples’ financial affairs to finality, even if negotiations have been put in writing. Not only is an informal agreement insufficient to obtain relief from stamp duty or relevant tax exemptions, the parties are unprotected against a range of potential issues down the track. These include a subsequent claim by either party on post-separation assets, income and inheritances. The parties are also left vulnerable should one of them become bankrupt and the joint ownership of assets has not been severed.

The failure to formally discharge obligations under a joint loan or guarantor arrangements can also leave a party in a precarious financial state.

An informal settlement may not preclude one party, particularly if his or her financial circumstances change, from applying for a different division of property through the Court at a later time.

Finalising your property division

Once separated parties have agreed on the division of assets and liabilities, and obtained independent legal and / or financial advice, the negotiations can be made legally binding through a financial agreement or by consent orders.

A financial agreement is a contract between the parties – each have certain rights and responsibilities and must perform their obligations according to its terms. Financial agreements are not approved or registered in Court but, provided they are properly prepared, and each party obtains independent legal advice, they are generally enforceable by a Court.

Consent orders are similar to financial agreements however a Court must approve the proposed orders. The parties to consent orders do not need to attend Court for the orders to be finalised.

Financial agreements or consent orders may provide for a range of matters concerning the division of assets and liabilities, including:

  • the transfer of property from one party to the other;
  • the payment of funds in exchange for the transfer of property;
  • the sale of real estate or other property including terms regarding the appointment of an agent, method of valuation and distribution of surplus funds;
  • the splitting of superannuation;
  • requirements for paying out loans, credit cards and closing bank accounts;
  • financial support (maintenance) of one spouse by the other; and
  • any incidental issues.

Conclusion

Generally, family lawyers will support a reasonable agreement reached between a separating couple. In doing so however, they will ensure their clients are fully aware of the implications of a proposed property settlement, flag potential taxation issues and address future matters that may not have been contemplated between the parties. The negotiations can then be recorded in a legally binding agreement that meets the requirements for stamp duty concessions and, where relevant, tax relief.

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.

Can I secretly record my spouse?

We’ve all had times when we can’t recall a conversation someone else swears we had. Often, one person in a relationship is more adamant about their memory than the other person. Usually, those mini-disputes are minor blips in an intact relationship. But what if it’s no longer an intact relationship? What if the “he said/ she said” dispute becomes part of family law proceedings?

One party might be tempted to secretly record their conversations with their ex-spouse or partner. But, is that lawful, and even if it is, is it a good idea?

Is it lawful to intercept a phone conversation?

The short answer is no. It is a federal offence to intercept (or tap) a phone conversation or other form of telecommunication. There are, of course, exceptions for ASIO, the police and similar organisations, but those exceptions wouldn’t apply in a family law situation.

Similarly, Australian law generally prohibits the recording of a private conversation between other people, to which the person doing the recording was not a party.

But what if you’re a party to the conversation?

Whether or not it’s lawful to secretly record a conversation (phone or otherwise) to which the person doing the recording is a party depends on the State or Territory in which the recording takes place. That is, such secret recording are permissible in Victoria, Queensland and the Northern Territory. However, it is prohibited in the other States and Territories – the ACT, New South Wales, Tasmania, South Australia and Western Australia.

The penalties for breaching the laws about intercepting or secretly recording a conversation vary, but can include paying damages to the other person and a term of imprisonment.

Can a secret recording be used as evidence in the Family Court?

Again, that will depend on where the recording took place and whether it was lawful in that State or Territory. In other words, if the secret recording took place in Victoria, Queensland or the NT and was, therefore, lawful, that recording could be used as evidence in family law proceedings.

However, if the recording was made in one of the States or Territories in which it is prohibited (ACT, NSW, Tasmania, SA and WA), the Court would have discretion whether or not to admit the recording into evidence. The Court would weigh up the benefit to the determination of the case in admitting the recording evidence, compared to the detriment to the parties and the justice of the case in allowing one of them to rely on illegally obtained evidence. Further, just because the illegal secret recording is admitted into evidence, the person who made the recording may still be liable to prosecution or damages for their offence.

Even if it’s lawful, should you do it?

The answer to this question will, of course, depend on the particular circumstances of the individual case. In a case where there are serious, regular disagreements about who said what and when, perhaps because drug or alcohol abuse or significant mental illness are involved, secretly recording conversations might be justified, in those jurisdictions where it is legal to do so.

However, even in cases where the secret recording of conversations might be tempting or may even seem warranted, before embarking on that course of action, the person wishing to do the recording should consider the future impact of considerable breakdown of trust in their relationship with the other person. It would be difficult, if not impossible, to continue to trust someone if you find out they have been recording their conversations with you without your knowledge. Ongoing trust between a separating couple is particularly important where children are involved and the couple need to share a parenting relationship into the future.

A middle ground option to secretly recording conversations with an ex-partner, regardless of whether or not it is lawful to do so in the particular jurisdiction, would be to make detailed notes of the conversations, as soon as possible after the conversations have ended. Such notes would be of significant benefit in preparing evidence for any family law proceedings, without jeopardising trust by secretly recording the conversations.

Conclusion

Whether or not it is lawful to secretly record a conversation, phone or otherwise, with an ex-partner depends on the State or Territory in which the recording is made. If the recording is unlawful, not only is there a risk that it will not be admitted into evidence in family law proceedings, the person making the recording could be liable to both civil damages and criminal prosecution. Even if it is lawful to secretly record a conversation with an ex, it isn’t necessarily a good idea to do so. A safer course of action might be to make notes of, rather than secretly record, the conversation.

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.

Risks of purchasing property after separation and before financial settlement

If you have recently separated and wish to move on with your financial matters, it is important to close off on your previous property affairs with your ex-partner first.

Whilst it might be tempting to purchase real estate or other assets, particularly if you find a ‘great buy’, there can be issues if you do so before finalising property matters with your ex.

What are the issues?

The Family Law Act 1975 (Cth) requires parties to make genuine efforts to resolve disputes and to follow pre-action procedures before commencing Court proceedings.

Part of this process includes a duty of disclosure – parties must exchange information and documents (whether or not these are known to both parties) that are relevant to an issue in the case.

The disclosure obligations exist from the beginning of the matter and continue until the case is resolved. This means that a party must disclose new information when certain circumstances change or further documents that come to a person’s attention.

Disclosure is important so that an understanding of the parties’ asset pool can be ascertained and the parties properly advised of their legal rights and entitlements.

The acquisition of a new property will certainly fall within the disclosure requirements whether or not you consider your ex-partner should be privy to the details. Consequently, if you purchase property, either alone or with a new partner, this fact will need to be disclosed and the property will become part of the asset pool.

Disclosure will mean providing the address, purchase price and details of any loan or mortgage over the property, and of course details of any third party who is registered on the title. This is unlikely to be ideal however failure to disclose the new acquisition will be considered non-compliance with your obligations and may attract serious penalties.

Whilst the Court has a discretionary role in family law matters and will take into consideration the circumstances and financial contributions towards the new asset, it is safer to be certain that the acquisition of new property does not adversely affect your property settlement rights. Consequently, it is advisable to wait for a clean break before jumping into the market again.

Settling your financial affairs out of Court

Even if you and your ex-partner agree on how your property should be divided it is important to formalise your negotiations through a financial agreement or by filing consent orders in the Court.

A financial agreement (often referred to as a binding financial agreement) formalises how property is to be divided. The agreement may include the transfer or sale of real estate or other assets, the distribution of proceeds from the sale, the paying out and closing of credit cards or other loan accounts, the transfer of liabilities between the parties and the ongoing payment towards certain expenses.

When negotiating the agreement, parties must be honest in their dealings and give proper disclosure of their assets and financial resources.

Each party must obtain independent legal advice and, if prepared in accordance with the statutory requirements, financial agreements can be a less formal and cost-effective solution to dividing property. The agreement will be binding on the parties with the same force as any other contract.

Alternatively, separating couples may be advised to have their agreement endorsed by the Court through consent orders. This is a more formal process because the Court will need to approve the proposed orders.

An application for consent orders must include full financial disclosure by both parties and the Court will only approve the orders if, on the information provided, it is just and equitable to do so.

Because of the Court’s involvement in consenting to the orders, in certain circumstances, they can provide greater finality than a financial agreement.

Time limits

Separating parties should be aware of the time limits applicable in commencing proceedings under the Family Law Act 1975 (Cth) for a financial property settlement.

The grant of a divorce triggers a 12-month limitation period within which to commence proceedings for property settlement or spousal maintenance.

For de facto partners, proceedings must be commenced within 2 years of separation.

Whilst the Court may grant leave to apply out of the statutory time limits for extenuating circumstances, parties should endeavour to resolve their financial affairs without delay.

Conclusion

Full financial disclosure is essential to enable a lawyer to properly advise a party on his or her rights or a Court to ascertain the property pool if proceedings are commenced.

Disclosure obligations must be followed even if the parties settle their financial affairs without going to Court, and the parties have an ongoing obligation to disclose matters until their property settlement is finalised.

The decision to resist purchasing a significant asset before you have finalised your property settlement is likely a wise choice.

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.

Obligations and consequences of parenting orders

A separating couple with children will need to work out the parenting arrangements for those children – where the children are to live and who may make decisions about the children.
If the couple can agree, their agreement can be formalised as Consent Orders (ie Orders made by the Court by consent). If not, the Court can decide the parenting arrangements for them.
In either case, the Court will only make orders that it considers are in the children’s best interests.

Structure of parenting orders
Parenting orders, whether made by consent or otherwise, will cover topics such as with whom the children are to live and spend time, and which parent may make decisions in relation to the children’s day to day and long term care, welfare and development. Theoretically, each aspect of a parenting order, whether made by consent or after a contested hearing, is as binding and enforceable as a Court order about the parties’ finances.

Enforceability
Unfortunately, that theory is not always borne out in practice.
It can sometimes be difficult to prove a breach of parenting orders. How does one demonstrate to the Court that one’s former partner breached the order requiring him to communicate with you in relation to decisions regarding the children’s long term welfare?
Even if your former partner is completely unwilling to compromise, the fact that she attempted to “discuss” the issue with you may satisfy the Court that your right to consultation was respected.
Surely it would be easier to prove a breach of a parenting order relating to time with the children? It is likely to be obvious whether the children spent the ordered time with you.
However, before the Court will treat a parenting order as having been breached, it must first consider whether the “guilty” parent had a reasonable excuse for failing to comply with the orders. For example, was it reasonable for the “guilty” parent not to facilitate the other parent’s time with the children on the basis that the children allegedly don’t want to go and “I can’t make them”.
Whether or not that constitutes a reasonable excuse depends on the facts of each case, including the age of the children and the steps that the parent did take to try to encourage the children to spend time with the other parent.

Consequences of breach
If a Court is satisfied that a parenting order has been breached, it has a range of penalties available to it to either punish the “guilty” parent, to “compensate” the innocent parent or to enforce the parenting orders. Those options include:
• requiring one or both parents to attend a parenting after separation course
• ordering that the children spend additional “make up time” with the innocent parent
• changing the parenting orders. This could mean that the children ultimately regularly spend more time or even live with the “innocent” parent
• placing the “guilty” parent on a bond or sentencing him or her to imprisonment.
In relation to the last three of those options, the Court’s overriding consideration is still the children’s best interests. There have been a number of cases where, despite proven and repeated breaches of parenting orders by the parent with whom the children live, the Court has not drastically changed the earlier parenting orders, nor was the “guilty” parent put in gaol because the Court was concerned that the imposition of such consequences would not be in the children’s best interests.
Unfortunately, the practical outcome in those cases was that the “guilty” parent’s breach of the parenting orders went unpunished.
In such cases, the Judge must reconcile her desire to uphold the Court’s orders and punish any breach of them with the Court’s overriding obligation to only make parenting orders that it considers to be in the children’s best interests.

Consequences for taking children overseas
One type of breach of parenting orders which deserves special mention is where a parent breaches and tries to avoid the operation of Australian parenting orders by taking the children overseas. Such a situation is treated very seriously by the Family Court, the Federal Police and relevant international authorities.

Conclusion
Parenting orders can be made by consent or as a result of a contested hearing before a Judge. The enforceability and consequences for breach of parenting orders is the same, regardless of how those orders were made. Unfortunately, proving a breach of parenting orders and obtaining what the “innocent” parent might consider to be adequate redress can sometimes be difficult.
Given that all parenting orders, whether consent orders or otherwise, are made taking into account the children’s best interests, both parents would be better advised to comply with the orders, rather than litigate about an alleged breach of them, as such compliance ought to promote the children’s relationship with both parents and the children’s best interests.
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.

Visas and domestic violence

Family violence is not acceptable or tolerated in Australia.

If you are living in Australia on a visa and experiencing family violence you will likely be very concerned, not only about your wellbeing, but the future of your residency here.

If you are on a temporary partner visa or you married whilst on a prospective marriage visa and you or your dependants have experienced abuse, the family violence provisions provide that the grant of a permanent visa may still be considered, despite the breakdown of your relationship.

In other words, you should not be prevented from continuing with an application for permanent residency, for having ended a relationship because of violence.

These provisions are aimed at ensuring people do not stay in abusive relationships simply for fear of being deported.

If you or your dependants have experienced violence and your relationship has ended, it is important to get legal advice, so you can consider your options and, obtain the relevant supporting information to make a family violence claim.

What is family violence?

Family violence is conduct, either actual or threatened, that causes you to fear for your safety or wellbeing. The conduct can be directed at you, your dependants (children) or your property. Family violence includes physical and psychological harm, forced sexual relationships, isolation and financial deprivation.

To continue with your visa application, you must prove to the Department of Immigration that:

  • your relationship was genuine until it ended; and
  • family violence took place during the relationship.

Proving family violence

A family violence claim may be supported by judicial evidence or non-judicial evidence.

Judicial evidence can be proven by a court ordered injunction or restraining order made against your ex-partner either under the Family Law Act 1975 or under a state or territory law. Alternatively, a court conviction or finding of guilt made against your ex-partner for assault against you or a dependant can be used.

Upon presentation of judicial evidence, a decision maker must make a finding of family violence against the victim. This of course provides a more streamlined process for an applicant to prove the existence of family violence and continue with the permanent residency visa application.

Non-judicial evidence requires the applicant to complete a statutory declaration. This is a sworn or affirmed statement made by you attesting to the truth of the facts contained in the statement. The statutory declaration sets out the events regarding the family violence and names the person alleged to have committed the violence.

The statutory declaration must be supported with two other forms of evidence from at least two of the following categories:

  • a medical or hospital report or discharge summary, or statutory declaration from a registered medical practitioner or nurse;
  • a record of assault, police report or statutory declaration by a police officer or witness statement provided to a police officer during an investigation;
  • a report or statutory declaration made by an officer of a child welfare or protection authority;
  • a letter of assessment or report from a staff member of a women’s refuge or family/domestic violence crisis centre;
  • a statutory declaration made by a social worker who has provided counselling and assistance to the alleged victim;
  • a statutory declaration made by a registered psychologist who has treated the alleged victim;
  • a statutory declaration by a counsellor or family consultant from a Family Relationship Centre;
  • a statutory declaration made by a school counsellor or school principal.

The documents must generally identify the alleged victim of violence and perpetrator. The Regulations set out the specific criteria to be addressed for each category of evidence. For example, medical documents should provide details of the physical injuries sustained or mental health treatment provided for a condition that would be consistent with the psychological abuse claimed.

What next?

Once family violence is established, a visa applicant may be granted the visa applied for, providing he or she still meets all other relevant criteria.

If the Department of Immigration is not satisfied, on the evidence provided, that family violence has occurred, it must seek, and rely on, the opinion of an independent expert.

Policy currently requires that all evidence submitted (even if more than what is required) must be considered by the decision maker. Accordingly, in some cases it will be beneficial to provide as much evidence as possible.

Conclusion

Special rules apply which allow victims of abuse who are on certain visas to qualify for permanent residency despite the breakdown of their relationship.

The regulations require proof of family violence before a permanent residency application can be further considered.

Victims of family violence are urged to contact an experienced migration agent or immigration lawyer to ensure that their rights are fully protected, and the  appropriate evidence can be obtained to support an application for permanent residency.

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.

How marriage & divorce can affect your Will

Why, you might ask, would marriage or divorce have anything to do with your Will? Why indeed! The reality is that only about one in two Australians, whether married or divorced, have a valid Will. Of those who do, many haven’t looked at their Will since they signed it, and perhaps have forgotten what it says. And they’re likely to be unaware of the unintended consequences that marriage and divorce can have on their otherwise valid Will.

In Australia, laws relating to marriage and divorce are made by the Federal government. Wills are governed by State and Territory laws. While similar, there are some important differences from State to State or Territory.

Marriage and your Will

Getting married is a time of joy, looking forward to a long life together, not a time when you want to be thinking about the end of your life. But when preparing to promise to be together until “death do us part”, you need to also think about what will happen when death does, in fact, part you. This is particularly important in the case of second marriages and blended families.

In general terms, marriage revokes a Will. That is, by saying “I do” you invalidate your Will. If you die without making a new Will, you could be leaving it up to the government, not you, to decide how your estate is distributed. If there’s just you and your new spouse in your family, perhaps that’s okay. But in today’s world, that’s often not the case.

There are some exceptions to the rule that marriage revokes a Will. NSW, Victoria, Tasmania, Queensland and the Northern Territory allow appointments of your spouse as executor and gifts to him or her in your Will to remain valid after a marriage. However, the rest of your Will would be revoked. That means some of your wishes may not be followed in the event of your death.

In ACT, South Australia and Western Australia even gifts to your spouse or appointing him or her as executor would be revoked by your marriage. The Will as a whole would be invalid.

It is possible to make a Will in contemplation of marriage – of a specific marriage or of marriage generally – which would still be valid after a subsequent marriage. Alternately, you could have Wills prepared to be signed at your wedding, immediately after signing your Marriage Certificate. Not very romantic, perhaps, but pragmatic.

 Divorce and your Will

Generally, divorce treats a reference to your former spouse in your Will as if he or she died before you. That is, the rest of your Will would still be valid, but your ex-spouse would not be appointed as executor and would not receive anything from your estate, regardless of what the Will says. However, there are some exceptions to this, which differ throughout Australia.

Firstly, except in Tasmania, if the Court finds that the deceased intended for his or her ex to receive a gift from the estate or be appointed as executor notwithstanding their divorce, that gift or appointment would still be valid. In South Australia, that intention must be expressed in the Will. Elsewhere, the Court may be satisfied about the deceased’s intention through other evidence. Of course, that opens up the possibility of a Court battle about the deceased’s intentions. Not what anyone would want to happen after their death.

Secondly, if your Will appoints your former spouse as trustee of a trust to benefit people including his or her children, in NSW, Victoria, Tasmania, the Northern Territory and Queensland that appointment would still be valid, despite your divorce. Be aware that this relates to a trust created by your Will whose beneficiaries could include people other than your ex-spouse’s children. After your divorce, would you really want that to be the case?

Finally, the laws about the effect on a Will of the ending of a marriage relate only to divorce or annulment, not separation. That is, if you separate but remain married, your Will would take effect as if you and your spouse were still happily living together. Would that really reflect your wishes?

Divorce and your Will – Isn’t a property settlement enough?

So, you’re divorced, you’ve had a property settlement and you’ve even made a new Will. Leaving aside child support, that’s the end of your financial obligation to your ex, right? Wrong.

Some Australian States and Territories allow former spouses to go to Court and seek part of the deceased’s estate, regardless of the terms of the Will. NSW, ACT and South Australia allow such a claim, even if you have already finished a family law property settlement and your ex was not dependant on you when you died.

In Tasmania, Queensland, Western Australia and the Northern Territory, your former spouse needs to have been receiving maintenance or otherwise dependant on you at the time of your death to be able to claim on your estate. Victoria only allows such a claim to be made if, by the time of death, the deceased and his or her ex-spouse had not started or finished a family law property settlement.

If you are separated but not yet divorced, the situation about whether your estranged spouse can make a claim on your estate is even more complicated.

Conclusion

Marriage and divorce can have unintended consequences on your Will. When preparing to sign your Marriage Certificate, you also need to prepare to sign a new Will. Similarly, if your marriage didn’t turn out to be “happily ever after”, when thinking about dividing your assets while you’re alive, you should also turn your mind to the distribution or protection of your assets after your death.

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

Who gets custody of the pets after a family separation?

Following a relationship break-up it is becoming increasingly more apparent that disputes are going beyond the living arrangements of the children, property disputes and division of superannuation.

The fate of family pets is becoming a larger problem for both litigants and their lawyers

Many family law litigants mistakenly think the Family Court can help resolve pet custody disputes. The position is clear: The Family Court in Australia does not rule on the custody of pets.

In Australia, pets are considered part of the couple’s personal property. They are treated like furniture or any other piece of personal property. The difference is of course that pets are living beings and they experience mistreatment and cruelty whereas property does not.

The reasons are understandable

One explanation is that people often feel that pets are like children. We are dealing with really strong emotional bonds that get formed over time. Separating couples are dealing with a grieving process and the family pet is important to them.

For couples in childless marriages animals can be really important and people in these circumstances can find it difficult to understand why the Court can’t deal with a litigant’s emotional attachment.  For some instances, such as couples on second marriages between older partners who didn’t have children at home, the pets form part of the family and effectively replace the children they have not been able to have.

How does the Court deal with the issue?

Interestingly, pet custody cases have a long history in the American family courts however in Australia essentially the law treats pets as assets.

If they are breeding animals then they essentially become a business asset. If they are companion animals they are treated as personal property just as the Court deals with photos and CDs and whilst that will sound harsh to animal lovers, it is the reality of how the Courts treat pets.

To make matters worse for pet lovers, the Family Court can get frustrated when people bring up these matters before a judge, who is more focused on issues that are more difficult to tackle, such as child abuse. Therefore it is best dealt with by negotiation.

How lawyers deal with the issue

Pets usually enter the discussion when property settlements are being discussed. While most of these negotiations that may lead to agreements that take place outside of the Court, they are increasingly included in formal arrangements.

It is becoming more common for couples to create their own formal pet custody arrangements, including visitation rights, similar to negotiations that are made for children of divorced parents.

Summary

Pets are increasingly at the centre of tug-of-war battles between separating couples.

Ideally separating couples can set aside their differences and agree the best outcome for their pets. Unlike chattels which are often divided between parties on a piece by piece approach, it is better for the parties to be less property orientated when there a pets involved, preferring not to split up pets which are attached to each other.

Helpful and competent legal advice can often help parties decide on shared custody of their pets. If you know someone who may need assistance in this area they should call us on 07 3281 6644 or email mail@powerlegal.com.au.

Social Media and Defamation Tweeters and Posters Beware!

Anyone who uses social media has almost certainly come across a post or tweet where your immediate reaction was to suck in your breath and go “Ouch” while simultaneously being glad you weren’t the one on the end of the tirade.

Perhaps you have been guilty of firing off such a post or tweet yourself when someone or something has upset you. Maybe about the tradie who didn’t show up on time or the restaurant you went to last night where the waiter was the worst you have ever encountered.

It’s your democratic right to sound off and practically your duty to let everyone know to avoid spending their hard earned cash in that place isn’t it? Maybe it is but you really need to be careful that by posting or tweeting you aren’t defaming someone because if you are that spur of the moment rant could cost you plenty.

Of course social media isn’t the only place people may be defamed but it is fast becoming a growing area for these sorts of claims and disputes to arise.

 What do we mean by defamation?

You may have defamed someone (and be held liable for damages) if you have made a statement that could be seen as lowering a person’s reputation in the eyes of community, could lead to that person being made fun of, avoided or despised or could in some way lead to a loss of reputation in the person’s profession, business or trade.

 Could this cost me money?

While the simple act of defaming someone may not automatically lead to a Court finding you liable to pay damages (money) and there may be defences available to you, just being accused of defamation can lead to you becoming involved in costly and time consuming legal proceedings.

While you may have a defence such as being able to prove the statement was true or that it was an honest opinion on a matter of public rather than private interest, the best strategy is not to make statements that could lead to a complaint in the first place.

 But I was only posting on my private Facebook page….

Defamation can include publishing an article or newsletter, posting on a website or even writing an email. With the use of social media and email being so widespread comments and posts people make have the potential to “go viral” almost immediately and what may have started off as perhaps a private chat between two people can quickly spread to a far wider audience than was ever intended sometimes with far reaching consequences.

Who can be defamed and who is liable?

While you can’t defame a dead person and legislation may, depending on where you live, exclude or limit a company from suing for defamation, it is important to remember that each person who participates in the defamation may be found liable for it. So if you receive an email that is defamatory about the local plumber who failed to turn up or the crazy parent from your child’s school and decide to spread the word to all and sundry you could find yourself in as much hot water as the person who wrote the email in the first place.

A cautionary tale

Take the case of Mr Palmer who decided that he needed to warn his fellow residents about Mr Mohareb, one of his neighbours on Scotland Island (a small coastal community near Sydney). Mr Palmer posted on the Scotland Island Community Facebook page a “Warning” about Mr Mohareb that included describing him  as a “highly volatile individual, prone to manic outbursts” and which stated that he was “often abusive and threatening – particularly towards women and children and warned residents to avoid approaching or confronting him”.

Not surprisingly Mr Mohareb took offence at these comments and subsequently the matter proceeded to litigation in the District Court of NSW with significant costs being incurred by both parties.

How can I avoid being sued for defamation?

A good rule of thumb is to think long and hard before your post or publish. Remember once you post or press send it is out there on the internet forever.

Some other techniques to avoid defaming someone include:

  • Follow the golden rule of “If you can’t say something nice don’t say anything at all”;
  • Always check that any statements you make are actually true. Don’t just repeat what someone else told you without checking that what they said is actually true;
  • When communicating focus on the issue and try not to make personal comments or sweeping statements;
  • Never make derogatory comments about a person’s race or religion;
  • Try to avoid emotive language;
  • Avoid identifying someone even unintentionally if what you are saying could lower the person’s reputation; and
  • If in any doubt don’t say, write, tweet or post before checking with a lawyer first.

Help! I think I may have already defamed someone

An apology, especially a public apology, can often go a long way to limiting the damage done. If you are in any way concerned that you may have defamed someone or have been accused of doing so then it is better to seek legal advice sooner rather than later.

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.

What to do after a family separation and pending divorce

Do you have a friend or relative who has just separated?  If so, the information below should help.

 What is meant by separation?

Separation in Family Law is defined as the bringing to an end of a marriage or de facto relationship (which also includes same sex couples). There is no need or ability to register a separation under Australian Family Law. Separation is a fact which must be proven if it is disputed by the other party at a later time.

In the case of a divorce, the date of separation is recorded on the Application for Divorce and is sworn or affirmed to be true and correct by the Applicant. If you cannot prove you had separated from your spouse at least 12 months before you file your Application for Divorce, the Court will not grant your divorce.

Therefore, it is a good idea to confirm the separation in writing, even if this is via text message that can be saved, at or shortly after the time of separation. Often divorce cases and cases for property settlement in de facto relationships can turn upon whether or not a party can prove that separation occurred on a particular date.

 What about de facto relationships?

In the case of a de facto relationship, particularly where the relationship ends on or about the two year anniversary, whether or not a property settlement is available can depend on whether the separation took place before or after the two year anniversary. If the de facto relationship was less than two years long the Court may have no jurisdiction under the Family Court Act to provide a property settlement. There may be alternate remedies available or another basis other than the two year requirement to show that a de facto relationship existed.

In addition, there is also a two year limitation period in which to commence the Application, from the time of separation. In such cases, again, the date of separation can be significant.

 What about if you still live together?

Separation can take place even though the parties live under the one roof and it can also be a gradual process. In these cases, the Court will need to examine a number of factors to determine when and if a separation has taken place.

Those factors can include whether the parties:

  • Slept in separate rooms or together after the alleged date of separation;
  • Performed domestic duties such as cooking and washing for each other after the alleged date of separation;
  • Separated their financial affairs to any extent after the date of separation;
  • Lodged or signed any documents informing government agencies of the separation, such as Applications for Centrelink or ATO documents as a single person, as opposed to a person in a relationship;
  • Continued to be intimate after the date of alleged separation; and
  • Made it publicly known (such as by telling friends and family), that they had separated.

Ten things to consider if a person has just separated:

  •  Contact your bank or financial institution in writing (by fax or email- with your signature appearing) to stop joint funds being removed or liabilities increased.
  • If you have a Power of Attorney, ensure it is revoked, and have a new one drafted.
  • Consider whether your nominated death beneficiary for your superannuation entitlements is appropriate.
  • Photocopy all of your and your ex’s financial documents and put them in a secure location (this should not be your home or motor vehicle).
  • Look at your Will and consider if it is still what is appropriate and if you do not have a Will have one drafted.
  • If you have children, contact the Child Support Agency and find out how much is to be paid or is payable.
  • Do title searches on your properties. If your home is not in your name or is in joint names ensure you place caveats over the properties. If your property is held as a joint tenant, ensure you sever the joint tenancy.
  • If there has been family violence in the relationship you may need to seek a Restraining Order.
  • Start a diary which keeps track of time your partner has with the children and any adverse behaviour he/she displays.
  • Seek advice from an experienced Family Lawyer.

If you need more information, or if someone you know needs help, get them to call us to speak to one of our solicitors on a no obligation basis on (07) 3281 6644 or email mail@powerlegal.com.au.