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What Happens to a Family Business after a Couple Separates

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.

Transferring Property Between Family Members – Key Considerations

Transferring property between family members is a common practice, often driven by a desire to facilitate inheritance, support loved ones, or streamline estate planning. While the intention behind such transfers is usually rooted in familial bonds, navigating the legal and financial aspects of the process requires a practical and pragmatic approach. This article explores key considerations when transferring property within families, and flags the legal, tax, and financial implications involved. The information is general only and we recommend obtaining advice from experienced professionals that is tailored to your needs and circumstances.

Understanding the Motivation

Successful property transfers within families require effective communication and an understanding of family dynamics. It is important to clearly express the intentions behind the property transfer and address any concerns or questions that may arise.

Before delving into the intricacies of property transfers, it is also important to understand the motivations driving such decisions. By identifying the primary motivation, individuals can tailor their approach to the specific needs and goals of the family.

Legal Implications

One of the first considerations when transferring property between family members is the legal aspect. The method of transfer – whether through a sale, inheritance, will or gift – impacts the legal obligations and documentation required for the transfer. Each option carries its own set of rules and regulations that must be adhered to for a seamless and legally valid transfer.

Sales

Selling property within the family involves a formal transaction, and the terms should be clearly outlined in a legal contract, including the purchase price for the property. A sale within the family is often for a lower than market price. In such cases, consideration needs to be given to the impact on stamp duty and other obligations, as taxes are usually required to be paid on the full market rate. It is often necessary to have the property appraised to determine its value in current market conditions.

When selling property, capital gains tax (CGT) may apply on the profit earned. However, exemptions or reduced rates may apply. Understanding these tax breaks and planning accordingly can result in substantial savings.

Inheritance

If the property transfer is part of an inheritance plan, the most essential step is to establish a clear and legally binding will. The absence of a will often leads to complications and disputes among heirs, with the outcome that property may not be transferred as the deceased would have wished. Working with a qualified estate lawyer can help ensure that the transfer aligns with the legal requirements and the intentions of the deceased.

Some taxes may apply when receiving property through a will. Consulting with a tax professional can help optimise the transfer to minimise tax burdens.

Gifts

Transferring property as a gift involves giving ownership without expecting anything in return. While this can be a generous gesture, it is critical that the giver is aware of any tax implications. In addition to considering transfer duty, the donor should consider any CGT liability. Consulting with a tax professional can help optimise the transfer to minimise tax burdens.

In addition, a gift of property may not always be sensible if the recipient cannot afford the holding costs. Before transferring property, assess the financial stability and responsibility of the recipient. If the transfer is intended to support a family member in need, consider whether they can handle associated costs such as rates, maintenance, and other ongoing expenses.

Documentation and Title Transfer

Proper documentation is essential for a smooth property transfer, even when the transfer is amongst family members. To ensure that the title is transferred correctly and that all legal requirements are met, it is recommended to work with a lawyer or conveyancer. The correct legal documents in the prescribed format will be required for the transfer and registration of the property to the new owners. These need to be lodged with the relevant state titling authority. A property professional can also advise on transfer duty, investigate whether any concessions apply, and complete the relevant paperwork.

Professional Guidance

Seeking professional guidance from lawyers, conveyancers, tax advisors, and financial planners, as relevant, can help you navigate complex legal and financial landscapes. Their expertise can ensure that the property transfer aligns with both familial and legal aspects, promoting a smooth transition.

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.

Top 7 Questions about Family Provision Claims in Queensland

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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

First steps after separation – some practical considerations

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.

Australian Immigration – Understanding Bridging Visas

A bridging visa is a temporary visa that the Department of Home Affairs (DHA) might grant in certain circumstances to allow a non-Australian citizen to remain in Australia for a certain period of time. Understanding when and how to apply for bridging visas is essential, and seeking professional assistance can make the process smoother and more manageable. With the right guidance and adherence to visa regulations, navigating the complex Australian immigration landscape becomes a more achievable endeavour.

Why Apply for a Bridging Visa?

There are a number of different scenarios where you may need to apply for a bridging visa. For instance, you may need a bridging visa if your current substantive visa is about to expire, but you need to remain in the country for various reasons.

A bridging visa may also be granted if your circumstances change, and you need a temporary visa to maintain your lawful status while you address the changes. For instance, if you are on a student visa but wish to remain in Australia on a partner visa, you may need to apply for a bridging visa for the period of time between leaving your course and waiting to hear about the outcome of your application for a partner visa.

How to Apply for a Bridging Visa

Obtaining a bridging visa in Australia involves a specific application process. First, you must determine your eligibility for a bridging visa, and identify which bridging visa is right for your circumstances. This is typically done by consulting with the Department of Home Affairs or an immigration expert.

In most cases, you will also need to lodge a substantive visa application, which is the visa you want to hold once the bridging visa is granted. It is important that you complete your substantive application and attach all necessary documents, which may require you to obtain expert assistance. Once your substantive visa application is lodged, the department will assess it. If your current visa is due to expire, a bridging visa may be automatically granted to you, ensuring the continuity of your lawful status while the substantive visa application is processed.

Types of Bridging Visas

There are several types of bridging visas for different circumstances. The three most common bridging visas are A, B and C:

If your current visa is expiring and you are applying for a new type of visa, you may choose to apply for a Bridging Visa A (BVA). This will allow you to stay in Australia lawfully after your visa ceases and while your substantive visa application is being processed or finally determined. In addition, if your visa application is refused, you may have a right of appeal or review of the decision. If so, a BVA can allow you to remain in Australia until the appeal process is finalised.

In some circumstances, a BVA would have the same conditions attached to it as the visa held at the time of application. Therefore, a BVA may or may not have work rights.

You may choose to apply for a Bridging Visa B (BVB) if you are applying for a substantive visa but have a good reason to need to leave and return to Australia while waiting for your application to be processed. If you depart Australia with another type of bridging visa in effect, then that visa will cease, and you may not be able to re-enter Australia if and until the Department grants you a substantive visa.

A BVB has a defined travel period. You can leave Australia and re-enter on a BVB within this defined travel period. If you are in Australia when the travel period ends and you need to travel outside Australia again, you can apply for another BVB.

You may choose to apply for a Bridging Visa C (BVC) if you are in Australia and do not currently hold a substantive visa. This could occur if you lodged an application while holding a bridging visa, or you were unlawfully in Australia after your substantive visa expired. The BVC would allow you to remain in Australia lawfully while applying for a substantive visa to be assessed.

If you hold a BVC, you cannot travel outside of Australia and generally, this visa comes without work rights.

There are four additional bridging visas that are used in specific circumstances:

A Bridging Visa E (BVE) lets people stay lawfully in Australia while they make arrangements to leave the country, finalise their immigration matter or wait for an immigration decision. A BVE comes with very strict conditions, including reporting conditions. This visa also usually comes with no authorisation to work or study.

A Bridging Visa D (BVD) is granted when someone tried but was unable to apply for a substantive visa. For example, they did not pay the correct fee or filled out the wrong visa application form or an authorised officer is not available to interview them, but they will be able to do so within the next five working days.

A Bridging Visa R (BVR) is for people who are in immigration detention but their removal from Australia is not reasonably practicable. This allows them to be released from detention pending their removal.

A Bridging Visa F (BVF) is used exclusively for suspected victims of trafficking or slavery who do not hold a substantive visa.

Conclusion

Australian immigration laws provide for certain bridging visas to allow temporary stay extensions or appeals. The circumstances that may lead to the need to apply for a bridging visa can be complex and it is important to ensure the right type of bridging visa is sought. Seeking professional guidance from an experienced immigration lawyer can help visa applicants successfully navigate the regulations and process.

This information is general in nature 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.

Australian Employees’ Right to Disconnect from Work

In a move towards improving work-life balance, Australian workers now have a legislated right to disconnect from work. The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 adds new provisions to the Fair Work Act 2009 giving employees a “right to disconnect”, enabling them to “switch off” from certain out-of-hours work-related contact. This means that employees should not be penalised or reprimanded for not responding to work-related matters during their personal time unless their refusal to respond is unreasonable.

This new right addresses the increasingly blurred lines between work and personal life, particularly in the age of remote work and constant digital connectivity. It’s a step towards empowering employees to reclaim their personal time and prioritise their well-being.

Understanding the “right to disconnect”

The right to disconnect gives employees the right to switch off from certain out-of-hours work-related contact. Employees can now refuse to respond to after-hours texts, emails, and calls from their employers or associated parties unless it is unreasonable to do so.

The provisions cover national system employees and employers and commenced on 26 August 2024, unless the employer is a “small business employer”, in which case the provisions apply from 26 August 2025. All modern awards will be reviewed to include industry-specific rights to disconnect for employees.

What factors determine whether a refusal to respond is unreasonable?

The right to disconnect does not necessarily prohibit your employer from contacting you out of hours, however, it will inform the circumstances through which such contact should be made and when it will be deemed unreasonable for you to refuse to respond.

The following factors are not exhaustive, however, must be taken into account in determining whether your refusal to respond is unreasonable:

  • The reason for the contact/attempted contact.
  • The method of contact/attempted contact and level of disruption caused.
  • The extent of compensation (monetary and non-monetary) provided for you to be available or working hours outside of your ordinary hours.
  • Your role and level of responsibility.
  • Your personal circumstances including family and carer responsibilities.

Where the contact or attempted contact is required by law, an employee’s refusal to respond will be deemed unreasonable.

If your employer contacts you outside of work hours, you can refuse to respond unless it is unreasonable to do so. If you are unsure whether it is unreasonable to respond, you should consider the factors listed above.

If your employer takes adverse action against you for exercising your right to disconnect, you may have a complaint under the Fair Work Act. You should contact your union or a lawyer for advice.

Navigating the right to disconnect: challenges and opportunities

While the right to disconnect is a positive step, its successful implementation will require careful navigation. Clear communication and collaboration between employers and employees are important to ensure its effectiveness.

Employers

Employers should establish clear policies and guidelines around after-hours communication, ensuring that employees understand their rights and responsibilities. Processes might include:

  • Having discussions with employees to determine reasonable out-of-hours contact and reviewing internal processes.
  • Reviewing employment contracts and position descriptions to ensure they include expectations on employees’ availability outside of working hours and whether such availability is reflected in remuneration.
  • Implementing policies to deal with issues raised by employees who wish to exercise the right to disconnect.
  • Having discussions with clients and other stakeholders to ensure boundaries and expectations regarding out-of-hours contact with employees are set.

For workplaces operating in a global environment with different time zones, special consideration will be required to navigate expectations for employees to participate in out-of-hours meetings, zoom conferences, telephone calls, etc.

Employees

In exercising a right to disconnect, you might consider:

  • Setting boundaries and communicating your expectations around availability clearly to your employers and colleagues.
  • Taking ownership of your personal time and resisting the urge to check work communications outside of work hours.
  • Turning off your work phone and email notifications outside of work hours, if it is reasonable to do so.
  • Taking breaks from work during the day to relax and recharge.
  • Making time for yourself and your loved ones outside of work.

Conclusion

The right to disconnect is expected to have a significant positive impact on employee well-being and mental health. By allowing workers to truly switch off from work, it enables them to rest, recharge, and engage in personal activities that contribute to their overall well-being. Whether an employee’s refusal to respond to a work-related request is unreasonable will likely play out differently across different workplaces and for different roles.

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.

How do I Protect my Estate from a Family Provision Claim?

Estate disputes are surprisingly common in Australia. Laws across different jurisdictions allow eligible individuals to challenge a deceased’s Will if they believe they have not been adequately provided for. In such cases, a successful claim might result in the terms of your Will being adjusted in favour of the claimant. However, there are steps you can take to help protect your estate from a family provision claim so that your final wishes are respected.

What is a Family Provision Claim and Who Can Make One?

A family provision claim (or testator’s family maintenance claim) is a legal application made by an eligible person seeking a share, or larger share, of a deceased person’s estate. Essentially, the claimant argues that the deceased failed to make adequate provision in the Will for their proper maintenance and support.

The eligibility criteria to make a family provision claim varies across Australia, so it is important to consider the legislation relevant to your jurisdiction. Generally, those eligible to make a claim are close family members such as a spouse, de facto partner and biological or adopted children. Other individuals such as stepchildren, former spouses, and certain family members who were financially dependent on the deceased (in specified circumstances), may also be eligible to claim in some jurisdictions.

Reasons Estate Disputes Arise

To minimise potential claims against your estate, it is helpful to consider why some disputes arise in the first place.

Family dynamics play out in different ways, particularly when a loved one dies, and the emotional burden of the loss can complicate already difficult relationships. Conflict between family members, especially in blended families or when there is an estranged relationship, can lead to challenges and disputes over the deceased’s intentions.

Family provision claims can arise when individuals believe that the distribution of assets is fundamentally unfair. For example, a child may have provided significant care during a parent’s final years while other siblings conducted their lives with little interruption. The ‘carer’ may have incurred personal and financial expenses or missed opportunities due to these commitments, and the Will may not take account of this.

Some Wills are out of date and do not reflect changes in the deceased’s circumstances, such as marriage, divorce, or new family members. This can create confusion and disputes regarding the deceased’s wishes. Similarly, vague or ambiguous terms in a Will can cause disagreement or uncertainty among beneficiaries.

Steps to Help Minimise Family Provision Claims

Prepare an Effective Will

Possibly the most important safeguard against a family provision claim is to prepare an effective Will. A Will that clearly outlines your intentions for the distribution of your assets leaves little room for misinterpretation of your testamentary wishes. Your Will should be carefully drafted, taking account of your financial and personal circumstances, family dynamics and any potential sources of conflict.

Consider Potential Claimants

While you are technically free to distribute your assets as you wish, it is wise to acknowledge the potential claims of eligible individuals. Providing some level of provision, even if it is less than they might expect, could demonstrate that you considered their needs and could potentially deter them from making a claim.

Review your Will Regularly

As your life circumstances change, it is important to review and update your Will to reflect this. When you experience significant life events such as marriage, divorce, the birth of a child, or the acquisition of substantial assets, it is a good time to review your Will.

Check your Superannuation

Benefits held in your superannuation fund generally do not form part of your estate for distribution under your Will. Rather, the trustee of your super fund decides how to direct the funds, unless you have a current binding death benefit nomination in place. You should regularly check your superannuation details to ensure you have nominated your desired beneficiaries and completed a binding death benefit nomination. Getting financial advice on the tax implications for your proposed beneficiaries is also a good idea.

Check Property Ownership

How co-owners hold their respective interests in property is an important consideration in asset protection and estate planning. Holding property as joint tenants means the interests are held as a whole and cannot be separately apportioned. Joint tenancy is subject to the rules of survivorship, meaning that if a co-owner dies, the surviving co-owner/s is automatically entitled to the deceased’s share in the property. Conversely, property held as tenants in common can specify the individual shares held between each owner which need not be equal. Unlike a joint tenant, a tenant in common may transfer, sell or leave their share in the property to a beneficiary in a Will.

Trusts

A trust is a separate legal structure that holds your assets. There are different types of trusts used to achieve different outcomes and trusts can offer benefits such as preserving/protecting assets, providing for minor children or vulnerable individuals and tax planning. Because of the complicated legal, financial and tax implications of trusts, it is important to seek professional advice when setting one up.

Communicate with your Family

Open and honest communication with your family about your estate plan, where appropriate, can help manage expectations and potentially reduce the likelihood of future disputes. Explaining your decisions and reasoning can help your loved ones understand and accept your wishes.

Conclusion

Failing to address a potential family provision claim can leave your estate vulnerable to costly and time-consuming legal disputes. It may be impossible to guarantee that a family provision claim will not be made against your estate, but there are proactive steps you can take to minimise potential claims. Seeking professional advice tailored to your circumstances can help safeguard your legacy and ensure your final wishes are honoured.

This information is general only and we strongly recommend seeking assistance from a qualified professional when preparing your Will and planning your estate. 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.

HECS/HELP Debt and your Family Law Property Settlement

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.

Buying Residential Property – Understanding Cooling-Off Periods

In the whirlwind of excitement that often accompanies the purchase of a residential property, it is still essential for buyers to be cautious. In most Australian jurisdictions, the law makes provision for a cooling-off period to allow home buyers to evaluate a decision made in the heat of the moment. These periods represent a crucial safeguard in real estate transactions.

In this article, we look at cooling-off periods, their significance, applicability, and operation across different jurisdictions in Australia. The information provides a general overview only and it is important to note that there are various exceptions to cooling-off periods and different rules for each state and territory. Accordingly, you should obtain professional advice relevant to your jurisdiction and the circumstances of the transaction.

Why Have a Cooling-Off Period?

The primary rationale behind cooling-off periods is to afford buyers an opportunity to conduct further due diligence, seek legal or financial advice, and address any concerns that may arise after the signing/exchange of contracts. By providing buyers with a brief reprieve from the pressures of a rapidly evolving property market, cooling-off rights promote informed decision making and help mitigate the risks associated with impulsive or ill-considered purchases.

How Does a Cooling-Off Period Work?

During the cooling-off period, buyers have the option to rescind, or cancel, the contract by providing written notice to the seller or their representative. This notice effectively terminates the contract, and the buyer may be required to pay a nominal penalty fee, typically calculated as a percentage of the purchase price, to the seller. However, it is important to note that conditions and limitations apply in every jurisdiction, such as the timeframe within which the notice must be given, and any specific requirements stipulated in the contract of sale.

When Does a Cooling-Off Period Apply?

Generally, cooling-off periods are only available for private treaty sales, and not for properties bought at auction. There are other exceptions where cooling-off rights do not apply, and it is important to check these with your lawyer or conveyancer before entering a contract. Additionally, the cooling-off period is typically there for the benefit of buyers, not for sellers who change their minds after signing the contract. The specific application of cooling-off periods depends on the circumstances of the transaction and the relevant state or territory legislation.

Further, in some cases, a buyer and seller may agree to waive, shorten or lengthen the cooling-off period by including a term in the contract to that effect.

Cooling-Off Rights Across Australia

In Queensland, a cooling-off period of five business days applies to contracts for the sale of residential property. This period starts the day the buyer (or their representative) receives a copy of the fully signed contract. The cooling-off period ends at 5 pm on the final day of the cooling-off period.

In Victoria, a cooling-off period of three clear business days applies. This period begins from the date the buyer signs the contract. The consequence of cancelling the purchase during the cooling-off period is that a penalty of $100 or 0.2% of the purchase price (whichever is greater) will apply.

In New South Wales, buyers of residential property have a cooling-off period of five working days following the exchange of contracts. If the buyer exercises their cooling-off rights, they will forfeit 0.25% of the purchase price.

Likewise, in the Australian Capital Territory, a buyer is entitled to a cooling-off period of five business days. If the buyer rescinds the contract, they forfeit 0.25% of the purchase price to the seller.

In South Australia, buyers have a cooling-off period that starts from when the seller provides the buyer with a Form 1 that sets out important information about the property, including any encumbrances, easements, or other certain legal issues that may affect the sale. The cooling-off period expires at the end of the second clear business day after the form is provided.

In the Northern Territory, a buyer is entitled to a cooling-off period of four business days which commences on the day that contracts are signed and duly exchanged.

The Real Estate Institute of Tasmania and Law Society of Tasmania standard form contract includes an option for buyers to choose a cooling-off period. Buyers must select this option for the cooling-off period to apply. In such cases, they will have three business days from when the contract is made to terminate the contract without penalty. Any deposit paid is refundable.

In Western Australia, cooling-off periods for residential property sales are not an automatic inclusion in contracts. In most cases therefore, buyers cannot change their minds once the contract has been entered. However, they may still negotiate the inclusion of a cooling-off clause in the contract of sale as a condition of their offer. This contractual provision affords buyers similar protections to those provided by statutory cooling-off periods, albeit subject to the terms negotiated between the parties.

Conclusion

Cooling-off periods represent a fundamental aspect of residential property transactions, offering buyers a valuable opportunity to pause, reflect, and reassess their commitment before finalising the purchase. While the specifics of cooling-off periods vary between states and territories, their underlying purpose remains consistent: to empower buyers with the information and flexibility needed to make informed decisions in a rapidly evolving real estate landscape.

By understanding the intricacies of cooling-off periods and their operation, buyers can navigate the property market with confidence, knowing that they have the necessary safeguards in place to protect their interests and secure their dream 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.

Boundary Disputes – Resolving Divided Interests with Your Neighbours

Unfortunately, disputes between neighbours are some of the most common legal disputes in Australia. Often these disputes arise because of shared fences, overhanging trees, and property boundaries. This article looks at how to resolve a dispute over a dividing boundary line between properties. The information is for general purposes only, and we recommend obtaining professional advice relevant to your specific circumstances.

Determining the Boundary Line

In a new housing estate, the boundary line of a property is usually clear. The developer can supply copies of property plans with all the boundaries marked, and there are usually physical pegs in the ground to represent these boundaries.

Things become more complicated when it comes to older, more established, properties. Buyers of established properties usually rely on the location of fences to determine where the boundary line is located, although this is an unreliable method. For one thing, not every property is fully fenced, especially large rural properties. In addition, even if there is an existing fence, it may not faithfully follow the property line. Property owners build fences in locations other than the boundary line for all sorts of reasons, for example, because of the difficulties of building exactly on the property line due to obstructions or soil conditions.

In rare cases, and usually only with larger rural properties, the boundary of a property may be marked by a physical landmark such as a river. This obviously raises issues if the landmark changes, such as the river changing course over time. There are special complex rules that apply to these sorts of boundaries, and how you should resolve a dispute over this type of boundary.

For most properties, however, establishing the location of the boundary is fairly straightforward (although it can be expensive). A boundary survey will establish the exact lines and corners of a property. It is often worth having a boundary survey carried out prior to buying a property, even if there are established fences or the boundaries seem obvious. It can be especially worthwhile if you intend to build an extension or other improvement and the location of the boundary line might impact your future plans.

Resolving Disputed Boundaries

When neighbours can’t agree on the location of a property’s boundary, this can lead to a boundary dispute. It’s important to deal with boundary disputes as quickly and efficiently as possible to avoid issues arising such as encroachment, adverse possession, and trespassing. Maintaining a harmonious relationship is the first step in trying to resolve the dispute and can be key to resolving it as quickly and inexpensively as possible.

The next step is to identify the real nature of the dispute. If there is no existing fence and no boundary pegs, then both parties may be invested in identifying where the boundary actually falls. If there is an existing fence and one party is concerned that it is mislocated, then that party may have to bear the cost of having a survey done to confirm the true location.

If there is no existing fence to mark the boundary location, or the existing fence is in the wrong place, then the parties need to work together to plan for, and pay the cost of, a new fence. No matter where you are located in Australia, both neighbours have a legal responsibility to contribute to the cost of a reasonable fence. Although this is often a considerable expense, it is far more expensive and stressful to fight a protracted legal battle to avoid paying the cost. There is usually little point in trying to avoid an unavoidable cost of homeownership.

A more complex dispute can result when the boundary has been mislocated for a long period of time, especially if one neighbour has built improvements over the boundary line or uses part of their neighbour’s land to access their own property.

It is important to establish whether there is an easement involved in the boundary dispute. If there is a formal easement marked on the title, then the neighbour benefiting from the easement has a legal and protected right to use their neighbour’s land for a specific purpose (such as to access their own property).

Adverse Possession

Even if there is no easement on the title, this may not be the end of the matter. If someone has had sole use of part of their neighbour’s property over a long period of time, they may be able to claim what is called “adverse possession” of that part of the land. The rules in each state and territory differ, but simply put, if a person has openly and obviously used land for a number of years (especially if they fenced it so that the true owner did not have access) then they may gain legal ownership.

The law of adverse possession is just one reason that knowing the true boundaries of your property may be important. Adverse possession is a complex area of law, and you should seek legal advice if you think that you may be subject to an adverse possession claim or may wish to make such a claim.

Conclusion

The most important thing to remember when resolving any dispute, and especially a dispute with a neighbour, is to try to create and maintain a good relationship before, during and after the dispute. Property law can be complex but there are professionals who can help you resolve and document an agreement reached with your neighbour to resolve your boundary dispute.

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.