The Importance of Making a Will after Separation

Your Will should reflect any significant changes in your relationship status, whether you are getting married, having children, or breaking up.

If you made a Will whilst you were single but have now married, this automatically cancels your Will rendering it invalid.

Divorce affects your Will differently in each state. In Victoria, pursuant to the Wills Act 1997, upon divorce, any provision in your Will that relates to your former spouse becomes invalid. On the other hand, unlike divorce, separation does not automatically cancels the provisions in your Will relating to your former spouse/partner. This means that, if you separate, your former partner may still get a share of your estate (or your whole estate if you leave no children at the date of death) unless you make a new Will.

However, if you divorce but continue to maintain an amicable relationship with your former spouse for the sake of your children, and you intend to leave your former spouse as the executor of your estate after your death, your former spouse may encounter complications proving your intentions when you are no longer around.

Rather than leaving these issues to the Supreme Court to unravel, it would save one the hassle and legal fees to simply make a new Will to ensure your intentions are clear. If you think about this carefully, taking the time to draw up a Will or revisit your old Will each time a significant event occurs is worth taking the time for, particularly if you have children or family members or friends you wish to provide for when you are no longer around.

At Nevett Ford Lawyers, we always advise clients who are starting or have finalised property proceedings, and or applied for divorce to make a Will (or a new Will) and properly arrange their estate affairs. We cannot emphasise the importance of this enough!

So, the next time you update your relationship status on Facebook and/or on other social media, think about this article and remind yourself to also update your Will! If you have done the former but not the latter, call us now on 03 9614 7111 or email Melbourne@nevettford.com.au.

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To Appeal or Not to Appeal, That is the Question

After a final judgment is made in a family law case, the parties have a short period of time in which to lodge an appeal and should consult with a family lawyer immediately afterwards to avoid missing out on a potential right to an appeal. Often clients will notice factual mistakes in judgments that occur for a variety of reasons. However, even when there is a clear factual error and everybody agrees that this is a mistake, this does not necessarily mean that the whole decision is invalid or an ‘appeal should be allowed’.

A recent decision in the matter of Henley (http://www.austlii.edu.au/au/cases/cth/FamCAFC/2017/142.html) illustrated this point. In that case, the Judge who heard the case got it wrong in their judgment about where the father lived. The father was said to live in a particular town when he in fact lived in another suburb quite close to the mother’s house.

On the face of it then this would appear fairly significant – that the father’s place of residence would be important in deciding where a child is to live. However Full Court of the Family Court found that this mistake did not “lead into substantive error”. Because there was no suggestion by the parties that the Father’s residence would make travelling between their houses impracticable, the Judge was not “led into error” by his erroneous factual finding.

This is important to emphasise when considering an appeal; you may be very right that there is an error, but has this error actually led to a decision being made incorrectly? It is important that you get considered, experienced legal advice before lodging your appeal because these can be very expensive and complex applications, and if you get it wrong, you can face serious costs issue. Call us now on 03 9614 7111 or email Melbourne@nevettford.com.au

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Myths of Child Support

Myth 1: “I don’t see the kids, so I don’t have to pay child support.” Or “If you don’t pay child support, you won’t be able to see the kids.”

The Family Law Act 1975 recognizes that it is in the best interests of a child to have a meaningful relationship with both parents, and to be assured that he/she is supported financially, whether they are biological or adoptive parents, same sex or otherwise. Preventing your child from spending time with the other parent simply because he/she refuses to pay child support would be viewed by the Court as pushing your child/not acting in your child’s best interest.

Myth 2: “Child support must always be assessed by the Child Support Agency of the Department of Human Service.”

If the parents are hostile and cannot reach an agreement as child support, Child Support Agency can assess how much child support should be paid. The assessment is formula based and takes into account several factors, including:

1. Taxable income of each of the parents;
2. Costs of raising the child or children;
3. Percentage of time the child or children spend with each parent (usually only nights are taken into consideration);
4. The age of the child or children;
5. The cost of living of each of the parents;
6. Whether there are any other dependant children.

 Whilst either parent may request the Child Support Agency to make an assessment of the amount of child support one parent must pay to the other, parents can come to their own agreement about how much child support should be paid. Parents may negotiate a private agreement about child support. They may agree on a sum less than or greater than the amount assessed by the Child Support Agency. The parents may agree on the method of paying significant expenditures such as private school fees, uniforms, sporting fees, etc. They may also agree on a lump sum arrangement. In these circumstances, it is usually advisable for parties to enter into a Child Support Agreement.

There are two different types of Child Support Agreements: Binding Child Support Agreement and Limited Child Support Agreement.

Myth 3: “My ex-partner and I can sign a piece of paper stipulating the amount of child support to be paid without getting lawyers involved.”

If parents decide to enter into a Limited Child Support Agreement the parties are not required to get legal advice before entering into a limited agreement however a child support assessment must already be in place and the annual rate payable under the agreement must be equal to or more than the annual rate of child support payable under the child support assessment.

Binding Child Support Agreements on the other hand can be made for any amount that the parents agree to. However, Child Support Agency will not accept a Binding Child Support Agreement without each parent first obtaining independent legal advice. They require legal practitioners to complete a Certificate to verify that parents received legal advice before entering into a binding agreement for Child Support.

You should contact one of our experienced Family Lawyers on 03 9615 7111 or email us out of hours on melbourne@nevettford.com.au for further advice with respect to the issues of child support or about which one of these Agreements is more suitable to your needs.

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If I separate, is there a time limit to make a claim for a property settlement?

Yes, the deadline for issuing a property (or maintenance) application is 12 months for married parties after a Divorce Order has taken effect (except by leave of the Court or the agreement of the other party).  A party to a de facto relationships may apply for a property (and maintenance Order) only if the Application is made within 2 years after the end of the relationship.  If you are outside these timelines, we recommend you obtain legal advice.

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Can you make a claim for property settlement if your de facto relationship is less than 2 years?

It is possible to make a claim for a property settlement for de facto couples (including same sex couples) even if the cohabitation is for less than 2 years.  You would need to have a child of the relationship or have made “substantial contributions” to any property of the parties.  You would also need to demonstrate that if the Court won’t allow your case to be heard, you would suffer serious injustice.

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What happens if you break a Parenting Order?

If the Court finds you are guilty of breaking a Parenting Order (without reasonable excuse) the following penalties may apply:

1.    The original order may be varied.

2.    You may be ordered to attend a post separation parenting program.

3.    You may be required to enter into a bond.

4.    You may be ordered to pay the other party legal costs.

5.    You may be ordered to pay compensation for reasonable expenses lost as a result of the contravention.

6.    You may be required to participate in community service.

 

 

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How do I know if my relationship constitutes a 'De Facto Relationship'?

A 'de facto relationship' includes same sex partners and can exist if a partner is married to someone else or is in another de facto relationship. The relevant legislation defines partners as being in a de facto relationship if they are not married or related to each other, and having regard to all the circumstances of their relationship, living together on a genuine domestic basis.

Those circumstances may include:

·        the length of the relationship

·        the nature and extent of their common residence

·        whether a sexual relationship exists

·        degree of financial dependence and support

·        ownership, use and acquisition of property

·        degree of mutual commitment to a shared life

·        the care and support of children

·        reputation and public aspects of the relationship

·        whether the relationship was registered in a State or Territory.

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