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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What does Roll-Over Relief mean with respect to Capital Gains Tax?

Roll-over relief is available where an asset is transferred under property orders or a Financial Agreement:
1. Between spouses or
2. From a trustee or company to a spouse.

"Roll-over relief" means the deferral of the Capital Gains Tax liability until the transferee (the person retaining the property) eventually disposes of the asset.

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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 relationship 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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What happens if you are made redundant?

In these uncertain economic times it’s important to be mindful of the potential impact of a redundancy or a possible redundancy on a property settlement.  It’s important to fully disclose to your lawyer if you have applied for a redundancy even if it’s after a separation.  It may be relevant in the property settlement negotiations.

A redundancy payment received after separation (but before a family law settlement) and applied to a new property is likely to be “added back” into the matrimonial asset pool, so we recommend you finalise your property settlement as soon as possible after a separation.

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Spousal Maintenance under the Family Law Act

Under the Family Law Act a Court may make such order that it considers “proper” for the provision of maintenance.  This means that the Court has a discretion both as to whether maintenance should be ordered and, if so, as to how much should be ordered.  It is a discretionary power.

Under the Act, a party to a marriage is liable to maintain another party to the extent that the first party is reasonably able to do so and the second party is unable to support him or herself adequately:

a.     Due to having care or control of a child of the marriage under the age of 18;

b.     Due to age or physical or mental incapacity for appropriate gainful employment; or

c.     For any other adequate reason.

Having regard to a list of factors, including:

1.     The age and health of the parties;

2.     Whether either party has the care or control of a child of the marriage under the age of 18;

3.     Commitments of each party necessary to support him or herself and a child that the party has a duty to maintain;

4.     A standard of living that in all the circumstances is reasonable;

5.     The extent to which the party whose maintenance is under consideration has contributed to the income earning capacity, property and financial resources of the other party; and

6.     The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration.

Case law provides that the term “adequately” is not a fixed standard.  It is not subsistence level.  An applicant is not entitled to live at a level of consideration luxury just because the other party is very wealthy.  Where possible, both spouses should continue to live after separation at the level that they previously enjoyed. 

The Court would assesses "earning capacity".  The applicant needs to provide evidence as to the attempts to find employment.  The Court may find that the applicant has earning capacity, but it may find that the applicant’s earning capacity is less than the income received.  It would then need to assess whether the applicant has the capacity to support him or herself adequately.

When a Court determines capacity to pay maintenance, it will take into account income, property and financial resources of that party.  It may be necessary to show that the income of that party does not exceed that part's reasonable expenses in order to show that there is no capacity to pay maintenance. There is no mathematical formula and the Court's power is discretionary. 

Please do not hesitate to contact your Nevett Ford representative with any questions about this article or Family law matters.

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My partner and I are separating and I want to take the kids overseas, what do I need to do?

• To obtain a child’s passport, written consent is required from each person who has parental responsibility for the child (usually both parents).
  
• If you are not able to obtain the other party’s written consent you need to apply to the Court seeking permission to travel internationally (this is so, even if you have a Court Order for sole parental responsibility) as the Passport Office has specific requirements.
  
• If you wish to prevent the other party taking a child overseas (if they have the child’s passport) you will need to make an Application to Court seeking an Order preventing the child leaving Australia.  This is called an “Airport Watch Order”.
  
• Once you have an Airport Watch Order in place, if you agree in the future for the child to travel overseas you need to apply to the Court before you propose to travel and have the Airport Watch Order removed.
  
• Any Court Applications regarding overseas travel need to be supported by Affidavit material setting out various details of the proposed trip, the purpose of the trip and other relevant matters.
  
• If you wish to prevent a child being removed from Australia (if they do not yet have a passport) you can make an Application to Court preventing a passport being issued and preventing the child from leaving Australia.
  
• If you fear that the other party may attempt to apply for an Australian passport without proper legal consent you can lodged a “Child Alert Request” at any Australian Passport Office.  You will then be notified of any passport application for the child.
  
• Special caution needs to be exercised where the children are eligible or where they already have a foreign passport.  A Child Alert does not prevent a child leaving Australia on a valid Australian or foreign passport.  It is recommended that you contact the embassy of the relevant country if you think a passport may be issued by another country.
  
• You should seek legal advice if you have a query about travelling internationally with children or considering relocating overseas with children. 

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My ex-partner has a substance abuse problem and/or mental illness, can I apply for full custody of our children?

There is no simple answer to this question. The Court looks at a variety of issues, including:

1.    Type and severity of your ex-partner’s mental illness and/or substance abuse problem.

2.    Whether your ex-partner is under the care of medical professionals and whether or not s/he is following the care plan, including taking prescribed medication.

3.    Whether or not your ex-partner has ever behaved in a violent manner.

4.    Whether or not there has been a pattern of negligence or irresponsibility in the way your ex-partner has cared for the children.

5.    The age and maturity of the children.

6.    The availability and suitability of any relatives or close friends to supervise the time the children spend with your ex-partner.

7.    Recommendations by health care professionals.

8.    Whether any intervention orders have been made against your ex-partner.

9.    Whether your ex-partner has a criminal history.

10. The children’s relationship with your ex-partner.

11. The extent of your partner’s involvement in the children’s lives prior to separation.

12. Whether or not your ex-partner has contravened any previous court orders.

If you have serious concerns about the safety and wellbeing of the children, you should contact a lawyer practising in Family & Relationships Law to get advice on whether you can apply to change the care arrangement for the children. At Nevett Ford, we have two Accredited Specialists in Family Law, Annmarie Farrell and Elizabeth Hall.

In urgent situations, you should contact the emergency services on 000 or the Department of Human Services on 1300 650 172 (for Victorians).

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I want a divorce but I don’t know where my husband/wife is.

In Australia, you do not need the consent of your husband or wife to obtain a divorce. To obtain a divorce order you need to prove:

1.    You and your spouse are married.

2.    You and your spouse have been separated for at least 12 months.

3.    There are adequate care arrangements in place for any children of the marriage.

4.    If you and your spouse were married for less than 2 years at the time of applying for a divorce, that you have a counselling certificate from an approved counsellor or permission of the court to apply for a divorce.

5.    If you and your spouse were married overseas, that at least one of you is an Australia citizen or ordinarily lives in Australia and has done so for 12 months immediately before applying for a divorce or regards Australia as your home and intend to live indefinitely in Australia as a citizen or resident.

If you do not have the consent of your husband or wife to apply for a divorce, you can file your own application, also known as Sole Application. Once the Sole Application has been filed at Court, ordinarily you would need to serve it on your spouse at least 28 days prior to the date of the divorce hearing (or 42 days if your spouse was overseas at the time of service).

If you do not know the whereabouts of your spouse and you have made reasonable attempts to contact your spouse at his or her last known address, telephone number or email, then you may apply to the Court to do away with the service requirement. As the application process can be quite technical, we suggest you contact a lawyer who specialises in Family and Relationships Law for specific advice. At Nevett Ford, we have two Accredited Specialists in Family Law, Annmarie Farrell and Elizabeth Hall.

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What to do if you’ve repartnered prior to having settled your property matters with your previous spouse.

For a variety of reasons separated spouses often do not fully settle their property matters immediately after separation. Separated spouses frequently remain as joint tenants of the former matrimonial home in an effort minimise the upheaval for their children. Separated spouses also often remain joint debtors on mortgages, credit cards and other loans as they may not have the ability to refinance or discharge the debts.

The impetus to fully separate all aspects of financial matters usually arises when one or both of the separated spouses repartner.

If you and your previous spouse still have financial ties and you are looking to repartner or have already repartnered, we suggest that you look into completing the property settlement with your previous spouse as soon as possible. During the settlement process, you should consider:

·         Maintaining a separate bank account to your new partner.

·         Avoiding purchasing significant assets with your new partner prior to finalising the property settlement with your previous spouse, where possible.

·         If you do decide to purchase assets with your new partner prior to finalising the property settlement with your previous spouse, or you have already purchased property together, then you should maintain a clear record of the capital and non-financial contributions you and your new partner are making towards these assets.

You and your partner need to consult a lawyer about making wills and other estate planning matters as soon as possible. At Nevett Ford, we have lawyers who may assist you in estate planning and family law matters.

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Do I need a prenuptial agreement?

Prenuptial agreements are often mentioned when high profile couples marry or separate.

Prenuptial agreements are fairly new to Australia. They are a type of Binding Financial Agreement (BFA), which came into existence in 2010 when the Family Law Act 1975 was amended to allow parties to enter into private agreements about their property matters.

You should consider entering into a BFA with your partner if:

·         If there is a significant disparity in wealth between you and your partner.

·         If one party is expecting a large inheritance and the other one is not.

Parties can enter into a BFA in contemplation of marriage or entering into a de facto relationship, during a marriage or de facto relationship or even after separation.

In order for a BFA to be binding, both parties to the Agreement must receive independent legal advice. This means that they must each have their own lawyer. Given the complexities involved in drafting and advising on BFAs, it is essential that you consult a lawyer who specialises in Family and Relationships Law.

At Nevett Ford, we have two Accredited Specialists in Family Law, Annmarie Farrell and Elizabeth Hall.

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What to do if you’re recently separated and there are assets in your partner’s name only.

Properties are often registered in the name of one spouse for asset protection or tax reasons. Often, properties owned by one spouse prior to the parties entering into a relationship stays in that spouse’s name and are not transferred into joint names. That spouse may even consider those properties to be theirs only.

The mere fact that a property is registered in the name of one party does not mean it is immune from being divided with the other party at separation. Properties which exist at separation are usually considered part of the common pool of assets to be divided.

If your spouse owns real estate in their sole name or jointly with someone else, it is essential that you lodge a caveat against your spouse’s interests in the property to prevent those interests from being sold or transferred to another person. The process of lodging a caveat is quick and simple.

If your spouse is about to retire, a payment flag may be registered with your spouse’s superannuation fund to prevent your spouse from withdrawing his or her superannuation benefits. A flag may be put in place with your spouse’s agreement or by order of the Court.

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Separating from your spouse ... who will get the kids?

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