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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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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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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