What we’ve written 2017-03-24T15:28:38+00:00

What we’ve written

Want some more information? Have a look at some of the articles, guides and blog posts listed below by our team. Cant’ find what you’re looking for? Contact us to see how we can help you.

The idea of a “pre-nup” has traditionally been considered a romance killer, a reflection of a lack of commitment by at least one of the parties to a marriage, or subject to the Hollywood stereotype of a rich old man marrying a gold-digger.

In Australia the “pre-nup” is called a “Binding Financial Agreement”.  The  amendments to the Family Law Act 1975 extend Binding Financial Agreements to those in a de facto relationship.

Increasingly in Australia traditional perceptions are giving way to the acknowledgement that a Binding Financial Agreement is a practical solution to the reality of the statistics regarding the number of marriages that end in divorce.  More than that, a Binding Financial Agreement accommodates the complexities arising in blended families where people are entering into their second and subsequent relationships with property from their previous relationships.

Coping with the emotional pain, stress and turmoil of a relationship breakdown can be made manifestly more difficult by having to negotiate the business of the break-up.  Parties to the relationship have little time to mourn the loss of the relationship and recover some equilibrium before launching into the practicalities of the situation, like, who will retain the former family home?  How will the other person afford to live somewhere else?  What happens to the investment property?  Even the most amicable of break-ups can produce anxiety and fear for the future for the parties to the relationship and feelings of dread and discomfort at having to discuss how to sever financial ties with the other person in an emotionally charged situation.  For those whose relationship breakdown is not amicable, the desire for certainty, fear about lost future security and the lack of specificity about the financial contributions by both at the commencement of the relationship can fuel the ferocity of negotiations and push them towards undesired, but necessary, Court proceedings.

The existence of a Binding Financial Agreement, whilst not eliminating the feelings of hurt and anxiety, can alleviate some of the tension of the break-up and the necessity for any Court proceedings.

A Binding Financial Agreement sets out the financial circumstances of each person to the marriage or de facto relationship, including the assets and liabilities each person is bringing into the relationship.  The Binding Financial Agreement also sets out what should happen to that property and any property the spouses accumulate jointly and separately during the relationship in the event the relationship breaks down.  Both parties must receive independent legal advice before entering into the Binding Financial Agreement.  The solicitor for each party must sign a “Certificate of Independent Advice” confirming that that each person has been informed of the advantages and disadvantages of entering into the Agreement.  Generally, the Binding Financial Agreement comes into effect upon one of the parties to the marriage signing the ‘Separation Declaration’ to the Agreement, which states that the parties separated and are unlikely to resume co-habitation.

Essentially, a Binding Financial Agreement provides the parties to a marriage or relationship with the certainty of a ‘to-do’ list if they ever need a property settlement.  Whilst a Binding Financial Agreement cannot be a crystal ball and list all the assets and liabilities the parties to the marriage will acquire during their relationship, the Agreement can set out how the parties want to divide any property they do accumulate and the manual steps for achieving the division.

The benefits of a Binding Financial Agreement are particularly important for those considering entering into their second de facto relationship or marriage.  Under the Family Law Act, whilst the assets each party brings into the relationship are taken into account as are later contributions by the relevant party, all assets are included in the property pool for division.  The result for some is the discovery that assets they had in their mind excluded from the property pool (e.g. an inheritance) now form part of the divisible property pool.  Those embarking upon a second relationship blending families with adult children should consider a Binding Financial Agreement in conjunction with an estate plan.

A Binding Financial Agreement should be drafted in such a way that it deals with the division of real property, shares, investments, motor vehicles, property held in trust and corporate structures and inheritances received by both parties.  It is a complex document drafted to cover as possible scenarios in the event of separation. The advice of a solicitor is not only recommended, but a mandatory requirement for the validity of the document.

In matters relating to children, the jurisdiction of the Family Court is not limited by whether or not the parents were in a relationship. The Family Court can make orders with respect to children whether their parents were married, never married, lived together, never lived together, etc. The only children for whom the Family Court cannot exercise jurisdiction are those who at the time are subject to State welfare laws.

However, the property and spouse maintenance jurisdiction of the Court can only be invoked if you have been married or in a defacto relationship (heterosexual or same sex).

The English language is still yet to have the perfect words to describe each and every relationship that exists in modern society. “Husband”, “Wife”, and “Marriage” are easy, but for years our language has struggled to provide a word that best describes the parties to a defacto relationship. I do not think that many people would say, when being introduced, “Hello. I am Jane and this is my defacto husband John”. Other titles are ambiguous:

• Boyfriend/girlfriend – they might be just “dating” or “going out” or they could have been living together for the last 10 years with three children.

• Significant other – the less said the better.

• Lover – this one has way too many connotations that you are engaged in an affair.

• Partner – this one is very risky for those in business together.

The law has provided indicators as to whether or not parties are in a defacto relationship, as opposed to a “relationship”. There are four very important indicators of a defacto relationship. The first, of course, is that you are not married; the second is that you are not related by family (and there is a specific definition as to what this is); the third is, having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis; and the fourth, that you can be in a defacto relationship even if one of the parties is either:

1. Legally married to somebody else; or

2. In another defacto relationship.

You can, therefore, be in two relationships at once.

The law then looks at what those circumstances might be and they include duration; the nature and extent of their common residence; whether there is a sexual relationship; whether there was financial dependence, interdependence, or arrangements for financial support; the ownership, use and acquisition of their property; the degree of mutual commitment to a shared life; whether you had registered your relationship under the various State or Territory laws; care and support of children; and the reputation and public aspects of the relationship.

The law is also clear that these circumstances do not have to be given equal weight, nor indeed do they all have to be ticked off. A couple, for example, may not be having a sexual relationship due to age, ill-health or infirmity. Couples may “go out” or “date” for years without having any of the other circumstances and would never have regarded themselves as likely to be in a defacto relationship.

The nature and extent of their common residence is an important one. You do not have to have lived exclusively together in the one home to be found to be in a defacto relationship. In relation to reputation and public aspects of the relationship, there are the old stories of the travelling salesman with one family in Sydney and one family in Perth who kept everything silent between the two. He would be regarded as having been in a defacto relationship with both of the them despite the fact that much of each relationship was hidden from public view.

In the last few years a new phrase has appeared – “friends with benefits”. Are friends with benefits in a defacto relationship? Only time will tell.

For family law advice contact Farrar Gesini Dunn 6257 6477 www.fgd.com.au

Defining when a relationship starts and when it ends is not as simple as you might think

 By Ann Northcote, Director – Farrar Gesini Dunn

One of the first things a family lawyer will ask a new client is when their relationship started and ended.  To some people this is not a difficult question.  They may not have lived together until their date of marriage and that after a period of unhappiness, they moved out on a particular day.  The reason why it is important is because the legislation is built around concepts such as the duration of the marriage or relationship and contributions made including indirect contributions, non-financial contributions, and contributions as homemaker.

The duration of a defacto or same sex relationship is also important for jurisdictional purposes.  Unless you have had a child together or substantial contributions have been made, for defacto and same sex couples you need to have been in the relationship for two years.  Similarly, you only have 2 years from the date you separate to make an application for financial issues to be resolved.

Your date of separation is important if the law is about to change. In the family law area, there have been at least 3 occasions when the date of separation was crucial.  The first of these was in 1975 when the Family Law Act was introduced and the entire family law system was overturned.  In 1989, the child support system was overhauled but only applied to people whose marriages had broken down after October 1989 (or who had a child born after that date).  In more recent times, in 2009 the federal system took over property settlement for same sex and defacto couples but only applied to those couples whose relationship had ended after 1 March 2009.

The date of separation has always been important for obtaining a divorce since the legal requirement is separation for 12 months.

To separate, you need to form the intention, communicate that intention and then act upon it.  Couples often don’t live together although they regard themselves as still in an intact relationship.  For example, one person is posted overseas but the rest of the family remains behind either because the posting is unsuitable or children need to finish schooling.  Similarly, one party may be in a nursing home and not be living with the other person but the relationship has not ended.

Therefore, if you form the view while living separately from your spouse that your relationship is over you need to communicate that either verbally or in writing.

You can, however, be separated while still living together.  This is a concept known as “separation under the one roof”.  Your lawyer can assist you in helping work out whether you have been separated under the one roof or not.

Just as knowing when a relationship ends can be difficult; knowing when it starts can be even trickier.  If parties gave up their individual leases on premises they were renting and took out a joint lease on a property then again that is simple.  However, what often occurs is that parties spend occasional nights at each other’s homes which, over time, increases until it may be full time.  There may be periods where fewer nights are spent or where the relationship is suffering some problems and they spend few nights together.

Knowing when you are in a relationship is not just important in the family law arena.  Government benefits and allowances are different depending on whether you are in a relationship or not and there are penalties for failing to disclose at the appropriate time. Similarly, members of the defence forces and people on overseas postings are entitled to certain allowances depending on whether or not they are in a relationship.  Superannuation benefits upon death may be payable to a person in depending on the duration of the relationship with the deceased person at time of death.

Next month we will discuss a question that is related to this topic. Forget about duration of relationship-what happens if one party says” We were never in a relationship”?

For family law advice contact Farrar Gesini Dunn 6257 6477 www.fgd.com.au

The issue of property settlement between married and de facto parties is complex and technical.  A High Court decision has now made this more the case.

If you are 40 something and one of your parents (or both) have re-partnered and you are wondering about the effect this may have on your inheritance, then read on.

If you think a property settlement cannot happen whilst you are not separated, think again.

Generally speaking, the Court cannot make a property settlement order unless it is satisfied that, in all the circumstances, it is ‘just and equitable’ to do so. The case of Stanford v Stanford [2012] HCA 52 has highlighted the importance of carefully considering this term.

The husband and wife were married for over 40 years.  Both parties had been previously married and had adult children.  The family home was registered in the husband’s sole name. During the relationship, they each made Wills basically leaving their estates to the children of their first marriage, except that the husband, in his Will, also left the home subject to a life tenancy in favour of the wife.  You would assume these arrangements to protect your inheritance would be sufficient – but they are not.

In December 2008, the wife suffered a stroke and was admitted into full time residential care.  The wife also developed dementia and did not return to live with the husband.  However, the parties never formally ended their relationship.  The husband put some money into a bank account to provide for the wife’s medical needs/costs.

At first instance, the Magistrate divided the assets as to 57.5% to the husband and 42.5% to the wife.   The wife’s care guardian (the wife’s daughter from her first marriage) had commenced the proceedings.  The husband appealed to the Full Court but after the Appeal was heard, and before Judgement was handed down, the wife died.  The Full Court subsequently allowed the Appeal and set aside the Magistrate’s decision on the grounds that the Magistrate had not sufficiently considered the effect of the Orders on the husband and “the fact that this was an intact marriage” in considering what was ‘just and equitable’.

At the request of both parties (now in essence the executor of the wife’s estate – still her daughter – and the husband), the Full Court re-exercised discretion and ordered that on the husband’s death, the sum which had been fixed by the Magistrate as representing the value of 42.5% of the marital property to be paid to the wife’s personal representatives (the wife’s children of her first marriage in fact).

The husband appealed the property settlement orders made by the Full Court on two grounds. Firstly that there was no power to make the property settlement orders because this was an intact marriage’ and that, upon the wife’s death, the only persons to benefit would be the wife’s children of a different marriage. The second ground of appeal was that even if the Court had the power to make the orders, it should not have done so.

The High Court confirmed the existing law in relation to the continuation of property settlement proceedings after the death of a party (if proceedings have already been commenced) and so the husband’s first ground of appeal was rejected.  However, the High Court accepted the second appeal ground and set aside the property orders, resulting in the husband retaining all of the assets in his name.

The wife’s daughter from her first marriage in effect received nothing.

The possible implication of Stanford is that property settlement matters may need to be dealt with in the following way:

1. The first step is to identify the existing legal and equitable rights of the parties in their property.

2. The second step involves ascertaining whether it is ‘just and equitable’ to make an order to alter those interests.  The question presented by what it ‘just and equitable’ is whether the existing rights and interests should be altered.  In most cases, the just and equitable requirement is readily satisfied as the parties are no longer living in a marital relationship and are no longer sharing common property.  In Stanford, the husband was the sole proprietor of the home and the parties had not actually ended their relationship.  Accordingly, in the circumstances of this case, the High Court was reluctant to alter the existing interests in property.

3. Once the Court has concluded that it is just and equitable to make a property settlement order, it should then proceed to take the other steps associated with property settlement being the assessment of each party’s contributions and a consideration of the financial resources, means and needs of the parties and other relevant matters.

Stanford confirms that although the Court has a very broad power to make orders in relation to property settlement (whether the parties are separated or not), “it is not a power that is to be exercised according to an unguided judicial discretion” and the Court cannot simply disregard each party’s interest in their property.  It also brings to the fore the importance of considering “just and equitable” as a stand alone consideration before making a property settlement order.

For family law advice contact Farrar Gesini Dunn 6257 6477 www.fgd.com.au

In the aftermath of a relationship breakdown, negotiating about property or children with a former partner can be very challenging.  It can be tricky to work out what is really important to you and then to communicate this to your former partner.  After all the difficulties and effort it can be such a relief when you finally come to an agreement.  But what happens after an agreement is signed?  How does the way an agreement was reached affect how each party behaves afterward?

We wrote last month about  Sid and Nancy  who had a disagreement about the amount of child support Sid pays Nancy each week.  Nancy thought that the child support payment should be calculated to include the hours the children spend at school as time with her.  Sid thought that the time should be calculated based on the number of nights the children spent with each parent.

So what happens if Sid and Nancy decide not to use Collaboration as a way to resolve their differences?  Instead they employ solicitors who negotiate based on the legal rights of each party.  During their discussions, the threat of Court proceedings is raised several times by Sid’s solicitor and by Nancy’s.  There is a lot of talk about legal precedents and what the law says, but at no point are Sid’s concerns about the recognition of his parenting and Nancy’s worries about paying her bills, actually addressed or even acknowledged.  The relationship between Sid and Nancy becomes quite strained and they stop talking to each other about important matters in relation to the children.

Eventually, Sid and Nancy agree that Sid will pay an amount that is greater than he used to pay, but not as much as Nancy wanted.  If Sid is careful, he can afford to pay this amount but he is still angry and feels resentful that Nancy has pushed him into this agreement.    Nancy is relieved to have some extra money coming in to help her with her bills but is annoyed with Sid for arguing with her over the issue.

After a few months, Sid spends too much money on a new bike for their third child, Johnny.  He will find it extremely difficult to make the increased child support payment.  He thinks “Why should I be struggling to make ends meet when Nancy is living comfortably?  I’m spending all this time and money with the kids, anyway”.  Because of their lack of communication, Sid doesn’t fully understand the reasons that Nancy wanted the extra money.  He breaches their agreement and doesn’t pay the amount due to Nancy that week.  Nancy calls her solicitors, who ask the Child Support Agency to begin enforcement proceedings against Sid.  A small dispute about the details of a child support calculation has escalated into a stressful ongoing quarrel and mounting legal fees.

A Collaborative negotiation might have avoided this outcome.  It could have reminded Sid and Nancy that they have a lot of common ground, and addressed their personal concerns, instead of just discussing their legal position.  After all, both of them just want what is best for their children.   Importantly they could have had a co-parenting relationship which facilitated communication.  That way they could have talked about the purchase of Johnny’s bike.  They could have discussed whether it was a good idea to get that bike and spend that money and what changes to each household’s budget should be made to accommodate it.

Instead, because the real issues are never addressed, and both Sid and Nancy lost sight of their common interests during the legal manoeuvring, Sid feels no real commitment to the agreement.  If both parties own the agreement and understand why they and the other party committed to the agreement, they continue to see the benefits of it, rather than just the downsides.  The process that a couple take to reach an agreement can be just as important as the actual agreement reached.

For Out-of-Court Solutions contact Farrar Gesini Dunn.

Trying to define a de facto relationship can be a pretty difficult task.  A relationship can come in all sorts of shapes and sizes and all sorts of combinations, depending on the individual preferences of the people involved.  Today’s relationships can vary widely – from couples who spend time together on a ‘no strings attached’ basis, to couples who live together and have combined all aspects of their domestic life, with numerous variations in between.  For example, a de facto relationship could look like that of Brad Pitt and Angelina Jolie, who have children together, have joint finances and openly express the depth of their commitment to each other.  Other ‘couples’ might look more like Hugh Hefner and his Playmate girlfriends, and don’t seem to fit into traditional relationship roles and ideas about monogamy.

However whilst all this diversity and flexibility might seem fantastic for the couples personally (and for the gossip magazines!), it presents a pretty big problem from a legal perspective.  At what point does your girlfriend or boyfriend become your de facto partner?  When do you need to start worrying about any family law ramifications to your relationship?

Unfortunately there is no clear signal that marks when a couple become de facto and fall within the ambit of the legislation.  It’s in stark contrast to married couples, where the marriage ceremony clearly indicates to both the couple and the rest of the world that the couple are in a committed relationship that falls under the jurisdiction of the Family Court.

Contrary to what some people would say, you cannot assume that the only time you need to worry about any family law issues is when you and your partner share a residence together on full time basis for at least two years.  You could be in a de facto relationship even if you don’t share a home together all the time and even if you have not lived together for two years.  Nor does it matter if you are married or in another de facto relationship with someone else.  The legislation specifically envisages this particular situation and you can still be subject to a family law claim even if you are married or in multiple de facto relationships.

One way to get an idea would be to try asking yourself some basic questions such as:

  • Do you and your partner share a residence at all, even on a part time basis?
  • Do you provide financial support to your partner or vice versa?
  • Do you and your partner have any joint bank accounts or loans or combine your money in any way?
  • Do you and your partner have children together?

If you answered yes to any of these questions then you could be in a de facto relationship and it is important you seek further legal advice.

Consider the case of Bill and his girlfriend Laura.  They’ve been dating each other for about 18 months and are madly in love.  Bill is in the navy and a few months ago he accepted a posting overseas.  Bill and Laura decided that it would be simpler if he rented out his house and just stayed with her when he was on leave.  It would, after all, only be for a few weeks of each year, while the rest of his time would be spent at sea.  Bill and Laura also opened a joint bank account so that Laura could deal with some of his financial issues whilst he was on deployment.

The idea that they might be entering a de facto situation never even crossed Bill and Laura’s minds.  In fact, when Laura realised that this might be an issue, she was quite concerned.  She has a well paid job high up in the government and has significant assets of her own.  Although she loves Bill and feels that their arrangement works for them, she is anxious to protect the assets that she worked so hard to build up.

While some couples are fully aware of the legal ramifications of their relationship, others, like Laura and Bill, wrongly assume that they are not and get a nasty surprise when the relationship breaks down.  We will discuss what Bill and Laura could do about their situation next month, so please stay tuned!

For Out-of-Court Solutions contact Farrar Gesini Dunn.

Last month we wrote about de facto relationships and how a couple could know when they had entered into one.  We looked at the case of Bill and Laura, a couple who began to live together on a part time basis and combine their finances.  Bill and Laura discovered that they were in a de facto relationship as defined by the Family Law Act and if they were to separate they could be vulnerable to a claim in the Family Court.

Now that Bill and Laura have realised that they are in a de facto relationship, how can they find a way forward that won’t leave them feeling anxious about any future problems?  They both want to keep living together and keep having joint finances but both want to protect assets that they have acquired prior to living together.

One possibility is that Bill and Laura could enter into a binding financial agreement, or a pre-nuptial agreement, as it is known colloquially.  These agreements allow a couple to make an agreement about what will happen to them financially if their relationship breaks down.  Since March 2009 binding financial agreements can apply to de facto relationships.  You can enter into a binding financial agreement prior to commencing a relationship, during a relationship or after a relationship has already ended. There are also a number of legal requirements you need to satisfy in order for any agreement to be enforceable.  The two most important are:

    1. Any parties to the agreement must disclose all their assets and financial resources prior to signing the agreement; and
    2. The parties must get formal, independent legal advice in relation to the proposed agreement and a solicitor must sign a certificate indicating that they have given the advice.

Binding financial agreements, whilst useful, are not simple documents to create and put into effect.  It is very important that you receive advice from an experienced family law practioner in relation to creating and signing one.

Laura talks to her solicitor and decides that it is in her best interests to sign a binding financial agreement.  She now has to talk to Bill about their situation and her desire for clarity in relation to what will happen if they separate.  It takes her a few days to build up the courage.  She finds it extremely difficult to approach Bill and begin a discussion predicated on the idea of their relationship failing.  What if Bill thinks she doesn’t trust him?  What if by asking Bill to sign a binding financial agreement she actually causes more problems in their relationship?

Laura does eventually raise the subject with Bill.  During their conversation, Laura compares a binding financial agreement to an insurance policy.  It is something that will hopefully never be used but if circumstances change, it can be retrieved and put to use, thereby saving them from added stress and anxiety during a separation.  Much to Laura’s relief, Bill is not upset and he agrees with her idea that they should enter into a binding financial agreement as a kind of insurance policy.  They have a frank discussion about their relationship, their finances and what they both want to happen in the future.  They find that by talking openly about such sensitive matters they have actually strengthened their relationship, rather than creating additional difficulties.

Laura and Bill show why it is so important to consider and openly discuss the legal implications of relationship earlier rather than later.  Imagine how much more difficult such a conversation would be for Bill and Laura if it had occurred at a time they were separating.   It would significantly increase the stress on both parties at a time when they are already going through an emotionally draining experience.  A binding financial agreement can facilitate these discussions and ensure there is clarity for the future.

For Out-of-Court Solutions contact Farrar Gesini Dunn.

Choosing the right lawyer in a family law matter can often be difficult.  A family lawyer is, for most people, someone seen for a small, but crucial, part of their lives- the end of a relationship. We are not like your business/commercial/property lawyer who you see from time to time over a number of years for different transactions.M

Often your business lawyer is not able to be your lawyer in your family law matter as they may have acted for your spouse as well as you over the years. They may have prepared your Wills or acted for you in the buying and selling of homes. This is called having a conflict of interest. Even if they have not acted for your spouse, your business lawyer may have met your spouse over the years and feel uncomfortable about acting against that person. In addition, many business lawyers do not practice in family law and recognise that you need a specialist (“horses for courses”).

A good family lawyer needs to be sympathetic to you but will not always agree with you.  You are not paying a lawyer to agree with you.  You are paying a lawyer to give you their professional opinion and advice based on their experience and expertise.

Family lawyers need to have a working knowledge of many areas of law.  A relationship breakdown impinges on many areas of law: from criminal law to bankruptcy; from property to tax law. A good family lawyer will know enough to seek advice from other specialist lawyers when your case requires it. A good family lawyer will also liaise with your accountant and financial planner, both to seek advice when needed, but also to make sure that the financial goals you were trying to achieve with them are consistent with the approach that is being taken in your family law matter.

You need to feel at ease with your family lawyer. Some clients express surprise at the amount of detail we need from them. Therefore before making an appointment you might wish to consider whether you feel more comfortable talking about private matters with a man or a woman or whether you want someone your age, older or younger? Different cases necessitate different levels of personal detail.

You should feel confident in seeking a second opinion if you just don’t feel right about something your lawyer is advising.

In seeking information about who to see, consult family and friends whose opinions you value. Your business lawyer, accountant or financial planner can also be a source of information and most firms have a website where you can gain a feel about the firm.

One of the most important things to remember in choosing your family lawyer, however, is not to leave it too long. If you are the instigator of the breakup then you may wish to get advice prior to separation. If the break up has come as a shock, you should have it as one of your priorities to obtain family law advice so you know where you stand. Some of the most important decisions are made at or very soon after the time of separation, and forming a trusting relationship with a family lawyer early on is an enormous benefit.

For family law advice contact Farrar Gesini & Dunn on 6257 6477 or www.fgd.com.au

Maximising the pool of assets

When required to determine how the assets will be divided when two people in a marriage or defacto relationship separate, the court uses the following process:

    1. What are the assets available for division?
    2. How did the parties contribute, both financially and non financially, to acquiring, improving, and conserving the assets?
    3. What are each party’s current circumstances and future needs?
    4. Is the result just and equitable?

Usually, the main scope for dispute arises in steps two and three where parties dispute how they contributed to the assets or the weight that should be given to their current circumstances and future needs.  Frequently, the significance of the first step of this process is overlooked.

There is rarely a difficulty in attributing a value to liquid assets such as bank accounts and share portfolios – the value given to such assets is the realisable cash value of the asset.  Tangible assets such as houses, land, cars, and chattels are taken at their sale or second hand (not insured) value, and often need to be valued particularly where neither party knows the value of the assets or there is a dispute.

Obviously, the more assets there are to be divided, the greater value of assets that a party will receive in the eventual settlement.  A number of techniques can be employed to maximise (or, in other circumstances, minimise) the value of the asset pool to achieve a more favourable result.  The emergence of trusts, superannuation and structured asset holdings has been considered by courts in determining what property is available for division.

One contentious point relates to monies that were in existence at separation that have been spent by one of the parties, for that party’s benefit, since the time the parties separated.  The generally established rule is that those assets should be notionally added back to the pool (dubbed an ‘add back’) and considered an asset that the party receiving the benefit had already received.

There are three main categories of addbacks :

Legal Fees – the Family Law Act says each party should pay their own legal costs.  If a party uses joint funds to pay their legal fees, then there is a strong case for those funds to be considered already received by the expending party in the property division.  Adducing evidence about legal fees and the source of funds used to pay the legal fees can often result in the other party’s legal fees being ‘added back’ to the pool;

Waste – Where a party has intentionally acted to reduce the asset pool available for division, or acted recklessly or negligently and thereby caused a reduction in the asset pool, the wasted monies can be considered in determining the outcome; and

Spending Monies/Disposing of Asset – If one party spends monies existing at separation, or disposes of and receives money for an asset that existed at separation (thereby depleting the asset pool), the value of the asset or monies as at separation can be added back to that party.

Clients must be careful about their conduct with money post separation but pre settlement.  Previous cases have penalised clients for gambling, offering the use of an asset to a third party for no charge or below market charge, or ill advised business ventures.  Even the purchase of reasonable assets that are likely to decline in value (such as boats, vehicles, or in one case, $1.8million worth of wine) can result in a financial penalty to one party.

Taking a great amount of care to consider the asset pool at separation as contrasted to the asset pool at the date of settlement or hearing can result in a more favourable outcome for your client.

Adam Bak is a Director at Farrar Gesini Dunn Family & Collaborative Law.

In 2008 we launched a new family law business specialising in and focussing on out of court solutions, called Consensus Family Lawyers.  Consensus was well received by our clients and our referrers and the practice moved well into emerging and modern areas of family law including negotiating and drafting complex agreements and collaborative divorce.

Meanwhile, Farrar Gesini & Dunn remained successful with a focus on client-focussed family law litigation.  The service we offer is to give our clients certainty about fees and clear and realistic advice about the process and the likely outcome.  If we can manage expectations in those fields, then our clients are better equipped to deal with the inherent delay, cost, and emotional toll of litigation.

What we found, when reviewing the differences between the two practices, is that our lawyers at Consensus wanted more exposure to litigation and our lawyers at Farrar Gesini & Dunn wanted more exposure to collaboration.  The skills that lend themselves to success in each type of practice are so easily and appropriately transferable to the other.

For clients, despite electing to pursue an out of court solution, that doesn’t mean it will continue that way.  Conversely, a client who has been unwillingly brought into litigation should not have to ride the litigation bus until the matter concludes.  By being clever, by being different, by adopting a modern and client-focussed approach to each situation, there is often something that can be done to improve a situation, accepting the fixed and variable aspects.

The many skills, lessons and techniques that we have learned through focussing on out of court solutions have been used with great success in litigation.  In December 2011 Consensus, acting for a father, wrote to a mother proposing collaboration.  She withheld the child which led to our client commencing proceedings.  In the proceedings he sought a number of orders that went against the usual grain of litigation, about negotiation and positive parenting rather than the ordinary approach of positional negotiation.  Ultimately he was successful in his application and the judgement focussed on his unusually positive and creative attempts to resolve the dispute.

Our tag line is “modern lawyers | real people”.  This has a number of meanings.  We are national leaders in our industry.  We want to do things differently for our clients because we think using modern techniques of dispute resolution, and applying those modern techniques in a creative way in litigation and collaboration, is how we can achieve the best outcome for our clients.

Every day we see lengthy (and no doubt expensive) correspondence, discovery requests, court documents and demands from other firms.  Those methods are, in our view, out of date and reflect a ‘standard’ approach to dispute resolution: that no matter the client, no matter the situation, lawyers go through the same routine and plod towards the same outcome.

We understand that our clients are real people; that a family law dispute can be crippling, both to our client’s financial position and emotional health; and that to some people, having to put their life on hold for years while their family law situation is resolved can have a destructive effect on so many other aspects of their lives including their jobs and relationships with their children.  We will focus on the needs of each individual client, offer a fixed fee pricing structure that is clear and fair, and form a real relationship with each of our clients so that we can openly ensure we are doing the right job for them.

Our lawyers are real people too.  We have a team of talented, committed and clever lawyers who have all contributed to this rebranding and are committed to making our firm the best in Australia.  We believe that our work should support our lives.  Our new business cards give personal insights to our lawyers, so as well as their legal expertise you might learn they’re a famed poodle owner, a baseball star, a globetrotter or our own madam butterfly.

We are all excited about moving into the next stage of our business and we can’t wait to share it with you and your clients.

Believe it or not, not all difficult divorces need to end up in Court. Over the last several years, the Family Law community in Australia has been introduced to a practice known as Collaboration. Collaboration is a process available to resolve family law matters and keep parties out of Court. Each client is represented by his or her lawyer through a series of meetings. It also allows the parties to structure more creative solutions which go beyond the scope of the Court. All information and advice is given openly in the round table meetings. This process also helps to address any power imbalance between the parties, so that one party is not bullied into a settlement.

What makes Collaboration unique from other methods of dispute resolution is the contract that is signed by each of the parties and their lawyers, committing not to go to Court. If the matter doesn’t settle, then the lawyers cannot represent the parties at Court. It means that instead of lawyers playing the traditional role of a litigator and being strategic in negotiations, their goal is to settle the dispute by agreement.

Collaboration also has its critics. Some view Collaboration as the “soft” approach and think that it is only suited to “easy” matters where everyone is getting along. I’ve often heard others say “this matter is too complicated, so it’s not suited to Collaboration”. In my view, it is these so called “hard” cases that can get the most benefit out of Collaboration.

So far all of my Collaboration matters have been “hard” cases. In some of my matters, the clients have had an extremely poor relationship and limited communication. In others, infidelity has inflamed the animosity between them. Often separating couples have zero trust in the other and will take steps simply to push each other’s buttons. In some cases, in addition to the hostility, there has been a complicated property structure, including companies, self managed superannuation funds and investment properties

Was reaching a settlement via Collaboration for these matters cheap? No. Was it easy? Definitely not. Did the parties improve their relationship by the end of the process? Sadly not in all cases. Was it better, cheaper, faster and more controlled than Court? Absolutely!

The Collaboration model offers parties a number of positive outcomes that they would have been unlikely to obtain from the Court process, including; spending less on legal fees, dealing with urgent issues, arranging meetings to suit their schedule, bringing in a neutral financial expert to advise both parties, discussing items of sentimental value, retaining their assets rather than resorting to sale or liquidation, controlling the timing of their settlement, discussing ways to maximise the value of their investments, each party and their lawyer having the chance to question the other party via the roundtable process, the parties raising matters that were important to them (but not necessarily a consideration under the Family Law Act), and being able to ventilate the day-to-day problems and reach solutions.

If the parties had chosen the Court process, they would have been faced with: the Court imposing timeframes on them, limited capacity of the Court to deal with urgent issues, the lawyers only able to question the other party directly at the end of the matter (in a hearing), being unable to raise matters considered irrelevant by the Court, the possibility of the Court ordering the sale of assets, possible delay in receiving a judgment and large expenditure on lawyers, barristers and experts.

Overall, in these cases, the Collaborative process was by no means easy, but it gave the parties the power to control their own settlement rather than rolling the dice with the Court.

I can’t guarantee that your divorce will be smooth sailing, but if you choose Collaboration for hard cases over Court, you will be much more likely to achieve an outcome that suits both of you.

“I’m leaving on a jet plane…(dont know when the kids will be back again)…”

How to avoid an international child custody dispute

There has been a lot of publicity lately about the four girls caught in the middle of a dispute between their Australian mother and Italian father.  This case has been in the Family Court and will now be heard in the High Court.

It serves as a good reminder that overseas travel by your children with your ex-partner is something that should not be taken lightly.  Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.  Countries who sign the Convention agree that children, who are brought to their country without the consent of a parent in the other convention country, should be promptly returned to their country of residence. In broad terms, it has been a good example of international cooperation and many children sent to one country have been returned to their country of residence quickly and without their parents having to incur huge legal fees as the Central Authority (generally speaking being the relevant government department in the country) handles the matter.

Of course, not all countries have signed the Convention.  Many of you may have seen the dramatic documentaries of parents hiring ex-military men to try and re-claim their children from their ex partner.  You should also not be mistaken in thinking that all developed countries have signed the Convention.  Japan, for example, has not signed.

However, having to resort to invoking an international treaty obligation to have your children returned should, of course, be an absolute last resort.

If there are parenting orders in force then a party is not permitted by Australian law to take or send a child from Australia unless the other party has consented in writing or unless a Court has specifically ordered.

However, it is a good idea when giving your written consent to reach an agreement as to the information you will be provided such as a copy of the full itinerary, with dates, flight numbers and times, addresses while overseas etc.;

In addition there should be some provision for contact in the event of an emergency (e.g. that the parent taking the children will activate global roaming on their phone).

Obviously one parent should not unreasonably withhold consent for their ex-partner to take the children overseas because at a certain point that parent may wish to take them overseas too.  Consent, however, would depend on a number of factors e.g. if a parent was seeking to take a child for a holiday to a war torn destination.

However, if your ex-partner is wishing to take the children to an overseas destination, not by way of permanent relocation, but either for some months or perhaps a year or two then leaving things on a casual basis between the two of you is inadvisable.  In those circumstances negotiating Consent Orders to be filed in the Family Court clearly specifying for how long the children are to go; the contact you will have while they are overseas (whether that be by the children returning to Australia and/or you visiting overseas); the costs of contact; how often there will be telephone, Skype or e-mail contact; the continuing provision of a residential address, telephone number, etc. while the children are overseas are all extremely important.

The important thing is if the children do not return within the timeframes that have been stipulated; do not let the “grass grow under your feet”.  Go and see an experienced family lawyer.

For family law advice, contact Farrar Gesini Dunn (02) 6257 6477

Quite a lot of separated parents will have a dispute about their child’s surname.  Situations often occur when this becomes an issue.  For example, if a child lives mainly with one parent (and perhaps has a limited relationship with the other parent), that parent may want their child to have their surname.  Or, a child may have either his or her mother or father’s surname and one parent wants their child to have a hyphenated surname (perhaps because they feel that this will ensure their child has a connection with both parents).   Sometimes, if a parent changes their surname or remarries, they may want to change their child’s surname as well.

From a legal perspective therefore, the main issues that arise are when one parent wants to:

  • Use a different surname to what is on their child’s birth certificate; or
  • Change a child’s birth certificate to state a new surname; or
  • Stop the other parent from using a different surname for their child.

Post separation, parents usually share responsibility for their children and should consult each other and jointly decide about significant matters relating to their children, including the often emotionally charged issue of a child’s surname.  In Australia, the various States and Territories have a Births Deaths and Marriages Act which deals with the issue of registering and changing a child’s name.  If parents can agree about a change to their child’s surname, it is a good idea to formalise this legally to avoid future problems.   If they cannot agree, the parent wanting to make the change (or stop a change) may need to make a Court application to request an Order to change the child’s surname (or an Order to stop the other parent from using another surname for their child)

Parents can apply to either the Family Court or the Federal Magistrates Court not only for Orders allowing the use of a different surname for their child but also for an Order permitting to change their child’s name on the child’s birth certificate.  This can be in addition to seeking other parenting Orders relating to their child (for example, Orders concerning their child’s living arrangements).  If the only issue in dispute is the name of the child, parents also have the option of making an application to the ACT Supreme Court.  We can advise you about the best course of action.

However the Court will not make a name change Order simply to accommodate a parent.  Under the Family Law Act, when dealing with any parenting matter, including one which relates to a child’s surname, the Court has the power to make any order that it considers appropriate for the welfare (or “best interests”) of the child and this is the overriding consideration when making a parenting Order.  The Court will take into account many factors when deciding whether to grant an application to change a child’s surname (or to stop one parent from using a different surname for their child).  Some of the factors taken into account by the Court when deciding whether a child’s surname should be changed or not, include:

  • How old is the child and are any wishes expressed by them relevant or appropriate?
  • How does the change affect the child in the short and long term and what are the advantages, both short and long term to the child if their name remains as it is?;
  • The relationship between the child and each parent and the child’s siblings and their likely future relationship(s)?
  • Will the child experience any embarrassment if they have a different name or keep the same name?
  • Will the child be confused about their identity if his or her name is changed or is not changed?
  • What effect will any change in surname have on the relationship between the child and the other parent or the child and his or her siblings?

A child’s surname is of great emotional importance to parents and the law surrounding this is complex.  If you are in this situation and would like legal advice, contact Farrar Gesini Dunn (02) 6257 6477

The Italian Job…what actually happened in the return of the four sisters to Italy.

By Adam Bak, Solicitor, Farrar Gesini Dunn

The Family Court has endured heavy media scrutiny recently in a case in which a Judge ordered the return of four sisters, then aged between 8 and 14, to Italy.

The Facts
The brief facts of the case were that the mother, reported as Ms Garning, was born in Australia but moved to Italy when she was 16.  She fell in love with the father, reported as Mr V, and they married and had children in Italy.  Ms Garning and Mr V separated in 2008.  In 2010 Australian passports were issued for the four children and Ms Garning brought the children to Australia.  They remained in Australia for 2010 and 2011.

The Law
Australia is a signatory to the Hague Convention.  The Hague Convention is an international treaty which, in summary, provides that each signatory will enforce and assist in the application the laws of the other countries.

Relevantly for international parenting matters, any dispute as to living arrangements or other matters relating to children should properly be determined in the country in which the children were habitually resident before the removal or retention to another country.

In this case there was no doubt that the children lived in Italy before their removal.

The mother’s resistance to the children being returned to Italy was based on a number of grounds.  Those included that the children were settled in Australia, that the father did not have and was not exercising rights of custody in Italy, that the father had consented or acquiesced to the girls coming to Australia, and that there was a grave risk to the children of being returned to Italy.

The Judge, in an articulate and fairly lengthy 129 paragraph Judgement, addressed each in turn.

Much of the media attention since has focussed on the wishes of the children.  Criticisms made of the Family Court focus on the Court not giving sufficient weight to the views of the girls.

Children’s Views
Pursuant to the Family Law Act, the views of children are a relevant consideration.  The Court is to take into account any factors, such as the child’s maturity or level of understanding, that the Court thinks are relevant to the weight it should give to the child’s views.

We often advise clients that weight can be given to the views of a very mature 8 year old and is rarely not given to the views of a very immature 12 year old.  That age range is commonly and generally expressed as the age when children’s views become significant.

It is not uncommon to hear about teenagers who prefer to spend time with the parent who lets them have their bedroom door shut whilst spending time with their boyfriend or girlfriend, or to hear about children who align with the parent that is not so fussy about homework and eating vegetables.  The law requires the Court to forensically examine the level of sophistication behind the children’s views.

Getting That Evidence
The law makes provision for children to have their own lawyer appointed.  Independent children’s lawyers are specially trained in dealing with children and can elect whether or not to meet directly with the children to obtain their views, or whether to review the evidence and make their own informed assessment.

In most parenting cases, the Court insists on evidence being provided from a child psychologist or similar expert, who prepares a report or gives evidence about the child’s views and the nature of the relationship that the child has with each parent.  This is independent and at arms length and endeavours to move away from each parent giving favourable evidence about their own relationship with the children.

The Italian Case
In this case, the Court found that the girls’ objection to being returned to Italy was no more than the mere expression of a preference or of ordinary wishes.  Matters under the Hague Convention require that the views be stronger than that.  The expert evidence was that each girl missed aspects of their lives in Italy.

The evidence was that the mother had instilled fear in the girls by telling them that if they returned to Italy she would be arrested.  The Judge found this to be untrue.  Mr V promised not to lodge any formal complaint.  He offered, and was ordered, to pay the mother $8,000 so that she could fly back to Italy with the girls and be comfortable upon her return.

Other Misconceptions
The Court did not order that the children live with the father.  The Order made was essentially that the proper jurisdiction to determine the case was the Family Law of Italy.  Indeed, that was where the children were born, lived and where the father lives

It is peculiar, in my view, that most of the criticism seemed to focus on the Family Court and the family law system in circumstances where findings were made that the mother had abducted the children from Italy to Australia and subsequently taken steps to influence their views and alienate them from their father.

Advice?
This is another situation where if the mother had sought and followed advice from an experienced family lawyer, the situation could have been better managed.  When the matter is determined in Italy, there is little doubt that her decision to abscond with the children to Australia will be a very significant factor working against her.

If you wish to discuss this article or require any Family Law advice, contact Adam Bak at Farrar Gesini Dunn on (02) 6257 6477

In 2006 there were major changes to the laws concerning child custody in Australia.  The aim of the reforms was to bring about generational change in family law and the cultural shift in the management of parental separation away from litigation and towards co-operative parenting.

The Government set up 65 Family Relationship Centres around Australia to help people reach co-operative parenting solutions without ever needing to go to court.  Family Lawyers, observed was that there was a significant level of misunderstanding in the community about the changes in the law brought about by the 2006 reforms.  Many people thought that the law now required that children spend equal time with each parent after separation, or at least adopted that position as the starting point. It does not.

The widespread nature of that misunderstanding has had a number of effects.  It has led to agreements being reached between parties where one or both feel that they have “no choice” but to agree to equal time.

While agreed arrangements for children are a good thing, that agreement should be based on a proper understanding of the law and what is best for children.  There has been concern that many arrangements reached since 2006, are not in fact delivering best results for the children involved.

The Australian Institute of Family Studies (AIFS), the Family Law Council, and the Attorney-General’s Department have all issued reports dealing with these subjects.

The AIFS report was compiled over three years.  Data was collected from 28,000 people involved or potentially involved in the family law system, including parents, grandparents, lawyers, counselors and judges.   Their findings make interesting reading:

  • 62% of parents reported having a friendly and co-operative relationship with the other parent, 19% a distant relationship, 14% a highly conflicted relationship, and 5% a fearful relationship (7% of mothers and 3% of fathers).
  • About two-thirds of separated mothers and about half of fathers reported that the other parent had emotionally abused them prior to or during separation.
  • One in four mothers and around one in six fathers reported that the other parent had hurt them physically prior to separation.
  • About one in five parents reported safety concerns associated with ongoing contact with the child’s other parent.
  • Around half of mothers and around one-third of fathers said that mental health problems, the mis-use of alcohol or drugs, or gambling or other addictions were apparent before the separation.
  • Although only a minority of children had shared care-time, the proportion of children with these arrangements has increased.
  • The majority of parents with shared care-time arrangements thought that the arrangements were working well for both the parents and the child.

AIFS concluded that overall the law changes have had a positive impact in some areas and less positive in others.

Professor Richard Chisholm, a former judge of the Family Court and renowned expert in family law, was engaged by the Government to assess whether the law and current procedures are “best practice” when it comes to dealing with relationship violence, and whether appropriate support is provided for families who have experienced violence.

He recommended that judges dealing with these cases need to have an understanding of family law and a desire to work in that area, and to be particularly sensitive to the requirements of cases involving family violence. He recommended changing the law to provide a more coherent code of the things that courts should take into account in determining what is the in the best interests of children and what parenting orders to make.  He recommended changes to the law which would stress the importance of safety and freedom from violence as being a primary aim.

The Family Law Council, which is a statutory body set up under the Family Law Act to advise the Government on such issues, made similar recommendations.

Prior to 2006 the most common post-separation parenting arrangement involved children living primarily with their mother, and spending alternate weekends and half of school holidays with their father.

Over time that “typical” arrangement changed.  It became more common for the non-custodial parent to have some form of structured contact with the children in the intervening week.  The duration of the typical alternate weekend expanded from a starting point of Saturday morning to Sunday afternoon, to include in many cases either Friday evening or Sunday evening or sometimes both.  Since the reforms a more typical agreed arrangement sees the children living with one parent (generally the mother) for about 9 days in each fortnight, and with the other parent for about five days in each fortnight.  School holidays generally continue to be shared equally.

Since 2006 the courts are generally expanding the time that the non-custodial parent spends with the children, but they are not imposing equal time or even substantial time in cases where it would be inappropriate to do so.

Changes in society have meant that the law and lawyers have had to deal with the disappearance of the traditional “nuclear” family and also with the advent of same-sex parenting, non-parent carers, surrogacy, and single parent families where the children have been created through sperm donorship.

To make the law fit the needs of society is an on-going challenge.  We can expect more changes to the law in this area over the next 12 months (but probably not before the Federal election).

Denis Farrar
Director

When the Family Law Amendment (Shared Parental Responsibility) Act 2006 commenced in May 2006, the phrase “presumption of equal shared parental responsibility” was introduced as a concept in the Act.  It has attracted a lot of publicity both in relation to what it actually means (i.e. does it mean a presumption of ‘equal time’?) and the effect of the new law on children.

The presumption in fact requires major decisions for the long-term care and welfare of the children to be made jointly.  These “major decisions” revolve around issues such as education, religion and medical treatment. One of the most significant misconceptions arising from the introduction of the presumption is the belief that “equal shared parental responsibility” translates into an “equal shared care” arrangement for the children of separating parents.

This is not necessarily the case.  Whilst the Act requires the Court to consider an arrangement whereby the children spend equal time with both parents, it is not the fixed outcome.  In its deliberation about such an arrangement, the Court must consider firstly, whether it is in the best interests of the child and secondly, whether it is reasonably practicable.  If the Court decides that an equal shared care arrangement is inappropriate, they must then consider whether one parent spending ‘substantial and significant time’ with the children is more appropriate.

Every family is different, and every situation is different.  Nonetheless, when there is an application before the Court regarding the living arrangements for children, each situation is considered against a discretionary checklist provided for in the Act.  The checklist of what is in the best interests of the child is long and involved.  Some of the factors include:

  • The benefit to the child of having a meaningful relationship with both parents;
  • The need to protect the child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence;
  • Any views expressed by the child;
  • The child’s relationship with each parent and other persons of significance, for example, grandparents;
  • The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent;
  • The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either parent, siblings or other relatives of significance with whom the child has been living;
  • The practical difficulty and expense of a child spending time with and communicating with a parent;
  • The capacity of each parent and other significant persons to provide for the child’s emotional and intellectual needs;
  • Any family violence;
  • The extent to which each parent has fulfilled or failed to fulfil their responsibility as a parent, including whether the parent has taken the opportunity to spend time and communicate with the child and participated in making decisions about major long-term issues regarding the child.

Most recently it has been announced that the Institute of Family Studies will conduct a review of the Family Law Act and the Shared Parenting laws. Professor John Wade, the current Chairman of the Family Law Council has said that the 2006 Act which was designed to give children access to both their parents after divorce was incoherent, “filled with gobbledegook” and fails to give judges “the clear signals they need to make good decisions”. He went on to observe the current law created false expectations for fathers who believe the amendments to the Act would guarantee them equal time with their children.

Although the Shared Parenting laws do not provide for such a presumption there has been some criticism of them on the basis that they do not give decision makers sufficient guidance on when it is appropriate to order a shared parenting arrangement and when it is not. Professor Patrick Parkinson, formerly the Chairman of the Family Law Council, has recently said “There have been some cases where children under the age of two are doing week-about and often travelling long distances…..young children do well with frequent time with both parents, but it is important to avoid long separations from the primary care giver. If you have a Mum and Dad living around the corner frequent short visits are possible”.

No doubt when the Institute of Family Studies conducts its review there will be a number of influential lobby groups who will be seeking to provide submissions to it. There is much discussion as to whether the amendments made in 2006 were more concerned about parents’ rights rather than the effect of the care arrangements made pursuant to the new laws upon the children.

What is clear from a review of the decisions made by the Court in cases where the care arrangements for children after separation are disputed is that it is difficult to predict what sort of care arrangement will be ordered given the largely discretionary regime under which Judges are operating. At Consensus we aim to assist our clients through their separation with dignity and discretion without the necessity to resort to Court proceedings. We offer a number of child-focussed processes through which couples can negotiate arrangements in relation to their children. What this means for each couple is different. Learning to create a parental alliance after separation is difficult and challenging and far more so if the parents are caught up in a adversarial court process.

The idea of a “pre-nup” has traditionally been considered a romance killer, a reflection of a lack of commitment by at least one of the parties to a marriage, or subject to the Hollywood stereotype of a rich old man marrying a gold-digger.

In Australia the “pre-nup” is called a “Binding Financial Agreement”.  The  amendments to the Family Law Act 1975 extend Binding Financial Agreements to those in a de facto relationship.

Increasingly in Australia traditional perceptions are giving way to the acknowledgement that a Binding Financial Agreement is a practical solution to the reality of the statistics regarding the number of marriages that end in divorce.  More than that, a Binding Financial Agreement accommodates the complexities arising in blended families where people are entering into their second and subsequent relationships with property from their previous relationships.

Coping with the emotional pain, stress and turmoil of a relationship breakdown can be made manifestly more difficult by having to negotiate the business of the break-up.  Parties to the relationship have little time to mourn the loss of the relationship and recover some equilibrium before launching into the practicalities of the situation, like, who will retain the former family home?  How will the other person afford to live somewhere else?  What happens to the investment property?  Even the most amicable of break-ups can produce anxiety and fear for the future for the parties to the relationship and feelings of dread and discomfort at having to discuss how to sever financial ties with the other person in an emotionally charged situation.  For those whose relationship breakdown is not amicable, the desire for certainty, fear about lost future security and the lack of specificity about the financial contributions by both at the commencement of the relationship can fuel the ferocity of negotiations and push them towards undesired, but necessary, Court proceedings.

The existence of a Binding Financial Agreement, whilst not eliminating the feelings of hurt and anxiety, can alleviate some of the tension of the break-up and the necessity for any Court proceedings.

A Binding Financial Agreement sets out the financial circumstances of each person to the marriage or de facto relationship, including the assets and liabilities each person is bringing into the relationship.  The Binding Financial Agreement also sets out what should happen to that property and any property the spouses accumulate jointly and separately during the relationship in the event the relationship breaks down.  Both parties must receive independent legal advice before entering into the Binding Financial Agreement.  The solicitor for each party must sign a “Certificate of Independent Advice” confirming that that each person has been informed of the advantages and disadvantages of entering into the Agreement.  Generally, the Binding Financial Agreement comes into effect upon one of the parties to the marriage signing the ‘Separation Declaration’ to the Agreement, which states that the parties separated and are unlikely to resume co-habitation.

Essentially, a Binding Financial Agreement provides the parties to a marriage or relationship with the certainty of a ‘to-do’ list if they ever need a property settlement.  Whilst a Binding Financial Agreement cannot be a crystal ball and list all the assets and liabilities the parties to the marriage will acquire during their relationship, the Agreement can set out how the parties want to divide any property they do accumulate and the manual steps for achieving the division.

The benefits of a Binding Financial Agreement are particularly important for those considering entering into their second de facto relationship or marriage.  Under theFamily Law Act, whilst the assets each party brings into the relationship are taken into account as are later contributions by the relevant party, all assets are included in the property pool for division.  The result for some is the discovery that assets they had in their mind excluded from the property pool (e.g. an inheritance) now form part of the divisible property pool.  Those embarking upon a second relationship blending families with adult children should consider a Binding Financial Agreement in conjunction with an estate plan.

A Binding Financial Agreement should be drafted in such a way that it deals with the division of real property, shares, investments, motor vehicles, property held in trust and corporate structures and inheritances received by both parties.  It is a complex document drafted to cover as possible scenarios in the event of separation. The advice of a solicitor is not only recommended, but a mandatory requirement for the validity of the document.

Do I need a will?

It depends on what you want to happen after you die. If you do not have a will, the distribution of your estate is governed by the rules of intestacy. In Victoria, those rules are found in the Administration and Probate Act 1958. Who gets what depends on your circumstances including whether you have a partner, whether you have children and whether those children have received other property from you.

If you have a will, the distribution of your estate is governed by the terms of your will.

Should I see a professional to make my will?

Again, it depends. If you want the safety and security of knowing that your will is going to be effective and distribute your estate according to your intentions, then it is recommended that you retain the services of a professional to draft the necessary documents. But an estate plan is more than a will. You also need to consider a power of attorney, your superannuation death benefits and insurance. Do-it-yourself will kits do not provide a comprehensive estate plan. If the wording of your will is not clear (and bear in mind this is a very technical area where the words you use may be interpreted by a court to mean something other than what you actually intended), it could cost your estate thousands of dollars in legal fees to obtain a ruling from the Court on the true meaning of the will.

In addition, some of your assets may not fall into your estate on your death and your will may not reflect your true intent. Joint assets, assets in a family or discretionary trust, life interests, pensions, annuities and superannuation proceeds may not form part of your estate depending on circumstances. A solicitor experienced in estate planning will be able to give you advice on which assets will fall into your estate.

Do I ever need to change my will?

Major life changes such as entering into marriage or a de facto relationship, separating, divorcing or retiring may all necessitate changes to your existing will. Changes in the relationships of your children is another important consideration. Marriage always cancels any previous will unless that will specifically states that it is made in contemplation of the marriage. Separation or divorce does not cancel your will but divorce will, in most circumstances, cancel any gifts to your former spouse. There is no need to change your will simply because you change your address, although you should notify whoever is holding your original will of your new address.

Are there any other government fees or death duties?

There are no death duties in Australia. However, capital gains tax may be payable by your estate on the transfer of title of assets with a CGT liability. It is advisable to consult a solicitor experienced in estate administration before you dispose of major assets in an estate.

What is probate?

It is a document issued by the Supreme Court proving your last will, thus empowering your executors to carry out the terms of your will.

Can anyone challenge my will?

In Victoria, the Administration and Probate Act 1958 governs who and the circumstances in which a will can be challenged. In general, challenges may be made by family members and some other people.

This is a technical area and your solicitor can advise you further if you are contemplating leaving someone out of your will who could later challenge your will.

Your will and power of attorney are only two elements of your overall estate plan that need to be considered.

Other matters when we can advise you on including setting up Family Trusts; death benefit nominations for your superannuation fund; and relevant insurances. In many cases it may also involve entering into a Financial Agreement.

Because of our vast experience in family law, we are well placed to give you technical and practical advice about how best to protect your family’s wealth, and the wealth of future generations to come, especially in the event of family breakdown.

Estate Planning case study- the Estate of Peter Brock

The Estate of Peter Brock (a famous race car driver of course) is an excellent example of the importance of proper estate planning.

By way of background, Peter had his first will prepared in 1983. It was professionally drafted and properly executed. It was then stored by his solicitor.

As time when on, Peter thought to update his will. There was a sign “WILL KIT- BUY ONE, GET ONE FREE” at his local newsagents. Peter sat down to prepare the will but when it came to filling in the details of the will kit, he said to his partner, Bev “you fill it in. You will know what to do.” Peter signed it. The will was witnessed by one witness (you need two witnesses for a valid will).

As it turned out, Bev did not fill in the details. But the will kit had a pre-printed clause, which said ‘I revoke all my previous testamentary dispositions’ (meaning that all previous wills were revoked).

Subsequent to that will kit, Peter and Bev broke up. Peter then formed a new relationship with Julie.

Peter then got another will kit and dictated his will to his assistant who was to fill out the will kit. Part way through that process, Peter’s assistant said to him that the will was becoming too complex and that Peter should have it prepared by a solicitor. They adjourn, put the incomplete will kit in a filing cabinet, not signed and not witnessed.

Peter died in 2006.

The question became, which of the three wills was the valid will?

  1. The last will was never signed or witnessed and it was not completed. It was not a valid will;
  2. The second will was not filled out but it was signed. The court through the witnessing was not fatal to the validity;
  3. The first will (prepared in 1983) was found to be revoked because of the pre-printed clause in the will kit.

So the court found that the second will was the valid will. But all it did was revoke the first will and did not contain any gifts because Peter’s request to Bev to fill out the details was not carried out. The will kit was blank.

There was a challenge to the will.

It became an expensive process with much of the value of the estate being eaten up in fees. Apparently Julie still can’t say the word ‘lawyer’ without getting upset.

This scenario could have been avoided had Peter engaged lawyers with proper expertise in estate planning.

Structuring an effective estate plan designed to remove, or at least minimise, any risk that your estate will be involved in litigation is what we do.

Financial Agreements (aka ‘Binding Financial Agreements’, ‘BFAs’ or ‘pre-nups’ as they are often referred to by the public) are Agreements which set out what is to happen in relation to property settlement and/or spousal maintenance in the event of a relationship breakdown.

Couples, including those who intend to be married; are currently married; intend to be in a de facto relationship (including same sex partners); are currently in a de facto relationship; are separated; or even divorced are all able to enter into Financial Agreements.

A Financial Agreement basically acts as an insurance policy. It can give you piece of mind so that you know that if something does go wrong and there is a separation, both parties are clear on what is to happen. We find that when parties enter into Financial Agreements, it can actually strengthen a relationship because it reduces the stress on the parties (and the relationship) by the parties knowing that they both have a clear understanding of what is to happen if there is a separation.

A Financial Agreement is not about not being unfair, rather it is about reducing the potential for a dispute (which is often the worst, and most costly, part of the separation) later on.

A Financial Agreement can protect your business, company(s) and Trusts(s) from a claim from your ex-partner. It can also be an important tool in estate and succession planning and protecting wealth of different generations of the family who would not necessarily be a party to the relationship.

Those embarking on a relationship, especially when there is a familial wealth; issues of potential future inheritances; blended families; second relationships; or where there is a disparity between the parties’ financial circumstances should consider a Financial Agreement. Even once you are in a relationship it is still possible to enter into a Financial Agreement.

It is also possible to enter into a Financial Agreement once the relationship has come to an end, or where the parties have divorced. There are some circumstances when this may be appropriate and other circumstances in which we would advise against finalising matters with a Financial Agreement rather than Consent Orders.

A Financial Agreement is the only way to oust the Court’s ability to award spousal maintenance. Therefor depending on your circumstances, we can advise you on whether you should be entering into a Financial Agreement when the separation has already occurred as part of your overall method of formalising the agreement about financial matters.

There are a number of requirements which are necessary in order for the Financial Agreement to be binding. One of these requirements is that you and your partner must obtain specific independent legal advice prior to signing the Agreement.

We can assist you with any questions you may have in relation to Financial Agreements.

If you would like further information in relation to Financial Agreements please call or email us us to make an appointment with one of our lawyers.

Examples of just some of the questions we can help you answer are:

What are Binding Financial Agreements and what do they do?

Can de facto/same sex couples enter into Binding Financial Agreements? How will these protect me?

I don’t have any property in my own name, but I do receive money from a family trust, do I need to worry about entering into a Binding Financial Agreement to ensure my partner can’t make a claim against me if we separate?

I am already in a relationship, is it too late to enter into a Binding Financial Agreement?

I am already separated. Is it too late to enter into a Binding Financial Agreement?

What is spouse maintenance and how can I protect myself from a claim for spousal maintenance?

My partner and I entered into a Binding Financial Agreement. We split up and are now back together, do I need a new Agreement?

I signed a Binding Financial Agreement with my former partner, we separated and I have since learnt that he/she was not truthful about assets in his/her name. Is there anything I can do?

My partner and I entered into a Binding Financial Agreement at the beginning of our relationship when we did not intend to get married. We are now getting married. Do we need a new Agreement?

By Financial Agreement got set aside by the Court. What recourse do I have?

There are a number of issues that arise in family law disputes under the umbrella of ‘international’ issues.

Financial Agreements and Binding Child Support Agreements for international couples

Often when parties enter into a Financial Agreement, there are international issues to consider when the parties reside in a an overseas jurisdiction at the time of separation. There may also be issues which arise when one (or both parties) are residing in an overseas jurisdiction at the time of signing the Agreement. These are important things to think about at the time of entering into these Agreements, and they are matters which we are able to provide you with advice on.

In relation to Binding Child Support Agreements, issues can also arise when one (or both) of the parties and/or are living in an overseas jurisdiction. We can advise you in relation to these issues and how best to protect yourself.

International child abduction

Unfortunately it is sometimes the case that one parent takes the child/ren out of Australia without the consent of the other parent. Australia has ratified the Hague Convention on Child Abduction. This means that if the overseas country where the child has been taken has also ratified the Convention, then it is possible to obtain an Order for the return of the child/ren from the Australian Courts, and that this Order will be enforced by the authorities in that overseas jurisdiction.

We can help you to make these applications and provide advice in relation to them.

If you are concerned that the other parent intends to take a child overseas and you do not consent, then it is possible to make an application to the Court for an Order preventing the parent from removing the child and also putting the child on the Airport Watch List (this means that if there is an attempt to take the child out of Australia, they will be stopped at the airport). The Court has wide-ranging powers in these cases and can even Order plane land after take-off to retrieve a child.

If either of these is situations is relevant to you we recommend that you make an appointment to speak to one of our lawyers as soon as possible, as there is significant risk in not taking action or not understanding your rights and obligations.

International Child Support and Spousal Maintenance Matters

See link in section on Child Support

If an Order for spousal maintenance has been made in an overseas jurisdiction, it is possible for that Order to be enforced by the Child Support Agency in Australia, depending on the circumstances of the case.

It is also possible, in certain circumstances to apply to the Family Courts to have the overseas order changed.

If either of these situations are relevant to you, you should contact our lawyers.

Financial issues for international couples

It is often the case that Australian couples who are separating hold assets- whether it be bank accounts; real estate; retirement funds etc overseas, or that they receive income in an overseas jurisdiction. We can advise you in relation to how to find assets which may not have been disclosed, which are overseas and also advise in relation to the implications on property settlement of holding assets or receiving income in overseas jurisdictions.

We’d be happy to talk to you about how we can help you with issues regarding gender identity, both for adults and for children…

Examples of just some of the questions we can help you answer are:

  • What is a “special medical procedure” for a child?
  • Is the administration of hormones to a child a “special medical procedure”?
  • My child wishes to change their gender, what is the process?
  • My child believes they’re transgender, and I and my child’s doctor/s have agreed about an appropriate way to manage this, do I still need legal advice?
  • Is my child old enough to consent to medical procedure/s to change their gender?
  • Do we need to apply to the court for permission for our child to undergo a gender change procedure?
  • My child is gender diverse. Are their any legal issues I should be aware of?
  • I’m an intersex adult. Are there any legal issues that I should be aware of?
  • I’m a transgender adult. Are their any legal issues that I should be aware of?
  • I’m gender diverse and I want to obtain an amended birth certificate and/or passport showing my reassigned sex. What is the process?
  • How does my gender affect my relationship status?
  • We want to get married in Australia, and one or both of us are gender diverse. How do the current marriage laws in Australia apply to us?
Adoption is a wonderful thing!

However, it is a very complicated process therefore it is very important to seek advice from professionals prior to embarking on the process to ensure that it goes as smoothly as possible. There are also some alternatives to adoption that may be more practical depending on the circumstances. We can talk with you and understand your situation, what you would like to achieve and then advise you the best way to achieve that.

We are experts in adoption and we’d be happy to talk to you about how we can help you with adoption…

Examples of just some of the questions we can help you answer are:

  • What countries can I adopt a child from?
  • How can I adopt a child who was born in Australia?
  • How can I adopt a child from overseas?
  • What risks are involved in intercountry adoption?
  • What is the Hague Convention on Intercountry Adoption?
  • I am a dual citizen, can I arrange an adoption through my other country of citizenship?
  • I want to adopt my partner’s child, how do I do that?
  • What is involved in the process of adoption?
  • Do I need to get a court order to adopt a child, or can I adopt a child privately?
  • Is an order for parental responsibility the same as adoption?
  • Is adoption appropriate for me, or can I just raise the child as my own more informally?
  • What are the legal implications of adoption?
  • What are the legal requirements to adopt a child?
  • Can a single person or same-sex couple adopt a child, or is this option only available to heterosexual couples?
  • What rights will my partner have if just I adopt a child, as a single person?
  • If we adopt, what rights will our child’s biological parents have?
  • What support is available for adoptive families?
  • How much will it cost and how long will it take?
Unfortunately domestic violence (also called intimate partner violence or family violence) and abuse affect many families and children.

The definition of domestic violence (DV) is broad and varies according to the context. There are many different types of conduct which can constitute DV.

In Victoria, Intervention Orders are made by the Magistrates Court.

You can make an application for an Intervention Order personally or the police can make one on your behalf. If you wish to make an application yourself, it is advisable that you make an appointment to seek specific legal advice prior to doing so.

The orders that can be sought under the Intervention Order legislation include (among other things) orders that prevent a person from approaching a specific property or place, or being within 100 metres of the protected person, or contacting the protected person.

They can also be flexible to allow exceptions for example, if the contact is pursuant to a Family Court Order or a written agreement. Intervention Orders can also be what are commonly referred to as ‘under one roof’ Orders. This means that the protected person and the person whom the Intervention Order is against can continue to live under one roof and have no restraint on their contact, however certain behaviours are prohibited.

If you or your child is a person named as a protected person in an Intervention Order or if you are the person whom the Intervention Order is against, then it is very important that you have a clear understanding of what behaviour is permitted and what behaviour is prohibited. If you are found to be in breach of an Intervention Order then you could face criminal charges.

It is also possible to obtain an Order from the Family Courts exercising their jurisdiction under the Family Law Act 1975 restraining a person from engaging in acts which constitute Domestic Violence or which have the same effect as an Intervention Order restraining people from engaging in certain behaviour or being in contact with another person.

There is quite an overlap between DV issues and family law issues and the Courts are sensitive to that. Considering how to make provision for children in circumstances where there is domestic violence, and how to deal with a family law matter if an Intervention Order can be made, are vital considerations to the final outcome for a party to proceedings.

If you would like further information in relation to domestic violence and/or intervention orders please call or email us to make an appointment with one of our lawyers.

Examples of just some of the questions we can help you answer are:

  • How does the law define family violence?
  • My partner won’t let me see my friends or have access to money, is this violence?
  • My partner loves me but controls everything I do, is this violence?
  • Where can I go and get some support or assistance in dealing with family violence issues?
  • I feel really unsafe, what should I do?
  • Our children are around and have seen the violence, what does this mean for the children and will it have an impact now that we are separating?
  • My partner and I have separated but the violence and harassment continues, how can I make it stop?
  • How can I protect myself and the children?
  • How can I get an Intervention Order?
  • What will having an Intervention Order in place mean for my day to day life?
  • We are probably going to need to go to Court to deal with parenting or property issues, how will the family violence impact on these proceedings?
  • Can I stop a violent partner seeing the kids?
Under the Child Support (Assessment) Act 1989, parents and primary carers of a child can make a claim for child support from the other parent.

As a parent of a child it may be the case that you are eligible to receive child support from the other parent, or that you may be liable to pay child support to the other parent.

There is a great deal of publicly available information on child support and below we endeavour to set out some of the basic information which may be of use to you. However, child support is a very complex area of the law and you need specific advice which is targeted to your specific circumstances.

If you would like further information in relation to child support please call or email us to make an appointment with one of our lawyers.

The ‘Child Support Agency’

The Department of Human Services (Child Support) (commonly referred to as the ‘Child Support Agency’) deals with administering child support. We encourage you to visit their website as there is a great deal of helpful information including the child support online estimator, which can help give an indication of what the child support liability may be.

The Family Courts also have the power to deal with child support matters in certain cases.

Different types of child support

There are three different categories of child support payments:-

Periodic payments- these are payments which are made regularly. If the Child Support Agency is collecting periodic payments on behalf of one party, they will generally collect once per month.

Non-periodic payments- these payments are made where a Court Order or a Child Support Agreement specifically provides for non-periodic payments (e.g. payment of school fees, either to the other parent or directly to a third party such as the school, or medical/dental practice).

Lump sum payments- this is when a payment is made to the other parent to meet ongoing liabilities (s 69A).

‘The Child Support Formula’

Periodic child support payments are calculated using a formula based on both parents’ taxable incomes and the amount of time the child/children spends with the parents (in the first instance this is calculated based on the number of nights spent in each parent’s care).

There are 8 steps to this process, as follows:

Step 1- determine each parent’s child support income for the child (section 41).

Step 2- determine the parents’ combined child support income for the child for the day (section 42).

Step 3- determine each parent’s income percentage for the child for the day (section 55B).

Step 4- determine each parent’s percentage of care for the child for the day (section 48)

Step 5- determine each parent’s cost percentage for the child for the day (section 55C)

Step 6- determine each parent’s child support percentage for the child for the day (section 55D)

Step 7 determine the costs of the child for the day (section 55G and 55H). This is based on predetermined factors.

Step 8 – if a parent has a positive child support percentage under Step 6, the annual rate of child support payable by the parent for the child for the day is worked out using the formula:

(parent’s child support percentage for the child for the day (Step 6))x (costs for the child for the day (Step 7)).

Collection

The Child Support Agency has the task of collecting child support payments. It is possible to ask the Agency to collect child support on your behalf.

The Child Support Agency is able to collect periodic child support payments and lump sum payments, but the Child Support Agency does not collect payments made to third parties.

The Child Support Agency is also not able to collect periodic child support payments when payers reside (and receive income) in certain countries which do not have agreements with Australia

There are two types of private child support agreements that parties can enter into as follows:

  1. Limited Child Support Agreements (section 80E)

Some of the features of a Limited Child Support Agreement are as follows:

They only last for a maximum period of three years.

There needs to be an administrative assessment by the Child Support Agency which is already in place and the Agreement cannot provide for payments of periodic child support which are less than the assessed amount.

The Agreement must be registered with the Child Support Agency.

A party can at any time obtain a notional assessment of child support and if the notional assessment changes by more than 15% from the provision of periodic child support in the Agreement, then the Agreement can be unilaterally terminated.

You do not require legal advice prior to entering into the Agreement, although we strongly recommend that you do as there can be long reaching (and sometimes unanticipated) implications of entering into the Agreement.

  1. Binding Child Support Agreements (section 80C)

Some of the features of Binding Child Support Agreements are:

They can last for the duration of the period that there is a child support entitlement/liability for the relevant child.

The Agreement can specify any amount that the parents agree will be paid by way of child support, including if that amount is below the amount that the parent would otherwise be assessed to pay.

The Agreement cannot be varied (section 80CA). It can be terminated in limited circumstances (section 80D), including:

By agreement between the parents and a termination agreement is entered into;

if there is a terminating event as set out in the Child Support Assessment Act 1989; or

by Court Order (see section 136 of the Child Support (Assessment) Act 1989.

The Agreement must be in writing and signed by both parties as well as meet certain other requirements as set out in the Child Support (Assessment) Act 1989.

Both parents need to obtain independent legal advice and each parent’s lawyer needs to sign a statement which says that the requisite advice has been provided.

There is no need to register the Agreement with the Child Support Agency if you do not want to.

There are a number of circumstances whereby either parent may apply for a change to the child support assessment formula.

These include:

  • The costs of spending time with or communicating with the child is more than 5% of your adjusted taxable income amount.
  • The child has special needs.
  • There are extra costs in caring for, educating or training the child in the way both parents intended.
  • The child has income, an earning capacity, property and/or financial resources.
  • You have provided money, goods or property for the benefit of the child.
  • The costs of child care for the child/children under 12 years of age are more than 5% of your adjusted taxable amount.
  • You have out of the ordinary necessary expenses to support yourself.
  • The assessment does not correctly reflect either parent’s income, property and/or financial resources and/or the assessment does not correctly reflect either parent’s capacity to earn an income.
  • You have a legal duty to support another person.
  • You have a responsibility to support a resident child.

Once an application for a change to the assessment is lodged then the other parent has an opportunity to respond before a decision is made.

Once the decision is made, if either parent is not happy with the decision then it is possible to lodge an objection to the decision.

There is an appeal process whereby if a parent does not agree with the decision that has been made, then they can apply to have the decision reviewed.

There are very strict time frames and requirements for making such applications.

Australia has agreements in relation to the enforcement and collection of child support and maintenance with a number of overseas countries. This means that in certain cases child support and maintenance obligations which are created in overseas jurisdictions can be enforced (and will be collected by) the Child Support Agency in Australia.

It also means that in some circumstances child support/maintenance liabilities which are created in Australia are enforced/collected in overseas countries.

In order for an overseas maintenance liability to be enforced by the Child Support Agency in Australia, in most cases the liability needs to be registered with the Child Support Agency and an application needs to be made to the Agency to enforce the liability.

If a parent has a connection with Australia and they seek to have an overseas maintenance liability changed, then in some circumstances they may be able to apply to the Family Courts in Australia to discharge or vary the liability (see regulation 36 of the Family Law Regulations).

Besides the enforcement of overseas maintenance liabilities, the Child Support Agency can do a number of other things, including helping overseas authorities with location and service for parents in Australia.

Whether you resolve matters out of Court, go to Court or settle the matter somewhere along the way, we think it is important that you have a lawyer who understands your needs.

We attend the Family Court, the Federal Circuit Court, the Supreme Court of Victoria as well as the Children’s Court and the Magistrates Court on a regular basis. We are skilled advocates and we excel in courtroom advocacy.

Our lawyers attend Court for a range of matters including divorce, interim hearings, duty lists, agency work, discovery, contested subpoena matters, case assessment conferences, conciliation conferences, Less Adversarial Trials, final hearings, appeal matters etc.

We litigate to protect your interests and get the best outcome for you.

In addition to our litigation skills we are also trained in Collaborative Practice (or Collaborative Law), which is a form of alternative dispute resolution which focuses on out of Court settlements. We are ‘collaborative’ when we ‘Collaborate’ and we are hard litigators when we need to be. If you would like more information on Collaborative Law we invite you to visit the Collaborative law page of this website.

We are tough and we are smart. We are the top dogs.

The Federal Circuit Court of Australia as well as the Family Court have the power to deal with divorces (see Part VI of the Family Law Act 1975).

The Family Court website sets out the process for applying for a divorce and also provides information on the requirements. You can have a look at that here: www.familycourt.gov.au

Although the process of applying for a divorce can be relatively straightforward, in some cases it can be more complicated and it is very important that all steps are completed in order to ensure that the divorce goes ahead.

The term ‘separation’ also has specific legal meaning.

If you would like further information in relation to divorce and separation please call or email us to make an appointment with one of our lawyers.

Requirements for applying for a divorce

In order to apply for a divorce in Australia, there are a number of elements which need to be satisfied, including:

  • one or both parties needs to have a sufficient connection with Australia;
  • The marriage needs to be one which is recognized by Australia;
  • The marriage needs to have been irretrievably broken down as demonstrates by the parties having separated for a period of not less than 12 months prior to the date of an application for divorce being made;
  • If there are children of the relationship then you need to set out that appropriate care arrangements have been made for the care, welfare and development of any children of the relationship under the age of 18 years, even if no formal arrangements are in place/ the arrangements are not agreed;
  • If the marriage was for less than 2 years, and the parties (or a party) wish to apply for a divorce then they may need to satisfy the Court that they have undergone relevant counselling in certain circumstances.

Separation

In order to get a divorce, the Court needs to be satisfied that the parties have been separated for more than 12 months immediately before filing the application for divorce.

It is possible to be separated but still living under one roof. However, if the period of 12 months prior to applying for the divorce involved a period where the parties were still living under one roof, but separated, then the Court will need evidence of the period of separation.

There are certain circumstances in which parties have separated and then reconcile. Whether those periods of reconciliation impact upon when the parties are said to have separated can be relevant not only to divorce but also to property settlement, which is separate from divorce.

Filing the application and the divorce hearing

The application for divorce can be made jointly or by only one party.

Once the application is completed and the relevant documents are attached (e.g. a certified copy of the marriage certificate and any translations which may be required), the application must be signed and witnessed appropriately.

It is then filed with the Court upon payment of a filing fee.

The application is then given a date for the divorce hearing before the Court.

Whether or not you or a legal representative will be required to attend the divorce hearing will depend on whether there are children of the marriage under the age of 18 years and whether the application is made solely or jointly.

Serving the divorce on the other party

If the application for divorce is a sole application then it will be necessary to prove to the Court that the other party has been served with the application appropriately. This can be quite a complicated process.

Once the application is served, then the party who is served needs to sign the acknowledgement of service. Then an affidavit needs to be signed which confirms that the signature is that of the party who has acknowledged service.

If the party who is served refuses to sign the acknowledgment of service then the person who has served the application may need to prepare an affidavit confirming that it was personally served in the correct manner. This person cannot be the person who is a party to the divorce, and must be another independent person.

At the divorce hearing, if all the requirements are met then the Court will grant a Divorce Order (this is the ‘divorce’). The Divorce Order will become Final one month after the Order is granted.

Contesting a divorce

If one or more of the requirements for getting a divorce is disputed then it is possible to lodge an application with the Court to contest the divorce.

If the divorce is contested then relevant evidence will need to be filed and the Court will make a determination after hearing the matter.

In certain circumstances a party may apply to the Family Courts for a decree of nullity of marriage. Though limited, the circumstances in which a party may be granted such a decree, are when there is one or more grounds that the marriage is void (see Section 51 Family Law Act 1975). These grounds include:

Where it is a marriage that took place after 20 June 1977 and:

  • either of the parties was, at the time of the marriage, lawfully married to some other person (see Section 23B Marriage Act 1961);
  • The parties are within a prohibited relationship (such as related in a certain way);
  • Consent was not considered ‘real consent’ (see Section 23 Marriage Act 1961).
  • Either of the parties is not of marriageable age (e.g 18 years).
If parties are considered to be in a ‘de facto’ relationship according to the definition in the Family Law Act 1975 then generally their property settlement is dealt with by the Family Courts under the jurisdiction of the Family Law Act 1975. The law that applies to that property settlement is almost the same as for parties who are or were married (for more information on property settlement please go to our Property Matters page).

There are some instances, for example where de facto parties have separated prior to a specific date, that their property settlement may fall under the jurisdiction of the relevant state legislation as opposed to the Family Law Act 1975.

In order to satisfy the requirements that parties are in a de facto relationship, there are a number of factors that the Court takes into consideration (see Section 4AA of the Family Law Act).

Generally it is the case that the de facto relationship needs to be have subsisted for a period of at least 2 years before the parties’ property settlement falls under the jurisdiction of the Family Law Act. However, there are some important exceptions to this 2 year requirement.

You can be in a de facto relationship even if you are married to someone else. You can also be in more than one de facto relationship at a time.

We recommend that you contact us for specific advice in relation to whether you may be in a de facto relationship for the purposes of the property adjustment jurisdiction of the Family Law Act.

Although same sex marriage is not yet recognised in Australia, property settlement of people in same sex de facto relationships that meet the definition of de facto relationships under the Family Law Act, are the same as property settlements of other non same sex couples.

If you would like further information in relation to separation for people in de facto and same sex relationships please call or email us us to make an appointment with one of our lawyers.

Examples of just some of the questions we can help you answer are:

If we break up what does the law say?

Does the law consider my relationship a de facto relationship?

If my partner and I have never lived together but we share property, what happens to the property if we separate?

I separated from a former partner and am now in a new relationship but did not have a property settlement with my former partner, am I at risk?

If I have a child with someone else but I do not consider that we are in a relationship, is my property at risk and how do I protect myself?

Does superannuation factor into property settlement, and if so, how?

My former partner and I have a child together, but we did not live together, am I (or is my partner) entitled to a property settlement?

My partner moved into the home that I bought in my name prior to our relationship. We have now separated. Does he/she have a legal or other interest in the property?

My former partner and I cannot agree on how to divide our property, what are the options available to us to reach agreement?

My former partner and I have reached agreement in relation to the division of our property, how do we formalise the agreement so that it is legally binding?