Defining de-facto relationships

Have you had the need to define a de-facto relationship?
No?
We have.
It is not as easy as it sounds, particularly if one party is adamant that there never was a de-facto relationship.
Is intention of the parties something the Act should have taken into account? Probably not as we suspect a lot of people would then rely on the intention factor to try and get out of the relationship.
Apparently living together is an important factor to consider in determining if a de-facto relationship existed and yet celebrity marriages where one party lives in one country and the other in another come to mind immediately.
Then there is the degree of interdependence. What exactly that means is not defined. One assumes that what is meant is the interconnectedness financially and emotionally. Again it is not unusual for married couples to keep separated bank accounts during their marriage and take separate holidays and so on.
Of course we must not forget that the existence of a sexual relationship is important in deciding if a de-facto relationship existed. Apparently it does not have to be an exclusive sexual relationship either, which we assume means that you can have other sexual partners and still be deemed to be in a relationship with someone (not sure who).
There are other factors to take into account as well, but we will let you read those yourself.
What we have learnt is that some relationship simply cannot be defined, at least not by the person in the relationship.
As far as we can see all this means that there is still a reason to get married, at least if you want to have certainty with respect to the type of relationship you are in.
A useful judgement to read is that of Cronin J which you can find at this link:
http://www.austlii.edu.au/au/cases/cth/FamCA/2012/385.html

How to divorce

Bearing in mind we are writing for an Australian audience we thought we should outline the steps necessary to divorce in Australia.

Often people come to see their divorce lawyers (or family lawyer as we tend to refer to them in Australia) to ask the question of how to divorce their spouse, when really what they mean is how do they sort out their property dispute. Often the question how to divorce is a long way off. It is worth noting that some people never feel the need to apply for a divorce.

Perhaps the best way to address the question of divorce is to examine what you need to do to apply for a divorce.

Firstly you have to have been separated (often people refer to a legal separation here) for at least twelve months. Do not despair if you have been separated for more than twelve months but some or all of that time has been spent under the one roof.

Legal separation implies that you have both been living separate and apart for at least twelve months.

If that is you, you can fill out the form application for divorce and sign it in front of a Justice of the peace or a lawyer. Remember you will also need a copy of your marriage certificate.

If you have been living under the one roof you will need to file an affidavit setting out the circumstances for living under the same roof together with supporting affidavit from someone who can verify your position. More on this in our next post.

Once you have completed the document (application for divorce) and signed it you need to make two copies. You then take the original with two copies to the Federal Magistrate Court (which is about to change its name to Federal Circuit Court), where you will file it. There is a fee of about five hundred and something dollars (if you are on centrelink benefits the fee is reduced to eighty something dollars). It is best you check with the court for the exact filing fee to make sure you have enough money on you to file the document.

After you have filed the document the court staff will give you back two copies, one for you and one to serve on your ex-spouse. An application for divorce has to be personally served on your ex spouse. The easiest and most cost effective way is to hire a process server. That way the documents will be handed personally to your ex-spouse and you will get an affidavit of service to file with the Court to prove service.

Your application for divorce will have a date on it, which is the date the Court will 'hear' your application. These days there is generally no need to attend at Court, unless you have children.

Your divorce becomes effective or absolute 31 days after it was heard at Court. That means that 31 days after the Registrar of the Federal Magistrate Court said the magic words "I grant the application for divorce," your divorce is legal. It is after this date you are free to re-marry.

In other posts we will discuss personal service and what to do if you disagree with anything on the application for divorce.

What is a legal separation

When are you legally separated? Is it simply when you think it is over and when you move out or when is the date you have legally separated from your marriage? Does it really matter we hear you ask? It depends. 

Firstly it might matter from the point of view of dividing assets. For example you might think you separated on the first of June this year and your spouse thinks it was really at the beginning of the year. If you bought (together or separately) a house (or some other major item of worth) between January and June the date of legally separating might be relevant. In Australia a court looks at the entire asset pool (even if items of property have been purchased after separation in people's sole name) and then works out the contribution to each asset. This might make the date of legal separation something you need to consider. 

Another example might be where a party inherits some money and there is an argument about the date you legally separated from your partner. 

If you have been married the date of legal separation becomes important for an application for divorce. Again looking at the Australian perspective, to be able to apply for a divorce you need to have been legally separated for 12 months. 

What then is a legal separation?

Good question. Legal separation is simply that date when the two of you stopped living as husband and wife (or as de-facto partners). It sounds a simply definition, and that in itself is the problem. Sometimes one spouse simply cannot or will not accept the relationship is over and that is when the question of legal separation becomes an important one.

If you are about to leave or have left and are not sure your spouse has understood or accepted your decision and you want to make sure your date of legal separation is accepted down the track it is best to write to your ex spouse/partner and spell it out (with some tact if possible).

In our next post we will look at separation agreements. 

Good Old Mud Slinging

Don't you just love the letters that arrive from opposing lawyers throwing anything and everything at you, the lawyer and the client? Here at divorcewise we wonder what that is about? Does it serve to satisfy an ego, and if so does it satisfy the ego of the lawyer or the client? Or is it simply a believe that he (or she) who shouts the loudest and throws the largest pile of mud wins? If so, boy......

What happened to good old fashioned respect and courtesy? And why do some lawyers feel the need to wade in with their own opinion? How relevant is the phrase 'in the writer's view'? All of us at divorcewise agree that giving your own opinion as the lawyer for a client does nothing to resolve the dispute of the clients, nor does it look or sound professional. Sometimes client's of ours form the view something must be going on between client and lawyer if correspondence continues to contain statements about i 'in the writer's view'.

Shouldn't letters be short and to the point? Who reads five pages of insult anyway?

The current law society journal seems to have an article on effective legal writing in it. We have not read the entire article but glanced at the summary points in the centre of the article, which to the best of our recollection said something about the first twenty five percent of any document drafted being of no use (or words to that effect). And that using three main points goes a long way to writing a good persuasive document (no doubt this would apply to a letter as well).

Next time you sit down to write a mud slinging letter, offering your own opinion we urge you to stop and pause; will it really add anything to the document? Will it make it more persuasive? Probably not.

Perhaps we can all try to become better creators of documents and more persuasive in our writing.

Shared parenting in the news

In case you have not read the papers lately there is a renewed push to re-visit the idea of a presumption of shared parenting, but this time to revoke it. Of course the Family Law Act does not actually provide that there should be shared parenting, it states that there is a presumption for shared parental responsibility, which is the platform for a Judge to consider shared parenting.

It should not come as a surprise to anyone that no matter how much you try and put a round peg into a square hole, it won't work.

Shared care does not work for everyone, nor in every case. It is extremely unlikely to work if the parents find themselves in the Court arena. Why? Because if the parties are so hostile toward one another that they cannot discuss and work out what is in their children's best interest common sense dictates shared care will not work.

The shame in the research and debate and statistics is that none of the cases where shared care works are cited or probably even examined, because those parents had enough sense to stay out of system.

The other shame is that the knee jerk reaction to any parental dispute (if one is unfortunate to be in the court system) of most Judges and Magistrates will be to minimise time one parent can spend with the child or children, which no doubt leads to more conflict between the parents.

If you find yourself in this predicament you should read publications by Jill Burrett. You can find her work at the following link:

http://www.carringtonpsychology.com.au/

What should be important in cases where parents have separated should be the quality of time parents spent with their children, which of course means they have to be able to spend some time with them and not snatches here and there.

No doubt this problem won't go away. However, it can be minimised if people would approach the dispute from a different perspective and not rely so much on the legal system to solve their dispute, instead using services like psychologists/counsellors and mediators.

Recent Decision

In these techonologically advanced times one is never too far from the latest information. Most nights, at about nine or ten o'clock, the ipad announces an email has come in. Sometimes it is clients, but mostly it is an update to lawyers on recent developments in the law.

Last nights email included a summary about a case where a father appealed a decision that the mother be allowed to relocate with two children of the relationship two hours away from his residence (a town in which the mother had lived with the children after separation).

The case is called

Muldoon & Carlyle [2012] FamCAFC 135

and can be found on the internet and should be read if you are thinking of relocating and have to consider children and a parent that needs to spend time with them.

Is is interesting to read that part of the fathe's appeal related to the fact that his counsel was not allowed to pursue questioning of the mother's motivation of relocating. If you read the appeal judgement you will see that the mother gave evidence that she could not continue to live in the small town she was living in as it was like living in a fish bowl (what a great description). She went on to describe how her ex husband had a lot of family in town and she felt as though she was under scrutiny and talked about all the time. All very valid reasons one would have thought.

It is difficult to see where the father's motivation lay. After all the move was only two hours away and not twenty. True it is there was to a small reduction in his time with the children but when this is averaged out over ones own lifetime it would pale into inisginficance.

Needless to say that the father's appeal failed and it was held the mother was free to move whereever she chose.

One of our writers points out the story has a happy ending as lawyers got paid. However, we are sure all of you would agree that the money spent on lawyers would have/should have been spent  on the children (we wonder if it ever crossed the father's mind to simply take the children on a trip around the world instead of going to court).

We urge you to read the Judgment (and others) if you are in a similiar predicament, and perhaps pause for a moment or two before rushing off to court.

Should a Magistrate make decision about your children

As we are writing a summary of the Australian Family Law in German we are combing through cases, legislation and research. It was this start of a decision that twigged our interest.

Dr Brent Waters, the Part 15 single joint expert in this matter, who said in cross-examination “So we’re really talking about a damage minimisation exercise, rather than something that’s going to be a perfect solution” (transcript 2 September 2009, p.29, lines 9-10). Were the determination of this case akin to a mere theoretical exercise, a scientific experiment, or a mathematical equation, then something less than a perfect solution might not matter. But this case is about 2 children, [X] age 12, and [Y] age 5. This case is about important aspects of their lives. And the solutions found by the court are far from perfect.


What a sad state of affairs for children who are dragged into the Family Court jurisdiction. 

We have not read the entire case yet, but will do so and share other information with you. In the meantime you can read the case yourself by following the link:

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FMCAfam/2010/14.html?stem=0&synonyms=0&query=Goode%20and%20Goode

In case the link does not work it can be found in austlii:

Goode & Goode  [2010] FMCAfam 14 (15 January 2010)

The above statement by an eminent psychiatrist should give food for thought to anyone contemplating going to court over a dispute involving the children. A far better way to sort out the difficulties, whatever they are (unless it is violence), would be mediation and the assistance of counsellors/psychologists. Why is it we wonder that people think the law is the answer and preferable over alternative options? The law is such a blunt instrument, which cannot cater for children.

Some food for thought.

E book published

In case you missed the exciting news, one of our authors (not the horse he is still working on his book called My Olympic Dream), just published a book in paper back as well as electronically.

If you want to check it out the electronic version you can find it here.

http://www.amazon.com/dp/B009C8TC96

It would not surprise you to learn that the majority of the stories in the book called 'Briefs' deal with relationship breakdowns and how people deal with them. And then there is a story about a dragon and well about virginity. Have we wet your apetite? Hope so.

What are you waiting for? Get your copy now.

A hard copy can be found either at amazon (search author name: Tanya Thistleton) or at

https://www.createspace.com/3962688

What's in a name?

A lot apparently. For those of you not in the know here is a little lesson on the structure of the Family Court.

Family law cases, either children or property, can be dealt with in either the:

1. Family Court of Australia; or
2. Federal Magistrate Court of Australia.

The Family Court has Judges who hear cases and the Federal Magistrate Court has, you guessed it Federal Magistrates.

In the early days the main difference between the two courts was that the Federal Magistrate Court could only hear cases where the total asset pool was less than $750,000 (we have tried to verify what the limit was but could not find out) and children cases had to be able to heard in two days.

Now there is barely any difference between the two courts with both hearing property cases of any value and children cases of any length (although the Family Court does tend to deal with more complex children cases).

And now, according to a press release, there is to be a change in name and Federal Magistrates will now be known as Judges.

Will any of this mean any changes for the user of the Court? We doubt it. There will still be delay, dissatisfaction by the public and it will still cost a lot to go to court.

But there is a new name and title.

Just so you know we did not make it up we have copied in the press release received by us lawyers.

New name for Federal Magistrates Court revealed, 13 September 2012

The Federal Magistrates Court will soon become the Federal Circuit Court of Australia, and the title of Federal Magistrate will be renamed Judge to better reflect their important role in Australia’s judicial system.

Attorney-General Nicola Roxon announced the change today as part of the government’s ongoing court reform agenda to provide greater certainty around the responsibilities and role of each of the federal courts.

“The Federal Circuit Court of Australia better reflects the Court’s modern role in the federal judicial system and its accessibility for all court users”, Ms Roxon said.

The new name for the Court also highlights the important service it provides to rural and regional communities through its program of regular court circuits.

Wirting good letters

It is not unusual for lawyers, or clients, to write letters full of insults and innuendos.

The question we wish to pose is this, is such style of writing really helpful? Our guess is probably not.

A client the other day put it really well when she told of her new partner who said to her 'sugar gets you further than spice'. According to this client the relationship with her ex has improved dramatically since following her new partners advice.

What a refreshing approach to life. The man deserves a medal!

One of our writers is pondering a suitable reply to a particularly insulting letter from another practitioner, but at the same time does not want to stoop to the level of mud slinging. A few more deep breaths and ruminating should fix the desire to throw mud and a mature response will be drafter.

So, dear reader, the next time you want to let off steam in a letter why don't you try the sugar method. You never know, it might get you a result faster and make you feel better.

What about those lengthy letters some people send? The best way to write an effective letter is to keep it short and sweet.

If a letter is any more than two pages eyes glaze over, and if it goes on for four or five, we lose interest all together. If one of us gets a five a page letter at work the first thing we do is turn to the last page to see what the upshot of the letter is.

Writing a good letter means you have to do the following:

1. Be precise. No point going on and on about the same point.
2. Do not drift onto other topics, losing focus of the point of the letter.
3. Be polite. You never know but the letter might end up in front of a Judge one day.
4. Do not make claims you cannot substantiate later on.
5. Remember the key point of your argument.

A good book to read on being persuasive is by Chester Porters QC. Enjoy

.

Pay back or real concern

After a long absence from writing on this blog we have returned.

We thought we would briefly look at children disputes. They are those little creatures on two legs.

Often after separation they can become the silent sufferers, mainly because both parents are so wrapped up in their emotional hurt that they forget what effect their actions have on the children (all the while believing that they are acting in the best interest of the children).

We do not mean to criticise parents, on the contrary, as both parents will no doubt try and do their best for the children. What we do want to happen is for both parents to quietly examine if their actions have really been in the best interest of the children or been motivated by some notion of payback.

Is it really in the best interest of the children not to see their father/mother (excluding extreme cases of violence, drugs etc)? Mothers generally tend to dictate the terms on which fathers can see their children and this can sometimes be perceived as being controlling and manipulative .

If there is a dispute about how often the children should see one parent the first thing both of you should do is engage the services of a good child focused psychologist who can assist both of you how to resolve the dispute and work out what is in the children's best interest.

In practice we often advise people obtain outside assistance from psychologist and it is astounding how few people take up this option, instead preferring to spend thousands of dollars in the legal system with uncertain outcomes and lengthy delay.

Alternatively, try mediating. There are plenty of excellent mediators around whose job it is to try and get the two of you come up with workable solutions.

Do you really want to spend over twenty thousand dollars (Australian) and over twelve months in the Family or Federal Magistrate Court to have someone who knows nothing about your family tell you what you should do? We urge you to think about this as you are contemplating what to do about your parenting dispute.

Financial Disclosure

When a Judge or Magistrate contemplates an appropriate property settlement one of the first things he or she needs is a complete list of the assets of the parties, as at the date of the hearing.  

It of course makes sense that to be able to divide property one needs to know what is there to divide up between the two of you. Lawyers are no different.

The first thing a lawyer will do is ask for complete financial disclosure from you and the other side. What does this mean?

Depending how long ago you separated it is usual for the following request to be made to the other party (this is not an exhaustive list):

1.       the party’s three most recent taxation returns and assessments;

2.       copies of bank statements held in the parties sole name or jointly with another person (usually one asks for a period of twelve months, however, if the parties have separated some time ago more bank statements might be required);

3.       copies of credit card statements held in the parties sole name or jointly with another person (usually one asks for a period of twelve months, however, if the parties have separated some time ago more bank statements might be required);

4.       copies of wage slips for the last six months (again you can ask for more if necessary);

5.       copies of current mortgage statements;

6.       copies of current loan liabilities in your name or held jointly with another person;

7.       any superannuation documents for each superannuation interest of the party, including:

a.       the completed Superannuation Information Form;

b.      for a self-managed superannuation fund, the trust deed and the last three financial statements

8.       for a corporation (business), trust or partnership a party has an interest in financial statements for each (including balance sheets, profit and loss accounts, depreciation schedules and taxation returns) for the three last financial years;

9.       for the party or a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04 any Business Activity Statements for the 12 months ending immediately before the first court date;

10.   for any corporation, its most recent annual return, listing directors and shareholders and the corporation’s memorandum and articles of association;

11.   for any trust, the trust deed;

12.   for any partnership, the partnership agreement;

13.   a market appraisal of any item of property in which a party has an interest.

Basically you have to prove your net worth to the other side and the court. Often people are reluctant to do this, particularly if property or assets have been acquired after separation. However, being difficult and not complying with disclosure does not assist your case. We will look at property purchased after separation is dealt with by the court in another post.  

If you do not produce what is asked of you and the matter is at court the other side can subpoena various organisations to establish your net worth and make further enquiries from what is found. This can have costs implications for the party who refuses to participate in full and frank disclosure because subpoenas are a costly way to obtain information you should have made available voluntarily.  

The process of full and frank disclosure can appear an invasion of privacy; however, nothing is gained by making the process slow and difficult.

At the end of the day the faster you make documents available to the other side, the faster a resolution might be reached. People who are reluctant to make their financial documents available appear as though they have something to hide, which of course they might.

Once both parties’ net worth and financial earnings have been established you can start some meaningful negotiations with the other party.  

Remember an informed decision is a good decision.

You can read the rules about disclosure yourself by following the links on the family court website (on the home page go to publications and then look under D for Duty of Disclosure).

As always good luck.  

Hideous Payments

You might be forgiven for thinking this is going to be about tax, which it is not.

The hideous payments refer to child support payments.

Unfortunately child support payments are the bane of some people’s lives.

For those who are not sure what child support payments are we provide a brief summary:

1.       When people separate and there are children of the relationship both parents are financially responsible for those children.

2.       As the number of separated households increased there was reluctance by those in superior financial circumstance, who did not have the children live with them full time, to shy away from their financial responsibility by not providing financial support to the primary care giver (in most cases the mother).

3.       The Child Support Assessment Act regulates child support payments.

4.       The Child Support Agency assesses the amount of child support to be paid based on a set formula, taking into account income as well as the level of care each parent has for the child or children.  

5.       Whilst the Child Support Agency can assist in collecting child support payments they do prefer if parents work these matters out between themselves.

6.       If the payer or the payee feel an assessment is not correct an application can be made to review the decision internally before taking the matter to the SSAT.

We are sure you would all agree this sounds reasonable. What then is the fuss about?

Having spent considerable amount of time practicing family law the writers believe one of the most difficult things for paying fathers (it is usually fathers who are the payers) to accept is that children cost money.

Payers often complain about the money going to her (the mother), as if this was reason enough not to make child support payments. Payers feel the urge to regulate what their money should be spent on. Often payers ask that instead of being deposited into the mother’s bank account it should go into an account for the child or direct to the school to pay school fees or to pay medical expenses.

Do these people really think that is the extent of the expense of the child, school fees and medical bills? Perhaps some ignorant payers do.  

True it is the money goes into the mother’s bank account, however, true it is too the mother has the majority expenses for the child/children (we apologise if you feel we are being biased and we agree there are fathers who have the full time care of the child of children with mothers not paying child support but for ease of writing we will stick with the experience of the writers).

Is it really a problem if some of the money paid as child support ends up being used for the mother to go and spend it on herself? Probably not, particularly if it makes her feel good and she has spent every cent she earned the week before to treat the child or children to something special.  

Many payers try hard to avoid paying child support, going to extreme measures of reducing their income, so the bitch won’t get any of my money. Sadly these people do not realise that the real sufferers of their decisions are the children, not the mother. Others work or operate small businesses on a cash only basis, more or less becoming outlaws as they do not pay tax or meet their obligations pursuant to child support payments.  

Whilst we are not in the business of telling others how to run their lives we encourage payers who have difficulty accepting they have to pay child support to set up an automatic fortnightly (or monthly) debit on their account to pay the required amount. At the very least this should minimise some of the stress as no thought has to be given to making the payments as they happen automatically. Surely this is a better way of dealing with the situation than becoming an outlaw, which is what happens when you simply stop accepting responsibility for your actions.  

Relocation

It has been a busy time for our writers preparing for hearings and so there has not been much time to share our wisdom with our valued readers.

Sorry.

But why not read this article from the Age newspaper. It makes interesting comments and give food for thought.

http://www.theage.com.au/national/-1wh69.html

We hope to be back writing soon.

To go to Court or not to go to Court?

Is taking your matter to the Family Court really the only answer?

It might be, but then again it might not be.

Cryptic we know.

 Let us tell you from experience, the only thing you will get from Court is finality as well as a large bill for legal fees.

Of course we understand there are matters that simply must go to final hearing, but before you decide court is your only option, consider what we have to say.

Advantages of going to Court

1.       You know your matter will move forward.

2.       A timetable will be set, which parties have to comply with (time in the court system will confirm this timetable can be flexible).

3.       A hearing day will eventually be allocated.

4.       Someone will make a decision.

Doesn’t sound bad does it, trouble is, will you get the outcome you seek or need? Probably not, with the decision not remotely resembling what you wanted.  

Going to court, most people would agree is a bit like slamming your fingers in the top draw of your desk and waiting for the pain to subside, which it will in due course.  

Disadvantages of going to Court

1.       It is expensive, with costs ranging from twenty to fifty thousand dollars or more.

2.       Whilst a decision will be made one day, it can take time, with some matters taking two years (or longer) to be finalized.

3.       A third person that knows almost nothing about you and your ex partner will make a decision on what to do with your property and children.

4.       It is time consuming. There will be numerous court appearances you will be required to attend.

5.       Emotionally the experience can be draining and damaging to your health, work and maybe even new partner in your life. Often new relationships do not withstand the rigor of Court.

6.       At each court appearance you will be confronted with your ex partner, which may or may not go well.

7.       Long days in Court with nothing happening can be dreary.

8.       You cannot focus your attention on moving on with your life as Court often consumes people.

9.       It can be confronting.

10.   Your life will be examined inside out.

This is not an exhaustive list and only given as an example of what might happen at Court. Each case is different. Your experience might be a better one than the doom and gloom predicted by us. Most people we have encountered did not like the experience nor did they think the outcome was worth it.

In fact, a lot of people likened the experience as being tied to a wooden pole naked. beaten senseless and eventually being released with a pair of socks as well as several insults, while having to pay a fortune for the experience and outcome.  

Who is to blame for this?

No one and everyone, with the people working in the system trying their best to make it work for the people who need to use it. A shortage of funding for the Court means a shortage of people to hear cases, thus the backlog starts. 

The ‘beating’ you will suffer along the way will mostly come from your ex spouse who will have nothing nice to say about you. Years of hurt will be unleashed by everyone.  

What is the alternative?

Believe it or not there are alternative options available.

A movement has taken momentum called Collaborative Law. It is about focusing on outcomes both parties come up with as opposed to slogging it out in the Court arena.

According to Lawyers who practice in this area it empowers people if they have control over the outcome, ultimately leaving people feeling much better about the separation process.  During this process additional professionals including psychologists, financial planners and accountants are consulted to assist in coming up with workable solutions in both property and children disputes.

Of course you do not have to use a collaborative lawyer; you can ask your own lawyer for other options, including mediation. Or you can simply start by consulting a financial planner or your accountant to find out what it is you need to move forward instead of going to a lawyer to ask ‘what am I entitled to’.

Final words

Before you storm off to find out what you are entitled to and start the usual war of words between solicitors take a moment to step back. Think what, if anything, this will achieve as well as how it will impact on your life over the next few months/years, then see if there are other avenues open to you. Perhaps it is time to take the road less travelled.  

Whichever way you go come back to visit our site to see if there are other posts that might help you along the way.

Good Luck

How much am I entitled to?

Let us assume for a minute you have separated and there is one burning question you must simply ask, namely how much am I entitled to?

You go and see a lawyer and more likely than not leave terribly deflated.

Why?

Because you may not have heard what you wanted to hear, or you were given a range of possibilities and not the magic figure you were after. Sadly, there is no mathematical formula to work out what any one is entitled to at the end of a relationship, but steps we follow.  

This post is to reiterate what your lawyer probably told you and may or may not have taken in at the time.

The way the family court works out a property settlement under the Family Law Act 1979 is as follows:

1.       What is the asset pool? The first step is to identify what everyone owns jointly or separately (less any debts). Property includes cash, shares, business interests, real estate, investments furniture, motor vehicles and superannuation (not an exhaustive list).

2.       Assess the contributions of each party prior during and after the marriage/relationship. This includes financial and non financial contributions of the parties. For example if someone owned an asset before they started living with you, this will be taken into consideration, as will lump sum payments received during or after the separation. Once the contributions have been assessed they are given a percentage value.  This step will be discussed in more detail in later posts.   

3.       What, if any, future needs are there?  In this step the court looks at the age and health of the parties, income and financial resources, if either party has to care for a child, the duration of the marriage and the capacity to obtain gainful employment (again to name but a few).

4.       Is it just and equitable? This is the step least able to be predicted by lawyers. In this step a Judge or Magistrate has to examine if the proposed orders are fair (more often than not client’s tend to think the entire outcome is not fair). It is important to remember the court has wide discretion to make an order that it considers proper in all of the circumstances.

 If you understand the process of how a decision is made it can help you understand why a lawyer cannot simply give you a figure and tell you how much you are worth.

Family lawyers often talk about ranges and percentages, leaving you, the customer, confused and unsure.

Sometimes a better approach in this situation might be to work out what you need to make the world go around and use that as a starting point.

To give an example of how getting stuck on a percentage can be of no use, we highlight a case where a mother of young children wanted over fifty percent of the asset pool. One of the reasons was she had the primary care of three young children and limited earning capacity.

The husband had brought the assets into the relationship, reducing the wife’s direct financial contributions and it was a relatively short relationship, lasting in total about six years.

 The lawyers (for both sides) agreed the case should be decided around thirty five percent. None of the settlement mediations brought the parties any closer together, each getting more entrenched in their position. Finally, after spending over fifty thousand dollars each, a final decision was made giving the wife less than fifteen percent of the asset pool. Despite the decision being an appealable one, the wife chose not to appeal.  

Perhaps if the case had started with each party not focused on what percentage they were after, it might have produced a better outcome for the wife.

When you take a firm stance about what you think you are entitled to, make sure you are prepared to be disappointed. A lawyer should never promise you an outcome or assure you that you are worth a particular percentage, as this will not help you try and negotiate a settlement you are able to live with.

  

Financial Strategy Post Separation

Being Financially Savvy


Bank accounts are the first vulnerable item to look at after any separation. By now you will have set up your own account (and if you have not done so you will leave immediately and do so) and made sure your wages or Centrelink benefits are paid into same. Where does that leave other accounts and outgoing such as mortgage payments or loan payments and who should pay them?

Mortgage – to pay or not to pay?

More than likely you will have purchased property in joint names with a joint mortgage. This means that both of you are equally responsible for mortgage payments and if there is a default the bank will not care about your separation and simply pursue both of you (usually the person with a higher income has more to lose).

However, it may not be practical for you to pay your share or the entire mortgage payments, depending on your individual circumstance. The first thing you should do is make a budget and work out what you can and cannot afford (we are afraid that trip around Europe might have to wait until you have sorted out your financial affairs between you and your ex spouse).

If you are renting and not living in the former matrimonial home there may not be enough money to go around for you to pay your share of the mortgage. In such a case, particularly if the other person is still living in the home, it might be reasonable to expect them to pay all of the mortgage payments.

However, it all becomes a balancing exercise of what works and what does not. A court would take a dim view of a person who did not pay the mortgage simply because they did not want to and thus a valuable asset of the relationship is lost. This will be of little consolation if the asset is lost and there is nothing to divide at the end of the matter.

When deciding what to do about mortgage payments think long term. How would a bad credit rating affect your future prospects of obtaining another loan or mortgage? If you genuinely cannot meet your share of the mortgage you should have a meeting with the bank manager and discuss options with them. Banks can do things like switching a loan to interest payments only or look at a hardship application. If for any of this you need the consent of the other party and they will not give it, you might need to commence proceedings and obtain some interim procedural orders.

At the end of the day both of you should work on preserving assets for division, as both of you will benefit.


Bank accounts with money in them – to take it or not to take it?

Often people wonder if they can take joint savings out of a bank account or even spend the re-draw on the mortgage.

As you are debating what to do about joint savings, and it might be the case you really need the money, we remind you again of our previous saying possession is nine tenth of the law. What invariably happens is that one of you will be trusting and convincing yourself it is not nasty and there is no need to get nasty and before you know it the ten thousand dollars in the joint account are gone. Now it is too late to do anything about this.

Of course your lawyer can write to your ex spouses lawyer and threaten the end of the world, however, by the time your matter comes before a Judge or Magistrate it will be most difficult to get anyone interested in adding the money back into the pool (not the swimming pool but the asset pool, what you and your ex spouse own).

If you are unsure the best course of action is to take the money and put it into an account where it cannot be accessed or spent. That way you are protecting it from being spent and it will still be there for division when your matter is either determined by way of final hearing or you both reach agreement and sign a set of consent orders.  

Do I report the car as stolen or not?

You might be driving the family car which happens to be registered in your ex spouses name. Your ex has asked for it back and you have said no (perhaps using slightly stronger language). Now your ex is resorting to techniques of intimidation and bullying, telling you that they will report the car as stolen and you are not sure what to do.

At the end of the day the Police will not get involved in a property dispute between spouses. It is a matter that will be sorted out in the Family Court.

Beware though what might happen is that the ex, who by now is so angry at you for not doing what you are asked to do, they will simply go and take the car (assuming they have a spare key).

Again the Police will not be interested. It is still a matter for the Family Court. And again your lawyer can write letters at great expense to you but it probably won’t lead to the return of the car.

What to do? Make sure when you leave you have all the keys to the car and never leave it somewhere where the ex can simply get in and take it.

Conclusion

These are only some of the financial issues you will need to consider after a separation. In future posts we will revisit some of these and discuss them in more detail and try and draw on our experiences from years of practicing in the area of Family Law.

Possession is nine-tenths of the law

An odd statement you might think, but a very true one.

When people separate it is ugly and messy. Usually no thought or planning has gone into it, beyond the where will I live and shall I take the cat or dog. The step to leave is such a big one, in most cases, and when it is taken is taken hurriedly and without forward thinking and or really appreciating the effect leaving someone will have on them on a short and long term basis.  

Why, you might ask, is it important to plan and exactly what should be planned? Is it not enough to simply leave and start afresh? Maybe, however, at some stage people stop and analyse what they have done and realise they really should have taken the large photo of aunt Muriel in her wedding dress, or the antique grandfather clock inherited from great uncle George and it is at that point it will be too late to go and get it.

As the heading states, possession is nine-tenths of the law, which in practical terms means that whatever you are able to take with you at separation will be it.  

This might not matter we hear you say, and it might not, but then again it might.

It is not only sentimental items or furniture you need to think about, but there are documents, such as financial records, you may wish you had taken, particularly when your lawyer asks you for copies of these.

Again, we can hear you sigh and lament lawyers make things so complicated, and we might, but, these things are important.  

A lot of money, your money, is spent by lawyers embarking on the path of discovery. In non legal terms asking for financial disclosure. Think how much simpler and cheaper it would be if you had a set of financial records to give to your lawyer at the start. Naturally this is assuming you and your spouse kept records and those records are easily accessible to both of you. This is not an invitation to embark on a break and enter mission by the way.

Then there are the more personal things like photos, cd’s, dvd’s and other sentimental items you think you will get later. Later, may never come. Again, legal letters on these issues are costly and rarely achieve anything. How easy is it for the other side to simply claim they have been taken already, or will not be made available pending you fulfilling some demand from your ex spouse.

We can see you smile and think something like what a load of nonsense, I will simply go and get these things myself, after all we own the former matrimonial home together. Yes, that might be a way to do it, but don’t be surprised if the lock has been changed and access is denied. The last thing you want is to find yourself embroiled in the criminal justice system as well as the Family Law jurisdiction.

The most effective thing you can do is work out what the essential things are that you want to take with you at separation and do so.

Remember  - Possession is nine-tenths of the law!

Welcome

If you were hoping to read about interesting things like the latest movie or book titles or who won an Oscar, than you have clicked on the wrong blog. Whilst we would love to write about these things, alas we cannot. No, what you will be reading about on this blog will be far more mundane. What dare you ask are we writing about on this blog?

It's simple.

We are going to be discussing people separating from their husband/wife or defacto partners. Specifically we are going to try and inform and equip you with information to assist you in this most emotional and difficult time. There may be opinions offered from time to time, but we will try and keep these to a minimum. All in all we aim to update you on the latest decisions in the Family Law jurisdiction as well as any developments in the legislation and offer some practical tips on matters as they arise.

People who come to the legal system are often confused by its workings, particularly the Family Law arena and we hope by reading our blog you will find something to make you a little wiser and thus a little bit happier.

Happy Reading.

Nothing is worth more than this day!

Goethe