Pre Nuptial Agreement - to have one or not to have one?

Is a pre nuptial agreement for you?

Thanks to the popular press reporting on the rich and famous, we all know what a pre-nuptial agreement is, more or less. A pre-nuptial agreement relates to a couple agreeing before they enter into a relationship how they are going to divide up the assets should the relationship break down. Some might argue this level of mistrust is not a good start to a relationship, whereas others, usually those with more money, simply see it as a way of ensuring their financial future.

In Australia these agreements are referred to as binding financial agreements (BFA). You can have a binding financial agreement before getting married, before starting to live together or when separated. It is critical that the BFA correctly identifies pursuant to which section the agreement is drafted. Not getting the section right can already lead to a court deciding the agreement is not valid.

When should you have a BFA

Be it over a glass of champagne, a romantic candlelit dinner or some other exquisite setting, the conversation about wanting your so called loved one to sign a BFA can be a bit of a love dampener. It is difficult to imagine how the subject could be broached delicately and tactfully.

‘Darling, you know how you are going to move into my million dollar mansion on Monday?’ He/she says caressing the back of the neck of the loved one. ‘Well would you mind just signing your rights away?’

All jokes aside, a BFA may be beneficial in the following situations:

1.     Both parties have been previously married/in a relationship and wish to protect their assets before merging their lives with another person.

2.     Both of you like the idea of setting out before hand how any property should be divided if it does not work out.

3.     One of you has children from a previous relationship and wants to make sure assets are protected for them.

4.     One party has a lot more assets than the other and wants to be sure both parties know what is to happen when the relationship breaks down.

What if I don’t sign the BFA?

It may be that the new love of your life will simply end the relationship if you refuse to sign the agreement. As the law stands the agreement will only be binding if both of you have received independent legal advice as to the advantages and disadvantages of the agreement prior to signing and you will need to sign the agreement voluntarily.

The conversation with respect to not signing the agreement will no doubt be as difficult as the one about signing the agreement. Love and relationships are about trust and faith; a BFA may spoil those aspects of a relationship, whereas others like the idea of knowing what the future holds.

Other options

There is no other option for setting out what is to happen with property before marrying or living together than a BFA. It may be that if you do not sign the agreement, the magic will be gone from the relationship and you find yourself stranded at the altar.

If you have separated and are confronted with a BFA you do have the option of what is known in legal terms as application for consent orders and minute of order.

http://www.familylawcourts.gov.au/wps/wcm/resources/file/eb7d904c3b27c0b/AppConsentOrders_Kit_070612_V1.pdf

The above link will provide you with information on this type of agreement.

Remember that whatever agreement you sign it will need to be done freely and without any form of coercion by the other party. An agreement that is signed after much pressure has been applied, may ultimately not be a binding agreement.

Leaving a violent relationship

Family Violence

The Family Law Act 1979 defines family violence as follows:

1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be
fearful.

2) Examples of behaviour that may constitute family violence include (but are not limited to):

            (a) an assault; or

            (b) a sexual assault or other sexually abusive behaviour; or

            © stalking; or

            (d) repeated derogatory taunts; or

            (e) intentionally damaging or destroying property; or

            (f) intentionally causing death or injury to an animal; or

(g) unreasonably
denying the family member the financial autonomy that he or she would otherwise
have had;

(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member or his or her child, at a time when eh family member is
entirely or predominantly dependent on the person for financial support.

(i) preventing the family member from making or keeping connections with his or her family,
friends, or culture;

http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4ab.html

(above link provides full definition of family violence)

Leaving a violent relationship

Separating from your partner can be difficult at the best of times, let alone separating from a partner who has perpetrated family violence on you, which can seem impossible to do.

Often people stay in violent relationships longer than is necessary because they cannot see a way out. The fear of the unknown is greater than the fear of the violence. Of course family violence
does not only have to be physical violence, as is evident from reading the definition section of the Family Law Act, and can take many forms, some more subtle than others.

Things to consider

An immediate concern might be where do you live and how do you support yourself (this is particularly so for people who have the care of the children). These considerations may take some time to work
out, but remember preparation is the key to a successful separation.  

Financial Assistance

Planning how you leave will be absolutely essential. Try and be as prepared as you can be. If you do not have access to joint funds see centrelink before you leave your partner to see if you are eligible for centrelink payments. You may be surprised to learn that you might also qualify for rent assistance or some other type of emergency payment. Broadly speaking financial assistance may be in the form of:

1.   
Crisis/emergency payments;

2.   
Single parent payments;

3.   
Income support payments;

4.   
Unemployment payments;

5.   
Rental assistance.

You are also entitled to make an application for spousal maintenance to the family court (federal circuit court - family law jurisdiction), particularly if your ex spouse is gainfully employed or runs his/her own business. Unfortunately this can be costly, but if you can demonstrate need and an ability to pay (by
your ex) your ex may also be liable for your legal fees. You should consult with a solicitor about a spousal maintenance application to discuss prospects of success.

Where to live

Once you have sorted out a means to support yourself (and possible the children), work out where you are going to live. This may largely depend on what you can afford. People do not like to be a burden on others so you may not like the option of living with friends or relatives. You should not dismiss it outright, particularly if it was a short term measure and provided you with the opportunity to move out sooner rather than later. If people offer to help you they do so willingly.

If you are having difficulty in getting a rental application approved do not be afraid to get a solicitor to provide a letter to an estate agent setting out your circumstance. Sometimes being honest can help secure a rental property.

What to take

Once you have a place to live make sure you pack essential things you want to take from the house. You may only have a small window of opportunity to get organized without your partner knowing what you are doing. Remember once you leave the home it is unlikely that you will return, so you will only get one chance to take as many things as you want. Make the most of it.

When deciding what to take be practical and remember things like financial documents, important papers and photos. Many a family law dispute includes one party wanting photos and the other not making them available.

Protecting yourself

If you are really worried about your safety you should consider an intervention order (apprehended domestic violence order in NSW) for your protection. The police can issue an emergency intervention order on your behalf for a short period of time until the first court date. At the mention date there may be a short hearing before the Magistrate will grant the intervention order pending final hearing (unless your ex simply consents to its making). A longer intervention order can be applied for at a final hearing.

Final words

The words of wisdom provided here will not cover all your questions about your particular situation. There are many organizations set up to help you, you just need to go and speak to them.

Don’t’ be afraid to get some legal advice.
If you cannot afford to pay a solicitor you could see a lawyer at one of the
many community legal centers. Dedicated and capable volunteer solicitors, who
will be able to provide you with advice with respect to your unique
circumstance, man these places.

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.