Family Law

We're Friends ... Do I Really Need A Property Settlement With My Ex?

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I’ve separated from my partner, but we’re still friends. Do I really need a property settlement?

 

Separating from your partner is difficult enough without having to navigate the complex legal framework surrounding separation and divorce.

Many couples can reach their own agreement as to how to divide property, and they may think this is the end of the story. However, there remains questions such as what happens if one party reneges on your deal, wins the lottery, or receives a large inheritance? In the event of any of the above, the agreement is not enforceable, and there would nothing to prevent a party from making a claim on the other’s assets.

Coutts understands the balance between achieving a fair settlement and maintaining amicability between the parties. We provide personal and tailored advice as to whether an agreement reached between parties is just and equitable within the scope of the Family Law Act. We often represent one party in the matter and liaise with the other unrepresented party to finalise an agreement, so that only one set of legal fees are incurred.

At Coutts, we generally recommend finalising your agreement by Consent Orders. This document confirms your agreement in writing, is signed by both parties, and is then sent to the Court to make binding Court Orders. Consent Orders finalise your financial relationship, so that no further claims can be brought. You do not need to attend Court for this process, and as a result your agreement is now enforceable should any problems arise in the future. Additionally, Consent Orders provide an exemption to paying Stamp Duty if you wish to transfer a property into yours or your ex-partner’s sole name. In the majority of cases, the cost of Consent Orders is far less than the eventual cost of Stamp Duty.

Whether you are already in agreement as to how to divide your property, or need a little help working it out, please contact Coutts to book in an initial appointment so we can talk you through the process.

 

For further information please don’t hesitate to contact:

Emma Harrison
Lawyer
emma@couttslegal.com.au
02 4607 2147

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

As a grandparent, do I have a right to see my grandchildren under family law?

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Grandparents are often an important part of a child’s life. Grandparents can be involved in lots of different ways - perhaps it’s a regular babysitting role, maybe its breaking the bed time rules or serving up dessert before dinner. Whatever role it may be, grandparents often want to be a part of a child’s life.

 

Grandparents can sometimes encounter issues when it comes to seeing their grandchildren. Whilst there is no automatic right for a grandparent to see their grandchild, the Family Law Act 1975 (Cth) allows for a grandparent of the child or any other person concerned with the care, welfare or development of the child to apply to the court for a parenting order.

 

There are many situations in which a grandparent may want to apply for a parenting order to see a grandchild and some common situations are:

1.     The parents have separated and neither parent is facilitating time with the grandparents.

2.     The parents are still together but refuse to let the grandparents spend time with the child.

3.     One of the parents may have passed away and the surviving parent isn’t allowing the grandparents to see the child.

4.     The grandparents may want a child to live with them, for reasons such as the parents aren’t involved in the child’s life or there is a significant safety concern for the child in the parent’s care.

 

It’s important to know that there is typically a requirement to try family dispute resolution before proceeding to court (some exceptions may apply). This means the grandparents and parents could try mediation with a third-party mediator to try and resolve the issues and come to an agreement first.

 

If separated parents already have court proceedings on foot, then grandparents may need to be joined to these court proceedings as a third-party. Alternatively, grandparents may need to be the ones to start the court proceedings. There’s several different orders a grandparent could seek such as:

1.     to spend time the child;

2.     to communicate with the child e.g over telephone or skype;

3.     that the child live with the grandparents and that the grandparents have parental responsibility for the child.

 

In any parenting matter a court will look at what is in the best interests of the child. That is the paramount consideration of the court when making a parenting order. The amount of time or communication that a child has with a grandparent will be based on what is best for the child.

 

There are many factors that a court will look at when determining what is in a child’s best interests. Some additional considerations are:

1.     the views of the child (usually depending on the maturity and level of understanding);

2.     the nature of the child’s relationship with parents and grandparents;

3.     the likely effect of any changes in the child’s circumstances including separation from parents, any other child or other person such as grandparents who the child has been living with;

4.     the capacity of parents and grandparents to cater for the needs of the child including emotional and intellectual needs;

5.     any family violence.

  

If a dispute arises solely between the parents of the child, and it doesn’t involve the grandparents then proceedings will need to be commenced by one of the child’s parents. A grandparent cannot start proceedings on behalf of a parent who is capable of doing this for themselves.

 

At Coutts, we understand that this may be a difficult time for you and that every situation is different. We can meet with you to take you through the process and advise you on your individual circumstances.

 

For further information contact:

Rebecca Watts
Lawyer
rebecca@couttslegal.com.au
02 4607 2148

Luisa Gaetani
Senior Lawyer
luisa@couttslegal.com.au
02 4607 2112

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Separation & Divorce: The Rules

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There is a general misconception surrounding separation and whether it can only occur if parties are living in completely different residences. This is in fact not the case, and separation does include separation under the same roof, as well as living in completely separate residences.

For the Court to be satisfied that the parties have been separated under the same roof, the party bringing the application needs to prove to the Court the following:

  • That they have been living in separate bedrooms;

  • The parties’ belongings have been separated;

  • Each party is attending to their own cooking, cleaning and washing;

  • That the parties have not invited family or friends to socialise in their home as a couple;

  • That the parties have not attended a social gathering/function together as a couple; and

  • That a third party such as a family member or friend was aware that the parties were separated but living under the same roof.

When making an Application for Divorce, the party applying needs to prove to the Court that the parties have been separated for a period of 12 months or more.

If the parties have been separated under the same roof for a part of that 12 months or for the full 12 months, when applying for Divorce, they will need to provide the Court with extra information in addition to the Application for Divorce, including:

  • The dates that the parties were living separately under the same roof;

  • An Affidavit by the person applying for the Divorce detailing the circumstances and how they were living separately under the same roof; and

  • A corroborating Affidavit of a third party such as a family member or friend acknowledging that they were aware that the parties were separated but living under the same roof and the details of how they were aware of those circumstances.

Once these documents have been filed with the Court, the parties will receive a ‘Divorce Hearing date’ where the Application is heard/reviewed before a Registrar of the Court. If all of the requirements for the Application for Divorce have been satisfied, the Registrar will make an Order for the parties to officially be divorced one month and one day after the Divorce Hearing date.

If you are separated and need assistance in preparing an Application for Divorce and/or Affidavits for separation under the same roof, contact the Family Law Team at Coutts who can provide you with all of the information required.

 

For further information contact:

Luisa Gaetani
Senior Lawyer
luisa@couttslegal.com.au
02 4607 2112

 

Step Parent Rights After A Separation With The Biological Parent

What are your rights as a Step-Parent when you have separated from the biological parent?

Section 4 of the Family Law Act 1975 (Commonwealth) defines a Step-Parent as:

(a)    A person who is not a parent of the child;

(b)    Is, or has been, married to or a de facto partner of, a parent of the child; and

(c)     Treats, or at any time while married to, or a de facto partner of, the parent, treated, the child as a member of the family formed with the parent.

 

As a Step-Parent, you do not have an automatic right to custody or spend-time arrangements if you have separated from the child’s biological parent. You also do not have an automatic right of equal shared parental responsibility of the child. This means that you are unable to:

a)       Authorise Medical Care/Make decisions about the child’s health care;

b)      Make decisions about the child’s education or sign school forms;

c)       Make decisions about the child’s religion;

d)      Apply for passports and/or obtain birth certificates.

You can, however, apply to have Parenting Orders put in place, that allows you to spend time and communicate with the child.

 

The process to have Parenting Orders put in place to allow you to spend time and communicate with the child is:

a)       First attempting to negotiate with the biological parent. If your negotiations are successful, an agreement can be made into ‘Consent Orders’. Consent Orders are a binding Court Order that allows you to spend time and communicate with the child. This means that you do not have to make an application to start Court proceedings;

b)      If negotiations are unsuccessful, you can attempt Mediation, where you will have an independent third-party present that will try and assist the parties to resolve their issues and come to an agreement. If an agreement is reached at Mediation, again, the agreement can be made into ‘Consent Orders’.

c)       If Mediation is unsuccessful, you will need to make an application to start court proceedings. You are able to do this as ‘other people significant to the care, welfare and development of the child’. This is when the Family Court will decide on whether you can spend time and communicate with the child, and have parental responsibility allowing you to make decisions with the biological parent in relation to the child. The Court will determine this based on whether it is in the best interests of the child for that to occur.

 

The chances of the Court making the Parenting Orders that you are seeking as a Step-Parent are higher with the length of the de-facto/marital relationship and whether you have been involved in the child’s life since separation.

 

If you are seeking advice in relation to your rights as a Step-Parent after separation, please contact Coutts and speak to our Family Law Team.

 

For further information contact:

Luisa Gaetani
Senior Lawyer
luisa@couttslegal.com.au
02 4607 2112

 

Q&A: Separation and inheritance

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Wondering about separation and inheritance? Our Solicitor Rebecca answers a question over at SimplyAskIt.

Q: 

I have been separated for 2 years, and have just sold the family home. I believe a 50/50 split of the equity is fair but my estranged partner believes she is entitled to more as my father passed away 10 months ago and she is wanting some inheritance as well. My fathers estate is still in probate and overseas. I am self employed, pay maintenance for our child, the ex does not work and has never worked.

Does my ex have claim on my future inheritance, or for a higher split in the equity?

A:

It is important to complete a formal family law property settlement to end the financial relationship between you and protect and any future assets you may receive. You may be able to try and argue that you have received your inheritance after separation but it’s possible that it may form part of the property pool. In relation to the split of the equity, we are not aware of all the details of the relationship but in circumstances where your former spouse has a lower income earning capacity than you and care of the child then she may be able to receive an adjustment in her favour. It is important to seek advice from a family law solicitor in relation to your inheritance and the potential split of the equity. 

Need to complete a formal family law property settlement? Talk to the team at Coutts Solicitors & Conveyancers.

This Q&A first appeared online at SimplyAskIt

Q&A: Wills, assets and blended families

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Thinking about preparing a Will for your blended family? Our Solicitor Kaisha points you in the right direction over at SimplyAskIt.

Q: 

How do I set up a Will for a blended family with overseas assets?

A:

Hi Michael,

Estate planning for blended families is hardly straightforward, and the standard DIY Will kits are generally only set out to cover the traditional nuclear family. With blended family structures becoming more common, there are certainly a few ways to ensure that your spouse will be looked after once you pass away, as well as maintaining your assets for your children of a previous marriage. These legal solutions will depend on the nature of your estate assets (including your overseas assets) and your family dynamics. I would recommend that you seek legal advice to understand your options and be able to prepare a Will that provides for your loved ones as you intend.

Need to get your Will organised? Talk to the team at Coutts Solicitors & Conveyancers.

This Q&A first appeared online at SimplyAskIt

I’m separated, can I buy a new property?

I'm separated, can I buy a new property?

If you have recently separated from your partner, you may be looking for a new place to live. You may find yourself chatting to a charming real estate agent who is showing you around the perfect new house. Before you sign the contract and pay the deposit for your dream home, you need to be sure that it won’t become a nightmare. 

Even if you and your partner are amicable, it is important to complete a formal family law property settlement to protect any new property you buy after separation. A property settlement will end the financial relationship between you, but until you do this any new property you purchase could become part of the dispute. For example:

Lisa and Michael were married for 7 years and have been separated for 10 months. Lisa meets Steve and they purchase a new house together. Michael then commences property proceedings and Lisa’s new house forms part of the property pool between her and Michael. She’s required to disclose details such as the address, who else owns the property, purchase price, and loan details. 

A lot of people may think that because they’ve purchased the new property after separation its none their ex’s business. However, until you tie up the loose ends of the marriage or de facto relationship by way of a property settlement, your leaving yourself open to a claim over your new property. Whether or not your ex is successful in their claim is a different story, but the cliché, ‘it’s better to be safe than sorry’ exists for a reason. 

You should note that there are also time limitations which end the financial relationship between you and your partner such as:

  • being divorced for 12 months for a marriage; or
  • being separated for 2 years for a de facto relationship. 

It is important to a speak to a family law solicitor before purchasing a new property to be aware of any potential consequences, the ways to complete a property settlement - which doesn’t always mean going to court, and to see whether you meet any of the time limitations listed above. For more information on time limits when separating have a read online here

Need assistance with a family law property settlement? Contact Coutts today.

Do we need to pay our property grants back?

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If you have recently built a home with your partner, or bought a brand new home, and you have now separated, there is a chance that you will need to pay your property grants back.

Below we explain when you need to pay your property grants back, when you don’t need to, and what else you should know to protect yourself.

If you are selling the property

If you are selling the property for which you received property grants, then there is a high chance that you will need to pay back those grants. The rules for property grants are as follows:

  • New Home Grant

    • If you purchased a home complete and ready for occupation or an off the plan purchase you are not required to pay back the grant.

    • If you purchased vacant land with the intention to build a dwelling:

      • But did not commence construction within 26 weeks of settlement then you must repay the grant; or

      • If you completed construction then you will not be required to pay back the grant.

  • First Home New Home Stamp Duty Exemption/Concession

    • If you purchased vacant land with the intention of building a dwelling; or

    • If you bought a new home that had not been lived in previously, then:

      • At least one purchaser must have occupied the Property for a continuous period of 6 months in the first 12 months. If this has been achieved then the stamp duty exemption/concession does not need to be paid back.

      • If you have not commenced construction or neither purchaser has lived at the property for the required period then the exemption/concession must be paid back on or prior to settlement of the sale.

  • First Home New Home Grant

    • The guidelines above for the Stamp Duty Exemption/Concession are also applicable to the grant.

If one of you is keeping the property

If one of you is going to keep the property and buy the other out, there is a chance that you will not need to pay back the grant money that you have received.

In order to avoid paying back any stamp duty concession or grant received on your Property you must meet the eligibility and residence requirements, which are set out below:

  • New Home Grant

    • If you purchased a home complete and ready for occupation or an off the plan purchase you are not required to pay back the property grant.

    • If you purchased vacant land with the intention to build a dwelling:

      • But did not commence construction within 26 weeks of settlement then you must repay the grant or request an extension to meet the requirements of the grant which would avoid the need to pay back the grant; or

      • If you completed construction then you will not be required to pay back the grant.

  • First Home New Home Stamp Duty Exemption/Concession and Grant

    • Either purchaser must have lived at the Property for a continuous period of 6 months within the first 12 months after settlement or completion of the dwelling.

What should be done from a Family Law point of view?

If you have separated and have property together, you should be entering into a formal family law settlement. To read more about why, please click here.

In addition to providing you with protection and certainty in the future, a formal family law property settlement will also help the party who is going to keep the property avoid having to pay stamp duty on the transfer into their sole name.

A family law property settlement is also important if you have previously received property grants. Any settlement should cover who, out of the two of you, will be responsible for paying back the grants in the event that the conditions set out above are not complied with. If you are not keeping the house, and you are selling your share to your former partner, you may want any settlement to say that you will not be responsible for paying back the grants in the event that your former partner does not comply.

This will help both of you move forward into the next chapter of your lives with certainty.

If you would like more information about this, please contact our office to make an appointment.

What is an Appointment of Enduring Guardian?

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What does it do?

Similar to a Power of Attorney, an appointment of Enduring Guardianship allows another person or persons to make decisions on your behalf when you are unable to make those decisions for yourself. A Power of Attorney allows the attorney to make financial and legal decisions, whereas an Appointment of Enduring Guardian makes medical and lifestyle decisions. They are easily confused!

Who should you consider?

When considering who you trust to make these decisions, consider: does the person have similar views to lifestyle, medical treatment and end of life decisions. Presently, the law does not allow for a professional carer or treatment provider to be appointed as your guardian. Your guardian must follow your wishes and hold your interests and welfare as the paramount consideration for all decisions they make on your behalf.

What is the process?

As with a Power of Attorney where the attorney(s) have to sign the document to accept their appointment, so too does the guardian(s) need to sign, however, in addition to their signatures they also need to receive a certificate of legal advice confirming that they understand the effect of the document and are voluntarily signing it. Because the certificate requires legal advice, a JP cannot sign that part of the document. In contrast to the Power of Attorney, there is no person or body that supervises these documents once made. The Guardianship Tribunal can become involved of there is a conflict.

What does it not do?

This document does not deal with the important decision of organ donorship. If this is something you wish to do, please tell your family of your wishes! It is thought that the majority of Australians support the idea of being an organ donor. However, if they forget to tell their family or when the family is asked by the hospital about organ donorship they decline based on their own views, not knowing what to do or possibility the great shock of losing a loved one. You can also record your decision on the Organ donor online registry, currently found here.

Picton legal office reopening

Picton Flood Recovery

On the weekend of Sunday 5th June, most of us were aware of the wild weather that swept through the Macarthur Area. The lucky ones were rugged up inside their homes with the heating on, watching the heavy rain and gutters over flow through their windows. Many people started to realise by late Sunday afternoon that the heavy rain was causing hazardous floods in many areas, with pictures posted on social media of flood waters rising at Campbelltown Station, Mount Annan and Leppington. But it was the images of the high water levels sweeping through the main street of Picton that alarmed the staff at Coutts Solicitors and Conveyancers, as this is the location of our Picton legal office .

The Main Street of Picton Flooded

The Main Street of Picton Flooded

Coutts Solicitors &  Conveyancers is located on the corner of Argyle Street and Cliffe Street, very close to where these photos were taken. We all felt sick at the sight of the images of the floods, but at this stage had no idea of the damage caused to our offices.

On Monday morning none of the staff were able to attend the Picton office. All the roads were closed due to the high flood waters, so all Picton staff were relocated to the Narellan Office to work. Throughout the day we heard reports of neighbouring businesses front windows being  smashed by the rush of flood water and losing all of their stock. We could could not view the damage to our office, until the flood waters dispersed and roads to the area were reopened. However we still had hope,  we are on the higher end of the street, a significant distance away from the burst river banks.

Coutts Solicitors front entrance after the Picton floods.

Coutts Solicitors front entrance after the Picton floods.

It was Monday afternoon by the time we had access to our Picton legal office. The damage was immediately evident, with a brown sludge being left on the floor of the entire office (under the sludge are glossy white tiles). The smell was also horrendous, the whole office smelt like a sewer and the brown sludge looked like sewage, it was heartbreaking.

The damage was clear in every room,  computers, files, printers and stationary all clearly showing the water damage. We established by the water marks on the wall that the water levels had submerged the office 30 - 40 cm. The money and time needed to repair the office had yet to be calculated, but at this stage we realised the damage was worse than we initially thought. We had not been as lucky as we had hoped on Monday.

After the devastating news of our own damage we began to hear unsettling rumours of Picton businesses insurance claims being rejected. Many insurance companies  had found a loophole to avoid paying out for damages.   We watched in dismay as  fellow Picton business owners coped with the crushing news, many had been operating their whole life in the area and were now out of business as a result. We joined the community in their reaction of anger and disgust at theinsurance companies tactics to save their money.....  We were yet to be assessed by our insurance company, so the future of our office remained uncertain.

Thanks to our Insurance Broker

Luckily, we had a wonderful insurance broker (Jared from Ausure) who was communicating with our insurance company. He organised for an assessor to come out to our office and view the damage. We were fortunate enough that our Insurance company decided we were able to put in a claim for the damage. It was a huge relief, our Picton legal office would reopen, but we still had a long road ahead with the clean up and replacement of our equipment to take weeks.

The aftermath of the Picton floods resulted in many businesses on the main street shutting down for weeks,  some had to close their doors indefinitely. When we did go to Picton, it looked like a ghost town, we were worried about the future of business  and concerned if the town would recover.

Back in business for Picton!

Now, nearly 3 months after the devastating floods, their is a light at the end of the tunnel. Community events have been held to raise money for the businesses and residents that were badly effected by the natural disaster.  Local businesses offered a helping hand to those in need with, discounts and charity donations. As much as the Picton floods caused so much trauma and stress to its residents, it has been amazing to see the generosity and caring spirit of people in the whole of the Sydney area. All the donations and charity to the Picton flood relief have helped Picton get back in business.

The Coutts Solicitors & Conveyancers Picton legal office is coming close to finishing its repair and is set to reopen on or before the 31st August. We are extremely thankful for those people who contributed to its refurbishment and  helped us to get back to business. We are looking forward to reopening our doors and being able to provide the Picton residents with legal services once again.

Please remember to "Go Local"  when choosing a service or purchasing products, your support will help Picton businesses to thrive once again.

5 Do’s and Dont’s for Separation involving children.

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Separation is a very difficult thing to go through, and is made even harder when there are children involved. It is important to remember that regardless of the circumstances in which separation has occurred, your kids love both you and your former partner. There are things that you should and shouldn’t do during the time of transition.

While this isn’t based on what the law says, we see so many families going through separation. Everyone is human, and we all make mistakes, but there are practical ways that you can approach this situation to support your kids as much as possible.

Things you should do:

Things you should do

Things you shouldn’t do:

Things you shouldn't do

By remembering that your children love both parents very much, and keeping them as your focus through the separation process, you can make decisions that are good for them, as well as good for you, helping you move on to the next exciting stage of your life.

If you have any legal questions about separation and children, please click here to contact us.

10 things to think about when Separating - Property

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If you are going through a separation, and own property together (whether you are married or a de facto couple), you will need to decide on separating property between you. Before you are able to reach an agreement with separating property you have, it’s important to have reasonable expectations. Expectations of life after separation and what life is really going to be like for you, sometimes don’t meet up, so it is important to take a realistic approach.

Here are 10 things to think about when separating property:

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What next?

After you have taken the time to consider these things and what you want for the future, it is important to speak to a lawyer about the best way to move forward. It’s very important that a formal family law property settlement is done to protect you both in the future.

To make an appointment to discuss your separation and these issues, contact us today. We can help you plan how to move past these issues and onto the next exciting chapter of your life.

Should I let my Children Travel overseas with my ex?

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If your ex has asked to take your children to travel overseas with them, you may be worried or questioning, "Should I let my children travel overseas with my ex?". On the one hand overseas travel can be an amazing opportunity for children to spend time with your former partner and learn about the world. However, it can be a scary and uncertain thing for the parent who isn’t travelling with the children. When considering a request from your ex to take your children travelling overseas, you obviously need to consider if it is safe for your children to travel. One of the biggest concerns people express  is that the other parent will not return the children to Australia.

When weighing things up, you should consider the following:

  1. Is your former partner a citizen, or are your children citizens of another country?
  2. Does your former partner have family in another country that they are close with?
  3. Has your former partner ever lived overseas, or expressed a desire to move overseas with the children?
  4. Is your former partner proposing to travel with the children to a country that is not a signatory to the Hague Convention?
  5. Do you have current Family Law Orders in place?

What is the Hague Convention?

Formally called ‘The Hague Convention of the Civil Aspects of Internal Child Abduction’, the Hague Convention is an international treaty that provides avenues for child recovery when a person takes children overseas without permission or does not return to the home country as promised.

Countries that have agreed to be a part of the Convention are called ‘signatories’.

Australia is a signatory to the Hague Convention, and so when children travel to other signatory countries, the Hague Convention applies. However, if children travel to other countries that are not signatories to the Hague Convention, then the treaty does not apply and the avenues it provides are not available if the children are not returned. For the full list of countries practicing the Hague Convention click here.

What are Family Law Orders?

Family Law Orders are orders that have been made under the Family Law Act. They provide orders about things like who children live with after separation takes place. Family Law Orders can also provide conditions of overseas travel.

If there are Family Law Orders in place, both parties are bound to comply with the orders. Failure to comply allows the other party to make an application to the court to enforce the orders under certain circumstances.

So, what can I do to make sure that my children travel safely with my ex?

Holidays are a part of life, and overseas travel is a wonderful opportunity for your children to learn about the world. But, if you are unsure or uncomfortable with the thought of your children travelling and want to know more about your options, please contact us for an appointment.

The Coutts Solicitors Family Law team are experienced and knowledgeable in all areas of current Australian Family Laws. Several members of our team practice solely on Family Law Matters, meaning they have advised hundreds of people on Family Laws. Each of our team are excellent at negotiation and mediation outside of Court, as well as representing you in Court if you wish to proceed to this level. If you would like to know more about Family Law and how Coutts can help, please click here.

Do I need a pre nup?

As a family lawyer, I often get asked by clients if they need a pre nup.

Clients who ask this question are usually people who:

  • Are young and are buying their first property
  • Have received a lot of money from their parents to put a deposit on their first home or had family members provide guarantees so that they can buy their first home
  • Have previously gone through a family law property settlement
  • Are entering into relationships later in life
  • Want to protect the assets that they have come into the relationship with, especially if they are particularly well off or had a lot of assets before the relationship started

Before deciding if you need a pre nup, it’s important to know what a pre nup is, when you can use one, and what you can do as an alternative.

What is a ‘pre nup’ agreement?

A ‘pre nup’ is term used to describe a kind of financial agreement that people enter into when they start a relationship and want to protect their assets. The term ‘pre nup’ or ‘pre nuptial agreement’ is an American term that we often hear on TV or in songs (‘We want pre nup!’). In Australia, these kinds of agreements fall under a group of agreements called Binding Financial Agreements. A pre cohabitation or pre marital Binding Financial Agreement can be used to set out who is to keep what in the event that a break down of a de facto relationship or a marriage takes place.

What are some of the good things about pre nups?

A pre nup can be very useful if a relationship breaks down. As there has already been a decision about who is to keep what, it can save a lot of time and stress for everyone involved.

It can also means that parties avoid the need to extensively engage with lawyers or the court system at the end of a relationship.

The thing that most people prefer about pre nups is that it gives them security in knowing that hard earned assets, or gifts received from family, are protected and preserved during the break up process.

What are some of the bad things about pre nups?

There are a lot of down sides to pre nups that need to be considered. They are a very complex agreement that come with a number of considerations.

The main issue that my clients encounter is that both parties must have their own lawyers, even if they are completely in agreement about what is to happen. This is because the law in Australia sees these documents as potentially dangerous. As such, they require that everyone has a lawyer and has had proper legal advice before entering into this kind of agreement.

Another issue is with costs. As I mentioned, these are complex agreements and the costs associated with getting a pre nup reflect this. This is made even worse by the fact that there are two lots of legal fees involved in getting a pre nup drawn up.

And finally, there is a chance that because of changes in circumstances (like having children, or encountering severe health issues) that the pre nup will be contested and overturned at the end of the relationship.

So if I don’t do a pre nup, what else can I do to protect my interests?

It is important to remember that once you enter into a de facto relationship or a marriage, you are choosing to enter into a special kind of financial relationship which gives the other person an entitlement to property (for more information about these financial relationships and consequences, click here).

So, if a pre nup isn’t the way to go for you, or if your partner won’t agree to enter into a pre nup with you, it’s a good idea to do the following:

1. Consider whether or not this relationship is something that you actually want to proceed with. This might sound harsh, but if you don’t want share your property with another person if you break up, then avoid creating that financial relationship in the first place.

2. Keep a paper trail. Make sure you are keeping proper records of what property or money you have at the start of the relationship, early in the relationship, and what you put into any purchase of property.

If your family are helping you out by providing money to you or a guarantee, make sure it is all written up properly so that there is a record. Keep invoices and receipts, and clearly note who paid for what, and when.

Start to keep proper files of bills and expenses, and records of how and when they get paid.

3. Use internet banking properly. In my job, I use bank account statements all the time to try and prove that people have made certain payments or contributions. However, I rarely see these transactions properly described as anything other than ‘internet bank transfer’. If there is an option for you to provide a description of a transaction, then do it. It is a lot easier to prove that $5,000.00 was used to pay a concreter if the transaction description says ‘payment for driveway’.

While these can seem like daunting tasks, taking the time and care now could save you a lot of stress, and a lot of money in the future.

If you would like more information about pre nup agreements, or if you are going through a break up and want to know more about your property will be divided, contact us for a free consultation today.

Need professional advice with regard to whether you should attain a pre nup?

Contact us today.

4 Divorce and tax implications you should know about

Going through a divorce, separation and break up is a very emotional and complicated process. The situation can get even more complicated when there is property involved. If there are houses, superannuation, shares, investments and businesses involved, you will eventually need to make decisions about who is going to keep what property. When making these decisions, you should always consult with a lawyer to know what your legal options are. But, it’s also important to consult with an accountant or financial planner so that you properly understand what your financial options are, and if there are any tax implications that you may face.

Stamp duty implications

In cases where one person is going to keep a house and buy the other out, it is important that you know that in NSW, stamp duty is payable on that buy out.

It is also important that you know that the stamp duty that will be owed is not the amount that you are paying the other person out, but on the value of the share that you are buying.

For example, Jack and Emily* have a home in Camden together, and its worth about $700,000.00. They own the home as joint tenants, which (very) basically means that they own the home equally. Emily pays Jack $100,000.00 in exchange for her keeping the home.

Emily will pay stamp duty on the share that she is buying, which is Jacks half of the house, which is $350,000.00. She will not pay stamp duty on the $100,000.00 that she pays to Jack.

In saying all of this, there is a way to get around having to pay stamp duty. Exemptions to stamp duty are created if there is a Family Law Order or another kind of agreement under the Family Law Act. So, if Jack and Emily enter into a formal property settlement, then Emily will not have to pay stamp duty. To find out more about how to get a formal property settlement, click here.

Capital gains tax implications

Capital gains tax is the situation where you earn income or make a capital gain from an investment, including property. That capital gain is taxable. When going through a separation, the most common time that capital gains tax becomes an issue is when there is more than one property that is being sold or bought out by one of the parties. When this happens, it is best to seek advice from an accountant about exactly what capital gains implications you may face, and what you can do to minimise any implications.

Superannuation tax implications

If you are going through a divorce or separation, and dividing up property that is between you, you may divide up superannuation as well. For those who make additional contributions to their superannuation, or who are receiving a large sum into their superannuation fund as a result of Family Law agreement, there may be tax implications that you need to consider. Your superannuation fund will be able to provide you with some general information about this, but it is best to consult an accountant or financial planner about the full extent of any implications before making a decision.

Corporate tax

It is not uncommon for couples to run businesses together. It’s also not uncommon for those businesses to be incorporated, so that the couple become directors of a company. When going through a separation, there is usually some kind of agreement about who will retain the company, and any assets that may be held by the company. It’s common to pay one director out in these circumstances.

Corporate tax is a very complex area and it is best to talk to an accountant or corporate tax specialist in these circumstances to find out what, if any, corporate tax implications you could face when trying to split up a business.

If you need advice to navigate your legal options when going through a divorce, separation, or break up, be sure to contact us. If you need advice on divorce and tax implications, you can chat with us, but we also highly recommend speaking to an accountant or a financial planner. 

*Jack and Emily may be real people, but I certainly don’t know them. These names have been used for the purpose of the example only.

Need professional advice with regard to Family Law? Contact us today.

How to win your court case

Everyone wants to know how to win their court case. The truth is, there is no way to guarantee a win, and in family law a win often doesn’t look like a win anyway. But all is not lost, and there is way to you come out the other side happy and relatively stress free.

Here are some tips to give yourself the best chance of success in your case, allowing you to move on to a happy, conflict free life, and maybe even save some fees along the way.

Speak to a lawyer who is experienced in family law

There are lots of lawyers and lots of different kinds of law out there. Some lawyers do a bit of everything, others choose to focus their careers and practice on one particular area of law. The lawyer who has experience in family law, and doesn’t do much else in other areas of law, is going to be more up to date with the law, and know more about the process you need to follow. This means that they will guide you through the process, and will know how to avoid expensive issues and mistakes.

Be prepared and be prompt

If you are asked to provide information to your lawyer, do it, and make sure you do it in an organised way. The more you are able to prepare and organise your own information, the less time your lawyer has to spend doing it for you, and this will ultimately save you fees. The less preparation you do upfront, the more changes your lawyer will need to make later, which leads to stress and increased fees for you.

You should also try to get back to your lawyer in a reasonable time frame when they ask you for information. Most lawyers have at least 100 different clients, and that’s a lot of different lives and different stories to be on top of. If it takes you three or four weeks to get back to your lawyer and answer their questions, it is going to take your lawyer an hour just to figure out where your matter was last up to and what needed to be done next. This will ultimately increase your fees. If you respond promptly, your lawyer will be able to get on with your matter straight away, which will not only save you costs but also mean that more progress is getting made in your matter sooner.

Be honest with your lawyer

Your lawyer can only prepare for what you have told them in your case. So if there is something that your lawyer needs to know, you should tell them even if in your mind its irrelevant to your case, or its ancient history. Chances are that it isn’t relevant, but if we don’t know about it we can’t prepare for it. For a lawyer one of the worst things is being in court and finding out information about your client that is important and needed to be considered in the case.

The advice that you are given is only as accurate as the information that you give

As well as being honest with your lawyer, it is important that remember that lawyers can only give information on what is in front of them. If you fail to provide clear information and instructions to your lawyer, you are limiting their capacity to represent you to the best of their ability. If you want success in your matter, you should clearly communicate your instructions, and provide your lawyer with all the information that they need to prepare the best case for you.

Don’t try to be clever

Don’t try to be clever and ‘outsmart’ the system or the other side. We are lawyers, we know the system inside out, and so does the other lawyer. The system is specifically designed to catch out people who think that they are clever so don’t try to manipulate facts to suit your case. Don’t ‘accidentally’ leave out information from your lawyer because you think no one will ever find out because someone will and when they do, you will have lost all credibility and almost any chance you had of convincing a judge that they should make a decision that favours you.

Trust the advice that you are being given

It is your lawyers’ job to provide you with legal advice, and sometimes, you won’t like what that advice is however you need to trust that your lawyer knows what they are doing and telling you for a reason. It’s also important to remember that just because your friends-sisters-boyfriends-aunt had one outcome in her property settlement, doesn’t mean that you will have the same one. Your lawyer is giving you advice based on your circumstances and your instructions. Your lawyer is always trying to put you in a position to make informed decisions in your case, and guide you through the most successful case that you can have.

Be open to alternatives and to a settlement

Remember that court is not the only option to resolve a dispute and that there are alternatives to help you reach an out of court settlement, which is usually better for everyone. Even if a settlement means compromising, your lawyer should help you consider what this will mean for you in the grand scheme of things. If you listen to what your lawyer says, and properly weigh up your options, you may find that a small ‘loss’ now will give you the freedom and finances that you need to move on to a successful and happy life.

If you are going through a break up or have recently ended your relationship, and want to know more about moving through this stage of your life, please contact us.

Need professional advice with regard to Family Law? Contact us today.

6 steps to recover financially from a Separation or Divorce

In Australia today around 1 in 3 marriages can be expected to end in divorce. With 77% of Australian couples also living together before getting married (and let’s face it - some don’t go the distance) the real impact of  relationship breakdowns is likely to be much higher than the statistics lead us to believe. 

There is no doubt moving on from any long term relationship, be it marriage or de facto, can attract a heavy emotional toll. But the financial impact can also be far reaching and long lasting.

Finances are often left on the back burner as you focus on the emotional health of yourself and your family. Perhaps it is the fi rst time you have had sole responsibility for your finances? Or maybe you feel overwhelmed and don’t know where to start?

The key is to take action early. Here are some steps to get back on track financially after a separation or divorce…

1. Check your credit rating

A vital first step is taking control of your financial future! Check to see if your credit report contains any errors or if any of your partner’s information is listed. If so, have it rectified. There are two main credit reporting agencies - Veda and Dun & Bradstreet

2. Identify your creditors

Make a list of all your creditors, both secured and unsecured. Your secured creditors are those where assets are used as security for the loan, eg house or car. Negotiation of both the assets and the outstanding loans will be required by both parties.

3. Separate all joint accounts

A time consuming but crucial step is to unravel all your joint accounts, including credit cards. Even if the separation is amicable it is best to separate all accounts to avoid future issues.

4. Create a budget

An unavoidable result of separation is a change in lifestyle. An important step in making this adjustment is creating a comprehensive budget separating discretionary and mandatory expenses. To stick to your new budget you may need to make tough decisions on discretionary spending. Of course, if you have children then child support may also come into the equation – one party may be paying child support while the other receives it. Remember that child support payments will cease or may be amended at some point in time. This should be factored into future planning for both parties.

5. Decide on your housing options

In most cases the family home is either sold or refinanced. At least one partner will need to find somewhere new to live. While renting may be a viable short term option, in the long term most people wish to buy a home. You will need expert advice on how to best refinance your home or secure a loan for a new home. If refinancing or applying for a new loan it is important that all required identity documentation reflects your new marital status and/or any change of name.

It is essential you contact your mortgage broker to discuss the process BEFORE lodging any loan application documents.

6. Prepare a Financial plan for the future

• Start an emergency fund - open a separate savings account for unexpected emergencies. • Update your Will – ensure it reflects the changes that have occurred in your life. • Manage your debt - contact us for a chat about how to reduce your ‘bad’ debt like credit cards and personal loans as quickly as possible. • Plan for your retirement - review superannuation and update beneficiary details if required. • Review your insurance needs - you will need to update policies from married to single status.

This is a guest blog written by Andrew Evans from Mortgage Guy. If you would like to discuss getting your finances on track after a separation or divorce click here to contact Mortgage Guy . If you are thinking of separating from your partner and would like information from the Coutts Solicitors Family Law team click here to contact Coutts Solicitors.

Time limits when separating

If you are separating from your partner it is important to remember time limits when separating and protect yourself with a property settlement within this time frame. People who enter into marriages and de facto relationships create a very special relationship emotionally, socially, and legally. That special relationship brings many rights and obligations at law. It is these legal implications of a relationship that allow a property division to take place when a relationship ends or when a couple are separating.

Dividing up property and having a property settlement is different for every separating couple. To understand exactly what you need to do, it is best to speak with a family lawyer.

It is also important that you know that there can be time limits on when a property division can take place.

How early can we do a property settlement?

You can do a property settlement as soon as separation takes place. To ensure that your property settlement is legally recognised, you should engage with a lawyer and do things properly. This process can take a few weeks or a few months depending on the case.

De facto time limits

If you have been in a de facto relationship and you have separated, it is important that you know that you only have two years to make an application to the court to have a property settlement take place.

Example: John and Sarah separate on 31 August 2013. They have a house together, bank accounts, and cars, but they never got married. John and Sarah talk about how they want to divide up the property but can never reach an agreement.

John and Sarah must either enter into a legally recognised agreement, or make an application to the court by 31 August 2015. If they do not do this, they no longer fall under the Family Law Act, and this can cause serious legal issues for them.

Marriage time limits

If you have been married, it is important to know that there is no time limit on when a property settlement has to take place, unless you have gotten a divorce and more than 12 months has passed. This is very important to consider as it means that the legal rights and obligations that your marriage has created do not end until you do have a legally recognised agreement or a court order in place.

Example: Chris and Tammy have been married for seven years. They have each have superannuation, cars, bank accounts, and credit cards. They also have a house and a mortgage. They separate on 1 May 2012. Although they often talk about it, they cannot reach an agreement on how to split up the property and who should have to pay the credit cards. On 30 June 2013, Tammy applies for a divorce, and the divorce is granted on 1 August 2013. Chris and Tammy then only have until 1 August 2014 to enter into a legally recognised agreement or make an application to the court for a property settlement. If they do not do this in time, then they no longer fall under the Family Law Act and this will lead to serious legal issues for both of them.

For advice on your circumstances contact Coutts Solicitors & Conveyancers on 1300 268 887 your first consultation is FREE for up to 1 hour.

Is Separation hard to do?

As a family lawyer, I see people going through separation every day. Many people ask me "Is Separation hard to do?" , Separation is becoming more common in our society. But just because it happens every day doesn’t mean that it is easy, either emotionally, physically or legally. Even though most people do not realise it, being married or in a de facto relationship actually bears very serious legal ramifications, and so the process of separation is also a complex legal matter.

Background: the marital relationship

Throughout history, marriage has been considered a legal agreement to bind two people into a relationship. From a legal point of view, it is very similar to a contract. As a part of this legal agreement, many rights and obligations are given to both parties particularly in relation to property. Think of these as the ‘fine print’ or the ‘terms and conditions’ of marriage. Once a couple is married, any assets or debts that they have are considered marital assets and marital debts, regardless of whose name those assets or debts are in. Marriage also creates certain rights in relation to a persons estate after they pass away.

Since 2009, the Family Law Act also covers de facto relationships. This means that there are rights and obligations that mirror that of a married couple if two people are in a relationship and have been living together for more than two years or if they have children together.

It is important to remember that just because marriage and de facto relationships are common does not mean that the law treats them with indifference. The rights and obligations that go along with these relationships create serious and quite complex legal issues.

What kinds of rights and obligations are created in these special relationships?

The main rights and obligations that are created are in relation to legal and financial matters.

When a party to marriage or a de facto relationship buys property or acquires an asset, that property or asset becomes property of the marriage, regardless of whose name it is in.

The same goes for debts, all credit card debts, loans and mortgages taken out by either party become debts of the marriage.

There are also rights and obligations created in terms of information. For example, if my husband is in an accident, I have the right to information about his health and condition, and I also have the obligation to make decisions about this treatment if he is not in a position to do so himself.

Marriage and de facto relationships also create rights of survivorship and impact on a person’s estate after they have passed away.

Separation: exiting a marriage or de facto relationship

The act of separation itself does not end the rights and obligations that have been created. So, when separation does take place, proper steps must be taken to end the rights and obligations that have been invoked by marriage or time (in the case of de facto’s).

The steps that must be taken can vary slightly on a case by case basis, but what all separations have in common is this: you must engage in legal processes to end the rights and obligations that have been created by the relationship. If you do not do this, those rights and obligations will continue into the future (for more information about time limits, please click here).

Just as the rights and obligations created are serious and complex, so is the process to undo those rights and obligations. Although it is possible to enter into an agreement about what you want to do with those rights and obligations, for that agreement to be legally recognised it must be done in a certain way.

Legal processes: ending the rights and obligations

While legal processes can often seem confusing and unnecessary, it is important to follow these processes to make sure that you are protecting yourself in the future. If you do not engage in these legal processes after separating, then you are not ending the rights and obligations that the parties have to one another.

To actively sever the rights and obligations created by your relationship in a way that is legally recognised, you will need to either:

  1. Enter into an agreement that is drawn up in accordance with the law. This means using forms and processes that are set out under the Family Law Act and Family Law Rules. A mere verbal or written agreement is not enough to be a legally recognised agreement.
  2. Have an order made by the Court.

It is also incredibly important that you consider doing things like:

  1. Updating you Will, Power of Attorney, and Enduring Guardianship.
  2. Applying for a Divorce.

Protecting myself in the future: what do I do now?

To find out more about what you need to do next, contact Coutts Solicitors and Conveyancers  to make an appointment on 1300 268 887.

We will be able to provide you with advice about what needs to be taken into consideration in your particular case, and guide you through the processes from there.

Parenting After Separation

What about the kids?  Parenting after separation When going through a separation, every couple will need to address parenting after separation by deciding what is going to happen with their children. It is the reality of a separating couple that the time that they spent with their children will change. This can be a confronting and confusing time for both you and your partner. Because of this, separating couples sometimes avoid talking about parenting after separation and what they want, which ultimately only leads to more confusion and confrontation.

It is because of this that we highly recommend that separating couples with children do all that they can to come to an arrangement about their children as soon as they can.

What does the law say about parenting?

The Family Law Act says that all decisions that are made about parenting must be made to maintain the ‘bests interests of the child’. This means that it is the interests of your children that will be considered before all else.

The term ‘bests interests of the child’ is used time and time again throughout the Family Law Act. To determine what is in the best interests of your children, the Court would consider the benefit of your children having a meaningful relationship with both you and your partner, and also the need to protect your children from any harm.  There are secondary considerations that the Court will also look at to assist it in determining what is in the bests interests of children, including the presence of family violence, the ability to meet the needs of the children, and views that the children may express (depending on their age and maturity).

The Family Law Act says that the court needs to make a decision about where children will live if their parents aren’t able to reach an agreement. The Family Law Act says that children can live with both parents equally, and where that is not in a child’s best interests, children will live with one parent and spend time with another on a substantial significant basis.  What these arrangements look like in reality is different for every family.

What do we have to do to put an arrangement into place?

When possible, it is best for parents and their kids when parents work together to make parenting arrangements for their children.

There are a couple of ways that you and your partner can come to an agreement.

The first way is to have a conversation. If you and your partner are able to have a safe, calm, amicable and practical discussion about what needs to happen, then we strongly encourage you to do so.

If you feel as though you are not able to talk about parenting arrangements without arguing, it may be necessary to reach out to a mediation service. Details of different mediation services are below.

You may also use a solicitor to negotiate with your partner.

Whether you are able to discuss it privately, you require mediation, or you engage with a solicitor, it is very important that you get your parenting arrangements put into writing. Putting the agreement into writing provides each of you with some certainty about the arrangements and can greatly assists in reducing conflict.

We highly recommend speaking with a family law solicitor about the best way to formalise the agreement that you have come to.

What happens when we can’t agree?

If you aren’t able to reach an agreement yourselves, you should speak to a solicitor if you haven’t already. Your solicitor will be able to advise you on the most appropriate way forward.

The Family Law Act requires that where parties cannot reach an agreement themselves, they must attempt mediation if they have not done so already.

If mediation was unsuccessful, or it is not appropriate, then it will be necessary to make an application to the Court to have a decision made for you.

I am worried for the safety of my children

If you have immediate concerns for your safety or the safety of your children, contact the police immediately.

We strongly recommend that you speak with a family law solicitor as soon as you can.

Who do I call now?

For any further advice or legal assistance on this issue, please contact us at Coutts on 1300 268 887.

For mediation, we recommend the following services:

  • Relationships Australia – Lvl 2, 121 Queen Street, Campbelltown – 4221 2000

  • Family Relationship Centre Campbelltown – Macarthur Square – 02 4629 7000

  • Beyond Now Counselling – 7 Broughton Street, Camden – 0408 029 952

  • The Mediation Centre – 3/36 Woodriff Street, Penrith – 02 4761 6930