Separation

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

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.

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.

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

'We don't need a property settlement', famous last words.

If you and your former partner have owned property together, it is very important that you get advice from a family law solicitor about how to separate and finalise any property that you have with a legal property settlement.  This applies to married couples, de facto couples, and same sex couples. Family law property settlements help to protect the assets that exist at the time of separation, as well as protecting the individuals from any further debts that the other party may enter into. But most importantly, entering into a family law property settlement provides people with the certainty that they need to move on to the next chapter of their lives.

What is a Family property Law settlement?

A family law property settlement is a formal way of separating the property that you and your partner have between you once a separation has taken place. It includes things like:

  • Who will get the former family home;

  • How much money will the other person have to be paid to ‘buy’ them out, and when;

  • Who will keep assets such as shares, savings, interests in business;

  • Who will be responsible for different debts.

A family law property settlement can be achieved by agreement, or determined by an order of the Court.

Why do we need a Family property settlement?

When people either get married or enter into a de facto relationship, they create a financial relationship between them.

A Family Law property settlement formally sets out who is to get what out of the property, and ends the financial relationship that is created as a result of their relationship status. This is particularly important to protect each persons interests as they move on with their lives and continue to acquire further property, or incur further debts.

It is also important to do a Family Law property settlement soon after separation, as the value of the property/debts is determined at the date of entering an agreement or an order of the court being made, not at the time of separation.

What can happen if we don’t do a Family Law property settlement?

Scenario 1 –Tracey and Paul purchase a house in Paul’s name. Seven years later, they separate. Traceymoves out of the family home and into a rental property. She does not have any contact with Paul. After about a year, Tracey decides that she would like to settle the property that is between them. After seeing a family law solicitor, she learns that Paul has increased the mortgage against the property without her knowledge, depleting the equity that was available to divide between them.

Scenario 2 –Jen and Matt have a house together. After separating, Jen stays in the home, and  Matt moves out. Then Jen pays Matt some money, but they never enter into a formal agreement. Soon after,  Matt re-partners and wants to buy a new house.  Jen then decides that a formal family law property settlement is necessary. Because the property settlement is considered to be at the time of a formal agreement and not the time of separation, Matt’s new house could become a part of the dispute.

Scenario 3 – Mark and Brad purchase a house together. Two and a half years later, they separate.  Mark vacates the house. Six months later, he tries to buy a new house, but cannot get loan approval as he is still on the mortgage for the home he had with Brad.

Scenario 4 – Frank and Kate have been married for four years, but do not own much property together so they don’t worry about doing a family law property settlement. Two months after separating, Kate receives a large inheritance.  Frank then starts family law proceedings against Kate. Because they had not done a property settlement before Kate received her inheritance, Kate’s inheritance now becomes a part of the dispute.

Scenario 5 – Karen and Scott have been in a de facto relationship for 30 years. They built their home together, and raised their three children there. When they separate, Scott promises Karen that she can keep the house, and that she will never have to worry about where she will live. They do not do a family law property settlement. Five years later, Scott starts proceedings to sell the house and split the proceeds equally.

In each of these scenario’s, the parties could have protected themselves if they had taken steps to enter into a family law property settlement soon after separation took place.

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

Separated? ....... how do your kids feel?

Whether you have just decided to separate or have been separated for some time, you and the other parent obviously need to think about and agree on arrangements about the children. Many children worry about what will happen to them when their parents split up, and it can be a big relief to them if the arrangements become clear and predictable.

How do I make a parenting agreement?

A parenting agreement is an arrangement that separated parents make about how their children will be cared for and supported. One of the things about coming to a parenting agreement that many parents are particularly worried about, is working out where their children will live and how much time each child will spend with whom.

There are usually strong emotions around this topic for parents, these strong feelings can lead people to act in ways that they might not usually act, or may not even agree with. Some parents can get focused on who will 'win’, they may have long debates about where children live and how much time each parent should get. Arguments between the parents can continue for long periods without a resolution.

Before getting caught up in conflicts about what is fair and unfair for each parent, you could get ready to make a parenting plan by focusing your thinking on what will be best for your children.

What actually are my parental responsibilities?

  • Consider your children’s needs as a priority and make arrangements for your children that are in their best interests.
  • Protect your children from physical or psychological harm or the risk of harm.
  • Encourage your children to talk to and see the other parent regularly, unless this would place your children at risk of harm.
  • Not say or do things that stop your children communicating with the other parent, or  that might harm their relationship with the other parent.
  • Encourage and assist your children to enjoy their culture.
  • Maintain your children financially.
  • In most cases, participate in major long-term decisions about your children.

How a Solicitor can help you to reach an agreement

Not all separated parents are able to agree on parenting arrangements, or the agreements they have made are not kept. The highly charged emotional nature of the decision making in regard to the children can cause massive stress, especially if arguments have become aggressive and unreasonable.  In some cases it may not be safe to try to reach agreement, or there may be other difficulties or urgency that prevents parents from agreeing to arrangements. If this applies to you, you may need to go to court. A Family law Solicitor is an expert in this field, they can advise you on your rights as a parent and the family court system. They will guide you through the legal process and how it relates to your families circumstances.

If you go on to court, the court will have to consider the terms of the most recent parenting arrangements and make a parenting order in relation to your children, if they believe that is in the best interests of your children. A Solicitor will be on hand to give you the advice and support you will need while going to court.

Information was sourced from HERE.

If you would like to talk to a Family Lawyer call Coutts Solcitors & Conveyancers on 1300 268 887 for a FREE Initial Consultation for up to 1 hour.

De facto and same sex couples now included in Family Law Act

Since March 2009, de facto couples and same sex couples seeking separation have been dealt with at a Federal level, under the Family Law Act 1975. The Act covers property division, maintenance, financial agreements and superannuation.

De facto couples seeking a separation

Under the law, a de-facto relationship is defined as ‘a couple who are co-habiting for at least two years’.  If you’re in a de-facto relationship and experiencing challenges in your separation, you might not be aware of the legal ramifications – including the limitation periods for a matters resolve.

To qualify for treatment as a de facto couple under the Family Law Act, the Family Law Courts must be satisfied in one of the following areas:

  • Your de facto relationship has spanned a minimum of two years
  • You and your partner have a child
  • Your or your partner has made substantial financial or non-financial contributions to your property (or as a homemaker or parent) and serious injustice would otherwise result
  • The de facto relationship has been registered in a State or Territory that has laws for the registration of relationships.

Same sex couples seeking a separation

Previously dealt with under the Property Relations Act, now same sex couples are treated as de facto.   The Child Support (Assessment) Act also applies to same-sex couples.

For more information about the Act for de facto and same sex couples, visit the Family Law Courts website.

Seeking the right legal advice, before it’s too late

If you are in the midst of a separation, make sure you seek sound legal advice and resolve matters before the time limits expire. If you miss the two-year cut-off date, you may become barred from resolving the situation under the conditions of this law.

Whatever your situation, we are able to help all parties reach a peaceful resolution. Our lawyers are highly experienced in assisting with separation, property division and more importantly, resolving circumstances involving children.

If you need some friendly legal advice before for after separation, do not hesitate to email us at info@couttslegal.com.au.