In 2021, there were 56,244 divorces granted in Australia – the highest number of divorces recorded since 1976. With this apparent increase in separations, it is important to prepare for any eventuality before entering into a marriage or de-facto relationship. One such precaution is to enter into a prenuptial agreement, or prenup, which ensures that your personal finances and assets are protected in the event of separation.
What is a Prenup?
In Australia, a prenup is referred to as a Binding Financial Agreement (BFA). A BFA is a legal agreement between parties in a relationship and sets out how their assets and finances will be divided should their marriage or de-facto relationship end. Without a BFA, the division of finances in a separation is determined by the Family Law Act (No 53) 1975 (Cth).
A BFA takes into account the assets and liabilities of each person in the relationship. Types of marital and non-marital assets that can be included in a BFA are:
- Spousal maintenance
- Real-estate and businesses
- Insurance, superannuation and pensions
It should be noted that a BFA does not cover parenting or child custody arrangements. A Child Support Agreement will outline provisions relating to child support.
When can you enter into a Prenup?
- Prior to getting married or at the start of a de-facto relationship
- During the marriage or de-facto relationship
- After separation following a marriage or de-facto relationship.
Benefits of a Prenuptial Agreement
A prenup promotes open communication and transparency about the financial circumstances of the relationship. Other practical benefits of a prenup include:
- Security and flexibility – Parties are able to negotiate how their joint assets will be reasonably distributed. Parties are also able to secure the property they have accumulated prior to the relationship to ensure the just division of assets.
- Tax benefits – Parties are eligible for transfer duty exemptions or capital gains tax rollover on assets transferred under the agreement.
- Efficiency and cost effectiveness – Preparing a BFA is usually more time efficient and cost effective than working out a final division after separation.
How is a prenup enforced?
As a BFA operates to oust the jurisdiction of the Family Court, there are many requirements that must be fulfilled to ensure the BFA is enforceable. Some of these conditions include:
- The agreement must be signed by all parties.
- Each party must have received independent legal advice before signing the prenup or provided a statement
- Each party must have signed the prenup voluntarily.
- The prenup must contain a complete disclosure of each party’s financial standing.
The validity and effectiveness of a prenup is determined by the court. The court may set aside a prenup if the above requirements are not followed or if at the time of the agreement a party’s conduct was unconscionable and possessed reckless disregard for the interests of the other parties or if the acquisition of property was on fraudulent and unjust terms.
To learn more about the importance of executing an enforceable financial agreement and the circumstances in which a BFA may be set aside, please read our article.
To ensure your assets and property are protected in the event of a relationship breakdown, we recommend seeking professional legal advice. If you would like to discuss the creation or amendment of a Binding Financial Agreement please contact us on (02) 9963 9800 or via our online contact form.
When couples separate, a property settlement is one way of determining who owns what assets. This can be straightforward when the assets are clearly defined – such as a house, car, or income. However, assets like superannuation are less clear, and need to be carefully considered.
Types of Superannuation
There are a number of superannuation schemes that have different characteristics. For example, many public servants have what is called a defined benefit, so that when they reach a certain age they will receive either a pension or a lump sum which is preordained. Other people have what we call contribution schemes, in which both themselves and their employers contribute to their superannuation fund over time. Eventually, they will receive back what has been contributed, as well as any interest that has accrued on the fund.
How Does Separation Impact Superannuation?
When you are contemplating a property settlement, it is most important that you try and give your superannuation interest a value. It is sometimes necessary for that interest to be valued by an expert to give it a figure that can be added to the asset pool for division amongst the parties.
In some circumstances, sums of superannuation may be transferred between the parties to a property settlement. For example, if one party has no superannuation, perhaps because they do not work, the property settlement may order that a lump sum from the other party’s settlement be transferred into a new scheme for the first parties benefit.
In other instances, a ‘flag’ can be placed on one party’s superannuation fund. When that party retires, and withdraws their superannuation, an agreed upon lump sum is automatically paid to the other party, rather than the person in whose name the fund is recorded.
When dealing with superannuation, it is crucial for people to understand that it must be taken into consideration in a property settlement. Property settlement and family law proceedings can often be complex. If you would like further information regarding property settlements or if you have any general family law enquiries, please do not hesitate to contact one of our experienced solicitors on 9963 9800 for a confidential discussion or via our contact form.
Property settlements can be very complex, get legal advice
When dealing with superannuation, it is crucial to understand that it will be taken into consideration in a property settlement. Property settlement and family law proceedings can often be complex. If you would like further information regarding property settlements or if you have any general family law enquiries, please do not hesitate to contact Etheringtons Family Lawyers in North Sydney on 9963 9800 or via the below contact form for a confidential discussion.
When a married or de facto couple separate or divorce, a significant part of that process is the separation of assets and liabilities – known in the family law world as “property settlement”. Property settlement in family law encompasses the division of joint assets, protection of assets in only one party’s name, a claim on one party’s assets by another, and any dealings in between. It even involves arraignments as to who gets what piece of furniture or who gets “custody” of a treasured pet.
Property settlement involves figuring out the value of each parties assets and liabilities (joint and not), and then dividing all those net assets in a percentage.
The percentage will shift depending on a number of factors. A significant step in determining who receives what percentage is by considering what contributions each party has made to the marriage or relationship.
The courts consider contributions that are made at the commencement of, during, and after a relationship.
Contributions can be financial or non-financial
Financial contributions are what money and property each party has brought to the relationship. This includes:
- What both parties had by way of assets (or debts) at the start of the relationship
- What each party brought in by way of income during the relationship
- Whether one party received a windfall such as a lottery win or an inheritance
- Any “wastage” of assets by parties as a non-contribution, such as money spent on gambling or other uses the court considers to be a waste
Non-financial contributions are any contributions that are not financial in nature.
They can include:
- Care of children Household duties
- Undertaking renovations or other works to improve the value of a property
The courts will usually consider a host of other factors to determine property settlement, however, contributions remain a very important part of that process. Usually if a party has no children, or if their relationship or marriage is deemed to be relatively short in duration, contributions will be the most important factor in determining the entitlements for each party upon separation.
When couples separate or divorce, there may be animosity or tension between them. However, when the parties share children, it is crucial that the breakdown of the relationship does not lead to the breakdown of the relationship either of the parents have with their children.
It is useful to aim your focus on what you are trying to achieve for your children both in the short and long term. Children are the primary concern. They did not choose to separate or divorce, and usually they love both parents equally. Your anger and hurt need to take a back seat if you want your children to grow up healthy, happy, and with support from both their parents.
Three effective strategies are:
- Focus on your ex’s good points – they will have some – they are what attracted you to them in the first place! This may not be easy, however in the long term it can be vital to achieving a healthy functioning family.
- Make harmony your goal. When it is achieved it is likely that both time and money will be saved. Harmony enables us to negotiate both child and parental needs resulting in a win/win situation for all.
- Seek advice from legal and counselling Knowledge is power and if used for the good of the family unit can often make the difference between a healthy and balanced family and one that becomes dysfunctional.
Your ex is the mother/father of your children. Your children are a part of you both. How you handle this transition will likely be reflected on how your children handle relationship difficulties as adults.
We understand breakdowns in relationships can be difficult and confronting times. If you would like to discuss your family law matter with one of our experienced family law lawyers, please contact us on 9963 9800 or message us here.
Special thanks to Alexandra Roberts, counsellor and psychotherapist for this article. Alexandra can be reached on 02 9929 2977 or 0409 201 604 and has rooms in Berry St, North Sydney.
A Power of Attorney is a legal document that gives a trusted person the legal authority to act for you and to make legally binding decisions on your behalf if you are unable to make these decisions yourself, such as in the case of serious illness. If you do not have a Power of Attorney then you should contact us and find out more.
Below are 6 common Power of Attorney questions that you should know the answers to.
1. In what circumstances is a Power of Attorney important?
- To relieve yourself of the day-to-day demands of financial paperwork and record keeping;
- As a safety net when travelling or to allow someone to handle your affairs in your absence;
- To avoid burdening family or friends with the responsibility of looking after your affairs; or
- If you are unable to manage your prosperity or financial affairs.
2. Does the Attorney need to be a lawyer?
The person appointed does not need to have legal qualifications – you can appoint anyone. Deciding on the person to be appointed should be done with careful thought and consideration as you are providing them with significant power.
An ideal attorney should:
- Have integrity;
- Be willing to act in that capacity;
- Have competence in areas of relevance;
- Be able to act in a business-like manner;
- Be able to spare the time necessary for the task;
- Live in the locality in which they are to act;
- Be agreeable to respecting the confidentiality of the donor’s (the person giving the Power of Attorney) affairs; and
- Be impartial and have no known conflict of interest.
3. Are there different types of Powers of Attorney?
There are two types of Powers of Attorney.
A General Power of Attorney is:
- Only valid while the donor has legal capacity;
- Useful if you are going away for an extended period and you do not want the authority to continue should you lose legal capacity; and
- Usually drawn up for a specific purpose.
An Enduring Power of Attorney (EPA) which:
- Continues to be valid even if the donor loses legal capacity due to disability or illness;
- May empower your attorney to make financial, property, lifestyle and health decisions;
- May be activated when required or upon loss of legal capacity; and
- Allows your attorney to commence or to continue to manage your affairs even if you have become unable to give lawful instructions.
4. Is it better to have more than one attorney?
We recommend that you do have more than one attorney, or a substitute attorney. Therefore if the appointed attorney cannot act or continue to act, as it gives you more flexibility. Common instances where more than one attorney is appointed include:
- When siblings are appointed together
- A spouse and a child are appointed together
You can appoint attorneys to act “jointly” (this means they must agree on everything) or “severally” (this means one of the appointed persons can make decisions alone).
5. Should I pay my attorney?
This is not necessary to give legal effect to the power, and would normally only be considered if the attorney is a professional.
6. How do I know if the donor has sufficient mental capacity to make a power of attorney?
There is no simple formula, but in general terms they must be able to:
- Understand the major consequences of a decision;
- Take responsibility for making that choice; and
- Make a choice based on the risks and benefits that are important to them.
If there is any doubt about capacity, it’s best to get in touch with a medical professional and ask for a written opinion. Remember, different powers require different levels of understanding. If a medical opinion about capacity is sought, it is wise to have the Power of Attorney signed on the same day as you get the medical report so there can be no subsequent claim that the appointment was invalid.
To find out more about Powers of Attorney and their benefits call us on (02) 9963 9800 or via our contact form here.
In family law, one issue which may arise following a relationship separation where children are involved is ‘relocation’. Relocation is the legal term for moving with your child to another town, state or country after a divorce or separation. Relocation may raise issues in relation to parenting arrangements if the moving interferes with the ability of the non-relocating parent to live with or spend time with their child.
It is best that parties try to amicably resolve all issues that will arise as a result of a planned relocation. This agreement can then be formalised in court through the filing of consent orders. If this is not possible, parties may apply to the Federal Circuit and Family Court of Australia for a judicial determination. However, if you relocate without a court order or without the consent of the non-relocating parent, a court may require you and your child to return to your previous location.
The Law on Relocation
Issues around relocation are not explicitly referred to in the Family Law Act 1975. However, the overriding consideration of the Family Court in all matters concerning children, including variations to living arrangements, is determining what is in the best interests of the child. While the issue of relocation is not mentioned in legislation, there are countless court cases which provide guidance.
There are a variety of factors that the Family Court may consider when determining an application for relocation. Below is a list of potential considerations:
- Reasons or interests of the parent proposing the relocation
- The reality of the parents’ circumstances such as the availability of affordable and appropriate housing, employment and family support
- The impact of the proposed orders on the mental health and wellbeing of each parent
- The effect the relocation would have on the non-relocating parent’s ability to see their child
- The nature of the relationship between the child and each parent, as well as any other significant people in the child’s life such as grandparents and extended family
- The impact the proposed relocation would have on the child’s relationships with their parents and significant people in their life
- Travel costs of the non-relocating parent to see and spend time with their child
- Proposals for how the non-relocating parent will be able to spend time with and communicate with their child
The outcome of each case is unique and based on its facts. Therefore, it is difficult to predict the outcome of cases without consulting a legal professional for advice.
Seek Legal Advice
If you have any questions or concerns regarding relocation, we can provide additional information and advice to you regarding your situation. If you would like to discuss your concerns with a legal professional please contact us on (02) 9963 9800 or via our contact form.