May 22, 2022 | Family Law
It has become common for couples to enter into prenuptial agreements as a way to protect their assets and finances in the event of a separation. The idea of talking about the end of your marriage before it has even begun can be rather daunting and intimidating. However, while no one ever plans for divorce, it can happen, and a prenuptial agreement may help to limit unnecessary stress and conflict in these circumstances.
What is a Prenuptial Agreement?
A prenuptial agreement is a legal agreement made between the parties in a relationship which outlines how their property and assets will be dealt with in the event of their relationship ending in separation or divorce.
Prenuptial agreements can be signed by couples before they get married. If one spouse has significantly more assets than the other, or their parents have businesses or inheritance that they wish to retain if the marriage ends, a prenuptial agreement can ensure that all of these assets are protected. It is also possible to enter into a prenuptial agreement after a couple is married. For example, if during their marriage, one of the spouses’ parents win the lottery, the parents may wish for the inheritance money to be passed down to their child only.
In June 2000, prenuptial agreements were officially sanctioned by legislation in Australia to enable couples to think about and plan their future rights and responsibilities through a binding financial agreement. The ability to sign a prenuptial agreement extends beyond marriage and is also open to de facto and same-sex couples.
What Do Prenuptial Agreements Cover?
Unfortunately prenuptial agreements are not romantic. They are a practical way of ensuring both partners are protected in the event the relationship does not work out. The terms of a prenuptial agreement can cover a wide variety of matters including:
- What assets are considered marital assets and what are non-marital assets. For example, the matrimonial home where the couple reside may be considered marital, but any assets bought by either partner prior to the marriage may be considered non marital.
- What assets will be divided and in what proportion in the event of a divorce.
- What will happen in the event of the death of one partner? In most states, your spouse will inherit a portion of your estate if you pass away, and vice-versa. If you do not wish for this to happen, this can be covered in the terms of your prenuptial agreement.
- Anticipated changes in the future such as children. A prenuptial agreement can cover whether the terms will change if children are involved, whether they are to inherit all of the assets, etc.
- A predetermined amount of spousal maintenance.
Prenuptial agreements do not cover custody of children or child support payments. Other provisions such as clauses about a person’s weight, frequency of sex, household cleanliness and infidelity punishments are sometimes included, but they are often deemed unenforceable by courts. Prenuptial agreements are predominantly used for the financial arrangements of a couple.
How Do I Obtain a Prenuptial Agreement?
Australia has strict requirements for valid prenuptial agreements. If they are not drafted correctly, they may be deemed invalid by a court or completely set aside. For this reason, it is extremely important to engage a lawyer when drafting a prenuptial agreement. Spending a little money now is a much better option than engaging in litigation proceedings down the track for an invalid prenuptial agreement.
Can Prenuptial Agreements Be Set Aside?
Prenuptial agreements are generally legally binding. This means that if the agreement is originally signed by both parties, it will remain binding, unless the parties mutually agree that this is no longer the case.
However, there are circumstances where the Family Court of Australia can set aside prenuptial agreements. These include:
- Non-disclosure of assets/financial resources
- The agreement was entered into under duress or involves unconscionable conduct
- Children are now present who were not present when the original agreement was contemplated. The Court may set aside your prenuptial agreement on the ground of children if your prenuptial agreement does not make any provisions for your children or if there is an adverse change in the welfare of the children and the prenuptial agreement would cause hardship.
- The contents of the prenuptial agreement are not just and equitable
Contact Us
There are various reasons why couples decide to enter into a prenuptial agreement. A prenuptial agreement is generally a great way to protect your assets, provide you with peace of mind and financial empowerment. However, as every couple is different, it important that both you and your partner freely discuss, agree and feel comfortable about the idea of a prenuptial agreement.
We cannot stress enough the importance of engaging a lawyer in drafting a prenuptial agreement. It is important to ensure that the agreement complies with all legal requirements so that you do not face invalidity of the agreement down the track. Our experts in family law are able to assist with these matters. If you would like to discuss your family law matter with a legal professional please contact us on (02) 9963 9800 or via our contact form.
May 21, 2022 | Family Law
An injunction is a court order that requires a party to do something or refrain from doing something. Failing to comply with an injunction can result in criminal or civil penalties, and may even lead to serving an imprisonment sentence.
A parent is entitled to seek an injunction from the Family Court to prevent their child from being taken interstate or overseas by the other parent. It is often the case that evidence will need to be presented to prove to the court that the parent who is taking the child has no plans of returning.
Indicators that a parent is planning to relocate their child
The following could be used as evidence to demonstrate that a parent is planning to permanently take a child interstate or overseas:
- If one-way tickets have been purchased;
- If one parent is planning a holiday and travel arrangement details are being withheld from the other parent;
- If one parent has indicated that they have no plans of returning through their actions, such as selling their house, moving belongings into storage or giving up a lease;
- If one parent has friends and family at the destination or has previously inquired about jobs; or
- If one parent is travelling to a country that is not a signatory to the Hague Convention on the Abduction of Children so you will not be able to get them back from that country with the help of the Australian Government.
Requirements for taking a child overseas
In order to be able to take children overseas parents must obtain a valid passport for the children. If the child doesn’t already have a passport, both parents have to agree to obtain a passport for the child. If for whatever reason, either parent is not content for the child to possess a passport, the other parent may apply to the Family Court for an order that a passport be issued despite these wishes.
Court Injunctions
A solicitor can assist with putting forward your best case to the court if there is a real risk the other parent is taking the child interstate or overseas without plans to return. The court has the power to make orders that may include to:
- Prevent or restrain the parent from taking the child interstate or out of Australia;
- Require the parent to pay an amount of money to the court as security for the return of the child;
- Direct the parent to give contact details including where the child will be staying and so on; or
- Place the child’s name on the airport watch list to prevent the other parent from leaving the country with the child.
For an injunction to take effect, a copy of the order and any other documents you filed at the court must be given to the parent (or persons) involved.
If an injunction is breached by a parent there are a number of things the court can order of the party in breach. These include:
- Paying a fine;
- Paying a bond to the Court;
- They must provide the other parent with make-up time with the child;
- Ordering them to attend a parenting course;
- Changing any existing Court orders;
- or Enforcing a prison sentence.
Further Information
If you would like more information on how we can advise you on Family Law matter, do not hesitate to contact us on 9963 9800 or via our contact form here.
May 19, 2022 | Family Law
The breakdown of a relationship or marriage can be emotionally daunting, especially when children are involved. It is not uncommon for parents to be confused when determining child support. According to the Child Support (Assessment) Act 1989 (Cth), parents have a duty to maintain their children in the form of child support payments.
What is Child Support?
Child support is a term used to describe the payment of money from one parent to the other for the purpose of helping that parent raise children who are under 18 years of age. Child support is designed to help cover the expenses involved with raising children, such as food, clothing, medical costs, housing, school costs and costs related to other activities. All children in Australia involved in family separations, whether or not the parents were married to each other, are eligible for child support payments.
How is Child Support Calculated?
The Department of Human Services is an Australian Government Agency who have authority to determine child support matters. They are required to follow steps to calculate the amount of child support payable. In calculating how much child support is to be paid, there are various factors which are generally taken into account:
- The age of the child
- The income of both parents
- The amount of time that the child spends with each parent
- The level of care that each parent provides
- Costs of raising the child based on independent research
You can use the Department of Human Services’ calculator to estimate child support payments here.
What If the Calculation is Unfair?
There may be circumstances where you may believe that the child support payments assessed are unfair to you. This can occur in situations where one parent has arranged to minimise their taxable income, lost their job since an assessment was made, or a child has special needs.
In these circumstances, you may apply to the Child Support Agency to change the assessment. The Department of Human Services will consider the unique circumstances before amending any calculations.
What If the Other Parent Doesn’t Pay?
The Child Support Agency has the power to recover unpaid child support. They can do this through:
- Income payment deductions
- Enforcing tax return lodgement or intercepting tax refunds
- Working with third parties
- Employer or bank account deductions
- Issuing overseas travel bans
- Litigation
- Prosecution
Can I Organise Child Support Myself?
It is possible for parents to organise and manage child support themselves. This can happen when parents reach an agreement and mutually decide upon the amount of child support they will pay to the other parent. This can involve making cash payments to one another or meeting payments of expected expenses directly. This arrangement can be entered into by way of a binding child support agreement, which is subsequently lodged with the Department of Human Services.
Contact Us
If you would like to discuss your family law matter with a legal professional please contact us on (02) 9963 9800 or via our contact form.
May 18, 2022 | Family Law
In Australia, both marriages and de facto relationships are recognised by law, therefore when couples split, there are legal considerations which must be dealt with before leaving your relationship.
1. Gather important documents and protect your information
Before leaving the family or matrimonial home gather documents like your will, passport and birth certificate. If there are children involved and you are a primary carer, consider the birth certificates and passports for your children too.
It is important to note that a separation will not change your will. If you fail to amend your will, your former partner could benefit as a result of this. They may also have a level of control over your finances or medical decisions unless you modify this in your will.
For an effective property settlement which is fair and reflective of your financial position, you should also gather any relevant financial documents including bank account statements, tax returns, pay slips and superannuation statements. This information can be subpoenaed if necessary, or requested directly from the institution, however, full and frank disclosure of your financial position is required if matters proceed to court, and having the information readily accessible will save you time and money.
Protect your privacy and security by changing your banking, email, social media, your Apple ID and passwords for your phone. It is also important to change any PINs for your ATM cards. If your partner or spouse is emotional or vengeful, them having access to your sensitive information could be an issue for you.
2. Plan for children
Parties should aim to reach an amicable agreement about how children will be looked after and the time each parent will spend with them. A mediation with Relationships Australia is a valuable resource that may help you make plans for children that are in their best interests. If you are unable to agree on arrangements for children, you may need to file an application with the court for parenting orders. If the parties have reached an agreement, it should be written down and provided to a lawyer so that a Parenting Plan or Consent Orders can be drafted.
3. Access to funds
Consider whether it is appropriate to limit your partner’s access to joint funds by obtaining a joint authority or closing your account and splitting the balance. The bank could freeze the account and this may be disruptive for both parties. We recommend keeping a separate bank account and considering freezing a joint credit card if necessary.
4. Sort out the bills
If you are leaving the family home or business, you should contact creditors and let them know in writing that you are not responsible for future liabilities.
If you are the primary income earner and your partner cannot afford these costs, you may be required to pay them anyway. We recommend that you do this to avoid the other party applying to the court on an urgent basis for spouse maintenance. Attending court is costly and should be avoided unless necessary.
5. Consider third party involvement
Before leaving a relationship, consider discussing your issues with a third party who is valued by both partners. Involving a third party, such as through a mediation, can help to avoid emotions clouding your better judgement and may assist you to reach resolutions that are in both parties best interests.
Contact Us
There are many legal considerations that arise following a relationship breakdown. If you are considering leaving your relationship and need more information, or if someone you know needs help, please contact Etheringtons Solicitors to speak to one of our experienced solicitors on (02) 9963 9800 or contact us here.
May 17, 2022 | Family Law
Family Law matters can be an emotionally daunting and a challenging experience for all parties involved. For this reason, it is extremely important that you choose a family law solicitor who will be able to provide you with valuable legal advice and assistance during this difficult time.
Here are 3 key tips which will assist you to choose the right family law solicitor for your case.
1. Qualifications and Experience
When choosing a family law solicitor, you should always consider whether they have the relevant legal qualifications, experience and skills to handle your matter.
However, you should be mindful that just because a solicitor is more experienced does not necessarily mean that they will be better suited to handle your matter. A solicitor who has only been practising for a few years may be better suited to handle your matter if it involves less complicated legal issues as they will charge a lower rate than more experienced solicitors, and thus you will save yourself money in the long run. On the other hand, a more experienced solicitor may be necessary for matters that are more complex.
2. Communication and Personal Compatibility
When choosing a family law solicitor, you should consider whether you feel that you can effectively communicate with your solicitor. Whist it sounds quite basic and obvious, ensuring that a solicitor understands your story and instructions is of the utmost importance in any legal matter, especially in family law, where situations may be emotionally daunting and challenging. You should always feel comfortable enough to speak openly with your solicitor, without feeling judged or like you are a hassle to them. Some solicitors may also prefer face-to-face, telephone or email communication, so you would need to determine which method of communication works best for you.
3. Cost
When choosing a family law solicitor, you should consider their cost. While this relates to the level of experience of your solicitor, as discussed above, this is an important consideration within itself. Solicitors will charge based on their hourly rate. Whilst there may be unforeseen circumstances in your case resulting in unexpected additional work, your solicitor should still be able to provide you with a rough estimate as to what you can expect to spend throughout the various stages of your matter.
However, you should be mindful that basing your choice on cost is not an effective way to find the most suitable family law solicitor for you. A solicitor which charges a higher hourly rate may be more efficient, taking less time and therefore less money in the long run. On the other hand, a less expensive solicitor may have a lower hourly rate because they are not as high in demand, but this may not necessarily reflect their level of experience, professionalism or dedication.
At Etheringtons, we try to ensure that our clients have an idea of costs throughout their matter, and we find that if there are no surprises when it comes to our bill, both our clients and us walk away happier at the end of a matter.
Contact Us
The list above provides you with a starting point in your search for the best family law solicitor for you. You should speak with a potential solicitor over the phone and meet with them face to face, if you can, before determining whether they should handle your matter. If you would like to discuss your family law matter with a legal professional please contact us on (02) 9963 9800 or via our contact page.
May 16, 2022 | Family Law
The term ‘best interests of the child’ is a common phrase used in family law legislation. Its meaning and interpretation is frequently discussed in case law involving parenting disputes. In this blog, we will review this cornerstone principle of the family law courts, and discuss factors a court will take into account when deciding what course of action is indeed in the best interests of the child.
Origin
The term ‘best interests of the child’ is a principle which originates from Article 3 of the United Nations Convention on the Rights of the Child. Article 3 states that ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. This principle was later inserted into the Australian Family Law Act.
The Family Law Act
In 1995, the Family Law Act 1975 (Cth) was amended to specifically include the term ‘best interests’ in relation to children. Prior to 1995, this principle was known as the ‘welfare principle’.
The Family Law Act outlines a variety of different considerations and factors which a court must consider in determining what is in a child’s best interests. These are broken up into ‘primary’ and ‘additional’ considerations.
Examples of ‘primary considerations’ include:
- The benefit to the child of having a meaningful relationship with both of its parents; and
- The need to protect the child from harm, including physical and psychological abuse or family violence.
Examples of ‘additional considerations’ include:
- Views expressed by the child and any factors that the court thinks relevant to the weight it should give to the child’s views, such as maturity or level of understanding;
- The nature of the child’s relationship with its parents, relatives and others;
- The extent to which either parent has failed to participate in making long term decisions regarding the child, spend time with the child or communicate with the child;
- The extent to which either parent has failed to fulfil their obligations in relation to the child;
- The likely effect of any changes in the child’s circumstances, including separation from either parent, sibling, other child or relative (e.g. grandparents) with whom they have been living;
- The capacity of each of the parents and any other person (e.g. grandparents) to provide for the emotional, physical and intellectual needs of the child;
- Characteristics of the child (including maturity, gender, lifestyle, background); Whether the child is Indigenous Australian; and
- Any other factors the court feels are relevant.
A Recent Case Example
It is important to note that a child’s best interests encompasses both long-term and short-term concerns and can sometimes purely include the consideration of factors outside of the child. For example, in a recent 2020 case, Justice Bender commented on what ‘best interests of the child’ means in reality when weighed equally against other considerations. She further highlighted that this principle should be viewed in light of the ‘totality’ of the parents and children’s lives. Her Honour stated that:
“Being a committed and caring parent does not require a parent to put their entire life on hold and to abrogate their own happiness as an adult. Parents make decisions for themselves and for their children on the basis of what is in the whole family’s best interest on a regular basis. Intact families will uproot their children and move them away from school, friends and extended family for a multitude of reasons including change of employment, health and the necessity to assist family. When those decisions are made, it does not mean that the children’s parents do not have the best interests of the children as part of their considerations but rather are looking at the totality of their and their children’s lives when deciding such a move is best for their family at that time.”
Get Legal Advice
Navigating family law and parenting proceedings can be a confusing and emotionally exhausting task. Our dedicated family law solicitors are ready and willing to assist you with your parenting or family law concerns. If you would like further information, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via our contact form.
