May 5, 2022 | Family Law
When ex-partners reach an agreement for the settlement of their financial matters upon separation, there are two ways this agreement can be legally finalised. These are ‘consent orders’ and a ‘financial agreement’. It is important to finalise family law financial matters through one of these methods, as informal agreements can easily collapse. In this blog, we review the two most common ways of finalising family law financial agreements, and explore considerations you should take into account when deciding which avenue is most appropriate for you.
Consent orders
A consent order is a written agreement that is approved by a court. It can cover many family law matters, such as parenting arrangements for children as well as financial arrangements for property or maintenance. Consent orders are lodged with the Family Court and officially stamped as a court order. The court must be satisfied that the consent orders are just and equitable and/or in the best interests of the child/children (if applicable).
In order to obtain a stamped consent order, two documents must be filed — the application for consent orders, and the proposed orders. The application will contain important details of the parties, such as assets, liabilities, income and superannuation. The proposed orders should set out the orders that the parties have agreed on and are asking the court to make.
Financial agreements
A financial agreement is not lodged with a court and is rather a private contract agreed on between the parties. In order to ensure the agreement is legally binding and enforceable, both parties are required to receive independent legal advice from different legal professionals about the consequences of signing the agreement.
Considerations when deciding which agreement is best for you
When deciding which avenue is more appropriate for your circumstances, there are a variety of considerations to take into account. Some of these include:
- Consent orders can cover matters pertaining to spousal maintenance, however a financial agreement may be a safer option to guard against any applications to prolong or increase maintenance. It is important to keep in mind that you are not confined to either option to settle your financial arrangements and a hybrid model could allow you to finalise your settlement.
- A financial agreement is not subject to judicial scrutiny and is a private agreement. Thus, any deal can be struck no matter how unfair it may be perceived. However, for a court to approve consent orders, it must agree that the orders are just and equitable.
- Often consent orders can take a long period of time to be approved, however financial agreements come into effect immediately upon the signing of the agreement by each party.
- If you are seeking property orders, you should read and consider the section 75 factors outlined in the Family Law Act 1975. To learn more about section 75 factors, see our blog here. Some of these factors include:
- How the length of the marriage affected the earning capacity of the party seeking maintenance The age of any children of the marriage/relationship
- The age and state of health of each of the parties
- The income, property, finances and ability to earn an income of each party
Get Legal Advice
An experienced family law professional will be able to assist you with determining which family law settlement document is most appropriate for you and your circumstances. 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. For more articles on family and other areas of law, see our blog here.
May 1, 2022 | Family Law, Wills and Estates
Families and money can sometimes be a volatile combination. In circumstances where a divorce or separation occurs and a new will isn’t drafted, complications can arise. In this blog, we review what it means to have an inheritance included in the asset pool of a separating couple.
Why is inheritance an asset?
When a separating couple needs to divide their assets, they must first work out what assets are available to be pooled and distributed. This pool includes all the assets and liabilities in each person’s name and in the parties’ joint names, as well as each person’s share of an asset owned jointly with another person.
If one person received an inheritance before or during the relationship, that inheritance would normally form part of the pool of assets available for distribution.
Does that mean my partner gets half my inheritance?
No, not necessarily. Just because an asset is included in the pool of assets available for distribution does not mean that the asset or the whole pool will be divided 50/50. Each matter is considered on a case-by-case basis.
Importantly, once the parties have identified what is in the pool of net assets, they must then consider what contributions they each made to the relationship and its assets, and their respective future needs, in order to determine their respective entitlements and how the assets will be divided.
What are contributions?
When working out which party made what contribution, the Family Court considers the parties’ financial contributions – i.e. who earned what, the lump sums expended during the relationship, who bought what and who paid for what – and also non-financial contributions – such as being a homemaker and parent, physically renovating a home or landscaping a garden, managing the parties’ financial affairs and so on.
After a long relationship where there haven’t been any significant inheritances or other financial windfalls, a court will usually find that financial and non-financial contributions during the relationship are roughly equal, unless special circumstances apply.
An inheritance received by one party before the commencement of the relationship would be treated as an initial financial contribution by that person – money or assets that person brought into the relationship. Similarly, an inheritance received by one partner during the relationship is usually considered to be a financial contribution by that person. In these circumstances, depending on factors such as the size of the inheritance, when it was received, what it was used for and the parties’ other contributions, this would generally mean that the person who received the inheritance would be treated as having made greater contributions to that asset during the relationship.
What about an inheritance received after separation?
This situation is less clear cut. A court usually considers an inheritance by one party as a sole contribution by that person. Generally, this will mean that the other party did not contribute to the post-separation inheritance and it should not be included in the pool of assets to be divided. However, each matter is dealt with on a case-by- case basis and while this may be a potential result, it is always dependent on the facts of the case and the circumstances of the lead up to the inheritance.
For example, if the post-separation inheritance had been received from the husband’s mother and the wife had a close relationship with her mother-in-law and had cared for her during an illness, a court might find that both parties had contributed to the receipt of the inheritance and therefore both parties will be entitled to a share of the inheritance.
Future needs
After working out financial and non-financial contributions, the future needs of the parties are assessed before determining a split of the net assets and whether any adjustments should be made in favour of the party in need. Future needs include things like income, earning capacity, financial resources, ongoing care of children, age, and health.
An inheritance, even one received after separation, may be taken into account in this final step. The reason for this is the recipient of the inheritance would have greater financial resources and may be receiving income from an inherited investment which may well mean that that person’s future financial circumstances may significantly outweigh the other person. In such a case, a court may rebalance the division of the net asset pool in favour of the other partner by way of an adjustment which is derived from section 75(2) of the Family Law Act (Cth).
Summary
An inheritance received before or during a relationship will almost always be treated as an asset available for distribution between separating parties, whereas an inheritance received after separation will usually be found not to fall into the main pool of assets but may be treated in a separate pool.
The receipt of a large inheritance will have a significant impact towards the determination of contribution of the parties. In addition, an inheritance, including one received after separation, could have an impact on the determination of future needs of the parties and whether any adjustments ought to be made.
Finally, once the parties have been assessed as to the net assets, what contributions were made, whether there are future needs, a court is then required to determine whether the proposed split of net assets is just and equitable.
Download Your Guide to Family Provisions Claims
Contact us
The Family Law team at Etheringtons Solicitors are skilled at handling all matters relating to inheritances and are able to assist with complex cases in the event of a relationship breakdown. If you need assistance with any area of Family Law, do not hesitate to contact us on 9963 9800 or via our contact form here.
Apr 30, 2022 | Family Law, Litigation and Court
When a relationship or marriage ends, people often fear that they will need to go to court to deal with the separation of joint assets and liabilities, and arrangements for their children. This can be extremely stressful for those involved.
Do I need to go to Court?
It is not the case that people automatically need to go to court when their marriage or de facto relationship ends. If the parties to a separation can agree on how they separate jointly-owned assets and liabilities and also have an agreed co-parenting arrangement for any children there is no need to go to court at all.
However, if parties cannot agree on the separation of assets, how children will be cared for, or various other aspects of their separation, legal processes may be necessary. In relation to childcare arrangements, the Family Law Act 1975 s 60I states that before a party makes an application to the Court for Parenting Orders, genuine attempts at resolving the dispute through mediation (or other forms of alternate dispute resolution) must be made.
To read more details on alternate dispute resolution and how this could be helpful in settling disputes without going to court, see our earlier blog post on the topic here.
Do I need a Lawyer?
You will most likely need a legal document to be drafted to ensure that the agreement between the separated persons is clear, defined and legally binding. This is when a family law solicitor can assist you. Your family law solicitor will be able to explain to you the different types of documents that are available to set out the separation of assets and liabilities. You can also obtain such documentation to set out childcare arrangements. The Family Law Act 1975 (Cth) sets out how these different agreements function.
There are different types of documents available to you, and your solicitor can assist you to decide what will work best for your circumstances. Once you have decided on the type of document you need, your solicitor will be able to draft the document to reflect what you and your ex-partner have agreed, to ensure that it is clear and binding.
Why Should I get Legal Representation?
Each party will need their own legal representation before signing any documentation to ensure that they obtain independent advice.
Clients often find that once they have entered into binding documents drafted by their lawyer, there are fewer arguments between them and they can move on with their lives with certainty following their separation or divorce.
Contact us
The team at Etheringtons Solicitors are skilled at handling all matters relating to Family Law, and are able to assist with complex cases. If you need assistance with any area of Family Law, do not hesitate to contact us on 9963 9800 or enter your details in the form here and we will contact you.
Apr 29, 2022 | Family Law, General Advice
It is becoming increasingly common that couples receive financial assistance from their parents. This can be through the transfer of property, the giving of money or both. Although helpful for major financial decisions such as the purchase of property, this assistance can cause issues if the couple separates, as there can be a dispute as to whether the money provided was provided by way of a gift or a loan.
In a property settlement, the family law court can treat payments made by a parent to their child in two ways:
- The court may find that the payment was a gift to the child which is not expected to be repaid.
- The court may find that the payment is a loan from the parents that is to be repayable in full.
How does the family law court treat gifts?
In general, a court treats gifts from a parent as being for the benefit of their child alone. Because of this, when assessing entitlements, the court will apply such gifts towards that spouse’s side of the ledger when determining their entitlement. This would result in that spouse receiving an extra contribution as a result of the gift applied towards the relationship. However, if the intention was that the gift was to be provided to both parties to the relationship then it would be open for a spouse to contend that the gift is to be taken as an equal contribution of both parties.
How does the family law court treat loans?
If the money is determined to be a loan from the parents, the court must then determine whether the loan is legally repayable and in doing so, they must consider whether the loan is likely to be repaid in the foreseeable future. If the loan is unsecured, the court has discretion to either deduct the loan from the pool of assets or not. If the terms of the loan are vague or uncertain, the court is less likely to enforce the loan. Evidence about the loan determines how the loan is treated. If there is any oral or written evidence of the loan, and the parties have complied with the terms of the loan through actions such as making repayments, the court may be likely to uphold the existence of a loan. However, if there is little or no evidence that supports the claim that it was a loan, and there have been no repayments made, the court would be less likely to uphold the existence of the loan.
Considerations for parents
If you are considering lending money to your child who is married or in a de facto relationship, it is important that there is documentation which adequately establishes that the money provided is to be treated as a loan.
The documentation can include:
- A loan agreement that sets out the terms of the loan which is signed by all the parties involved
- A mortgage over the property that secures the loan
Further to the documentation, it is important that the parties to the loan comply with its terms and obtain any appropriate legal advice. Repayments must be made if necessary, and if the payment of the loan is reliant on an event or time period which has passed, a new loan agreement should be entered into.
Contact Us
If you have separated from your partner and your parents have lent you money and you are not sure whether it will be treated as a gift or a loan in court or you are wishing to lend money to your child who is in a relationship and you would like more information, please contact Etheringtons Family Lawyers in North Sydney on 9963 9800 or message us here.
Apr 28, 2022 | Family Law
Child support agreements are contractual arrangements between parents or non-parent carers to enable financial support for their children. The Child Support Scheme was introduced by the Australian government in 1998 to ensure the adequacy of court ordered child maintenance. Child support is payable for all children living in Australia (up to the age of 18 years) following separation, regardless of whether the couple were married to each other or not.
Child Support Assessment
The Department of Human Services can make an assessment for child support based on income tax records and other financial information held by the ATO and the Commonwealth Government. The assessment is a complex formula and will broadly take into account the following:
- Parents’ income Combined income
- Time each parent cares for the child Child’s age
- Living expenses
Child Support Agreements
If parties are able to reach an agreement, then a family lawyer can prepare a binding Child Support Agreement which is registered with the Department of Human Services. The agreement may include a combination of cash payments and non-cash payments (such as health insurance and school fees). There are two types of Child Support Agreements that can be formed depending on your circumstances.
1. Limited Child Support Agreement
This agreement requires a Child Support Assessment to be undertaken before the Child Support Agency accept the terms of the agreement. A Limited Child Support Agreement is based on the Child Support Assessment, and payments under this agreement must be equal to or more than the what was found to be reasonable by the assessment.
2. Binding Child Support Agreement
A Binding Child Support Agreement can be entered into between the parties whether a child support assessment was undertaken or not. It can be made for any amount that is mutually agreed upon. However, both parties must obtain independent legal advice from an experienced family lawyer before making or terminating the agreement.
Court Ordered Child Support
A court may make a child maintenance order for children not covered by child support legislation, such as for the maintenance of children from carers who are not eligible for a child support assessment. The Family Law Act regulates the process of enforcing child maintenance orders.
Contact us
The team at Etheringtons Solicitors are skilled at handling all matters relating to Child Support Agreements, and are able to assist with complex cases and the modifying of agreements after they are in place. If you are currently thinking about entering a Child Support Agreement or need assistance with any area of Family Law, do not hesitate to contact Etheringtons Family Lawyers in North Sydney on 9963 9800 or via our contact form here.
Apr 27, 2022 | Family Law
Family law issues such as managing separated families and their complex family law arrangements can be difficult for schools to navigate. This blog will explore some of the common family law questions and then explain the obligations that schools have in situations where issues arise.
Common Questions About Family Law and Schools
What are the Rights and Responsibilities given to Parents and the School?
Parents may contact schools requesting to access their child, or requesting that schools take particular steps or actions in relation to the care of the child. It is important to know that the Family Law Act (1975) Cth does not confer parents with any ‘rights’ and instead imposes the obligation to act in accordance with the best interests of the child when determining how much time each parent is able to spend with their child. This notion is consistent with the school’s duty of care to the students, rather than to the parents. As a school, you must act in a way that protects the best interests of the child, rather than demands from parents.
What is Equal Shared Parental Responsibility?
The Family Law Act (1975) Cth provides that there is a presumption of equal shared parental responsibility. Under this shared responsibility, it is important that both parents are given all information concerning the child. This can include school reports, newsletters and information about school functions. Due to equal shared parental responsibility, if there is a significant long-term issue regarding the child and their education, parents are required to consult with each other and make a genuine effort to come to a resolution. Furthermore, it is not the school’s job to ‘police’ the parenting arrangements. The parents have an onus to provide the school with updated orders and if they provide conflicting instructions the school can require that the parents deal with the conflicting instructions themselves and then report back.
What are Intervention Orders?
Intervention orders are becoming increasingly frequent in family law matters. An intervention order, commonly referred to as a restraining order, is an order that prevents a person from behaving in a particular way towards another person or persons. The interaction between family law orders and intervention orders is often complex. Although a family law order will usually prevail over intervention orders in the event of an inconsistency, in circumstances where the school is concerned for the safety of the child, or there is an emergency situation, the safety of the child comes first.
What are Subpoenas?
A subpoena is a document issued by the court that requires documents to be produced or for attendance of a person at a hearing to give evidence. It is common for parents who are before the court to request access to confidential school documents to give evidence of the status of the child’s wellbeing. If the school responds to the subpoena it is important to seek independent legal advice in order to safeguard against any breaches of privacy for staff or students. There are circumstances where schools may object to a subpoena, such as if a subpoena will have an adverse impact on the child or is too broad. However, if no objection to the subpoena is raised the school must comply in full or risk being in contempt of court.
Common Situations Where Issues Arise:
School Pick Up
In general, court orders will make note of the time that the child spends with each parent. This typically includes who will pick up the child on particular days. It is important to note that step-parents are allowed to have time with their step-child during their spouse’s time with the child. Therefore, requests by one parent that prevent the other parent’s spouse or partner collecting the child from school are typically not granted.
Lack of Court Orders for Pick Up
If the parents do not have a formal agreement or court orders the school is able to request a parenting plan or a written agreement from the parents that details who collects the child on specific days.
Enrolment
In general, both parents are to sign the enrolment agreement at a school and are to be jointly and severally liable for the payment of school fees. In circumstances where one parent wishes to cease payment due to separation, there is no obligation for the school to change the payment arrangements. Changes may be made if the school so chooses, or they may be needed if there have been interim orders made or further evidence has been provided as to the parents’ agreement to change fee payment.
Withdrawal of Enrolment
Due to the equal shared parental responsibility of parents there needs to be consultation between the parents before decisions are made regarding long term issues, including changing the enrolment of the child.
Contact Us
Family law matters can be complex and stressful. Our experienced family law team at Etheringtons Solicitors are ready and willing to assist you with your matter. If you need any assistance please don’t hesitate to get in contact with one of our lawyers via our contact form or call us on 02 9963 9800 for a no-obligation discussion.