Apr 20, 2022 | Family Law, Wills and Estates
Making a will is important for everyone over the age of 18, to ensure their wishes are followed and their assets are distributed correctly after they die.
If you don’t have a will your assets will be divided according to how the law dictates in the rules of intestacy. A will is also the place where you can indicate to your family and friends your wishes on other important matters, such as who you want to be the guardians of your children.
Regularly review your will
Preparing a will is not a once-off event. It is sensible to review your will regularly, and we suggest that this be done a minimum of every three to five years.
Changes in your life may create difficulties in interpreting an earlier will. In certain circumstances, major changes can make your will ineffective or invalid. It is likely that your needs and circumstances will change many times in the course of your life and with those changes it is prudent to consider how they impact upon your will.
Healthy Will checklist
Here is a checklist of life changes which can impact on the validity of your will and which you need to consider in examining the legal health of your existing will.
- Have you married? Or separated from your partner? Have you had any children?
- Is the person you named as executor (to carry out the wishes in your will) still alive and well enough to do the job?
- Have the circumstances of any beneficiaries changed to make you reconsider your wishes, or have any of them died?
- Have you nominated any specific gifts that are no longer valid or don’t exist? For example, have you sold a property that you had left to someone in the will?
- Have you acquired any new assets that you would want to make specific plans for in your will?
Superannuation
At the same time as you check the health of your will, it is also a good idea to check your super and life insurance.
Many people assume their superannuation will be divided up in accordance with the wishes in their will, but that is not necessarily the case. You need to look at your super policy to check how you have nominated that your super should be allocated, and that it is still allocated in the way you want. Sometimes, a nominated beneficiary direction will lapse after three years.
At the same time, check the division of any life insurance you have in your policy, and update it if necessary.
Conclusion
The important thing is to consider your circumstances at every major personal milestone in your life.
Any Will you have made is likely to become out of date and no longer accurately represent your wishes in some way following changes in your life, possibly within a few years of drawing it up. It will depend on circumstances that are unique to you.
If you would like to discuss a new Will or changes in your circumstances and a review of your current Will please call us on (02) 9963 9800 or via our contact form.
Apr 14, 2022 | Family Law
The courts have reaffirmed the importance of seeking independent legal advice and assistance from an experienced family lawyer regarding the execution of Binding Financial Agreements (BFA) or other property arrangements when planning for you and your family. The Family Law Act 1975 (Cth) sets out very strict requirements for a BFA to be valid and enforceable, and it is often the case that informal agreements and agreements executed overseas will not be recognised by Australian courts.
A BFA — when executed correctly — can allow for certainty, trust, and peace of mind in a relationship. If you are wanting to enter into a financial agreement with your partner, or to understand if your current agreement is valid, it is crucial that you take appropriate caution and seek suitable legal advice from a family lawyer.
What is a Binding Financial Agreement (BFA)?
A BFA is a legally binding document which sets out what would happen to the couple’s finances and property should the relationship break down, resulting in separation or divorce. It allows a couple to plan their future rights and responsibilities, before entering a marriage or even after, in the event of a substantial financial change. A BFA is not lodged with a court, but rather acts as a private contract between the parties.
Importantly, a BFA can protect assets including cash, property, superannuation or inheritances and are predominantly used for setting out the financial arrangements of the couple. However, a BFA does not cover child custody arrangements, nor child support payments. A more extensive discussion of which matters can be dealt with in a BFA can be found in our previous blog article about constructing, obtaining and setting aside Prenuptial Agreements.
BFAs can be set aside where:
- There have been instances of non-disclosure of assets or financial resources.
- The BFA does not make any provision for children or if there was an adverse change in the welfare of the children so the agreement would cause hardship.
- The contents of the agreement were not just and equitable.
- Additionally, as discussed in a previous blog article, the High Court will not enforce any BFAs which have been entered into arising from unconscionable conduct, especially where this conduct is a consequence of a significant power imbalance between the parties.
The Family Law Act 1975 (Cth)
The Family Law Act is the legislation which governs BFAs. It allows parties to enter into these agreements before or during a marriage, or after a divorce. Under this Act, a BFA must be in writing, have been signed by both parties, and make specific reference to the section of the Act it is made under.
An important recent case demonstrated that marriage agreements which do not comply with the Family Law Act’s requirements for a financial agreement are not binding. In the case of Akhtar & Gaber (No. 2), the Appeal Division of the Family Court of Australia dismissed an appeal which aimed to uphold the terms of the marriage agreement between the parties made in another country (or jurisdiction).
The marriage agreement between Akhtar and Gaber was not a recognised BFA as it did not comply with the strict requirements of the Act. It was therefore not enforceable. This means that, even if the marriage agreement was binding in another country, it does not effectively operate as a BFA in Australia. The division of property between the parties was therefore determined in accordance with s 79 of the Family Law Act.
Why obtain our legal assistance regarding your Binding Financial Agreement?
As demonstrated in Akhtar & Gaber (No. 2), it is very important that your BFA meets the requirements set out in the Family Law Act. BFAs which are incorrectly drafted may be deemed invalid or set aside. Engaging an experienced solicitor will assist in this process.
Additionally, for a financial agreement to be binding, before it can be signed by both parties:
- Each party must have received independent legal advice regarding the effect of the agreement on the rights of that party and the advantages and disadvantages of the agreement, at the time that the advice was provided to the party,
- Each party must have received a signed statement from a legal practitioner as authority that this advice has been provided, and
- Each party must have received a copy of the equivalent signed statement of their spouse or intended spouse.
If you need further advice or assistance regarding BFAs or other family law matters, please contact Etheringtons Family Lawyers in North Sydney on (02) 9963 9800 or via our contact page.
Apr 12, 2022 | Family Law
Court orders are the legally binding declarations made by judges which resolve a dispute and outline the obligations which each party must perform. Family law proceedings are often quite lengthy — with some parties waiting years for a final hearing — so interim orders ensure that the needs of all the parties are met in a timely manner. These delays make it essential that parties seek legal assistance when applying for interim orders so that the appropriate care and diligence can be taken in preparing and presenting their case.
What are Interim Orders?
Interim orders are temporary orders which are put into place until final orders are made by the Court, which brings the matter to an end. Judges determine interim applications based on the facts and circumstances of each case, derived from the material filed by each party.
In family law matters, interim orders may relate to issues such as parenting or financial matters in separation. In relation to parenting orders, the court must consider the best interests of the child, and thus may provide families with a sense of stability. In relation to financial orders, an interim order may provide the basis as to which of the parties properties they are permitted to use or sell while the matter is ongoing. Other common terms pertaining to interim orders in family law include:
- Allocation of parental responsibility,
- Living and communication arrangements for children,
- Instructions to attend upon a family consultant to obtain a family report Instructions for a party to undergo drug or alcohol testing, or
- The appointment of an independent children’s lawyer (ICL), as necessary.
Interim orders differ from final orders which conclude the proceedings, as well as consent orders which arise out of an agreement between the parties. Final orders are not necessarily irrevocable, as both parties in family law proceedings may have the right to set aside those orders or apply for a change to the orders in the event of a substantial change in circumstances.
Applying for Interim Orders
Each Family Law proceeding commences with the filing of an initiating application. One party must file the initiating application and the other party files a response to that application. This will set out the interim and final orders you are asking the court to make. Generally you will be unable to file for interim orders until you have filed an application for final orders. These applications all need to make it clear to the court what orders you are seeking and the evidence to support them. Any person who is concerned with the care, welfare and development of children can apply for interim parenting orders.
For financial matters in a divorce, either party to the marriage can apply within 12 months of the divorce order taking effect. For financial matters when a de facto relationship breaks down, either party to the relationship may apply within 2 years of the breakdown of the relationship. There are various exceptions in filing out of time, and we strongly advise that you seek legal advice in the event you are faced with this issue.
Case Study: Relocation of Children
Many family law matters that appear in interim hearings involve the relocation of children by one parent before divorce or settlement proceedings are finalised. As reinforced in the recent case of Brant v Brant [2021] FamCA 91, interim orders can be made to prohibit a parent’s attempt to relocate children before a final hearing and enforce the best interests of the child and shared parental responsibility. In this case, the mother had relocated her two children and enrolled one child in a new school without consultation or consent from the father. The father then sought an interim order for the mother and children to return to the area, offering exclusive occupancy of the matrimonial home and payment of child support to facilitate this arrangement. The Court found that the relocation may have had an adverse impact on the meaningful relationship the children have with their father, and that the relocation should be temporarily reversed until final orders could be made.
Navigating a separation or divorce can be a highly stressful and emotional time for you and your family. At Etheringtons we provide a compassionate and skilled approach to family law matters. If you need further advice or assistance regarding interim orders or other family law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.
Apr 11, 2022 | Family Law
The ancient doctrine of res judicata still resonates in Australian courts today. Res judicata is a Latin phrase that translates to “a matter decided” and refers to the preclusion of claims from litigation when they have already been decided with finality and merit. The doctrine protects the court system from being overrun by litigants retrying cases until a favourable outcome is achieved, which is essential in the context of an overrun and under resourced Family Court system. It also protects other parties from having to respond to repeated claims at their expense.
However, it also increases the stakes when pursuing litigation, since once a matter is res judicata, it cannot be heard again. Therefore, it is critical if you are considering pursuing a matter in court, that you place yourself in the best possible position to achieve a favourable outcome.
Clayton v Bant [2020] HCA 44
The Facts
A significant case heard in the High Court of Australia considered the operation of res judicata in relation to the orders of foreign courts. The question was whether the decision of a foreign court could preclude a party from pursuing property and spousal maintenance orders.
In Clayton v Bant, the couple was married in 2007 in a Sharia Court. The wife was an Australian citizen who visited frequently and the husband was a citizen of the United Arab Emirates. The couple had property both in Australia, UAE and around the world, and they also had children.
In 2013, the wife commenced proceedings in the Family Court of Australia seeking spousal maintenance and property settlement orders. Subsequently, the husband commenced proceedings in Dubai, seeking a divorce and the extinguishment of all the wife’s rights to alimony. The wife elected not to participate in the proceeding in Dubai. The Dubai Court granted the husband an “irrevocable fault-based divorce” and ordered the wife to pay AED $100,000 plus costs.
The husband then applied to the Australian Family Court to permanently stop the proceedings on the basis that the wife should be prevented from pursuing her claim in Australia, as she could have sought a division of assets or maintenance in the Dubai proceedings. His application to stop the proceedings was rejected by the Family Court. He appealed to the High Court.
The Decision of the High Court
The High Court unanimously allowed the appeal, but found that the legal right to seek orders for property settlements and spousal maintenance could only be extinguished by a court making orders pursuant to the Australian Family Law Act. This clarified the stance that res judicata would only operate with respect to matters decided in the relevant jurisdiction. In this case, the court in Dubai did not have legislative jurisdiction to make orders in relation to property settlement matters outside of the UAE.
The High Court in Clayton v Bant distinguished the case In the Marriage of Caddy & Miller (1986) 84 FLR 169, where it was held that the wife was prevented from asserting her rights in an Australian Court. This was due to prior orders that had been made by the Supreme Court of California, which did have the jurisdiction to give final orders on property settlement matters regarding property in Australia.
Final Thoughts on Res Judicata
In Clayton v Band the High Court found against the husband’s application to permanently stay proceedings in the Family Court. The case is a timely reminder of the complexity of litigation and the importance of ‘giving it your best’ the first time around as you may be barred from a second chance.
Notably this case also highlights the need to seek legal advice where relationships exist in multiple countries. Complexities arise when matters can be heard, or are being heard in multiple jurisdictions, and this will determine the operation of res judicata.
Conclusion
Recent clarification of the res judicata doctrine is an important reminder of how necessary obtaining quality legal representation is. At Etheringtons Solicitors, we have a highly experienced and strategic team who will work with you to achieve a desirable outcome in Family Law matters. If you are concerned about your property settlement or divorce, please do not hesitate to get in touch with our office by calling 02 9963 9800 or via our contact page.
Mar 31, 2022 | Family Law
The recent separation of technology mogul, Bill Gates, and his former wife, Melinda Gates, after 27 years of marriage, highlights the increasing trend of ‘grey divorce’ cases. The average age of divorcees in Australia is gradually rising, which is disrupting the retirement plans of many Australians who, after decades of marriage, did not expect to find themselves starting over independently at a later point in life.
In the unique case of Bill and Melinda Gates, who are worth over $100 billion dollars, they have contractually ended their relationship whilst committing to working together at the Gates Foundation.
Divorcing later in life or after a significant period of marriage is particularly complex, therefore it is important that you consult with an accredited Family Law specialist, such as Etheringtons Solicitors.
Dividing assets upon divorce
Dividing the assets of any marriage puts a mental and emotional strain on all parties involved. If you are elderly and have left the workforce, you may face more angst about how you will financially recover. The most valuable assets to divide are often the family home and superannuation. Bill and Melinda have substantially more assets than the norm, but despite their wealth, they are still seeking a division of joint assets in accordance with their separation agreement.
In matters where a couple divorces later in life, normally this will not require a child custody or maintenance determination, and the separation of assets can instead focus on protecting their children’s inheritance.
Etheringtons Solicitors can assist couples with splitting joint assets in accordance with each party’s contributions through a Consent Order, where a formal written agreement can be made between the parties, or through a Court Order.
Contributions to the marriage
Throughout a long marriage, each party will make different financial and non-financial contributions to the relationship, which must be assessed when dividing the assets in the event of a relationship breakdown according to section 79 of the Family Law Act 1975 (Cth). In many long-term relationships, there is a presumption will be made that the parties contributed equally. According to this presumption, the party’s assets are usually split evenly between them, and then necessary adjustments are made to take into account other factors (such as spousal maintenance or family violence). In long-term relationships, it is common for one party to make a greater financial contribution, while the other party makes a greater homemaking and parenting contribution, and this presumption recognises that both are equally necessary to the successful functioning of a marriage.
However, every case must be considered independently and there are exceptions to this presumption where one party has:
- Brought considerably greater assets to the relationship than the other;
- Contributed substantially more via inheritance, gift or other settlement;
- Demonstrated special skills or talents which have brought in substantial assets throughout the relationship; or
- Behaved in a deliberate or reckless manner resulting in loss.
These factors recognise that while a long-term relationship is ideally an equal partnership of shared contributions, there are circumstances where it would be inequitable to grant a 50/50 division of the assets.
How Etheringtons Solicitors can help you
We can provide you with clarification of the relevant law surrounding divorce and separation and its application to your individual circumstances. If you need further advice or assistance with a family law matter, please contact Etheringtons Family Lawyers in North Sydney on (02) 9963 9800 or via the below contact form.
Mar 29, 2022 | Family Law
In hostile property settlements, one partner may seek to dispose of property or other assets to prevent them from being included in the asset pool and distributed. This only adds to the existing emotional and financial burden parties experience during separation. If your former partner is seeking to dispose of assets prior to a property settlement, there are legal avenues you can take to protect your property for the duration of legal proceedings. The most common way to do this is through an injunction.
What is an injunction?
An injunction is a court order that requires a party perform a particular action (e.g. pay someone), or refrain from doing a particular action (e.g. stopping a party from paying someone). Conduct regulated by injunctions can include restraining a person from selling property, entering a residence or making contact with a child. Failure to comply with an injunction can result in civil or criminal penalties, which could include a prison sentence.
A party can apply for an injunction regarding property matters under section 114 of the Family Law Act 1975 (Cth). Courts have broad discretionary power to grant an injunction which can have the effect of preventing a party from selling or disposing of an asset of the relationship. An asset of the relationship can include any jointly owned asset, such as a family home, or assets contributed to the relationship by the parties individually.
There are two main factors the court will consider regarding the unique circumstances of the case, when determining the outcome of an injunction application.
- The applicant (who is the person applying for the injunction) will often be required to give an undertaking to the court. This is a legal binding promise which requires the applicant to take responsibility for any damages (or foreseen losses) that may arise as a direct result of the injunction’s enforcement in the event that it is decided that the injunction was incorrectly granted.
- Courts will consider whether the injunction is necessary to protect the asset entitlements of the applicant party on the balance of convenience between the parties. This means that the inconvenience sustained by one party cannot be outweighed by the convenience granted to the party seeking the injunction as this would cause substantial injustice.
In the Marriage of Waugh (1999), the Court narrowly interpreted section 114 and invalidated an injunction on the basis that there was a lack of evidence of an intention of the husband to dispose of marital assets. In M v DB, the Court demonstrated a shift away from this narrow interpretation and held that whilst an enquiry into the risk of disposal is relevant, intention is only one of the factors the Court may consider under their broad discretion when granting injunctions. In this case, the fact that the wife lived overseas and had placed the property up for sale were relevant considerations when determining the risk of her disposing of marital assets.
Other discretionary factors which the court may consider when granting injunctions include:
- The urgency of the matter being considered;
- Whether damages would be an adequate remedy if the applicant suffered loss in circumstances where the injunction was not granted;
- How long the applicant has waited before seeking the injunction; or
- Whether the parties have made a full and fair disclosure of all the relevant material facts known to them relating to the matter.
Injunctions and de facto relationships: Dunworth v Faletti [2020] FamCA 178
Injunctions are not exclusive to proceedings involving the formal dissolution of marriage. In Dunworth v Faletti, the Court granted the applicant an injunction preventing her purported de facto partner from selling his property. Even though the nature of their relationship was yet to be determined, the Court held that this issue was a serious matter to be tried and that the applicant would likely suffer a loss which would be unable to be remedied by damages if the injunction was not granted and the property was sold. The Court later found in favour of the relationship.
How Etheringtons Solicitors can help
A solicitor at Etheringtons Solicitors can provide you with clarification of the relevant law on property injunctions and its application to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with resolving your separation, divorce or property settlement with the best outcome for you. If you would like more information on how we can advise you on matter, do not hesitate to contact us on 9963 9800 or via our contact form here.
