Freezing Orders: Common Misconceptions

Freezing Orders: Common Misconceptions

We will all be involved in a dispute at some point in our lives. We may even reach a point where we want to take someone to court in order to reach an outcome that we desire.

Have you wondered what happens if the other person is not able to pay up if you win against them? If you reasonably believe that the other person is going to sell their property in an attempt to avoid paying if they lose a court dispute, asset freezing orders (also known as asset preservation orders or Mareva orders) are one way to make sure your opponent has enough resources to meet a judgment against them.

There are lots of misconceptions about when and how you can get an asset freezing order.

Myth 1: Their purpose is to seek security for a pending judgment

Too often, applications for a freezing order are made with the sole intention of seeking security for a judgment which a plaintiff hopes to gain in the future. There are certain requirements you must meet before the court will make a freezing order.

Myth 2: They’re easily lodged with few requirements

This is an extreme order which will not be granted lightly. There are a variety of requirements that must be satisfied before the court will allow the order.

  1. Firstly, there is a minimum standard to which the case must be The case must be a ‘good arguable case’, that is, you must be able to convince the court that you have a serious issue to be tried by the court.
  2. Next, the plaintiff must prove that there is a real danger that the other person may dispose of their assets in order to avoid paying if you win. You will be required to provide significant evidence to support this claim. Any judge hearing such an application will ask: ‘is there an imminent transaction and have you given notice to the other side?’
  3. Finally, the court will also consider the nature of the defendant’s assets – for example they may consider the financial standing of the defendant, including their credit history.

Myth 3: You can freeze all assets held by the respondent

When applying for a freezing order, the plaintiff cannot simply request a blanket freezing order over all of the known assets a defendant possesses. The value of the assets covered by the freezing order cannot exceed the likely maximum amount of the reasonable claim by the plaintiff.

The order must also exclude assets for dealings by the respondent for legitimate purposes. This may include payments for ordinary living, business expenses or dealings in the discharge of contractual obligations, that were incurred before the freezing order was made.

Seeking legal advice 

It is imperative that you are accurately informed of the obligations and requirements of a freezing order before lodging an order with the court. If you would like further information regarding freezing orders or general litigation advice, please do not hesitate to contact one of our experienced litigation solicitors on 9963 9800 or via our contact form.

Superannuation and Family Law Property Settlements

Superannuation and Family Law Property Settlements

If you and your partner separate, you must consider what will happen to the property you own and how it will be divided between the two of you. The process of deciding what assets, financial resources and liabilities to divide is known as a property settlement.

Property settlements can be done between parties have been married as well as couples who have been in a de facto relationships. A property settlement can be dealt with between the parties, or with the intervention of the court. In this blog, we discuss property settlements, particularly in relation to what happens to superannuation during the property settlement process.

What is property? 

It is commonly accepted that property can include, but is not limited to, physical property, money, superannuation entitlements, inheritances and business interests.

What happens to superannuation in property settlements?

Superannuation is commonly included in property settlement matters. This may be undertaken by way of an agreement between the parties, which can be implement through Consent Orders or a Binding Financial Agreement, or by the intervention of the court.

However, it is important to note when dealing with a superannuation interest, the first step is to ascertain the value of the superannuation interest. In most situations, this will be done according to various methods set out in the Family Law (Superannuation) Regulations 2001. A particular method to be used in each individual case will depend on the superannuation fund. If the parties are dealing with a fund for which there is no specific method of valuation provided in the Regulations, the court will determine the value as it considers appropriate. Once the superannuation is valued, it is included in the property pool (assets that arose out of the relationship) either amongst the other assets or as a separate list, depending on particular circumstances.

Consent order

Once the superannuation fund is valued, it can then be ascribed a value in the matrimonial property pool and can be dealt with by way of a consent order. A consent order is a written agreement that is approved by a court, which can finalise financial arrangements between the parties. A consent order can contain provisions that the parties retain their personal superannuation entitlements, or that a portion is to be split to the other party. In the event that the superannuation entitlements of one party are to be divided, this is to be carried out by way of a ‘splitting order’.

Splitting order

A splitting order can be achieved by an order which allocates either an amount or a specified percentage from that party’s superannuation interest to the other party, which subsequently directs the trustee of the superfund to transfer their newly created entitlements into a separate superannuation scheme.

In some cases, it is unpractical to determine the splitting of superannuation entitlements at the same time when other property issues are being dealt with. Such a determination may need to be postponed until a later stage in the proceedings because of certain difficulties with respect to the valuation of superannuation interests.

Contact us 

It is vitally important to understand how superannuation will be dealt with in your family law proceedings. If you would like more information on how we can assist you with your property settlement or if you have any family law general enquiries, do not hesitate to contact one of our family law solicitors on 9963 9800 or at via the contact form here.

Child Relocation

Child Relocation

Child relocation involves the changing of a child’s living arrangements and is one of the most important concerns in a relationship breakdown. International relocation is becoming an increasingly common occurrence, with many people and families moving across the globe for business, opportunities and lifestyle changes. If parents have equal and shared parental responsibility of the children, the following factors in relation to child relocation must be considered.

The Family Law Act 1975 (NSW)

Disagreements on child relocation matters in a family law context can often lead to intervention by solicitors and the court system. Whilst freedom of movement is an accepted right, different principles apply for children and the removal of a child from a country, state or area that is significantly distant from the other parent.

The relevant section of the Family Law Act is section 65DAA. This provision explains the process the court is required to follow in determining if a child should spend equal time or a substantial and significant time with each parent. The definition of ‘substantial and significant time’ in the Act is time that involves the parent in the child’s daily routine and significant occasions for both the parent and child.

Factors taken into consideration

The first consideration which is taken into to account is whether the decision for relocation is in best interests of the child. Secondly, whether it is reasonably practicable for the child to spend equal time or significant and meaningful time with the each parent, and how the time that they currently spend with that parent would be affected by the relocation.

It is generally advised that relocation of a child should not occur until the consent is obtained from the non-resident parent. If consent cannot be obtained, then it is appropriate to seek the Court’s intervention on this issue.

Contact us

Etheringtons Solicitors have recently acted in several complex child relocation matters, and in each we have achieved successful outcomes for our clients. If you are currently in the situation where you are thinking about relocating, whether that be interstate, or to another continent and require advice on a child relocation issue, do not hesitate to contact us on 9963 9800 or via the contact form here.

Prenuptial Agreements – What You Need to Know

Prenuptial Agreements – What You Need to Know

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.

Child Support Payments – What You Need to Know

Child Support Payments – What You Need to Know

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.