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.
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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 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.
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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.
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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.
Jun 30, 2020 | Family Law
Following a relationship separation, the Family Law seeks to answer four key questions in order to determine how assets will be divided between the parties who were previously in a marriage or de facto relationship.
1. What is the net asset pool of the parties?
In order to determine the asset pool of the parties for property division, a balance sheet is required, which sets out in detail the assets, liabilities and superannuation of each of the parties. Assets are everything of value, and may include real estate, shares, motor vehicles, furniture etc.
Before commencing property settlement proceedings, both parties are obliged to make full and frank disclosure about their respective financial circumstances. Failure to do so may result in a party being held in contempt of court. This is a serious breach and implications may arise if you do not comply with this duty.
2. What have each of the parties contributed to the net asset pool?
In order to determine what each of the parties contributed to the net asset pool, the law looks to what assets and liabilities each party entered into the relationship with and what each party provided during the relationship, both financial and non-financial.
Contributions may be in the form of income from employment, running a business, money received from a family member in the form of gifts or inheritance, or even compensation payments. Homemaking and parenting contributions are also important to consider.
After assessing both financial and non-financial contributions, if the parties cannot agree, a court will determine each party’s overall level of contribution on a percentage basis.
3. What are the parties’ future needs and how might they need to be adjusted?
When a court has to determine the future needs of each of the parties, this may cause an adjustment to be made to their contribution percentages. The relevant factors in assessing those needs derive from section 75(2) of the Family Law Act 1975 (Cth).
In summary, the future needs of a party may include costs associated with caring for a child, especially where the parties’ contributions in this regard have been in unequal proportions, where one of the parties or children have ongoing health issues which need to be taken into consideration, as well as where there is likely to be income disparity between the parties or even where there is an age difference. Once the contribution percentage is adjusted, this will then be applied to the net asset pool in order to determine the division of property as a dollar figure.
4. Is the outcome fair and equitable?
The final step in a Court’s process is to determine the practical effect of the proposed property settlement and whether it is just and equitable. If it is, the process is concluded. If it is not, an adjustment is normally made to achieve a just and equitable position. For example, an adjustment may be required where one of the parties is the sole carer of the children and is responsible for supporting those children.
Once the dollar amount that each person is to receive is known, the amount is converted into assets that are to be retained by each of the parties. This may involve a deduction of liabilities that would be retained in order to determine if a payment is required.
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Property settlement proceedings can be complex. It is imperative that you are aware of all your obligations and entitlements, as well as the process in general.
If you would like further information regarding property division or if you have any general family law enquiries, please do not hesitate to contact Etheringtons Solicitors on 02 9963 9800 or via our contact page.
Jun 28, 2020 | Family Law
Collaborative law is a new approach used to resolve legal disputes, particularly in relation to Family Law. Collaborative law has many benefits of cooperation, mutual outcomes and sustained relationships in comparison to traditional approaches of litigation. Collaborative lawyers are qualified lawyers with training and experience in dispute resolution and facilitation processes. This article will outline the collaborative law approach in family law matters, the benefits of using this new approach, and some cases in which collaborative law may not work for parties.
The Collaborative Law Approach
Collaborative law is where the parties to a dispute and their lawyers sign a Participation Agreement in which they agree to conduct confidential and transparent negotiations to resolve their matter without turning to litigation. Generally, the parties will meet several times to work towards a settlement that meets the beneficial interests of both parties.
The parties must agree not to threaten litigation and the lawyers must not advise the parties to start court proceedings. If an application is made to commence proceedings in a court or tribunal the agreement is terminated and both lawyers must discontinue representing their clients.
Approach Summarised
- The professionals involved in a collaborative law arrangement are bound by professional conduct rules and client confidentiality.
- Parties must act in good faith, provide full disclosure and attempt to reach a resolution.
- Apart from financial disclosure, discussion and documentation will be subject to legal privilege which means they cannot be used in court proceedings. Only where a professional has a statutory obligation to make a report (for example where a child is at risk) will confidentiality and privilege be overridden.
- Negotiations are conducted directly between the parties and their lawyers – opinions and ideas are expressed face to face rather than using the lawyer as an intermediary for communication.
- Correspondence between the parties’ lawyers is limited – being replaced by minutes documenting the discussions and decisions made during the meetings.
- Once a settlement is negotiated, the agreement will be legally documented for the parties to approve and sign.
- Litigation must not be threatened nor commenced otherwise the agreement will be terminated and the parties will need to find alternate representation. This is a considerable incentive to keep parties focused on the issues in dispute and working towards a resolution.
Collaborative Law in Family Matters
Collaborative law can be used for a range of legal matters including disputes between businesses, neighbours and in family law.
The process is particularly suited to family law matters as the conciliatory approach has potential to preserve or protect the relationship between the parties. Clearly, this is beneficial where children are involved, given that the parents will need to have ongoing contact and discussions regarding the welfare and care of their children.
An overriding benefit of the Participation Agreement is that the parties are making a commitment to resolve the dispute without litigation. This enables the parties to ‘steer’ towards a mutually beneficial resolution and choose their time frame rather than have directions and hearing dates set by a court or tribunal. This has the potential to significantly minimise cost and delay, and of course, the stress and anxiety of being involved in court proceedings.
Clients and their lawyers set the agenda for each meeting and the lawyers liaise with each other regarding the agreed procedural aspects for running the meetings.
Benefits of using the Collaborative Law Approach
By giving the parties collective control over how their matter progresses, settlements may be reached which are less restrictive than what might be ordered by a court. Parties are not confined to technical legal issues and can therefore agree on more flexible resolutions that include non-legal matters.
Since collaborative law is non-adversarial, there is no winner or loser. This allows the parties to maintain dignity and respect for each other. Although each party must give full disclosure of facts relating to the issues in dispute, the discussions and meetings are family-focused with a facilitative approach. The parties must involve themselves in a concerted team effort to settle the dispute.
If necessary, the parties can agree to involve an impartial coach or facilitator to assist in reducing conflict or a professional (accountant, valuer, child specialist) to provide an expert opinion.
When might collaborative law not work?
Whilst collaborative law is open to all family matters, it may not be suitable if one or both parties are antagonistic, violent, have a drug or alcohol dependency or have severe psychological disorders. Safety issues and significant trust concerns will also be a barrier to effective negotiations.
The parties must be fully committed and not see the collaborative approach as a way around disclosure obligations.
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Collaborative law may not be appropriate for every legal dispute but is certainly worth considering as an alternative way to resolve your family law issues.
Lawyers engaging in the collaborative law process should be suitably trained and committed. If the Participation Agreement is terminated both lawyers may no longer act for the parties who will need to find alternate representation.
If you or someone you know wants more information or needs help or advice, please contact Etheringtons Solicitors on (02) 9963 9800 or contact us here.
