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.
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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.
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.
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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.
Jul 14, 2020 | Family Law
Did you know that once you enter into a marriage or de facto relationship, in certain circumstances, you or your spouse could be liable to maintain the other in the event the relationship breaks down? This is known as spousal maintenance.
This responsibility to financially assist an ex-partner is set out in the Family Law Act and exists if one party cannot meet their own reasonable expenses from their personal income or assets.
Where this need exists both parties have an equal duty to support and maintain each other as far as they can, with this obligation continuing sometimes even after separation and divorce. This article explains this key area of Family Law in detail.
Spousal Maintenance is different to Child Support
Firstly, it is important to know that spousal maintenance is not child support.
Child support is paid for the benefit of children, and aims to ensure the guardians of children have the financial means necessary to support those children. In addition to child support, the court may order a party to pay spousal maintenance.
What exactly is Spousal Maintenance?
The Family Court can only make an order for one party to pay spousal maintenance to the other if the partner making the application is unable to adequately meet his or her own reasonable needs and the other partner has the capacity to pay.
Maintenance for a former spouse or de facto partner is the division of future income and/or current capital assets following the breakdown of a relationship. In certain circumstances, separating couples can have an obligation to provide ongoing financial payments in the form of weekly or lump sum payments by way of maintenance for their partner.
This liability to maintain a former spouse or de facto partner can continue until their death or until they have the financial capacity to support themselves. Usually the payment of spousal maintenance is tailored to end upon the occurrence of a specific event, for example, the person completing training or re-skilling, securing employment, or commencing a new de facto relationship or marriage.
Time Limits
Applications for spousal maintenance for married couples must be made within 12 months of their divorce becoming final. Applications for de facto partner maintenance must be made within 2 years of the breakdown of the de facto relationship.
It is possible to apply outside the time limits, but the court does not always grant these late applications.
What if the person is in a new relationship?
A former spouse is not entitled to spousal maintenance if they marry another person. If they start a new de facto relationship the court will have regard to the financial relationship between that person and their new de facto partner when considering whether the former partner can adequately support themselves.
What does a Court consider when making a Spousal Maintenance Order?
Spousal maintenance is not an automatic right. In deciding a maintenance application, a court considers the needs of an applicant and the respondent’s capacity to pay, including the parties’:
- Age and health;
- Income, property, and financial resources;
- Ability to work;
- Ability to earn an income as a result of the marriage;
- Suitable standard of living.
An example of when a court will most likely make an order for spousal maintenance is in cases where one party is at home caring for young children and therefore is unable to work and earn income.
Other examples could be where one party has been out of the workforce for a significant period of time raising children and has become de-skilled or unemployable due to age, being unemployed for an extended period of time, or illness.
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A party’s obligation to pay spousal maintenance may be discharged in various ways including through periodic and regular payments or by way of a lump sum payment. It may also exist for different periods of time.
Although spousal maintenance is generally intended to operate only for a short period of time following separation to enable applicants to get back on their feet, in certain circumstances, it may be appropriate that spousal maintenance be paid for a longer period of time.
The calculation of and assessment for the need of spousal maintenance requires a deep understanding of family law and time limits apply.
If you know someone who needs help and would like to have a confidential discussion please arrange for them to call Etheringtons Solicitors on (02) 9963 9800 or via the contact form here.
Jul 7, 2020 | Family Law
It is important during a breakdown of a relationship or marriage both parties consider the issue of separating assets and liabilities. It goes without saying that separation is often a time that is highly emotional and stressful, however it is almost always a significant life changer as it may leave the vulnerable with significant financial strain.
Property Settlement
Often long term de-facto relationships and marriages involve jointly owned assets, including properties, home contents and motor vehicles that have been accrued during the relationship or contributed by one party.
It is common for most couples to be able to agree on how shared assets should be divided (known as a “property settlement”), and arrangements may involve the jointly owned property being sold and the proceeds divided, or the joint property being transferred into one of the parties’ sole names. Whichever it may be, it is advisable to formalise the property settlement agreement in a legal document. The main reasons for doing this are to:
- Ensure that the agreement is clear and concise and legally binding.
- Achieve a sense of closure.
- Ensure that neither party can make a claim on the other in the future and thus obtain certainty.
- Achieve an exemption from stamp duty when transferring a piece of property to the other party.
In some cases, couples are unable to agree on how assets and liabilities should be divided. When this occurs, it is best to seek legal advice from a solicitor to be informed of your rights and to allow for negotiations to occur with your former spouse. Unfortunately, where agreements simply cannot be reached through negotiations or alternative dispute resolution, the only available avenue is to proceed to court.
Why seek legal representation?
People who have gone through a separation are often more satisfied with the outcome in the circumstances where they can mutually agree on it, whether that be through negotiation or between themselves with minimal legal intervention, as opposed to a court judgment.
We know that a mutually beneficial and cost-effective resolution is the most desirable in the circumstances. If you would like more information on how we can assist you with your property settlement matter or any other family law matters, do not hesitate to contact us on 9963 9800 or via the contact page form here.
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.
