Category

Family Law

Separation

Separation – What is Required to be Considered Separated Under One Roof?

By | Family Law
It may be a cliché but it’s also true: no matter how long you’ve been together, breaking up is hard to do. For married couples, coping with the fallout can be especially complicated – and that’s one reason why so many Australians continue to live together even after separation. But what’s required in order to be considered as “separated under one roof”?

Separation under one roof can be short or long-term

For some separated couples, continuing to live together is just “easier”, at least in the short term. It gives the person who is planning on leaving time to find another place to live, save some money for rent, or make other arrangements. It also gives someone who hasn’t held a steady job time to find one.

Then there are other couples that prefer to keep living together after separation for a longer period. In many cases, they choose to do so “for the sake of the children”, especially when the kids are younger. Although this is generally discouraged, supporters say it allows both parents to maintain ongoing relationships with the children. Depending on the situation, such as one in which the parents remained civil or even cordial, this may also provide some semblance of stability and normalcy for the kids.

Legal considerations

If you are considering separation but want to keep living with your former partner or spouse afterwards, you may also be concerned about the legality of doing so.

More often than not, it’s perfectly fine. The only time separation under one roof can be tricky from a legal standpoint is if you also plan on getting divorced, or if you and your ex have a disagreement that requires court intervention.

In fact, section 49 (2) of the Family Law Act specifically allows for separation under one roof. It states: “Parties to a marriage may be held to have separated and to have lived  separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household  services to the other.”

Seeking divorce after separation under one roof

To get divorced in Australia, you must be separated for one year (12 months). Living together for some or all of that time won’t prevent you from seeking divorce, but you must provide additional information along with your application.

Here are a couple of examples. First let’s say you’ve separated for a year, but you lived together for half that time. In this case, you must provide supporting evidence with your application.

But now let’s say you’ve been separated for five years. In this scenario, you stayed in the same home for the first three years, but lived in different homes for the last two. In this case you don’t have to provide any supplementary information.

What type of supporting material is required?

An affidavit is a sworn statement that you must file along with your application for divorce if you have been separated under one roof. In this document, you give a detailed account of your living arrangements demonstrating your separation during the 12-month period. Specifically, you must explain:

  • different sleeping arrangements (i.e. if one of you moved into the guest room);
  • changes in common activities;
  • specific divisions of household responsibilities;
  • establishment of individual bank accounts and changes in how household bills are paid;
  • the extent to which you informed friends, family and any other relevant people (such as your children’s teachers or caregivers) about the separation.

You should also be prepared to address any other significant issues in the affidavit, including:

  • Your reasons for staying in the same home after you separated and any forthcoming changes to the current arrangement (if applicable).
  • Any changes directly affecting or related to any minor children (those less than 18 years of age) that you have in common with your former partner/spouse while you were separated under one roof.
  • Which government benefits you receive (if any) and which agencies you notified about your separation. Copies of any relevant correspondence should also be submitted along with the affidavit.

Generally speaking, you won’t have to appear in court unless you made an individual application for divorce and you have a minor child in common with your former partner/spouse. This provision only applies as long as you fully explained your situation and submitted the required affidavits to the court. You may also be directed to appear in court or provide additional material if the court needs more information.

You are not alone

In summary, if your marriage can’t be salvaged and you are considering separation under one roof, you are not alone. Many Australians choose to live together after separation for a variety of reasons. Although this is legal, it can complicate matters if you want to get divorced. Therefore, it is important to get proper legal advice before making this decision.

To learn more about how we can help if you are considering this option, contact us today.

For over 20 years, Arbon Legal Group have been providing comprehensive legal help to the people of the Gold Coast community. If you require further information or legal assistance, please contact us today for a 15-minute, no obligation advice over the phone on 07 5562 0444 or email admin@arbonlegal.com.au.

Inheritance

Is Your Inheritance at Risk of a Claim by Your Former Spouse?

By | Family Law
Historically the question of whether money is really the root of all evil has been a matter of debate but within the context of family law, there is no doubt that disagreements over finances frequently morph into something worse. There are many reasons these heated and bitter arguments over “who gets what” erupt when couples separate. In some cases, for example, fights begin when former spouses or partners can’t agree on what should happen to an inheritance.

Here’s what you should know about how the courts view a situation in which only one of you has received (or is soon likely to receive) the inheritance in question.

General Considerations

Because it is legally categorised as property, any inheritance you receive must be included in relevant negotiations. However, it is important to note that how it will be treated depends on your specific circumstances.

In general an inheritance will be treated as an asset that can be split between the two of you, or as an asset (financial resource or benefit) belonging only to the recipient. A cash inheritance will most likely be viewed as the latter. If it is, the court will likely determine that you (as the recipient) are in a better financial position than your former husband or spouse, and act accordingly.

In reaching its decision, the court may consider when you received (or will receive) the inheritance and how you used it. As an example, let’s assume you received a considerable inheritance while you were married. Now let’s also assume that you used the money for household expenses, family holidays, home improvements and so forth. In these circumstances, the court could reasonably find that this was simply your contribution to the marriage and issue an order accordingly.

On the other hand, let’s consider a scenario in which you inherited some money from your grandmother before you got married. Let’s say you weren’t living with the man or woman you eventually married, and he or she was aware of the inheritance. However, you kept the money in your own bank account and never used it for any relevant expenses or activities before or during your marriage. In this case, the court could reasonably find that the inheritance was always yours before the relationship, meaning you brought it in as an initial contribution. If you never used it and always kept it separate, depending on your partner’s circumstances, you may be able to keep it.

Other factors that the court may take into consideration are:

  • Value: The amount inherited or worth of the inheritance in comparison with the total asset pool.
  • Contributions: Whether the person who didn’t receive the inheritance contributed to it.
  • Purpose: The intended use of the money, as expressed in a will or any other specific instructions.
  • The extent of care: How much the person who did not receive the inheritance helped care for the deceased, if at all.

Relevant Cases

Of course the outcome in your case will be based on the court’s assessment of your specific circumstances. Having said that, here are a few summaries of relevant cases to help you understand how the court reaches various decisions.

First let’s look at a case called Elgabri & Elgabri. In this particular matter, the husband received an inheritance shortly before the couple separated and the judge excluded it from the general pool of marital assets. Upon further assessment of the evidence, the judge found that the husband and wife made equal contributions to the remaining assets. However, the judge also determined the wife should have an additional percentage of the assets because her husband’s inheritance gave him a financial advantage.

In another case called Elgin v Elgin, the court found that an inheritance received roughly one decade prior to the couple’s separation was insignificant in comparison to the value of the total asset pool. Specifically, it accounted for less than five percent of all available property by the time the couple separated. The judge in this case also decided that each spouse made equal contributions to marital assets. As a result, each person received an equal share of the assets.

Finally, in Sinclair v Sinclair, the wife received a considerable inheritance several years before she and her husband separated. However, the court determined that most of the assets weren’t related to direct contributions made by either person, and the wife received a significant percentage of the total assets.

In summary, it doesn’t matter whether you’ve received a small inheritance or you stand to inherit a fortune. If you are separated, it will be legally classified as property. Depending on your specific circumstances, you may be allowed to keep all of it, or it may be included in the marital asset pool. In any case, it is essential that you obtain clear legal advice on your specific circumstances.

Divorce

Four (4) Ways to Protect Yourself Financially in a Divorce

By | Family Law
No one wants to think about their marriage ending badly in Divorce. But the reality is that it happens.

 

When it does, the question of how to safeguard your finances is a common concern. Fortunately, there are several precautions you can take to protect yourself financially in divorce.

  1. Consider a binding financial agreement

Technically, you and your partner or spouse can enter a binding financial agreement before, during or after your marriage. But doing so before you get married is one of the easiest ways to protect your finances in divorce.

Also known as a prenuptial agreement or ‘prenup’, this is a formal agreement that is similar to a contract. In it, each of you states what you brought into the relationship and how the assets/liabilities should be divided in the event of separation and divorce.

As long as the binding financial agreement meets the requirements included in applicable laws, it doesn’t have to be reviewed or approved by the Family Court. In this context, it is also important to note that the court can’t change an agreement that complies with relevant requirements. However, the court can choose to disregard an agreement in certain circumstances.

On the other hand, not having a binding financial agreement at all puts your assets at risk for inclusion in the total asset pool and potential allocation to your former partner or spouse.

Although the extent of your contributions to this pool are given due consideration before it is divided, other mitigating factors may also come into play. These include but are not limited to how long you were together, how the marriage affected each of you, and your respective monetary/non-financial contributions to the marriage.

  1. Obtain sound legal and financial advice

As we have just noted, it is not too late to enter into a binding financial agreement once you are married. However, it is important to get sound legal and financial advice before pursuing this option. There are two key reasons for this. The first is because it is legally required, and the second is because every situation is different and there may be other options worth considering.

In any case, don’t be afraid to be proactive. Consulting relevant professionals sooner rather than later can help alleviate any stress you’re already experiencing, giving you time to consider the advice and plan accordingly.

  1. Maintain some financial independence

Devising a strategy that allows for some separation of assets is another way to protect yourself financially in the event of divorce. Some simple ways to maintain financial independence are to:

  • Keep separate bank accounts;
  • keep the deed of any property owned/purchased by one person prior to or during the relationship in that person’s name;
  • establish a joint household/family account for living expenses and individual bank accounts for other, unrelated expenses.

However, you should never open a bank account or take any other steps in a deliberate attempt to conceal assets. You should also be aware that the existence or creation of an individual bank account won’t automatically guarantee that you can keep all the money in it. If the court determines your former partner or spouse has a right to it, the money will be distributed accordingly.

  1. Careful documentation is key

The division of assets can be complicated when one or both of you receive gifts or inheritances prior to or during your relationship. Therefore, it is important to establish who received it and how the person who gifted it meant it to be used. In other words, was the gift given to only one person or to both of you as a couple? If someone gifted you money, did they instruct you to keep it for yourself, or use it for the family?

The answers to these questions will determine if you will be allowed to keep the asset(s) or if they will be included in the overall asset pool for allocation. Having proper, written documentation will substantiate your arguments about any assets that were given directly to you for personal rather than family use.

Careful documentation of joint and individual debt is also important when it comes to protecting your finances in a divorce. Unless you have proof that only one of you incurred a certain debt, all debt (joint and individual) will be divided in the property settlement. In other words, without proper documentation you may be responsible for paying off your former spouse or partner’s debt.

In any case, separation and divorce are never easy. But you don’t have to go through it alone. If you have questions about how to protect yourself financially, contact us today.

Family Court

Can You Travel Overseas with Your Children While Proceedings are Underway in the Family Court?

By | Family Law

There’s nothing quite like a family holiday. For the children, it’s simply a chance to have fun.

For parents, it’s a chance to introduce the offspring to new people, places and things. It’s also a chance to create cherished family memories and traditions.

But when relationships sour to the point where family matters end up in court, traveling with the children can be complicated – especially if you want to take them abroad. Here’s what you should know about going overseas with the kids while Family Court matters are pending.

Obtaining consent

The first and most important thing to keep in mind in these circumstances is that you must get permission to travel overseas with the children. Ideally, all you’ll have to do is make your spouse, partner or applicable guardian aware of your plans and obtain their consent.

If that doesn’t work, there is another option. You can also apply for a court order allowing you to take the child/children abroad.  If you choose to pursue this option, you should be aware of potential court delays and act accordingly.  Ideally, you should make this application at least six weeks prior to your departure date.

What the court will consider

Along with an application, you must file a sworn statement called an affidavit. At a minimum, it should include information about:

  • The details and reason for the proposed travel, including a copy of the itinerary (if possible);
  • the ties you and the child/children have to Australia;
  • whether the country you are visiting with your child/children is a member of the Hague Convention, or if any travel warnings have been issued;
  • your immigration status and your child/children’s immigration status;
  • your willingness and ability to provide surety;
  • any other pertinent factors.

To make a decision, the Court takes several factors into consideration. The most important of these is the risk that you will not bring the child/children back to Australia.  Based on your specific situation, you may have to put up a cash bond that you will forfeit if you fail to bring the child/children back to Australia as ordered. Conversely, the Court will allow the child to accompany you if it determines it is in his or her best interests to do so.

Additional information about the security bond

If the court finds a security bond is necessary in your case, it will include relevant provisions in the order allowing you and your child/children to go abroad. These provisions generally include:

  • Terms of payment for a single trip: Namely, the length of time prior to the date of departure in which the bond must be paid and the funds cleared. Depending on the circumstances of your case, it may range from seven days to one month.
  • Terms of payment for multiple trips: If you are planning on taking your child/children overseas on multiple occasions, you may be required to put up a security bond payable each time the child travels, a certain amount of days prior to departure.
  • Restrictions on departure: Under some orders, the child or children will not be allowed to leave with you if you haven’t paid the bond.
  • The bond amount: Again, the exact amount will depend on your situation and the potential risk stemming from the proposed travel. However, it can generally range from $5,000 to $30,000.
  • The bond type: In most cases, a cash bond is required. However, a bond in the form of real estate may also be accepted in certain circumstances.

As per the court order, payment will be made to a trust account held by your lawyer or the non-traveling parent’s lawyer. In either case, the lawyer is legally prohibited from accessing these funds without appropriate authorisation. This means the money will remain in the trust account until the release of funds is authorised.

Provisions for release of bond

In addition to the provisions we’ve already mentioned, the court order issued in your case will include stipulations pertaining to the release of bond (if necessary).

These stipulations will determine when the money is released (a specific date) and where it goes. More often than not, it will be released upon the child’s return to Australia. However, you should be aware that these stipulations may also allow for some ‘wiggle room’ in circumstances such as late return due to unforeseen circumstances.

Depending on the relevant language in the provision, the money will be released to you (the traveling parent) if you bring the child or children back to Australia as ordered. If you fail to comply with the order, the non-traveling parent will get the bond money.

Under these stipulations, bond money released to a non-traveling parent due to your lack of compliance must generally be used to facilitate the child or children’s return to Australia.  This means it can only be used for travel costs, legal costs or any other relevant fees and costs incurred by the non-traveling parent while seeking the return of the child or children.

Don’t take any unnecessary risks

Finally, you should be aware that taking a child out of Australia or trying to do so without consent or a court order is a very serious offence. The punishment upon conviction is a maximum of three years in prison.

To find out how we can help if you have a pending Family Court matter and want to take your child or children overseas, contact us today.

break-up

The Things You Need to Do Before a Break-Up

By | Family Law
As any mental health professional will tell you, a break-up is one of the most stressful experiences in life.

If you’re facing a bad break-up or divorce , it’s important to get the best possible legal and financial advice. It’s also important to lean on family and friends for emotional support, especially when you feel overwhelmed. But there are also some things that you can – and should – do on your own prior to separation. Here are some tips to get you started.

Emotional considerations

Before you do anything rash, make sure you really think everything through to ensure that separation is the only solution. If you are not in immediate danger and you can still communicate with your partner or spouse, consider exploring methods for reconciliation. Seeking help from a marriage counselor or similar professional who can help you resolve misunderstandings, identify and change negative behaviour, and facilitate effective communication may save a lot of heartache, time and money in the long run.

Practical considerations

If the behaviour of your spouse or partner has jeopardised the safety of either yourself or your children, or if your marriage simply can’t be salvaged, there are certain important decisions that need to be made sooner rather than later.

  1. Make sure your finances are in order. Specifically, you should make sure you have enough money – or access to enough money – to meet your own immediate needs and your children’s immediate needs. If you and your spouse or partner share bank accounts, be sure to access any funds you’ve contributed and use them to open your own accounts. You should also take this opportunity to establish your own credit if you haven’t already done so.
  2. Make sure you (and the kids) have a place to live. If you’re solely responsible for the rent or mortgage, you’ll probably want to stay in your current home. And ideally, your husband, wife or partner will simply agree to move out. If he or she refuses to leave, don’t be afraid to move out yourself; ultimately the law is on your side.
  3. Who “gets” the kids? If you have children, their welfare will obviously be one of your chief concerns. This means you’ll have to make certain decisions about where they’ll live when you and your spouse or partner are no longer together. In other words, you must decide who will have primary custody, and if possible, come to terms about visitation for the non-custodial parent. When making these decisions, keep in mind that the court will also view any agreements and issue relevant orders based on the child’s best interests.
  4. Be proactive about “your” belongings. As far as the Family Court is concerned, both of you own the furniture and personal belongings accumulated over the years. If you are staying in your current residence, take steps to safeguard ‘your’ belongings. Legally, you can even change the locks to prevent your husband, wife or partner from returning to take anything that belongs to you after they’ve moved out. On the other hand, if you’re moving out, you should be sure to take as much of your stuff as possible.
  5. Make sure all relevant paperwork is organised. While going through separation and divorce, you will be legally obligated to make certain information available to your former spouse, relevant professionals (your lawyer) and the court. Therefore it is critical that you put important legal and financial documents in order as soon as possible. Specifically, you should make sure you have immediate access to your marriage certificate, tax returns, bank statements, any documents related to the acquisition or sale of real property and so forth.

Additional steps you can take

Further things you should do as soon as possible include changing your life insurance or superannuation details if your spouse is designated as a beneficiary, and amending your Will if they are named as the executor or a beneficiary.

You should also take steps to protect your personal information, especially the information stored on electronic devices such as your home computer, laptop, tablet or smartphone. This is especially important if your spouse or partner knows or can access your passwords or personal identification numbers (PINs).

Be aware this is not an exhaustive list. The other issues requiring your attention prior to separation will depend on your unique circumstances. For more information about separation, and the steps you can take to protect yourself and your children, contact us today.

Blog

How to Keep Your Family Law Matter Out of Court

By | Family Law
If you’re at odds with a spouse or partner, you’re probably experiencing a lot of conflicting thoughts and feelings.

And you’ve probably got lots of questions. Should you try to mend the relationship and stay together for the sake of the kids? Or should you just end it before things get any worse? And if you do want to end it, how can you do so without taking the matter to court?

Fortunately, there are options. Government-funded dispute resolution services are employed by both the Family Court and also the Federal Circuit Court of Australia. In many cases, the courts order former spouses or partners who can’t agree on financial, property or parenting matters to try dispute resolution prior to any hearings. Family lawyers also recommend these services to their clients.

Here’s a closer look at the different types of dispute resolution commonly used in family law cases.

Family Dispute Resolution (FDR)

This is a confidential process in which someone with special training in dispute resolution will help you and your former spouse or partner reach consensus on important issues related to your separation and divorce.

Your family lawyer may recommend Family Dispute Resolution, or FDR, if you and your former spouse or partner disagree on property allocation, financial matters or parenting issues. Because lots of people and community groups offer FDR services, you may meet with a social worker, lawyer, or even someone from a Family Relationship Centre.

You can learn more about the FDR providers in your area by visiting www.familyrelationships.gov.au, or calling the Family Relationships Advice Line on 1800 050 321.

You should be aware that dispute resolution is not necessarily free. As a rule of thumb, private providers set their own fees, whilst Family Relationship Centres offer free services for a limited time and then charge based on your financial situation. To learn more about FDR costs, visit www.familyrelationships.gov.au/talk-someone/centres

Finally, you should also be aware that you won’t need legal representation during FDR. However, it’s always a good idea to get advice from a lawyer before your first session.  You’ll also need a legal representative to document any agreements so they are legally binding and enforceable.

Mediation

Mediation is another alternative to court that is frequently used in family law cases. Like FDR, it can be used to address key issues that surface during separation and divorce.

In mediation, a neutral third party with specialised training in facilitating discussions about family law matters, will work with you and your lawyers to help you come to an agreement on relevant issues. Again, you will likely have a choice of qualified professionals to work with if you agree to pursue this option.

Some other options

Sometimes, mediation and FDR aren’t effective or viable. But this doesn’t mean that all of your options have been exhausted.

Another option is to have your family lawyer conduct relevant negotiations with your former partner or spouse and/or his or her lawyer. If these negotiations break down, the next step is to consider an informal conference.

At this type of meeting, yourself and your ex, with your respective lawyers, will meet (without a mediator) to try and reach a consensus on all of the issues in question. Although you will both have to attend this meeting, you won’t necessarily have to deal with one another directly. If you are uncomfortable or it is not safe for you to be in the same room, you may be able to wait in a separate space while the talks are held.

If all else fails…

Unfortunately, there are some cases in which an estranged couple simply can’t come to terms on property, financial and/or parenting issues related to separation or divorce. If FDR, mediation, negotiations and informal conferences aren’t options or don’t work, the case will simply go to court.

The types of matters that typically end up in court include:

  • those involving child safety;
  • matters involving family and/or domestic violence;
  • cases involving parental kidnapping;
  • cases in which one person flatly refuses to engage in any attempts to resolve the issues in question.

It goes without saying that separation and divorce are never easy. Even if both parties can still communicate well and there are few points of contention, it is important to get proper legal advice from a qualified and experienced family lawyer. If you want to know more about how you can resolve any disagreements related to your separation or divorce without going to court, contact us today.