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Can I Still Do a Property Settlement in a Short Relationship?

By | Articles, Family Law

It’s an unfortunate fact of life that many relationships don’t last. And when a couple splits up, there are difficult questions around how assets that were part of the marriage or de facto relationship are to be divided.

This situation is often made more difficult when there is a property settlement to be decided after a short marriage – one considered to be five years or less – ends. While there is no set formula used by relevant courts to decide property settlements in short marriages or de facto relationships, different factors are taken into account compared with the circumstances surrounding the break-up of longer term couples.

How do property settlements work?

Where there is property to be divided after the dissolution of a relationship, the settlement is a financial order made under family law by a court which is considered “just and equitable” for both parties.

It should be noted that just and equitable does not automatically mean a 50:50 split. The contributions each party has made to the marriage are considered in deciding the property settlement, including both financial and non-financial, such as caring for children or maintaining the family home. The future needs of each party are also considered, with the court deciding the weight to be attributed to all of these factors.

Property settlements after a short marriage

Courts assess the factors outlined above in a different way when the relationship in question was five years or less.

While non-financial domestic contributions are considered roughly equal in value to financial contributions in longer marriages, this is not necessarily the case in short marriages. The financial contributions of both parties to a short marriage are likely to be given greater weight in any decision on a property settlement, particularly if the couple has no children (meaning neither party had the considerable domestic responsibility of childcare). Alternatively, the court may place an equal value on non-financial and financial contributions if the domestic duties were onerous.

If following separation one of the parties remains the primary carer of children from the marriage, the court may also make additional adjustment on his/her entitlements to the share of the settlement, regardless of the short duration of the marriage.

The initial contributions to the marriage by each party will also be more closely examined, including savings, an inheritance or a property. These are given greater weight in settlement of a short marriage because they likely still exerted a substantial effect on the union before it ended.

The result is that one party’s initial contributions to the marriage may be excluded from the property pool to be divided. If one party’s initial contributions are included in the pool of assets, adjustments may be made in favour of the other party.

If the parties kept their financial affairs largely separate during the short marriage, this will also be taken into account when determining the property settlement.

In conclusion

As mentioned above, each property settlement matter resulting from a marriage break-up will depend on the specific facts and circumstances of the relationship, particularly when the marriage is short.

It is advisable to discuss all the details of your matter with a specialist in family law in order to receive accurate and timely advice on property settlement outcomes in the unfortunate event of a relationship ending.

What You Need to Know About the New Cladding Laws in Queensland

By | Articles, Body Corporate

In 2018 this resulted in the Building and Other Legislation (Cladding) Amendment Regulation 2018 (Qld) coming into effect on 1 October 2018. The legislation and it’s operation is a data collection strategy which will recognise and evaluate the risks involved with cladding products on privately owned buildings in the state of Queensland.

There are a number of obligations under the legislation in which building owners (i.e. Bodies Corporate) need to be aware. These obligations and timeframes are outlined below.

Stages and obligations

Stage 1: Buildings must be registered if they are located in the ‘compliance zone’. A building is considered to be in the compliance zone if:

  • It is any of classes 2 to 9 (this includes residential and commercial buildings, excluding houses); and
  • between the period from 1 January 1994 but prior to 1 October 2018, a building development approval was issued to build the building or alter the cladding;
  • is of Type A or B construction (three storey buildings or taller).

A checklist can be found through the Queensland Building and Construction Commission (QBCC) website and will help to determine whether the building is one of those with non-conforming cladding. A time limit of 29 March 2019 was set for building owners to complete this checklist. If after registration it is identified that the building has a rendered surface finish or combustible cladding or you are unsure of the building materials, you will be directed to complete Stage 2.

Stage 2: Before 29 May 2019, a statement will be required from a building industry professional as to whether the cladding on the building is non-conforming. If you know for a fact that the building has non-conforming cladding, you can simply notify the QBCC directly and by-pass Stage 2.

Stage 3: Before 27 August 2019, buildings which are found to have combustible cladding, building owners must engage a qualified fire engineer to undertake a fire risk assessment to determine the overall fire safety of the building and whether rectification works are needed. The QBCC requires the name of the specific fire engineer by the above date and by 3 May 2021, the QBCC must have received the final report. If you fail to follow these rules, the consequences include a total range of 50 and 165 penalty units, amounting to around $6,527.50 and $21,540.75 in fines.

Obligation to disclose

If a building has non-conforming cladding, it does not necessarily have to be removed if other fire safety mechanisms adequately cover the fire safety requirement. However, the risk that it could still be considered a defect is an issue. A building with non-conforming cladding must be disclosed to interested buyers of the property as a defect they should be aware of. This should be done via providing a copy of the status of compliance with the process outlined above to every owner and tenant of the building, as well as be put on view in a visible area of the building. In the instance that non-conforming cladding is not disclosed, the situation might result in litigation for non-disclosure against all those involved with the selling of the building, including the sellers themselves, the sales agents and the lawyers involved with preparing the contracts for sale.

If an owner of building with non-conforming cladding sells the building prior to completing the above steps, it is required that before the settlement, the current owner provides copies of all relevant documents to the buyer, as well as a notice containing information about the extent to which the seller has complied with the obligations required. The seller must also provide a copy of the notice given to the buyer to the QBCC. From then on, the new owner will take on the responsibility to conform with the remaining regulations.

If you have any questions in relation to the obligations of the Body Caporate or the building owner to comply with this legislation, please do not hesitate to contact our office.  

The Most Commonly Asked Questions Regarding Parenting Rights Post Separation

By | Articles, Family Law

It’s 8:40 AM on the first Monday morning back at work for me after the Christmas New Year break. Whilst I stare at the 2000+ emails requiring my urgent attention, I receive a phone call.

I say to the receptionist ‘can you please take a message and I’ll get back to them later’. She tells me that the caller is in tears and needs to speak with someone urgently.

I take the call. His name is Steve. He told me that he has a young daughter called Amanda and has been married for 10 years. His wife’s name is Tammy. Steve told me that he works away in the mines in Mount Isa on fly in fly out basis. He spends 2 weeks at the mines and then comes back home for a week. He said this was the only job that he could get, and it earns good income for him and his family which is the only reason he took it.

He told me that when arriving back home from his last stint in Mount Isa for the year just prior to Christmas, his wife Tammy, and daughter Amanda, were gone. So was most of the furniture from their house, all Amanda’s and Tammy’s clothes, possessions and beds were gone. Even their king-size matrimonial bed was gone.

He said that he thought he and Tammy had been growing apart and she was becoming more distant from him, however he had no idea at all that this was going to happen.

He told me he spent Christmas on his own in an empty house sleeping on a blow-up bed on the floor. He has been self-medicating with alcohol and he is so depressed that he wants to end his life and for it to be all over. He said the only thing he is living for is to be able to spend time with Amanda again.

I told Steve that ringing me this morning is the best thing that he could have possibly done. I told him that I have been practising family law for over 30 years, that there is a light at the end of the tunnel, and by taking it step-by-step he will get there. I told him that what he’s feeling now is a completely normal reaction but will be nothing but a distant memory in the future.

I arranged an appointment for Steve to come and see me that afternoon. I referred him to a good counsellor to deal with his depression issues and explained to him that in a marriage of that length with a 5-year-old daughter are you not only grow up together, you grow together and become one. You’re like a nice big ripe watermelon until someone pulls out a cane knife and slices you write down the middle. Now one half of you is gone and where it was is very raw. You need time to heal and grow a scab over that cut which takes time.

Steve said to me he does not know where Amanda or his wife would have gone to, or why she left without giving him notice or reason.

Steve was concerned because he was a fly in fly out worker and wanted to know how we can find Amanda and Tammy, what his rights are as a parent post separation with respect to his children. He said, “now that she has done this and has taken Amanda away from me, there is no prospect of reconciliation between us whatsoever”.

He then turned to the family law questions that I knew were coming. I knew they were coming because these are the most common family law questions that I am asked following the separation of two parents with young children, particularly where one parent has taken the children away from the other and/or will not let the children spend time with the other parent.

Question 1: Steve asked, “what rights do I have with respect to my daughter Amanda?”

I told Steve that under the guiding principles of the Family Law Act 1975 (“the Act”), which is the main piece of legislation dealing with family law in Australia, there is a presumption that following separation both parents will continue to have equal shared parental responsibility for any children of the relationship.

I explained to him what equal shared parental responsibility means. It means that both parents have an equal parental right or ability to play a primary role in decision-making for any major issues for the children, such as schooling and medical issues, where the children will live, what the children’s names will be, and overseas travel until the children turn 18.

I told Steve that both he and his Tammy will continue to have joint parental responsibility for his daughter Amanda unless that is altered by the court which in his circumstances is not likely at this time.

Question 2: Steve then said, “if I have equal shared parental responsibility, does that also mean I am entitled to equal time with Amanda?”

The Act says if the parents have equal parental responsibility, the child’s parents are to consider firstly whether an order that the child spend equal time with the parents. Equal parental responsibility and equal time with both parents are very different things.

I explained to Steve that with respect to equal time, that is 50-50 or one week on one week off type arrangements, the court has recognised that such an arrangement can only work in limited circumstances.

  • The parents should be living close to each other and to the child’s school;
  • there must be no ongoing domestic violence issues between the parents and the child (particularly at changeovers) must not be subject to domestic violence;
  • there must be no risks of child abuse, alcohol or illicit substance abuse in the presence of the child,
  • there must be no emotional or other physical abuse to the child;
  • the parents must be able to communicate with each other regarding the child’s schooling and parenting without arguing after every second sentence;
  • it must be otherwise “reasonably practicable” for equal time to work;
  • most importantly (and this is a paramount consideration) the proposed equal care arrangement must be in the best interests of the child; and
  • (also, a paramount consideration) the child must be protected from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.

My advice to Steve was that in his case, if he continues to be a FIFO worker, equal time will simply not be practicable because of his work commitments. He then said to me ‘I would be prepared to leave that job move close to where Amanda is, if we can find her. Even if it’s in Timbuktu. She means that much to me.”

I said in that case, he will need to establish good communication with Tammy about parenting decisions, he should be close to Amanda’s school and Tammy’s new residence for practical reasons, and most importantly Amanda must not be subjected to or exposed to any domestic violence.

The domestic violence Steve told me about that did take place, particularly when his wife had been drinking had been exposed to Amanda. I told him that this must never happen again. There must also be good communication at changeover and no arguing or pushing each other swearing at each other or any emotional abuse.

It may turn out that his wife continues to drink and become violent, Amanda are may be safer living with Steve. I told him that the court would appoint a family report writer to prepare a family report to make recommendations to the judge as to what is in his daughter’s best interests.

I also told Steve that if Tammy and Amanda have moved out of the area to make it extremely difficult for Steve to spend any time with Amanda, we can ask the court for an order that they be relocated back to this area to maintain the status quo until the court can determine what is in the best interests of Amanda.

Question 3: What is substantial and significant time?

If equal time is not possible, then the court must consider the importance of the child having a meaningful relationship with both of the child’s parents and giving substantial and significant time to the parent with whom the child does not live. The old regime where the father would only get to spend time with his child every second weekend and half the school holidays is not considered to be substantial and significant time.

I explained to Steve that there is also an obligation on both parents to facilitate (make possible) and encourage the children to spend meaningful and significant time with the other parent. I told Steve that if it is at all possible, equal time should be considered.

Additionally, and particularly relevant in Steve’s case, is the fact that because Steve is a fly in fly out worker, a 50-50 equal shared care arrangement would not be possible because of his work commitments. Practicality needs to be considered as well.

I asked Steve if there had been any issues of domestic violence, alcohol abuse or illicit substance abuse by Tammy against him. He told me that Tammy was the heavy drinker, and after a few drinks she would become violent and occasionally would strike out and on one occasion she kicked him in the head. Steve denied that he provoked her to do this. He said she was psychopathic and out-of-control when she had drunk too much. Steve said that he is a mine worker and he drinks heavily himself, however he does not become violent like Tammy does. I asked him why he thought Tammy left, and he said that he suspects she is having an affair because he is hardly ever at home.

I told Steve that while many parents might think that think equal time is the best arrangement post separation, most of the time that does not turn out to be the case.

Equal parenting or week about arrangements can sometimes lead to extra pressure on the children, particularly once you factor in the children’s schooling and extra-curricular commitments, age, and any health issues.

Parents also need to factor in their own lifestyle, financial means and commitments which may impact on their ability to spend meaningful time with the child while in their care.

Week about arrangements, of their nature, may place too much of a burden on the child’s psychological state and ability to be apart from one parent more than the other. This is particularly the case for younger children who may still be dependent on their primary carer. Amanda falls just within this category, and I told Steve that if Amanda is safe living with her mother and she is not exposed to or neglected by excessive alcohol use and associated violence, then she will most likely remain living with mum. However, if Amanda is not safe in that environment, it may be turned out to be in Amanda’s best interests for her to live with Steve. I told Steve depending on how things go, in a year or so they made look at trying and equal shared care arrangement if the circumstances allow.

Both parents must also have the ability and capacity to properly care for the child and meet the child’s before equal time is simply assumed.

Question 4: how do I find Amanda and Tammy?

I told Steve that in these circumstances, where Tammy has left with the child she must perceive some conflict, threat or an emotional need to be away from him. Tammy will be likely even if we find her, to resist or restrict Amanda spending time with him.

Steve said he still has an email address for Tammy, although he doesn’t know if she still uses it. I said the best thing we should do immediately is to write to her in a civil and polite manner and ask her why she has left, where she has gone to, and what proposals she has for Steve to spend time with Tammy.

If there is no response to that letter (which will give a very short timeframe for a response), then we will have to issue legal proceedings for a location order and a recovery order (to force Tammy to relocate back to the area to maintain the status quo) and some interim parenting orders. We will also ask for the court to appoint a family consultant to prepare a report once Tammy and Amanda have been found.

Question 5: if we find Amanda and Tammy before issuing Court proceedings, what should we do next?

I told Steve that if we happen to find Tammy and Amanda’s whereabouts from communicating to her through her email or by other means, the first sensible step is to try to organise a mediation with Tammy. Mediation (referred to in the Act as “family dispute resolution conference”) this can be done through either government mediation services or private mediators. A mediation is required before court proceedings are issued, unless there are circumstances of extreme urgency or there is a risk of harm to the child being exposed to family violence or child abuse.

The benefit of mediation is that it provides both parties with the ability to discuss their concerns about parenting matters with an independent mediator, which may provide them with a better perspective on what is in the best interests of Amanda.

Amanda will not be included in the mediation, and I told Steve that when he starts communicating with Tammy it is very important for him and Tammy to not put Amanda in the middle of any parenting discussions where arrangements for Amanda are being discussed. This will put uncalled for emotional pressure on Amanda.

Question 6: Steve then asked me “what if mediation fails and I still cannot see Amanda?

I told Steve that if he fails to reach an agreement at mediation, the mediator will give him what’s called a section 60 I certificate authorising him to commence legal proceedings. I did say that in the circumstances of his case where Tammy took Amanda away without any notice or informed consent, and due to the domestic violence and alcohol issues, he probably falls within an exception to having to file a section 60 I certificate to get court proceedings underway. However, if there is a possibility that mediation might have worked, I always recommend trying that first.

Question 7: What are the benefits of issuing Court proceedings? Will I get Orders in place quickly?

Issuing Court proceedings in the family law courts can be an expensive and drawn out process, both financially and emotionally. Generally, at the 1st return date, which in urgent circumstances may be as quick as in one week, but in normal circumstances is probably 2 to 3 months away we can ask for some interim parenting orders and for a family report to be prepared. The matter is then generally adjourned for 6 to 8 months to enable the family report to be prepared. The family report writer will make recommendations to the judges to what is in Amanda’s best interests. 9 times out of 10 the judge will make orders along those lines. However, if he or Tammy disputes the recommendations the matter will be set down for trial which could be another 6 to 12 months away, or longer if the proceedings are in the family Court of Australia.

I have written another article which is on our website called “What if mediation fails”. In that article I explained the court process in more detail. I suggested that Steve read that article and all the other articles of our website dealing with the family courts and parenting matters, so he can get a good grasp of how everything works.

Question 8: How can I safely communicate with Amanda’s mother about Amanda?

Steve asked me what will be the best to communicate with Tammy about Amanda in circumstances where there will most likely be hostility. Phone calls can readily get out of control, and text messages can be misinterpreted.

I suggested to Steve that he and Tammy communicate by email only in what is known as the FYO RR method as follows:

I said to Steve “, so you wish to inform Tammy that Amanda now knows how to do backstroke, that her homework for the week has been finished, or that she has found a good friend next door to your house. But you also need ask Amanda if she knows what happened at school on Thursday because when you picked Amanda up from school she had a scratch on her face. You also want to know what her test results were. You also wish to enquire about the roommate she has, and if Amanda is safe around him.”

I said “using the FYO RR method you will communicate this by email in short bullet points under 2 headings, the 1st being FYO (for your information) and the second heading will be RR (response required). You will give her a week to respond. If Tammy is caught up with something and cannot respond within that week, Tammy will email you during that week to tell you that she needs an extension of time and will give you a time by which she can reasonably respond. If that time is reasonable you will allow it.

So, your email will look as follows:

Dear Tammy

RE AMANDA

FYO

  • Amanda has learnt how to do backstroke and did it well today. She is excited about that;
  • Amanda’s homework for the week has been completed;
  • Amanda has made friends with the girl next door. She is one year older than Amanda and her name is Vicky. They enjoy spending time together.

RR

  • do you know what happened at school on Thursday because when I picked Amanda up she had a scratch on her face. It’s not too deep but it looks like a nail scratch.
  • Can you please let me know the results of Amanda’s blood tests? I would appreciate it if you could send me a copy and let me know what the doctor said.
  • Amanda has informed me that you now have another person living in your house. Can you please tell me a bit about him to help satisfy me that Amanda, being only a young girl, is safe around him?

 You have one week to reply to the RR questions, which means that the deadline is 5 PM on Monday, 12 September 2019.”

Steve said he thought that was a great idea, and he would try down the track.

What was the result?

I took down all of Steve’s details and then prepared a letter to Tammy setting out a brief history of the relationship, the circumstances that Steve now finds himself in, and his proposals with respect to be able to spend time with Amanda. I won’t tell you what happened from here. I won’t tell you if we found Tammy and Amanda through that letter or if Steve had to go through the lengthy process of court proceedings. I also won’t tell you why Tammy left with Amanda, but I will tell you that she returned to rent a house near his. I also won’t tell you if she was forced to return by order of the court or if she did it voluntarily. No

I will however tell you that Steve now has a fantastic relationship with Amanda, and they get to spend a lot of fun time together. Steve takes Amanda to her swimming lessons, they go Kayaking together he assists her with her homework during the time that he has with her.

Steve and Tammy communicate very effectively about Amanda using the FYO RR method and Amanda is doing very well at school as a result.

Please contact our family law team at OMB if you find yourself in circumstances like any of the above so that we can assist you to find yourself enjoying a happy relationship and spending meaningful time with your child, like Steve and Amanda now enjoy.

Please note that the names and circumstances in this article are completely fictitious, and every individual’s circumstances will differ. However, I have over my career found myself acting for people in very similar circumstances to Steve and in all cases a good outcome was achieved in the end for the child and her father.

One of the Most Important Things You Need to Do Following Marriage or Divorce / Separation

By | Articles, Family Law

The Effect of Marriage on your Will

Marriage is a time of joy and commitment. However, by saying the words “I do”, you are also inadvertently saying the words “I do hereby revoke my Will“. For those who are preparing vows to be together until “death do us part”, you do need to think about what happen when death does, in fact, part you.

In Queensland, section 14 of the Succession Act 1981 (Qld) provides that Marriage automatically revokes a Will, unless the Will was expressly made in contemplation of the marriage.

If a Will is made in contemplation of marriage, the contemplation must clearly state the testator (Will maker) expected to marry the particular person and intended that the Will should not be revoked.

The effect of Divorce (or separation from a Civil Partnership / de facto relationship) on your Will

In Queensland section 15, 15A & 15B of the Succession Act 1981 (Qld) sets out the effect that divorce (or separation from a Civil Partnership / de facto relationship) has on a Will.

Unless a contrary intention is shown in the Will, a testator’s divorce (or separation from a Civil Partnership / de facto relationship) revokes the following:-

  1. Any beneficial interest the testator’s former spouse/civil partner/de facto partner had under the Will;
  2. Any appointment the former spouse/civil partner/de facto partner has as an executor, trustee, advisory trustee or guardian under the Will; and
  3. Any grant, made by the will, of a power of appointment exercisable by or in favour of the Will maker’s former spouse/civil partner/de facto partner.

The Will of the testator then takes effect as if the former spouse/civil partner/de facto partner had died before the testator.

However, in Queensland, a testator’s divorce (or separation from a Civil Partnership / de facto relationship) does not revoke—

  1. the appointment of the testator’s former spouse/civil partner/de facto partner as trustee of property left by the Will on trust for beneficiaries that include the former spouse’s/civil partner’s/de facto partner’s children; or
  2. the grant of a power of appointment exercisable by the testator’s former spouse/civil partner/de facto partner only in favour of children of whom both the testator and the former spouse/civil partner/de facto partner are parents.

Conclusion

Marriage and divorce/separation can have unknown and unintended consequences on your Will. The next document that you should sign after your Marriage Certificate, should be a new Will.

Similarly, if your marriage/relationship doesn’t turn out to be “happily ever after”, you need to give consideration to updating your Will.

Whether you are getting married or divorcing/separating, we recommend you contact our experienced estate planning team to discuss the legal implications and effects on your Will.

5 Property Buying Tips You Need to Know

By | Articles, Property Law

On a list of stressful life experiences, buying a property consistently ranks near the top. And with good reason. It is a huge financial commitment.

Luckily, there are a few simple ways to make the process a little bit easier. Here are five property buying tips that can help reduce the stress of the experience.

Get proper advice from qualified professionals

Perhaps the single most important step you can take to ensure a trouble-free property buying process is to enlist the help of qualified professionals. A banker, accountant or lender can determine how much you can afford to spend. A real estate agent can help you find a property in that price range. And a lawyer can help you avoid making costly mistakes by identifying issues including, but not limited to:

  • Improper building additions or renovations that may have to be removed or changed at your expense.
  • Problems with current title deeds and legal ownership of the property that may complicate the deal or cause it to fall through.
  • Legal matters that can have adverse affects on property value and development.

A lawyer well versed in commercial and residential real estate can also help you avoid potential pitfalls by reviewing any and all relevant documents before you sign them.

Don’t let your emotions govern your decisions

When buying a property, falling in love at first sight is not always a good thing. If anything, it can sometimes be counterproductive. This is because the actual purchase is strictly a business and financial transaction, and should be handled as such.

While it is important to keep this in mind throughout the process, it is especially important when you inspect the property. Remember, sellers will sometimes use ‘smoke and mirrors’ such as cosmetic upgrades to conceal serious structural deficiencies. Even something as simple as a fresh coat of paint can hide significant damage. Sometimes, the current owner is simply unaware of significant issues with the house. In either case, you should be careful to look beyond the aesthetics.

Once you’ve done your own inspection, hire a professional inspector, who will easily identify both minor and significant issues. If need be, you can get an architecture report, which will also identify any outstanding issues and save you money in the long run.

Be sure to read the fine print

By their nature, real estate contracts are complex legal and financial documents. Even so, it is important that you read it thoroughly and ask your lawyer or other relevant professional about any aspects of the contract you don’t understand before you sign it.

By taking this simple step, you can easily identify potential issues that would otherwise be expensive or take a lot of time to address in the long run.

Identify land use and related issues early on

There’s nothing more aggravating than buying a property based on the assumption that you can make certain changes or use it in a certain way – only to find out afterwards that you can’t. That’s why it’s important to research (or have your lawyer research) any rules and regulations that dictate how the property can be used or changed. Examples include restrictive covenants or planning overlays.

Don’t assume the property valuation is accurate

Basically, there are three key issues at the crux of every residential and commercial real estate transaction:

  • the asking price;
  • what the buyer expects or is willing to pay;
  • what constitutes a fair/reasonable/acceptable offer.

Accurate valuation of the property is important because it affects all three of these issues. As the winning bidder at auction, or as a buyer who signed an unconditional contract, an accurate valuation ensures that you paid a fair price. On the other hand, an inaccurate valuation may cause you to pay more than what the property is really worth.  And because nobody wants to do that, it’s advisable to use an accredited professional to ascertain an accurate valuation.

In summary, purchasing a property can be an overwhelming experience, especially if you are doing it for the first time. But it doesn’t have to be. You can make the process easier by consulting qualified professionals, approaching it rationally rather than emotionally, reading contracts carefully and asking plenty of questions before signing them. Identifying land use issues early on and enlisting the services of an accredited valuer are also important steps you can take to achieve peace of mind.

To learn more about how we can help you purchase a property, contact us today.

The Importance of Sole Company Directors having a Will

By | Articles, Wills and Estates

As adults, most of us are probably aware that dying intestate (without a valid will) can complicate matters for our families and loved ones. But did you know that dying without a will can also complicate things when it comes to your business matters? It’s true, especially if you are the sole director and shareholder of a company which operates your business.

Immediate concerns

Generally speaking the death of a sole director and shareholder who has not left a valid will has a significant impact on the company because:

  • it creates an immediate void in leadership;
  • there are immediate financial and logistical ramifications;
  • who takes over the directorship and how long will that that.
A closer look

Directors are in charge of managing a company’s business activities. Specifically they are tasked with:

  • acting in good faith and in the best interests of the company;
  • avoiding conflicts between the company’s interests and their own personal interests;
  • preventing the company from conducting business during insolvency;
  • taking certain steps to facilitate the process when the company is being wound up.

Legally, a proprietary company must have at least one director and he or she must live in Australia. Any company with publicly-sourced funded shareholders must have at least two directors, most of whom must live here. Any public company must have at least three directors (exclusive of alternate directors), and at least two of them must live here.

In most cases, if there are several directors and one passes away, there is minimal disruption. This is because the surviving director/s can simply step in to run the company on a daily basis. Or, in some cases, they will select one of their peers to do so on an interim basis, usually until the shareholders/members choose a permanent successor.

In companies where there are several shareholders, the death of one also tends to cause minimal disruption. This is because the directors can usually continue the daily management of the business until the shares are distributed to the beneficiaries of the will.

By leaving a will, a sole director can also ensure that there is a smooth transition in the company leadership and operations following his or her death. The reason is that section 201F of the Corporations Act 2001 permits the executor to appoint the successor. Put simply, the executor is authorised to address this matter quickly, thereby avoiding any prolonged disruption. Under these circumstances a replacement director can usually be appoint within 24-48 hours.

Whereas, if the sole director has not left a will, a relative must make an application to the Supreme Court to apply for a Grant of Letters of Administration and this usually take months thereby leaving the business in limbo. What is more, the Court decides who is granted Letters of Administration not the deceased director. Imagine the ramifications for the company if the bitter and estranged spouse was appointed, which is highly possible given their right of priority to apply, unless there is a divorce.

The effect on operations

During this time, operations may cease entirely. This usually happens when the lack of a duly authorised manager results in the inability to continue daily operations, including routine business and financial transactions. When this occurs for a protracted period, the results can be devastating. Among other things, employees who can no longer be paid will leave, and the company’s reputation will suffer.

Even if someone wants to buy the company, the lack of a recognised shareholder may hinder their ability to do so – or at least their ability to do so quickly. Without someone to authorise the transfer of shares, any sale would be put on hold pending the appointment of the deceased’s legal personal representative and the settlement of the estate.

Complications may also arise if the final decision to wind up the company is made so all beneficiaries can be paid out. Specifically, a lengthy delay may have an adverse effect on the company’s value compared to what it would have been if operations remained unhindered.

The significance of a valid will

Of course, a will isn’t valid unless it is:

  • signed by the person who made it;
  • appoints an executor (up to 4 persons)
  • witnessed in front of at least two other adults who are not beneficiaries;
  • made when the deceased was of sound mind, memory and understanding.
To learn more about making a valid will and the importance of having one if you are the sole director or shareholder of a company, contact the Estate Planning Partner, Richard Dawson, or our estate planning team on 07-5555 0000 or [email protected]

The Pitfalls of Buying a Property with the Objective of Redeveloping it

By | Articles, Property Law

When entering into any contract for the purchase of property, it is important to ensure that all bases are covered and both parties know what is expected from them. When purchasing a property for redevelopment, there are a few extra steps that buyers should take to ensure they are aware of how they can deal with land they are looking to develop. Developers should seek additional advice and information about the property, as well as ensuring allowances are made in their contracts, so they are not faced with any nasty surprises after settlement.

In any contractual negotiations, conducting due diligence to ascertain as much information on a property as possible is crucial. Here at OMB Solicitors, it is standard practice to include various searches in our conveyance of purchase matters. Where property is purchased for redevelopment however, we recommend to our clients that specific searches and additional expert advice is also sought. It is important that such information is gathered, so that any restrictions or issues with the property which may affect redevelopment are brought to light. Seeking review and recommendation from sources, including but not limited to, town planners, engineers and surveyors for example, allows purchasers to have the greatest understanding of the lengths and limitations a development project may encounter.

Another tool we suggest prospective developers consider is the Gold Coast City Council’s ‘City Plan‘. The City Plan outlines, maintains and protects the Gold Coast community’s intentions for future development. A crucial part of the City Plan which developers must consider is zoning. Zoning is the categorical assignment of areas around the Gold Coast into ‘zones’ which ultimately affect how land can be used and (re)developed. It is important that developers consider the zone property is located within so they are aware of the restrictions and requirements which may be enforced.

Not only should developers conduct such due diligence, they should also ensure that their contract provide allowances so this information can be sought prior to a developer being locked into a deal. Special Conditions can be included in contracts so that purchasers have time to conduct these investigations and terminate a contract without penalty in the event the due diligence does not stack up.

The inclusion of special conditions which stipulate the contract to be ‘subject to’ the satisfaction or undergoing of such searches or research should be a non-negotiable term of a contract if a developer is planning to redevelop a parcel of land. If these additions and changes are not made to contracts, purchasers may find themselves in breach where they have taken excess time to meet conditions, or unable to terminate a contract if the property can not be used as envisioned.

Redeveloping property can be a rewarding and exciting time for purchasers. It is important however, that due diligence is undertaken, and proper additions are made to contracts so that pitfalls can be avoided. Seeking expert advice is crucial to ensure that property can be developed as proposed. Ensuring that contracts reflect the intentions and expectations of both parties is also fundamental in achieving a successful outcome for all involved.

Contact Jessica Thomas today if you need any further advice on the preliminary actions that should be taken when redeveloping property, or if you would like to find out more about how contracts can be drafted to suit your redevelopment needs.

We’ve Come to an Agreement in Relation to Our Property Settlement. What Do We Do Now?

By | Articles, Family Law

Firstly, give yourself a pat on the back! It is great that you have reached agreement, as you will save the considerable legal costs involved in arguing over who gets what and ending up in court.

Once an agreement has been reached between you as to how you wish to divide your assets and liabilities in a family law settlement, you have the option of entering into a financial agreement or consent orders to formalise and finalise your agreement.

You will need to have either consent orders made or a financial agreement in place, to legally resolve the dispute once and for all (so that it can be used in resisting a court application in the future with respect to the same issues).

Consent orders or a financial agreement will also be required to obtain the stamp duty exemption for the transfer of any interest in property pursuant to your agreement.

Consent orders are often preferred over financial agreements, where a potential future breach of the terms of the agreement by one party is sensed as a serious likelihood by the other party. It is easier and less expensive to enforce compliance with consent orders than it is with financial agreements.

It is also often less expensive to both parties to formalise their agreement with consent orders, and consent orders are harder to set aside than a financial agreement.

I will explain both options to you further below:

Consent Orders

We will draft any agreement reached in the form of consent orders, and file those orders in the Family Court with an Application for consent orders. It will be necessary for both parties to sign. Your spouse will not need a lawyer (if he or she chooses not to) for this process.

If the consent orders contain a superannuation split, flag or otherwise impose an obligation on the trustee of a superannuation plan, we must first serve written notice of the terms of the order on the Trustee of the superannuation plan in which the interest is held.

After the application for consent orders is filed, a Registrar of the Family Court will consider the application. If the Registrar is satisfied that the orders should be made, the Registrar will sign the proposed orders and sealed copies will be sent to us. Your court appearance for this process is not required, as the Registrar will decide the application in chambers in the absence of the parties.

If the Registrar is not satisfied that it is just and equitable for the orders to be made on the information before the court, a notice will be sent to us with a brief explanation as to what further information or evidence is required.

It may be necessary for the application to be ultimately heard in court, however this generally only occurs in rare cases where the orders appear to be grossly unfair to one party.

In a best-case scenario, the Registrar will make the consent orders, and sealed copies will be returned to us within 1-3 months of filing.

Financial Agreement

It may be preferable or necessary to prepare a financial agreement in certain circumstances instead of consent orders. These circumstances include:

  1. where the parties cannot wait for consent orders to be made (a financial agreement is binding as soon as it is signed by both parties);
  2. if the property settlement is unfair to one party, or
  3. assets or businesses are to be continued be jointly owned by the parties.

If a financial agreement is preferred, then we will draw up the required agreement. Once the terms are approved by you, we will send it to your spouse (or their lawyer) to review and settle the terms by negotiation.

A financial agreement aims to oust (remove) the jurisdiction and power of the family law courts in relation to all financial matters to which the financial agreement applies. The financial agreement is not filed in the court.

The financial agreement can deal with all or some of your property, and spousal maintenance and superannuation.

To be binding the financial agreement:

  1. Must be in writing;
  2. Must specify which section of the Act it is made in accordance with;
  3. Must be signed by both of you;
  4. There must be a Statement of Independent Legal Advice for each of you from a qualified legal practitioner setting out the matters referred to in the Family Law Act (“the Act”), and confirming that the advice was given to you each before you signed the financial agreement;
  5. The Statements of Independent Legal Advice must be exchanged;
  6. One party will retain the original financial agreement and the other will be given a copy;
  7. There should have been full and frank disclosure of all financial matters between both of you (however this is not strictly necessary under the Act); and
  8. All of the technical requirements set out in the Act must be complied with.

A financial agreement is a complex and technical document and takes a lot of time to prepare. There are schedules with all assets and liabilities. A comprehensive letter of advice to you is also required.

Your spouse will need a solicitor to advise him or her on the financial agreement and sign a certificate of advice, otherwise it will not be binding.

If either of the parties breach a term of the financial agreement, the other party can apply to a family law court to enforce the financial agreement. If the financial agreement is held to be valid and enforceable, the court can enforce the terms of the financial agreement as though those terms were orders of the court.

The Advantages and Disadvantages of a Financial Agreement Compared with Court Orders

The advantages to you of making a financial agreement may be summarised as follows:

  • Entering into a financial agreement brings certainty to the outcome of the division of your property. This also applies to consent orders.
  • Entering into a financial agreement also brings certainty to the payment of spousal maintenance, and unlike consent orders made by the court, the spousal maintenance clauses in the financial agreement (if binding) can be used to resist an application being made to the court for spousal maintenance by either party in the future.
  • The terms of a financial agreement are generally not construed by the court to see if they are “fair” or “just and equitable”, unless they are grossly unfair to one party and that party was unduly influenced or coerced (forced) into signing the financial agreement by the other party directly or through some unconscionable (unreasonable or unacceptable) conduct, or duress.
  • Because the agreement is not filed in the court unless one party wants to enforce it or set it aside, the court does not have the opportunity to see if the financial agreement effects a “once and for all” division of assets. A financial agreement therefore gives you more flexibility than a court order, as the court requires a final division of the party’s assets and looks to sever all financial ties between the parties.
  • You will avoid the costs of protracted court litigation over a property settlement following separation, which in some instances can cost up to $120,000 (or more).

The disadvantages of making a financial agreement or consent orders include:

  • You are contracting out of your right to have a court determine a just and equitable division of your assets and assess your entitlement to property and/or spousal maintenance following separation;
  • The terms of the financial agreement might not be within the range of your likely entitlement, depending on the date of separation, your future needs at the time, the size of the asset pool at that time, and the contributions (both financial and non-financial) that you have made. At least with consent orders you have the security of a court registrar reviewing the terms and being satisfied that they are within your likely range of entitlements.
  • Financial agreements are able to be set aside by a court if they are not drafted and executed in compliance with the Act, and for a number of other reasons including non-disclosure of a substantial asset, fraud, undue influence, unconscionable conduct, duress, mistake and where it is no longer possible or it is impracticable to carry out the terms of the financial agreement.

For any further advice and assistance with your family law property settlement matter, or which is the best way to proceed when you have reached an agreement, please contact our family law team at OMB.

Are You Covered if Your Airbnb Guests Injures Themselves?

By | Articles, Insurance

This is the first question that you should ask yourself if you are considering renting your property on Airbnb.

Are you renting your whole house or unit on Airbnb or perhaps just renting out a room?  Have you got the right cover? What will happen if one of your guests injures themselves or worse still, dies due to a fault with your property?

If you think your home building and contents insurance will cover you in the event of an accident, you may be in for a rude shock.  Household insurance will generally only cover you for non-commercial activities.

If you rent your property on a one-off basis then your home insurer may allow this if you inform them prior or they may allow it and you will have to purchase a specific endorsement so that you are adequately covered.

If you are regularly renting your whole property out on Airbnb or regularly renting out a room of your property, then this will be deemed to be commercial activity or business activity and your home insurance will not cover you. If someone injures themselves in your property due to your negligence you could be up for hundreds of thousands of dollars or more in compensation. This would financially ruin most people, but it is completely avoidable with the right insurance cover in place.

Landlord insurance policies are available and may offer broader cover than short term policies, but beware, they may only cover you for long term rentals. Check with your insurer rather than take a ‘she’ll be right’ attitude and end up losing all your assets.

There are specific insurance policies available for short term rentals and Airbnb offer their own insurance. IAG also offer a policy but you should ensure that whatever policy you choose, it is right for your circumstances.

You should check what the policy covers you for and what exclusions are applicable. Some things that you should make sure are included are as follows:

  • Theft of items in your home;
  • Damage to your home;
  • Personal liability in the event of injury or death to your guests; and
  • Identity theft.

You should look carefully at the exclusions and limits on the amount payable in certain categories of coverage. If loss of rent if your guests cancel or cut short their stay are important to you, you should note that most short term stay policies don’t cover this. You may have to pay for an extension to your policy to cover this.

The bottom line is, do your research and insure yourself properly. Be open and honest with your insurer. Then, if the worst happens your insurer can deal with the claim and you can rest assured that you are protected.

The Importance of an Up To Date Enduring Power Of Attorney

By | Articles, Wills and Estates

What happens if you are outside the country and you need someone to urgently act on your behalf, or are incapacitated and unable to make decisions for yourself?

An Enduring Power of Attorney (EPOA) is the legal document which appoints someone (known as your Attorney) to make these decisions on your behalf. An EPOA can also appoint more than one person – either severally, jointly or unanimously. An Attorney can be appointed in two ways – to handle your financial matters, to handle your personal health matters or to handle both (recommended). The ‘enduring’ nature of an EPOA means that it continues in the event you lose capacity to make decisions for yourself.

You can nominate when your Attorney’s power for financial matters begins. For example, you may wish for it to begin immediately upon you signing the EPOA or at a nominated date (for example, if you were travelling overseas) or not until a specified occasion, such as when you were certified by a medical practitioner in being incapable of handling your own financial affairs.

Your Attorney’s power regarding your personal/health matters begins only when you are incapable of making those decisions for yourself.

An EPOA could prove invaluable if you are outside the country and require a document to be executed as a matter of urgency (contracts of sale, transfer documents etc.).

On the other hand, what happens if you have previously appointed someone as your Attorney and they are no longer able to act, or you have lost faith in them acting in your best interests (divorce, estrangement etc.)?

The consequences of not having an EPOA, or not having an up-to-date EPOA, can be far-reaching because this could involve you missing an important deadline, or decisions being made on your behalf by persons who you would not otherwise appoint.

Up-to-date EPOA’s are not just reassuring; it is the one document that provides YOU with the legal authority to appoint someone to act in your best interests and protect your financial interests and personal health matters.

If you are incapable of making your own decisions and do not have an EPOA, or your appointed attorney is not willing to act on your behalf, your family will likely be forced into costly and time-consuming delays.

An application to the Guardian and Administration Tribunal (GAAT) may be required for the appointment of your Attorney (known as your Administrator). If an agreement between the parties cannot be reached, the GAAT may appoint the Public Trustee to handle your financial affairs or the office of the Adult Guardian for your personal/health matters.

This predicament is easily overcome by preparing a simple EPOA and ensuring it remains up-to-date.

We strongly recommend that you prepare, or update, your EPOA as part of your Estate Planning review.  We welcome you to contact our experienced team on (07) 5555 0000 to discuss your EPOA and other estate planning matters.

Gold Coast Lawyers

Benefits of Mediation

By | Articles, Ligitation

Litigation can be inherently uncertain, time consuming and expensive. This is fundamentally why the majority of disputes that come across our desk are resolved out of court.

Parties are encouraged to participate in Alternative Dispute Resolution (“ADR“) in all jurisdictions in Australia. However, the type of ADR process used will differ depending on the nature and circumstances of the dispute. These processes can include Conciliation, Settlement Conferences, Arbitration or Mediation.

Whilst there are some matters that can only be resolved by determination at trial, if the parties can assess the value of what they are fighting for and weigh this up against the costs of going to trial, a resolution at Mediation will save on time, money, opportunity and emotion.

Mediate as a preferred Alternative Dispute Resolution Process?

Mediation is a common process used for settling disputes with the assistant of an impartial third party, ‘the Mediator’. It allows the parties to flesh out the real issues in dispute and to encourage the parties to compromise on certain matters in order to achieve an outcome.

Parties can mutually agree to participate in Mediation or, otherwise, in some instances, are ordered to participate by the Court.

Mediation can occur at any stage of the proceedings but the earlier the better, before the costs start to escalate and your wallet starts to hurt.

Benefits of Mediation

The five major benefits of participating in a Mediation are:

  1. Controlling the outcome

At mediation both parties will have an opportunity to have a say and agree on an outcome that they would be prepared to walk away with.

The parties can also agree to specific terms and releases which mutually benefit one another.

  1. No winner no loser

Mediation is likely the last opportunity for the parties to resolve the dispute prior to a final hearing. Once a final order is made there will only be one satisfied party, the successful one.

A resolution at Mediation will result in a mutually beneficial outcome without necessarily one party being more out of pocket more than the other (depending on the terms of settlement).

  1. Confidential

Mediations are conducted on a without prejudice basis which allows the parties to discuss matters openly and without pressure of offers being used against them at a final hearing.

Further, unlike the potential publicity of court proceedings, everything said at the mediation is entirely confidential to the parties (unless specifically agreed otherwise).

  1. Tying in other matters not subject of the proceedings

Mediation allows the parties to vent all issues, including issues which may not be particularly relevant or pleaded in one’s claim.

It also provides an opportunity for apologies, statements of regret, acknowledgements and confidentiality clauses to be included in the settlement which is more than what a hearing could provide.

  1. Saving money, time and stress of going to trial.

These benefits speak for themselves.

Gold Coast Lawyers at OMB Solicitors can assist you in resolving your dispute in a commercial and timely manner. We provide tailored advice to client’s based on the individual circumstances of the case.

If you wish to talk to a member of our litigation and dispute resolution team, please do not hesitate to contact us today for a free telephone consultation – Phone 07 5555 0000.

divorce Lawyers gold coast

How Do I Apply for a Divorce?

By | Articles, Family Law

Divorces can be an emotionally tough time for both partners, as well as affected third parties such as children, parents, in-laws and even friends. Unfortunately, divorces can also be a lengthy and tiring process.

Eligibility for divorce

Before a spouse can apply for a divorce, there are specific eligibility requirements that must be met. Either spouse must have been born in Australia or be an Australian citizen by grant or descent. They must otherwise be lawfully present in Australia and intend to continue live in Australia and have been in Australia for a period of at least 12 months.

The marriage between the spouses must be ‘broken down irretrievably’ and the applying spouse must consider that there is no reasonable likelihood of reconciliation and resumption. The spouses must also have been separated for at least 12 months and one day.

If the spouses have been married for less than two years, evidence of a counselling certificate, or evidence saying why this could not be provided, must also be filed.

If the spouses have, at any time, lived with one another during the 12-month period, extra evidence will need to be given to prove that there has been a change in the marriage.

Initiating an application

Once these requirements are met, an Application for Divorce form must be completed, either joint or sole. The application will be joint if both spouses involved in the divorce wish to mutually make the application. If the application is sole, one spouse is making the application and the other spouse is the respondent. The application must then be sworn or affirmed in the presence of a lawyer, a Justice of the Peace, or another who is authorised to witness your signature on the document.

It is advisable that the laws governing the State or Territory in which the application is being made are reviewed, to determine that the witness of the document is authorised to do so. If the applicant is overseas at the time he or she wishes to have the document witnessed, the document can be witnessed by Notary Public, an Australian Diplomatic Officer or Australian Consular Officer, or an employee of the Australian Trade Commission.

Filing and serving documents

Once the application has been completed, the past procedure was to the mail the application to the Family Law Registry along with two photocopies of the document and also a photocopy of your marriage certificate (though this does not need to be sworn, affirmed or certified). Once the Family Law Registry received the application, the court would then file it, and forward sealed copies of the application with a file number, along with a time and date of the scheduled hearing.

However, as our firm is registered with the Family Court portal, we are able to file the application online, and we will obtain a hearing date at the time of fling. We then print sealed copies of the divorce application to serve (with an information brochure from the court) on the other spouse.

The application must be served to the other spouse either by mail or by a third party within a time period of 28 days before the scheduled hearing date, if the spouse lives in Australia, or 42 days if the spouse lives overseas. If the other spouse’s residential address is unknown, an order to either dispense with service or enable substituted service can be applied for by the applicant spouse.

With a joint application, there is no need for service as both parties are applying together for the divorce.

Costs to file for divorce

The average cost of the filing fee for a divorce application in the Federal Circuit Court is usually $900. If financial hardship is an issue, the spouse applying can also apply for a reduction in the filing fee. In this case, the spouse must provide to the Court specific documents such as Centrelink income statements, health care cards, earlier government grants such as Legal Aid, payments for Austudy, or evidence that the applying spouse is a prison inmate or held in legal detention (if that is the case).  This evidence would need to be provided by both spouses in a joint application, or solely by the spouse initiating the application if a sole applicant.

Children and previous names

If there are children of the marriage, the applying spouse must provide to the court the current particulars of the children and care arrangements. Children of the marriage include step, fostered, adopted or biological children, and the details for all such children must be included. This information would include whether the child or children were born before or after the separation, and/or whether the non-biological children were a part of the family before the separation. The particulars and arrangements of the children would include anything from where they primarily live; their contact with each parent or reasons explaining why contact is limited or no contact with a parent; which school they attend; any current arrangements involved, as well as their health.

The financial positions of each parent also must be provided to the court, and if applicable, details of non-provision of financial support by a parent. Additionally, if a spouse in the divorce has a different name to both the married or maiden name, an affidavit will need to be filed with the court, explaining the difference.

Granting of a divorce

Following the granting of a divorce, the divorce will take one month and one day to finalise unless the court makes a special order to shorten this time frame.

As described, a divorce is a long and tiring process, and legal assistance is advisable throughout the process.

Independent legal advice will assist a spouse to understand their rights and responsibilities, how the law both works and applies to their individual cases.

Please contact the Gold Coast Lawyers at OMB Solicitors for assistance and advise for divorce and any other family law issues that are causing you concern. There are often strict time limits involved to do certain acts and file certain documents, and failure to obtain legal advice is not an excuse readily accepted by the Court for missing these time limits.

What Happens in a Property Settlement Conference?

By | Articles, Family Law

One of the first things to become clear when you are going through separation and divorce is that there is a lot of confusing legal jargon. There are technical terms about the property, financial and even parenting matters that inevitably surface as your relationship officially ends. For example, you may have heard of a ‘Conciliation Conference’ but can be forgiven for not knowing exactly what that means.

Also known as a ‘Property Settlement Conference’, this is simply a meeting where you and your former spouse or partner have a chance to reach consensus about the distribution of your property before going to court.

Unfortunately, you cannot schedule this meeting yourselves. Instead, the Court will schedule it for you, though this will only happen if you have not resolved your differences during or following a preliminary meeting with a Registrar of the Family Court in what is called a ‘Case Assessment Conference’.

Preparing for the Property Settlement Conference

If you cannot resolve your disagreement during the Case Assessment Conference, the registrar will let you know what you must do prior to the Property Settlement/Conciliation Conference.

After the Case Assessment Conference, you will usually have 28 days to exchange relevant information following the Registrar’s instructions. Along with new material relevant to your case, this may also include documents that were not shared prior to the Case Assessment Conference. Here is what you will need:

  • Paperwork about any financial matters referenced in your respective financial statements;
  • proof of joint and individual financial contributions made when cohabitation began;
  • documentation of any inheritances, gifts or compensation payments received during cohabitation;
  • documentation about the purchase or sale of property in the year before or since the separation, and any increase or reduction of liabilities since separation;
  • detailed documents about superannuation.

Depending on the specific nature of your dispute, you may also need to complete a financial questionnaire and balance sheet as directed.

Within this context, it is crucial that you share all the facts and documents about any aspect of your application. Failure to do so can have grave consequences, including delays, added costs or even an order mandating that you pay any costs incurred by your former partner or spouse. At its discretion, the Court may also issue a greater order for a property settlement favouring the other person.

Understanding the process

Even with the proper legal, financial, and emotional support, preparing for a Property Settlement Conference can be stressful. But knowing what to expect at the meeting can help lessen your anxiety.

One of the first questions you may have is how long the meeting will take. The answer is based on the unique circumstances of your case, but you should be prepared to spend one to two hours in conference.

The meeting format depends upon the Registrar’s preferences. He or she will usually begin by speaking with each of your lawyers to confirm the specific nature of the disagreement. Based on this information and material submitted prior to the meeting, the Registrar will frame the ensuing conversation with your lawyers in a manner designed to achieve consensus. However, you should not be surprised if the Registrar also asks to speak with each of you directly.

You should be aware that in most cases, both you and your ex-partner or spouse must both attend this conference. If either you are worried about this for any reason, you should let your lawyer know so he or she can relay your concerns to the Registrar, who will make arrangements to address this issue.

You should also be aware that anything said during a Property Settlement Conference or Conciliation Conference is usually confidential. This means that you cannot refer to these conversations in any ensuing Court hearings if the matter is not resolved.

The three parts of the Property Settlement Conference

A Property Settlement or Conciliation Conference is usually a three-step process. These steps are the introduction, the settlement discussions, and the conclusion. Below is a simple description of each stage:

  • Introduction: The Registrar will explain the general format for the meeting and lead a brief discussion about any points of contention. He or she will also give guidance for ensuing negotiations based on the specific circumstances of your case.
  • Settlement discussions: This is when the Registrar will facilitate the actual conversation about how to resolve your disagreement(s).
  • Conclusion: At the end of the meeting, the Registrar summarises everything that has happened and reviews any agreements. If all the issues have been successfully addressed, your lawyer will put the agreement(s) in writing so that the Court can issue consent orders accordingly.

What if we still do not agree?

In a perfect world, everything will settle at the Property Settlement or Conciliation Conference. If not, the only alternative is court intervention. In this case, you will have to attend a pre-hearing conference, which is usually held within six to 12 months, and a pre-trial conference.

You should be aware that you and your former partner or spouse (and your lawyers) can keep trying to reach a settlement until the final hearing. If you still have not been able to resolve the issues by that time, the Court will evaluate all relevant material and testimony. After it does so, it will issue an immediate ruling or announcement that it will issue its decision later.

If you and your partner and spouse are going through separation or divorce and cannot agree on property, financial or parenting matters, it is essential to get the proper legal advice. Contact our Gold Coast Lawyers today.

Gold Coast Lawyers

Am I in a De Facto Relationship or Not?

By | Articles, Family Law

Bob and Betty have both had terrible experiences in property settlement matters with their prior spouses. They are now in their 50’s and have been ‘going out’ for about 8 years. They have both sworn that they will never get involved in a de facto relationship or marriage again!

The facts

Bob and Betty do not live together. They have their own separate houses over an hour’s travel apart, and Betty still has 2 adult children from her earlier relationship still living with her.

They see each other 3 weekends a month. On 2 of those weekends Bob stays at Betty’s house for the weekend (2 nights) and on another weekend Betty similarly comes to stay with Bob. The reaming weekend they each stay at their respective homes and do not see each other. They ring each other once or twice during the week.

Bob and Betty do not have any joint accounts, nor do they share finances. They have their own assets and liabilities and do now own anything jointly. They have separate credit cards and neither of them is authorised to use the others card.

When they go out to dinner together, Bob, being the gentleman that he is, usually pays. They regularly go on overseas holidays together and pay their own way, though Bob again will pay for meals and drinks.

They have a sexual relationship but have no children together.

They are known as a couple to close friends and family, and when they are out together in public on weekends or on holidays they would be seen as a couple. However, on all other occasions during the week and on one weekend a month, they will be seen living their own separate lives, paying their own bills, buying their own groceries, doing their own washing, and cleaning, and maintaining their own homes, gardens, and lawns.

On the weekends that they are at either party’s property, they both make contributions to their food, groceries, and cleaning. Bob will ‘wipper snip’ while Betty is on the ride on mower, and so on. They both shared in the repainting the inside of Betty’s house.

Have Bob and Betty fallen into the trap. Are they in a de facto relationship, even though they do not live together?

What constitutes a de facto relationship?

Every person’s circumstances will be different to that of Bob and Betty, and each case will be decided by scrutinising all aspects of each relationship.

The Family Law Act 1975 (“the Act”) is a Commonwealth Act, so the same de facto laws apply throughout Australia. The Act deals with what factors a court must consider when deciding if a de facto relationship exists or not.

If (god forbid) Bob and Betty broke up, and Betty ‘turned nasty’ and wanted to file proceedings in the court for a property settlement alleging a de facto relationship, she would have to satisfy the Court that all the following circumstances exit:

  1. That she was in a genuine de facto relationship with Bob, which has broken down irretrievably; (can Betty prove this?)
  2. That the relationship meets one of the following four gateway criteria:
    1. That the period for the de facto relationship is at least 2 years (Betty could show this);
    2. That there is a child of the de facto relationship (not applicable in Betty’s case);
    3. That the relationship is or was registered under a prescribed law of a State or Territory (again not applicable in Betty’s case); or
    4. When assessing property or custodial claims in cases of a breakdown of a relationship, it is recognised that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice (it would appear that neither Bob nor Betty made a significant financial or non-financial contribution that deserves an adjustment to solve any injustice).
  3. That Bob and Betty have a geographical connection to a participating jurisdiction (both Bob and Betty are Australian citizens and live in Queensland, so this is satisfied);
  4. That their relationship broke down after 1 March 2009 (Bob and Betty only recently separated, so this requirement is satisfied).

Having satisfied all the other gateway requirements, whether Betty is successful will depend upon her proving that they were in a genuine de facto relationship.

What makes a genuine defacto relationship?

In deciding whether Bob and Betty were in a genuine de facto relationship for the first gateway criteria, the court will have regard to the following matters.

Section 4AA of the Act defines a de facto relationship. The Act requires that Bob and Betty must have had a relationship as a couple living together on a genuine domestic basis for a defacto relationship to exist.

The Act then gives a list of factors to consider in deciding if Bob and Betty had a relationship as a couple living together on a genuine domestic basis.

Those factors are:

  • the duration of the relationship (8 years – this is good for Betty);
  • the nature and extent of common residence; (the parties lived separately and only spent holidays and 6 nights a month together – this is not good for Betty’s prospects);
  • whether a sexual relationship exists or existed (it did – again this good for Betty);
  • the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties; (Bob and Betty were financially independent of each other – this is not good for Betty);
  • the ownership, use and acquisition of their property (Bob and Betty did not buy any assets together, and they owned their own homes and vehicles. Again, this is not looking good for Betty);
  • the degree of mutual commitment to a shared life (this appeared to be in existence, however Bob says they were just taking one day at a time and if the relationship did not last, then so be it. Bob says Betty was of the same view, but non-surprisingly in her affidavit she claims that this commitment to a shared life existed. The Judge may need to decide based on credit, who is telling the truth in a “he said she said” argument, and objectively it is difficult to figure out from the facts, which are (like every case) so unique. Given that Betty has the onus of proving the facts I will give her a fail on being able to prove this joint commitment);
  • whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship (this relationship was not so registered, and this issue is really for same sex relationships before amendments were made to the Marriage Act to allow same sex couples to marry – this is not relevant to Bob and Betty who were very much male and female);
  • the care and support of children; (there are no children together, another blow for Betty) and;
  • the reputation and public aspects of the relationship (I will give this one to Betty because all their family and close friends knew them as a couple, and when in public together they acted as couple).

No one factor is more important than any other. However, the more factors from this list that Betty can prove will aid her in convincing the Court that there was a de facto relationship. Likewise, the more factors that Bob can disprove will help show that there was not a defacto relationship in existence.

Betty is looking good on 3 of the above factors (duration of relationship, a sexual relationship and public perceptions), however Bob is looking much better on 5 of the factors (no common residence, financially independent of each other, property ownership use and acquisition, no mutual commitment to a shared life, and no children together).

There is not a certain number of factors from the list that must exist (or not exist) for a defacto relationship to be proven (or disproved for the absence of a defacto relationship).

There is also no minimum number of nights that the parties must spend together in a common residence, nor is there a need for the parties to have actually lived together at all before a defacto relationship will be found to have existed.

The Family Law Act also recognises that a person who is married, may also possibly be in a defacto relationship with another person at the time. A person can also be in several de facto relationships at the same time if the test is satisfied for each of those relationships.

Does Betty succeed?

If I were acting for either Betty or Bob, I would be able to argue very strongly in either of their cases of the existence or non-existence of a defacto relationship. Who will win will depend on how the evidence falls at the hearing, matters of credit and what factors the Judge considers to be most important in deciding the matter one way of the other. Judges have very wide discretion in deciding these matters, one Judge might say there was a defacto relationship, while another Judge (or the Court of Appeal) may decide that there was not.

If I were a betting man, my money in this case would be on Bob, but I would not put too much money on the bet. This is close to a 50/50 chance. It could go either way.

If I were advising Betty or her prospects of success, I would be telling her that she has a compelling case, but I would be testing her to see if she accepts whether it is worth the risk. If Bob opposes the existence of a defacto relationship (which he will) Betty will have to pay significant legal costs that will be involved if the matter goes ahead all the way to a final hearing. She will need to weigh that up with the amount that she is looking for, and her prospects of success. The normal rule in family law cases is that each party pay their own legal fees.

If I were acting for Bob, again I would be telling him that he also has a compelling case. I would recommend that he strongly oppose Betty’s application on the basis that there was no defacto relationship and gather as much evidence as he can to support this conclusion.

Generally, matters like this will settle at mediation, with both parties accepting that going to Court will be expensive, taxing on their time and their emotions, and involves a serious risk that they each might fail.

Time limit to start proceedings for financial orders

If (despite her legal advice on costs and chances of success) Betty still wishes to try to obtain financial orders, and settlement of the matter at a mediation fails (neither Bob nor Betty will shift from their positions), then Betty must apply to the court within two (2) years of the breakdown of the defacto relationship. After that time, she would need the leave (permission) of the Court to apply, and the Court does not readily give that leave.

For all legal advice on property or parenting issues, please contact our Gold Coast Lawyers firm and make a free first appointment with Gary Mallett.

Gold Coast Lawyers

Duty of Disclosure in Family Law Matters

By | Articles, Family Law

Sometimes you simply must tell the truth, the whole truth and nothing but the truth. A lie by omission – something you do not mention when you should – is still a lie. Australian law dictates that people seeking resolution of certain issues related to separation or divorce must make certain information available to each other, and to the court. This is called the duty of disclosure.

When it applies

As stipulated in Family Law Rules 2004 (“the Rules”), the duty of disclosure applies to you when you are seeking resolution of financial matters in a separation or divorce. This means you must make certain information available to your former spouse or partner in property settlement, spousal maintenance, and similar cases.

You and your former spouse or partner must also exchange certain information when seeking resolution of parenting matters. This may include but is not limited to: living arrangements, visitation, and child support.

The timing and extent of disclosures

Legally, you must make “full and frank disclosure” of all information that has direct bearing on any point of contention in your case. In other words, you must give any pertinent material that you actually have, or that you have access to or authority over. And you must do so before the case goes to court.

It is best to be aware that both parties have this duty, and that it is ongoing. This means you must report any relevant changes – such as a job change or loss of employment – to the other person, and they must make similar information available to you. Your respective obligations to exchange pertinent information will not end until you reach an agreement, or the court issues a final order.

Finally, it is important to note that there are no legal stipulations about the way in which this material should be given, so it does not matter if you share electronic or paper records. The information you must give will also vary based on case type and your situation.

Your duty of disclosure in financial cases

In these cases, both of you must give comprehensive information about your respective financial circumstances. This usually means you must supply any or all the following:

  • Documents reflecting your regular earnings;
  • bank statements reflecting deposits and withdrawals from checking accounts, savings accounts and so on;
  • tax documents;
  • superannuation statements;
  • material documenting the valuation and appraisals of assets;
  • material about financial resources other than income, along with supporting documentation;
  • information about interests in any company and/or trust, along with supporting documentation;
  • information about any assets disposed of prior to and since separation.

Please bear in mind that this is not an exhaustive list, and you may need to give different and/or more material given that each case is unique.

Your duty of disclosure in parenting cases

In disputes over parenting matters, both of you must give information the court needs to make decisions about the care and living arrangements for a child. Specifically, you must supply any material relevant to the child’s welfare. As in financial cases, however, the type of information will depend on your unique circumstances.

The following is generally subject to disclosure in parenting cases:

  • The child’s (or children’s) school reports;
  • relevant assessments about the child/children and/or parents issued by doctors, psychiatrists, psychologists, social workers and so on;
  • information about the amount of time the parent spends at work;
  • information about the supervision of the child/children when they are not with you;
  • information about any issues that affect each parent’s ability to care for the child, such as substance abuse, mental illness, or chronic medical conditions;
  • official documents about any family violence, including intervention orders, police reports or relevant statutory body reports.

Penalties for noncompliance and dishonesty

Rule 13.01 of Family Law Rules allows the court to disregard any material that has not been fully and properly disclosed in finance cases. If you do not fulfill your duty of disclosure, the Court may also be reprimand you for contempt of court.

At its discretion, the court may also issue a costs order against you for failure to meet this obligation fully and truthfully. If it does, you will have to pay not only your own legal costs but also those incurred by your former spouse or partner. In the most drastic cases, you may be fined or incarcerated.

If either one of you finds out that the other failed to fulfill the duty of disclosure prior to the issuance of family law final orders, the aggrieved person can ask the court to change the order or set it aside. The court may also vacate or amend a final family law order if either of you have not fulfilled your duty of disclosure before it is issued.

As we have noted, each case is different. If you are going through separation and divorce, and you have questions about the type of information you have to disclose, contact our Gold Coast Lawyers today.

Gold Coast Lawyers

New Changes To The Family Law Court System

By | Articles, Family Law

Clarifying Binding Death Nominations in Superannuation

Re Narumon Pty Ltd [2018] QSC 185

A recent decision in the Queensland Supreme Court, Narumon, emphasizes the importance of a valid Binding Death Benefit Nomination (BDBN) within superannuation funds and clarified whether an attorney has the ability to renew BDBN’s.

Summary: In Narumon, the deceased (Mr. Giles) was the sole member of the John Giles Superannuation Fund. Mr. Giles appointed his wife (Mrs. Giles) and his sister (Mrs. Keenan) as his attorneys under an enduring power of attorney (EPOA) for financial and personal/health matters. His attorneys were to begin making financial decisions on his behalf when Mr. Giles had been determined incapable of making his own decisions. In November of 2013, that very situation occurred and Mr. Giles was declared completely incapable of making his own financial, health, and lifestyle decisions. From then on, his wife and sister were authorised to act as attorneys on his behalf.

Mr. Giles made several BDBNs before he lost capacity. The most recently created BDBN was on the 5th of June 2013, which directed his attorneys to distribute his superannuation death benefits, a portion of which were obviously left to his wife and sister, who just so happened to also be acting as his attorneys. Additionally, 5% of Mr. Giles’ death benefits were to be paid to a non-dependent and non-legal representative. The 2013 BDBN stated that three years after the date it was signed, it would cease to have effect and must be signed within three years of the member’s death.

Issue: 5% benefit to non-dependant and non-legal representative

In order to ensure that the 2013 BDBN and its extension were valid, Mrs. Giles and Mrs. Keenan decided to change the 5% nomination to a non-dependant and distribute it between the dependant’s already nominated. The court, however, confirmed that the original 2013 BDBN was valid, despite the 5% nomination to a non-dependant. The reallocation was found to be a conflict of interest and, since there was no explicit language in the BDBN allowing such a conflict, the new BDBN would not be valid.

Issue: May an attorney make a BDBN?

The court held that, yes, an attorney has the power to make a BDBN on a member’s behalf. His Honour looked closely at the language of the deed. The deed did not prohibit such an act. In fact, another section expressly stated that an attorney would enjoy all of the rights that a member would have. Since there was no restriction under the Superannuation Industry (Supervision) Act of 1993 preventing an attorney from making a nomination, there was nothing to prevent Mr. Giles’ attorneys from making a nomination on his behalf.

Issue: Validity of the 2013 Binding Death Benefit Notice

The issue in question was whether or not Mrs. Giles and Mrs. Keenan would be allowed to renew the 2013 BDBN or make a new one, despite also being recipients. The Court considered whether or not there was a conflict created by the dual interests of Mr. Giles’ attorneys. In the end, the judge ruled that there was no conflict created.

The judge reasoned that because they were merely confirming existing estate planning intentions, there was no conflict. However, it is unclear whether making one from scratch would also be allowed or if that would be considered a conflict. Therefore, it is clear that the individual circumstances for each case will need to be considered in determining whether or not a BDBN renewal is likely to be valid.

This is the first time it’s been considered as far as I’m aware of, that an attorney subject to the trustees of the super fund is able to renew a binding death benefit nomination for the person for whom they are the attorney,” said Scott Hay-Bartlem of Cooper Grace Ward Lawyers after the judgement.

Gold Coast Lawyers

Your Business Your Dream

By | Articles, Business Law

Buying or selling a business can be a stressful time. Your business is often your dream and the motivation and income source for your family.

But the process of buying or selling a business can be difficult and requires expert assistance.

Step One

Investigate the business that you are thinking of buying. Do your due diligence.

Step Two

Seek expert legal advice to draw up the contract. This is a critical stage as the contract will set out the essential terms of the purchase and sale. Is the contract subject to finance, verification by your accountant of the financial records or the assignment of the lease of the premises? Are there licences or approvals that are required to run the business, will there be a restraint on the seller or its entities conducting a similar business for a time in a certain area? Are there staff required to remain in the business and on what basis will they be offered employment? This is vital and your legal representative should be able to draft a contract that protects you and ensures that you will only be buying a business on the terms that suit you. Drafting of these conditions is an important task and the detail is often critical.

Step Three

Once the contract is negotiated and signed it is time to satisfy those conditions, get your finance, check the financials and obtain the landlords consent to assign the lease or grant a fresh one. Again the documentation here is vital and it is important that you and your lawyer communicate clearly.

Step Four

So the conditions have been approved and it is time for settlement. Your lawyer will have conducted the necessary searches and from these it will be clear what adjustments need to be made at settlement. Documents need to be checked and liaising with your bank regarding finance. Settlement will need to be coordinated with the seller and their financier, the landlord, and the buyer’s financier so that all parties are satisfied to proceed. It is essential for all parties that these matters follow the correct procedure as the buyer wants to ensure they take over the business with all items in place to continue its operation without any impediments or debts. The seller needs to be sure that upon the completion they receive their money for the sale and have been released from all liabilities, including personal guarantees of the business moving forward.

Step Five

Once settlement has been effected your lawyer should attend to any loose ends which require attending to including lodgement of forms, registration of transfers, releases or any other items to perfect the completion and transfer ownership to the buyer and away from the seller.

Whilst the exact process varies from transaction to transaction the skill and knowledge of your legal expert should be relied upon to ensure the transaction proceeds.

Gold Coast Lawyers At OMB Solicitors our expert team can ensure that your purchase or sale is handled in the most professional and competent manner with a common sense approach to the transaction having regard an understanding to your business needs

Gold Coast Lawyers

Divorce & Separation in Australia: Who Gets What in Settlements?

By | Articles, Family Law

For Australians going through divorce and separation, there are plenty of advantages of living in the ‘Information Age’. Now it is easier than ever before to access the court forms and other material you may need. This makes it possible to do more on your own, so you may save money on legal costs. There are also plenty of disadvantages, however, the most significant of which is the amount of misinformation readily available in the digital world. If you’re getting divorced or separated, following the wrong legal advice – be it from the Internet or even friends, family and workmates – can be costly, especially when you’re trying to figure out who gets what in a settlement. Here’s what you should know.

The first and most important thing to understand is that every case is different. Essentially this means that regardless of what you may have heard, read online or seen on television and films, everything is not always ‘split down the middle’. It also means there is no real basis for the belief that women always benefit from the property settlement, or that you must go to Court in order to get one.  It is true that courts must approve related orders, but they actually intervene in only a small percentage of cases.

Having said that, there is a proven method that is used to ensure that couples going through separation and divorce arrive at fair settlements. It consists of four steps, which we will discuss in detail.

To begin with, you should prepare a comprehensive list of assets and liabilities that will be shared with the other person. By law, each of you must fully disclose all of your assets and liabilities. This means you should be sure to include everything, irrespective of whether the asset or liability is in one person’s name, both of your names, or held by one of you and a third party. Although it is technically considered a different type of property, don’t forget to include your individual or joint superannuation interests on a separate list at this point.

The second step is a little bit trickier because it involves the identification and valuation or assessment of each person’s contributions to the marriage. Contrary to popular belief, this evaluation is not strictly limited to each of your financial contributions. Non-financial contributions, such as home improvements or those you made as a stay-at-home mum are assessed as well. Furthermore, ‘indirect’ contributions to the household – or those made by your relatives – are also considered. Each contribution is then assigned a percentage on a scale specifically created for this purpose.

At the next stage, another set of factors is assessed. These include but are not limited to each person’s health, each person’s ability to make a living, how many kids you have, how old they are, who will have primary custody and the extent to which your ex-spouse will be involved in their lives. Another key factor that will be considered at this stage is whether or not any of your children require special care. If warranted at this point, the determination made in the previous step may be changed.

Finally, in the fourth step, the court takes one more objective look at the division of property to see if the outcome reached through this process is fair and reasonable to everyone involved. This final determination is based on all circumstances of the case. Although the court can make additional changes at this time, it will seldom do so.

The bottom line is that the decision to end a relationship is seldom easy. The prospect of separation and divorce can be intimidating and overwhelming, even when a wealth of information is so readily available. The best way to safeguard your interests and secure a fair outcome for everyone involved is to work with an experienced family lawyer. If you are considering separation and have questions or concerns about the process for reaching a settlement, contact us today.

Gold Coast Lawyers

Spousal Maintenance Frequently Asked Questions

By | Articles, Family Law

Even in a best-case scenario – one in which you and your partner have decided to end the marriage on amicable terms – questions may arise about your legal rights and obligations. For example, you may both have questions and concerns about spousal maintenance. Specifically, you may be wondering if either of you is eligible and if so, how to apply, the deadlines for doing so, whether there are different types of spousal maintenance and so forth. Here are some of the things you need to know.

To begin with, spousal maintenance (known as alimony in America), is simply a legal term for the financial support one former spouse provides for the other following separation or divorce.

Ideally, you and your former spouse are still on good terms and you can agree on all of the issues related to spousal maintenance (such as the amount and a schedule for payment). When this is the case, you can simply put the terms into a legally binding Financial Agreement or Consent Orders that must be filed with and approved by the court.

If, on the other hand, you can’t agree on anything, much less the terms for spousal maintenance, you can apply for Spousal Maintenance through the Federal Circuit Court or Family Court.

Application is irrespective of whether you were in a traditional marriage or a de facto relationship (including a same-sex de facto relationship) but there are different standards of proof you must meet for eligibility.

To be eligible for spousal maintenance if you were in a de facto relationship, you must demonstrate that:

  • you were in the relationship for at least two years, or
  • you and your former de facto partner have a child together, or
  • one of you made substantial monetary contributions to the other’s property, or
  • one of you officially registered the relationship (at Registry of Births, Deaths and Marriages, or an interstate/overseas equivalent).

On the other hand, to qualify for spousal maintenance if you were in a traditional marriage, you must prove that:

  • you cannot support yourself financially;
  • your former spouse has adequate means to do so.

More often than not, the court will award spousal maintenance if you can show that your former spouse earns significantly more than you do and/or that you lack the potential to earn sufficient income based on factors including but not limited to your education and past work experience. For instance, the court may approve your application if you are a ‘stay at home’ parent and cannot secure outside employment. Your application for spousal maintenance may also be approved if you have had a prolonged absence from the workforce and now lack the skills or are too old to secure employment, or if an illness precludes you from working.

Be aware, however, that spousal maintenance is not automatic just because you don’t make any money of your own, or you don’t make very much. In other words, if you are capable of working and simply choose not to do so, the court is likely to deny your application.

You should also be aware that there are different deadlines for applying for spousal maintenance. With certain exceptions, if you were in a traditional marriage, you must apply for spousal maintenance within a year (12 months) after the divorce order is granted. Conversely, if you were in a de facto relationship, you must make this application within two years (24 months) after the relationship officially ends.

Another thing to keep in mind is, for the most part, spousal maintenance is not a long-term benefit. Usually, it is only in effect until you (the applicant) gain or regain your financial footing by getting a job or receiving training necessary to find work.

Furthermore, if you were in a conventional marriage, your right to receive spousal maintenance from your ex- husband or wife usually ends when you marry someone else. However, your right to financial support received after the break up of your de facto relationship won’t necessarily end when you start a new one. This is because the court will consider the financial dynamics between yourself and your new de facto partner when determining whether you can support yourself.

The way in which spousal maintenance payments are made will also depend on your unique circumstances.  In some cases you may prefer one large (‘lump sum’) payment, and in others, you may prefer regular payments once a month, twice a month, weekly or even annually. If need be you can also apply for spousal maintenance on a limited basis. This may be your best option if you know you only need enough financial support to tide you over until your property settlement is finalised.

It should also be noted that spousal maintenance is not limited to monetary payments. Transferring ownership of a motor vehicle, investment property or other assets is also considered as legal payment of spousal maintenance.

Finally, we must also point out that, contrary to popular belief, child support and spousal maintenance are two separate benefits. While spousal maintenance provides financial support for you, child support payments should be used only to meet the children’s needs. This means courts can – and do – issue orders for the payment of both.

Divorce and separation are emotionally trying for anyone. Addressing complex legal matters on your own during times of stress can complicate things even more. For more information about the legal aspects of divorce, separation and related issues, including but not limited to spousal maintenance, contact the Family Law team at OMB Solicitors today.

Gold Coast Lawyers

Statutory Wills: Making A Will For Person Who Lacks Capacity

By | Articles, Wills and Estates

Let’s face it, as responsible adults there are certain things we simply have to do whether we like it or not. We have to work. We have to pay bills. We have to pay taxes. We have to plan and save for retirement. And at some point, we have to put our affairs in order. For most of us, that final obligation involves making a will – a legal document in which we specify how our assets should be distributed and, in some cases, who should look after our children after we die.

But what happens when someone makes a will and then suffers a catastrophic injury or a sudden illness, such as a stroke, that profoundly affects their ability to comprehend and communicate? Or what if the person who made the will is now suffering from Alzheimer’s disease or another form of dementia? In other words, what happens if someone lacks the capacity – the legal term for intellectual ability – to make or change his or her will?

In such cases, Queensland law may allow for the creation of a ‘Statutory Will’. Also known as a ‘court-authorised will’ or a ‘court-made will’, this type of document is actually a Supreme Court order that permits “making, alteration or revocation of a will on behalf of a person who lacks the capacity to make, alter or revoke their own will”.

Technically, anyone can ask the court to issue this type of order on behalf of the testator (the person for whom the will must be made, changed or revoked).  But there is a qualifier, which is that the court must agree that the person making the request has the right to do so.

In most instances, the person petitioning for a Statutory Will is related to the testator. However, courts have also established legal precedent for others, such as caregivers, powers of attorney, lawyers representing testators and – in some cases – close friends of testators, to make such requests.

Before you can actually apply for this type of will, you must ask permission to do so. Making this preliminary request allows the court to verify that you are acting in the testator’s best interests, and that you have legitimate reasons for seeking a Statutory Will. The initial part of this process is also designed to reduce or eliminate unnecessary and/or inappropriate applications.

For example, in a 2013 case heard by the Queensland Supreme Court, the issue at hand was whether the application for a Statutory Will had been made to safeguard any assets that may be passed on to the testator’s son, who was facing potential bankruptcy. After considering the arguments and evidence submitted, the Court determined the applicant’s reasons for pursuing changes through a Statutory Will were valid and allowed the application to go forward.

Once you have permission to file the ‘main application’, you may proceed.  In general, this application should demonstrate that:

  • the person is incapable of making a will and/or making necessary changes to a will; and
  • the proposed will (or changes or revocation) is a truthful representation of what the person would want, as if he or she was capable of making a will and/or required changes to a will; and
  • in light of all of the circumstances, it is logical for the court to authorise the will and make the orders.

Acceptable evidence that someone is no longer capable of making a will and/or making changes to an existing will may include written reports issued by their personal physician or specialist. The court will also accept medical opinions as to the potential for the person in question to gain or regain their essential abilities in the future. This is especially significant in cases where there does not seem to be an immediate need for a Statutory Will.

As a friend, family member or acquaintance, your testimony pertaining to the individual’s inability to make or change his or her will may also be considered. The court, however, will not regard it as highly as medical evidence.

Because the legal standard to determine intention in Queensland is whether or not the proposed will “is or may be one that would have been made by the proposed testator if he or she had testamentary capacity”, you should provide information that will help the court understand what the testator hoped to accomplish. This may include but is not limited to:

  • an estimate of the size and nature of the estate;
  • a draft of the proposed will;
  • copies of any previous wills made and/or signed by the person in question;
  • material that serves as proof of the testator’s wishes;
  • verification of how the estate would be handled if the person in question died without a will;
  • information about any relatives who are likely to make a family provision claim against the estate, and whether the proposed will would instigate or deter this type of claim; and
  • information pertaining to anyone, including relatives and non-relatives, who can realistically expect to be included in the will.

The court may deny the main application (proposed will) if, for example, it concludes based on its review of all of the evidence that the person in question never planned on making a will at all.

That situation occurred in a 2017 case heard by the Queensland Supreme Court. In that matter, which involved a sizeable estate, the Court determined that it couldn’t approve the proposed will because the person in question didn’t really care whether he had a will – even when he had the ability to make one. Key to this determination was evidence that the man never followed through on making a will even though he had been earlier advised to do so, and even after he had consulted a solicitor about it in 2013.

If you are concerned about an ageing family member and his or her ability to make or update his or her will, don’t leave anything to chance. Speak with one of our qualified lawyers for a comprehensive assessment of the situation today.

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