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Benefits of Consulting with a Marriage Lawyer

When a marriage or de facto relationship breaks down, it can be a stressful time. Part of this process may involve the separation of assets, which may include the family home, business interests, investments, savings and superannuation.   If a mutual agreement cannot be reached, the Court can determine the settlement. Obtaining the right financial and legal advice from a marriage lawyer at the early stages of this process can help a party to navigate their way through the Family Law system and make decisions about their assets and superannuation that provides a better outcome.

Superannuation Splitting as part of a property settlement

Superannuation is an asset that can usually be divided as part of a property settlement. Sometimes it is not possible to split superannuation.  For example:

  1. When the interest is of little or no value, when it would not be cost effective to do so (see The Commonwealth Attorney-General’s guide “Splitting Laws – Frequently Asked Questions”);
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Child Custody Laws Advice

Isn’t 50/50 care my right under child custody laws?

With the emphasis on both parents being more involved in the care of children after separation many people assume that parenting law now guarantees a shared care or 50/50 split of the child’s time with each parent.

While the overriding principle since the Family Law Act commenced in 1975 is that all parenting arrangements should be made ‘in the best interests of the child’ a series of changes to family law since 1996 has seen a steady move from the notion of ‘parents child custody rights’ to an approach which prioritises the rights of children.

Section 60CC of the Act focuses on the importance of children being safe from harm and having a ‘meaningful relationship with each parent’. Family law also encourages parents to work together (where it is safe to do so) and negotiate care arrangements which best suit their children and their individual circumstances. The old notion of child custody ‘rights’ gives way to a more responsive outcome.
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Why you should check with a separation lawyer about enforcing a property order against you ex’s superannuation

You may settle your property arrangement with your former partner by agreement, with assistance of a separation lawyer or by judgment of the Court. This may include for property to be transferred to one of you, or for a cash payment made in exchange for an interest in property.

But what happens if you have these orders, but for one reason or another, your former partner has not completed their end of the bargain? What if your former partner is to pay you a certain sum of money by a certain time, but the time comes and goes, with no payment from them? What if, after seeking legal advice and looking to enforce the orders, you find they have no means of payment? If they have no substantial assets, can you make an application to the Court and seek the monies they have agreed to give you are taken from their superannuation?

At its simplest, superannuation in Australia is a heavily guarded form of savings. It is intended to be something that you rely upon in your golden years of retirement. As such, a component of superannuation legislation is built around protecting it from creditors that would otherwise seek to recoup their losses and leave the debtor penniless in their old age.

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Why should you speak to a separation lawyer about who keeps the engagement ring?

In New South Wales the leading case concerning who keeps the engagement ring is Papathanasopoulos v Vacopoulos [2007]. Mr V and Ms P were engaged to be married in 2005, but 10 days after their engagement party Ms P called it off. Shortly after calling off the engagement Ms P attempted to return the ring to Mr V, only to retain it in a box with other mementos from the failed relationship. There the ring was destined to stay, until an interaction on the phone between the parties further soured their interactions; to the extent that Ms P instructed her father to throw the box of mementos, including the ring, in the garbage. Mr V, upon learning of the ring’s fate, brought a claim against Ms P in the Supreme Court for the value of the ring, being $15,250.

Justice Smart relied on the old engagement ring case of Cohen v Sellar (1926) for the four distinct circumstances which determine ownership of the ring following the end of an engagement:

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Superannuation and Family Law Lawyers

For most working Australians, superannuation is the largest asset they will have outside of owning their home.  The amount of superannuation that an individual has will largely depend on their employment history and earnings.

How does this relate to divorce and separation?

A recent research report by David Hetherington and Warwick Smith from ‘Per Capita’ has noted how women’s superannuation generally accrues at a lower rate than men’s. See Figure 1 below which highlights data from the Australian Bureau of Statistics.

graph

The report notes that superannuation benefits accrue in direct proportion to income received. It is often the case that women spend less time in the workforce and so do not have the same opportunity as men to contribute towards their superannuation. Reduced time within the workforce is attributable to various factors including taking time off work to care for young children, carer responsibilities such as taking children to and from school and caring for children when they are sick.  Other relevant factors include the cost and availability of childcare. All of these contributing factors often lead to an increased likelihood of being engaged in part-time or casual employment.  Clearly these factors would also apply to fathers who carry out a primary care role.
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Child Support for Children over 18

Financial assistance for children under 18 is usually by way of child support. For children over 18, financial assistance usually occurs by way of child maintenance.

Child Maintenance

Child maintenance orders for children over 18 are made at the Court’s discretion and in consideration of the threshold test and capacity to pay.

Section 66H requires the Court to;

  1. Consider the financial support necessary for the maintenance of the child; and
  2. Determine the financial contribution towards the financial support necessary for the maintenance of the child, that should be made by a party.

(a) Financial Support Necessary

In determining the financial support necessary the Court considers a variety of matters under section 66J of the Act.

Some of the considerations may consist of:

  • Age
  • Education
  • Special needs
  • Earning capacity and financial resources of the child

(b) Financial Contribution

In determining the financial contributions to be made by the parties, the Court considers a variety of matters under section 66K of the Act.

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Child support and the role of lawyers

What is Child Support?

Child support is an issue likely to transpire for parties separating with children. It is the way in which separated parents address their financial responsibility to their children.

The Australian Bureau of Statistics defines child support as:

“Cash or in-kind payments towards the financial well-being of children. These payments are usually made by the non-resident parent to the parent who has primary care of the children.”

What is the Child Support Agency?

The agency is a Government Human Services department that has the primary role of registering, assessing and collecting payments.

Why you may need a child support lawyer?

The Australian Bureau of Statistics (2009-2010) found that approximately 1.1 million children were impacted by child support. Consequently, it is safe to say that a significant number of parenting matters will involve a child support assessment and often this provokes some conflict between the parties.

Private agreements are a method through which parties can address the issue other than through a child support assessment. Private agreements may either be ‘binding’ or ‘limited’ agreements.

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Impact of Divorce on Retirement

Often during a highly stressful divorce or property settlement, for instance where domestic violence may be involved or the parties are simply eager to settle quickly and move on with their lives; individuals are readily settling without consideration of future financial stability. In particular, an article by Patricia Babalis (link below) highlighted a report by the Swinburne Institute for Social Research which discovered that at divorce, asset settlement ‘is often mishandled due to emotional tension and ignorance of what can be included in a settlement’. Further, the article touched on the reality that is financial instability from divorce. Where separating parties do not achieve a settlement that ensures future stability, individuals may find themselves struggling in their retirement plans due to reduced super balances and sale of property.

 

In reiterating the words of Babalis, divorce is a stressful and sometimes unexpected time. However, ‘knowing what you may be entitled to could be a good start to making sure asset distribution is fair.’ Our specialist separation lawyers are able to give you the guidance you need in regards to your current situation, as well as ensuring the best for your future long term financial position.
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