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Prenuptial Agreements and the importance of complying with the Family Law Act

By Dylan Williams, Family Law Solicitor.

A prenuptial agreement, known as a ‘binding financial agreement’ under the the Family Law Act, is an agreement  with your partner to  predetermine how your assets will be distributed in the event of the breakdown of your relationship.

It is important that you speak with one of our prenuptial agreement lawyers to ensure the agreement complies with the Family Law Act so as to ensure that there can be no challenge to the enforceability of the agreement.

You and your partner can enter into a binding financial agreement prior to the commencement of the marriage / de facto relationship, throughout the marriage / de facto relationship, or after you have separated and or divorced..

A prenuptial agreement lawyer can advise you that the benefit of a binding financial agreement is it can deal with all assets including  superannuation, inheritances, trusts, businesses, investments, shares, debts and other liabilities. If you would like to look further into the benefits of a prenuptial agreement, please click here for further information.
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Spousal Maintenance – Divorce Lawyers Explain How Much Is Reasonable

By Chloe Elkerton, Family Law Solicitor.

Divorce lawyers are often asked about rights to spouse maintenance. Spouse maintenance is financial support paid by a party to a marriage or de facto relationship to their former spouse after the relationship has broken down. The Court has the power to make an Oder for one party to pay spousal maintenance in circumstances where:

  1. One party is unable to support themselves and has an adequate reason for being unable to do so; and
  2. The other party is reasonably able to pay.

A question Divorce lawyers are often faced with, is, how much will I be required to pay?

In the recent case of Simpkin & Simpkin [2020], the trial Judge considered an application for spousal maintenance by a Wife who was in receipt of a disability support pension and was unable to work. On the other hand, the Husband was in a managerial position earning an annual salary of $240,000.
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Family Law Lawyer advice on the effect of death on property proceedings

The law often deals with unforeseen events in the course of Court proceedings under the Family Law Act. If the other party in your proceedings dies before property proceedings are completed, then your family lawyer will inform you of Section 79(8) of the Family Law Act.

The Court will look to this section if in your case, the other party (your ex-spouse) passes before property related proceedings are completed. It is important to know that under the relevant section of the statute (79(8)(a)) any proceedings which have commenced by a family law lawyer before the person passes can be continued by or against the personal representative of a deceased party. This appointed representative would then continue the case on the deceased’s behalf. The Court may make the property order it would have made had the deceased party not died, and only if the court deems it appropriate to do so. Such a property order would still be enforceable by or against the estate of the deceased party. The Court considers the appropriateness of an order to be made after the passing of one of the parties according to the case of Erdem & Ossay. If you are worried about the state of your own health or that of the other party it is advised that you inform your Family Law Lawyer as soon as possible in order for your legal representative to make necessary arrangements and decisions in your case.
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The Consequences of Escaping Debt in Family Property Proceedings

If you or your former spouse owe a significant sum of money to a person or company known as a creditor, you may be wondering how this will be dealt with in your family property proceedings. Some have attempted to transfer property from one spouse to another in a bid to protect their property from a creditor’s claim. Our family law lawyers can provide some guidance on what you should do if you owe money to a creditor and the consequences for non-disclosure.

During your family property proceedings, there is an obligation on both parties to disclose any significant creditors or any significant claim against them by a third party to the Court. This includes Applications for Orders made by consent. In circumstances where a Family Court Order would prevent a creditor to recover their debt, your family law lawyers may need to give the creditor notice of the Family Court proceedings who are then provided the opportunity to intervene in the proceedings and seek their own orders to protect their interests in having their debt paid.
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Property Settlement Agreement – A Four Step Process

A property settlement is a process which involves the division of assets between parties.

If you have separated with your partner you may be left wondering what your rights to the assets might be. You might be questioning what is involved and how our lawyers can assist you to reach a property settlement agreement.

Here at Matthews Folbigg Lawyers, the usual process to get your Property Settlement started is to meet with one of our lawyers who will work through 4 important steps with you.

Step 1: Work out the “Net Assets”

Working out the “net assets” involves listing the parties’ assets, liabilities, superannuation and financial resources to reach a net equity which we call “the asset pool”.

Step 2: Consider the “Contributions of each party

This step considers the “contributions” of each party. It includes financial contributions towards the acquisition of assets including the purchase of a home and mortgage repayments as well as non-financial contributions such as being the parent and homemaker.
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Can your Affair End in a Property Settlement? Family Law Lawyers Delve Into This

If you’re having an affair, something that you may want to consider is whether the person you are having an affair with can claim your property after the relationship breaks down.

Firstly, your family law lawyers will need to consider whether your affair amounts to a de facto relationship. Considerations include the duration of the relationship, whether you have lived together, whether you attend events together socially, and whether you depend on each other financially.

The case of Jonah v White (2011) considered whether someone you are having an affair with can amount to a de facto relationship. In this case, the Husband (H) had a 17 year long affair with a woman (Ms J). During the affair, H continued to live with his wife and three children. Family law lawyers for Ms J argued that the relationship she had with H amounted to a de facto relationship under the Family Law Act.

The Court said that “The key to the definition is the manifestation of a relationship where the parties have so merged their lives that they are, for all practical purposes, living together as a couple on a genuine domestic basis. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined [by the law]”.
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How Binding Financial Agreements can let you Decide the Terms of your Property Settlement Agreement

A Binding Financial Agreement (BFA) allows couples to negotiate a property settlement agreement that suits their needs. Unless successfully challenged, it will  prevent the Family Court from dealing with your future property or spousal maintenance claims.

Binding Financial Agreements can be made:

  1. Before a marriage under a s 90B Agreement, also known as a “pre-nuptial agreement” or “prenup”;
  2. During a marriage under a s 90C Agreement – this is typically exercised during the period between separation and divorce; or
  3. After divorce under a s 90D Agreement.

A BFA can be drafted with your family law lawyer to formalise a property settlement agreement between you and your former spouse. It is an alternative means to going to Court which can be timely and expensive. The Court does, however, have the power to set aside a BFA  in certain limited circumstances.

In order to be binding and enforceable on the parties, BFAs must adhere to certain requirements including:
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Recent Family Court Case Sheds Light on What Initial Contributions are Really Worth?

On 1 May 2020, the Family Court handed down the decision of Barnell & Barnell. This matter involved a wife’s separation lawyer seeking to appeal a final judgment based on the Court’s treatment of the husband’s initial contributions.

The husband purchased Property B in 1988 prior to the commencement of the relationship in 1995. While no valuation was conducted on the property as at the commencement of cohabitation, the current value was agreed to be $340,000.

Given the length of the relationship and consistent gifts of money from the wife’s parents, the wife’s separation lawyer argued that the overall contributions of the parties should be considered equal. The Judge disagreed and said that to do so, would be to give insufficient weight to the fact that Property B was unencumbered at the commencement of the relationship and has not since been improved by either party. As the value of Property B represented some 36% of the net property pool, the Judge held that the husband’s contribution must be accorded significant weight. The Judge made an assessment of contributions as 62.5% to the husband and 37.5% to the wife being a 25% difference in contributions to reflect the various contributions of both parties.
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