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To Be or Not to Be – Our Family Law Lawyers Explain the Requirements of De Facto

Our Family Law Lawyers know the importance of obtaining instructions about the nature of your relationship and whether it meets the legal requirements of a defacto relationship.

In the recent case of Bava & Chaudry [2021], the parties had a relationship of about 2 and a half years. They were not married.

The Applicant’s family law lawyers filed an application seeking property orders on the basis that she believed the parties were in a de facto relationship. The Respondent, on the other hand, argued that the parties were never in a de facto relationship, despite the relationship spanning over 2 years.

The question that the Court was required to consider was whether a de facto relationship existed at all. That is, whether having regard to all the circumstances of their relationship they had a relationship as a couple living together on a genuine domestic basis.

The Court considered the following factors put forward by the family law lawyers:
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What You Need to Show the Court to Obtain a Divorce

In order to obtain a divorce, there are certain requirements depending on whether you have children under the age of 18 years. If you do have children under the age of 18 years, your divorce lawyer will need to demonstrate to the Court that:

  1. Proper arrangements in all the circumstances have been made for the care, welfare and development of the children, or
  2. That there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made.

There is a positive obligation on the Court not to allow divorce orders to take effect unless proper arrangements have been made for the children. Your divorce lawyer will consider the following factors when advising you: whether any child support is being paid, whether both parents are spending time with the children, the health of the children and whether they are attending and progressing in school.
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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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When Can You Commission Your Own Expert Report – Family Law Lawyers Know How

In circumstances where there is an issue that is contested in family law proceedings, parties may look to obtaining a single expert report from an expert who is instructed by both parties’ family law lawyers to provide evidence on the issue. Common examples of an expert report include a valuation report to determine the value of the family home or one party’s business.

In the recent Family Court case of Rigby & Kingston (No. 2) [2020] FamCA 467, one of the issues in contention was whether the Husband was underpaid for his work when he was employed as a contractor. The Wife’s family law lawyers had directly invited the Husband on three separate occasions to engage a jointly appointed expert. The Husband did not agree to the Wife’s propositions. In that event, the Wife’s family law lawyers had commissioned their own report with instructions solely from the Wife to provide evidence on whether the Husband was being underpaid.
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Court introduces new initiatives to help alleviate the significant delays in the Court

A divorce lawyer will advise you that the Court delays in hearing and finalising your property application under the Family Law Act have in some registries became even longer. It is for this reason that the divorce lawyer tries to encourage their client to consider mediation either privately or through the Court.

The Court itself is also considering options to help reduce the back log of cases.  A divorce lawyer will provide information about the PPP Program currently being tried out in some registries including at the Parramatta Federal Circuit Court.

The aim of the program is to:-

  • Identify cases that fall within the guidelines of the program
  • List those cases separately in lists where the progress can be clearly tracked
  • Lessen the amount of required documentation to be filed at Court
  • Provide those parties with the opportunity to participate in a Conciliation Conference before a Registrar (where each party and their divorce lawyer attend).
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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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