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Why you need to speak to a family law lawyer when thinking about a Prenuptial Agreement

At Matthews Folbigg Lawyers we work closely with our clients to ensure they are well aware of their entitlements when undertaking a property settlement. Matthews Folbigg family law specialists regularly provide professional advice to clients about how to protect their assets in the event their marriage or relationship breaks down, by entering into a prenuptial agreement.

Our lawyers have extensive experience in drafting prenuptial agreements.

Why you need to seek advice from a family law lawyer about obtaining a prenuptial agreement?

Prenuptial agreements are very complicated and require strict compliance with the legislation for the prenuptial agreement to be valid. A prenuptial agreement is binding on the parties to the Agreement if, and only if:

  • The prenuptial agreement is signed by both parties;
  • Before the agreement is signed, each party is provided with independent legal advice from a legal practitioner as to the following matters:
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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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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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Prenuptial Agreement

Going into a marriage or de facto relationship, couples do not plan to fail, however often couples fail to plan, overlooking benefits that a prenuptial agreement may have.

A binding financial agreement is a way that couples can plan out the potential future rights or obligations of either party in the event that the relationship doesn’t work out. Such an agreement can be made before or after entering the marriage or de facto relationship.

What can the agreement include?

Prenuptial agreements can cover a range of assets, financial resources and liabilities that are often precluded from individuals minds. Such areas other than income that may be addressed by a prenuptial agreement may include:

  • Superannuation
  • Inheritance
  • Trusts
  • Businesses
  • Real Estate
  • Investments
  • Pensioner entitlements
  • Debts and liabilities

What are the benefits of a prenuptial agreement?

Although often viewed as a negative way to commence a relationship, a prenuptial agreement could serve as a positive way for couples to openly communicate about the potential distribution of assets and debts as well as any expectations either individual may have.

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Deed of Release prevented claim against Employer

Background

In a recent Federal Circuit Court decision, a college teacher who claimed she was suffering from a psychological disability attempted to render her Deed of Release – signed in 2007 – invalid. However, due to a lack of medical evidence her claim was unsuccessful.

The Facts

In essence:

  • The employer said it no longer trusted the college teacher to exercise her duties after various performance issues and a work-related incident.
  • The employer invited the college teacher to resign and sign a deed of release describing it as a ‘retirement’, or alternatively dispute the school’s decision.
  • The college teacher signed the deed in 2007.
  • The college teacher commenced a disability discrimination claim against the employer in March 2017. The employer disputed the claim and relied upon the Deed of Release.
  • The college teacher claimed that she had been suffering from an ‘incoherent state of mind’ at the time of signing the Deed, and submitted that it should not be enforceable
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Separation Lawyer and Property Orders

Clients often ask their separation lawyer, “What kind of property Orders will the Court make?”

In the 2012 case of Stanford; the Appeal Court of the Family Court decided that in some cases, the Court may decline to make any property Orders between partners who have separated. Most parties who commence their case in the Court expect that the Judge will make some type of Order for a property adjustment.
In the case of Stanford, divorce lawyers saw that sometimes the Court will not make any order. Before the Court makes an Order the separation lawyer needs to be able to show that it is just and equitable to do so.

In that case the separation lawyer for one of the parties was able to show that because of the way that the parties to the relationship managed their finances separately during the relationship, that the arrangements that they themselves had worked out should not be changed. Although they had been together for many years and one party had a lot more in assets and super than the other party, the Court chose to not make a property Order.
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