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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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A Will Lawyer’s Advice relating to Capacity to make a Will

A Will Lawyer’s Advice relating to Capacity to make a Will

Can a person without capacity have a will made for them?

If a person does not have testamentary capacity, that is the mental ability and understanding to make a will, the Court has the power to make a Will for that person.

What if a person makes a will beforehand and later loses the ability to change it due to mental impairment?

Consider the following scenario. A person has made a will which leaves all their assets to their spouse. If a few years later this person permanently separates from their spouse and forgets to change their will and some time later they become mentally impaired, they will no longer have the capacity to alter their will. If this person were to die, their previous spouse would receive all their assets. No assets would be given to the person’s children or other important people that the person would have intended to have mentioned in their will if they had the capacity to change it.
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COVID-19 – Financial Assistance for NSW Businesses

COVID-19 – Financial Assistance for NSW Businesses

NSW businesses may be able to access one or more of the financial assistance packages offered by the NSW Government (excluding relief already provided by the Commonwealth) including:


In brief, energy businesses servicing NSW are expected to:

  • offer payment plans/hardship arrangements to all residential and small business customers under financial stress
  • not disconnect any customers under financial stress without their agreement before 31 July 2020 (and potentially later)
  • not disconnect any large business customers without their agreement if the customer is on-selling to residential and small business customers
  • delay debt collection until 31 July 2020
  • modify existing payment plans
  • waive fees such as disconnection, reconnection and contract break fees for small business that have ceased operation until at least 31 July 2020
  • prioritise safety of customers who require life support
  • maintain up-to-date communications with customers regarding the above
  • minimise outages

What you can do when you are under financial distress:
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New legislation – witnessing of documents in the COVID-19 climate

New legislation – witnessing of documents in the COVID-19 climate

NSW Government has passed the Electronics Transactions Amendments (COVID-19) Witnessing of Documents Regulation 2020.

This makes it possible – temporarily – to complete important legal matters by means of an audiovisual link as long as specified declarations and certifications and other procedures are strictly followed. The measure applies for a six month period commencing 22 April 2020 unless extended by Parliament.

It remains important that documents are properly signed and witnessed. The consequences of failing to do so can render the documents ineffective and create uncertainty and additional cost.

Audiovisual links can be used to complete the following documents

  • Wills;
  • Powers of Attorney or Enduring Powers of Attorney;
  • Deeds or Agreements;
  • Enduring Guardianship document;
  • Affidavits; and
  • Statutory Declarations

We can now assist you with these important matters using an audio visual link using applications such as Zoom, Facetime or Skype.

If you wish to obtain further information please contact one of our specialist estate planning lawyers on 9635 7966

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Code of Conduct for Commercial Tenancies – Released

By Anica Cunanan, Law Clerk at Matthews Folbigg Lawyers

Undeniably, the financial impact of COVID-19 has triggered a myriad of changes to the laws. The National Cabinet has released a mandatory Code of Conduct in relation to the commercial property sector. This sets out the principles to be applied to adjustments to rent during the COVID-19 pandemic.

The Code is based upon a series of good faith principles to be applied to commercial tenancies during this unprecedented time. It will apply to those tenants who are eligible for the JobKeeper programme, with annual turnover of up to $50 million (“SME Tenants”).

The Code of Conduct includes the following:

  • Landlords should not terminate due to non-payment of rent during the COVID-19 pandemic period;
  • Proportionality to rent reductions based on the tenant’s decline of turnover;
  • ‘Tailored’ and ‘bespoke’ solutions to be negotiates between landlords and SME Tenants; and
  • A mix of at least 50% waivers and the balance of deferrals in respect of rent obligations.
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The Basics of What Your Exs Company is Worth: The Balance Sheet

One way to determine what you or your former spouse’s company is worth is to instruct your divorce lawyer to engage a single expert valuer to put a dollar figure to the value of the business. Your divorce lawyer will then instruct the valuer to analyse the company’s financial statements among other things to determine the value for the purpose of your family property proceedings.

A company’s financial statements are made up of the following:

  1. Balance Sheet
  2. Profit and Loss Statements (Or Income Statement)
  3. Cash Flow Statement


The Balance Sheet

The balance sheet is a snap shot of a company’s accounts. It provides at a glance what the company owns and is owed. It can give an indication of the financial position of the company at a single point in time.

The balance sheet depicts a company’s assets, liabilities and owner’s equity (net worth). Assets include cash, office equipment eg chairs and desks, all inventory and accounts receivable which refers to people who have bought from the company but have not yet paid.  Non-current assets are also listed under assets which include the building and land, goodwill, patents and copyright.

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Family Law Secretaries in Focus: Tina Skaros

After leaving high school, Tina Skaros undertook her studies at Secretarial school and has applied her skills to the legal field for the past 35 years. Tina has been a secretary for divorce lawyer Carolyn Munk for over 22 years and together they have worked as a team at Matthews Folbigg Lawyers in the Family Law Group for over 11 years. Tina is often the first point of contact for Carolyn’s clients and has developed exceptional communication and organisational skills. Tina has worked predominately in Family Law and prepares Court documents for those seeking a divorce. She is a dedicated and passionate assistant who works closely with clients and their divorce lawyer to progress their parenting and property matters and achieve positive outcomes. Tina also has experience in property settlements after matters have been resolved and now utilises the online PEXA settlement system.

Click here to find out more about our divorce lawyers.

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Subpoena or Notice to Produce – how to get the documents you need!

By Hayley Hitch, an Associate of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.

Have you ever wondered about the difference between a subpoena and a notice to produce? These can be confusing and sometimes cause delays in proceedings or result in significant additional legal costs.

Both a subpoena and a notice to produce are court forms used once proceedings have been commenced, to obtain documentation from a specific individual or entity. A subpoena can also be issued to require a witness to attend Court and give evidence at a hearing.

In simple terms, a subpoena is issued by the Court to request documents from someone who is not a party to the proceedings. On the other hand, a notice to produce is issued by a party to the proceedings to request documents from another party.


Most courts have rules about how to obtain a subpoena. Under the Uniform Civil Procedure Rules 2005 (NSW) (“the Rules”) for instance, the Court will issue a subpoena if requested by a party. However, if that party is not represented by a solicitor, leave of the court is required (Rule 7.3).
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