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The Basics of Getting a Divorce

Divorce is the process of terminating a marriage. After 12 months of separation, your separation lawyer can assist you to make either a sole application or a joint application for divorce. If you are making a sole application that is, applying on your own, your separation lawyer will be required to serve the application on the other party and must attend your divorce hearing if you have children under the age of 18 years. If you are making a joint application with your former partner, you will not be required to attend the divorce hearing.

Grounds for Divorce

The only ground for getting a divorce is that the marriage has broken down irretrievably. This is demonstrated if the parties have lived separately and apart for a continuous period of 12 months. Separation does not require that the parties live physically apart, they may well be living separately but under the same roof. Rather, separation is demonstrated when one party forms an intention to sever the relationship and to act on that intention. Alternatively, separation is proven if one party has acted as if the relationship has been severed.

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ALERT: COVID-19 Impact on Working Holiday Visa Holders

Questions

Are you:

 

  • on a Working Holiday visa subclass 462 that is about to expire?

 

  • worried about the pandemic crisis preventing you from returning home?

 

New Rules

The Australian Government has recently announced changes to its policy which allows visa subclass 462 holders to extend their stay if they have completed either 3 months or 6 months of volunteer or paid bushfire recovery work in specified areas of Australia, including:

 

  • construction, farming, or any other work in association with the recovery of land, property and animals

 

  • providing support services or assistance to people in affected areas

 

Finer Details

The bushfire recovery work must have commenced after 31 July 2019 to be considered as ‘specified work’ towards eligibility for a second or third 462 visa.

Furthermore, from 17 February 2020, Working Holiday makers assisting in bushfire recovery efforts can now undertake paid or unpaid work for up to 12 months (instead of 6 months) with the same employer without permission from the Federal Government.
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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.

Subpoena

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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Separation Lawyer on Gaining Sole Use and Occupancy of the Family Holiday Home

The power of the Court to make an order for sole use and occupancy derives from s 114 of the Family Law Act. A separation lawyer can assist you to put forward or defend this application that would allow a party to live in the property to the exclusion of the other party.

In the case of Belcher & Gardener [2019] FamCA 205 (5 April 2019) the husband brought an application for sole use and occupancy for the holiday home (“the holiday house”) that was registered in the wife’s sole name.

The husband and wife were married for 24 years when they separated in July 2018. The parties had four children, two of whom remain living with the wife in the former matrimonial home. The husband vacated the former matrimonial home and was renting a one-bedroom apartment with his cousin.

The separation lawyer for the wife estimated that the total property pool of the parties was in the vicinity of $20 million. The holiday house had an estimated value of $3.5million. While the wife  was currently unemployed, the husband was a director of a consultancy company. The wife estimated the husband’s earnings to be about $750,000 per annum. Notwithstanding it was his application, the husband did not reveal the sources of his income or assets and therefore his version of events was incomplete.

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Unjust Child Support Assessments: A Child Support Lawyers Guide

The Child Support Assessment Act allows the Registrar to change a child support assessment if the assessment of child support results in an unjust and inequitable level of financial support being paid. Child support lawyers can challenge a child support assessment on limited and specified grounds which can include:

  1. The circumstances of either parent’s income, property or  financial resources
  2. The earning capacity of either parent
  3. The costs of contact for either parent
  4. The expenses of the child or children including in some circumstances their education expenses

Some of these grounds are considered below.

1. Income, Property and Financial Resources

A common issue concerning the income, property and financial resources of a parent is when the income of one parent is significantly higher or lower than the amount recorded in the actual assessment.

There can be all sorts of reasons why the tax return and or notice of assessment does not reflect the actual income of the parent.

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Property Settlement Agreement – Can the Court Split Employment Bonuses?

What is Property?

When negotiating a property settlement agreement, one of the first steps to be considered is what property you and your former spouse have or own. This step is important as only property can be subject to a property settlement agreement. The Family Law Act defines property as “any property in the possession of either party, either vested or in remainder.”  Property of the relationship generally includes:

  • All assets that are owned, g. the family home, motor vehicles, personal items
  • All assets under your control, e.g. a business, superannuation, shares and funds at bank
  • All liabilities, e.g. mortgages, credit cards, hire purchase agreements

Are Employment Bonuses Property?

In the case of Ilannello & Ilannello (No 3) [2018] FCCA 3752 (19 December 2018) the Court considered the question of whether the wife’s future employment bonus payments could be the subject of a property order.

Facts of the Case

In this case, the husband had suffered a workplace accident and had been unemployed since 2013. The husband was living on a permanent disability payment from his super fund. While he owned about $78,000 in shares, he claimed that his legal fees were equally as much. On the other hand, his wife had a base salary of $190,000 per year plus employment bonuses. In the previous year, the wife received $54,000 in bonuses.

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