Separation, divorce and property settlement can be very difficult and challenging. It is no wonder then, that when faced with these situations, individuals often seek support, counsel and advice from family and friends. While family and friends provide a valuable support network, often their understanding of the family law system is incorrect and misinformed. Although family members and friends who have personally been through their own separation, divorce or property settlement are well intentioned in sharing their own experience and outcome, there is no one size fits all approach; rather, each separation, divorce and property settlement is different. It is therefore beneficial for anyone facing these situations to seek personalised legal advice from an expert family lawyer.

Set our below are some of the most common myths regarding these matters and some practical legal information and pointers.

1. We only need to divide the house

When our family lawyers meet with a client who has separated and is considering property settlement one of the first questions that we ask is what assets and liabilities are owned by each party to the relationship. We often hear clients respond with, “We have nothing, just the house with a mortgage.” Half an hour into the appointment, we typically identify several other assets, in addition to the family home.

In a property settlement, all assets and liabilities, either in sole or joint names are included for division, not just the family home and mortgage. These assets can include, but are not limited to:

• Furniture, jewellery and collectables;
• Cars, caravans, boats and motorbikes;
• Savings in bank accounts or term deposits;
• Shares;
• Life insurance policies; and

On the other hand liabilities can include, but are not limited to:

• Mortgages;
• Car loans;
• Personal loans and lines of credit;
• Credit cards; and
• Tax debts.

2. Each person takes out the same assets and liabilities as they brought into the relationship

When our lawyers first meet with a client they often hear the belief that each person should be placed in the same financial position at the end of the relationship as they were at the start and should therefore take out the same assets and liabilities that they brought into the relationship. This myth is attractive because of its simplicity, however, separation, divorce and property settlement is rarely this simple.

Over the course of a relationship, particularly long relationships, the initial assets that were brought into the relationship may be sold for a profit or loss, with the sale proceeds applied to purchase new assets. Additionally, original debts and loans may have been paid out or paid down or alternatively increased and new debts and loans may have been incurred. In fact, there are many things that can occur during a relationship that may result in a change in the makeup of the original assets and liabilities.

While there is no rule that each person takes out the same assets and liabilities as they brought into the relationship, there is a recognised legal principle that considers the contributions that each party has made to the assets, liabilities and the relationship generally. These contributions include initial contributions, contributions during the relationship and contributions following separation. The contributions may take the form of financial contributions but they can also take the form of non-financial contributions which include contributions in the role of homemaker and parent.

GET A FREE PHONE CONSULTATION

3. My partner had an affair so they should get less of the property

There are times where separation or divorce occurs because of infidelity. In such situations, the aggrieved partner or spouse often believes that the property settlement is a means for holding their partner to account or punishing them for their behaviour.

Unlike the family law systems in some countries, Australia has a no-fault family law system. This means that moral considerations such as who decided to end the relationship or infidelity are not relevant and will not impact the division of assets and liabilities. The no fault family law system means that your property settlement will not resemble a controversial episode of the Jerry Springer Show with both parties airing their dirty laundry, instead focus is placed on the contributions that the parties have made to the relationship and also the future needs of the parties.

Although it can be difficult for an aggrieved spouse to learn that the property settlement process operates on a no-fault basis, accepting this reality will minimise the time, expense and stress of the process. In general, the most lengthy, expensive and stressful property settlements that we see are those where clients conduct their property settlement driven by emotion rather than logic and typically in these cases neither party to the relationship ever walks away satisfied.

4. Everything is split 50 / 50

Ever since we were children, we have always been told to share and our instincts seem to tell us that the fairest way to share is equally. A very common myth about property settlement is that assets and debts are automatically divided 50/50 following separation or divorce. While this may be the case for some relationships, it does not apply across the board. There is no legal presumption that the Court will equally divide the assets and liabilities of your relationship. Although there have been some interesting recent cases from the Courts regarding property settlement it is still generally accepted that when determining the division of assets and liabilities the following five step approach should be followed:

1. All the assets and liabilities held by the individuals to the relationship are identified and valued;
2. Consideration is given as to whether it is ‘just and equitable’ to make any adjustment to the existing property interests of the individuals
3. The contributions that each individual made to the assets and liabilities and to the relationship are considered. Contributions are defined broadly and include initial contributions, contributions during the relationship and contributions following separation. Contributions may take the form of financial and also non-financial contributions which include contributions in the role of homemaker and parent.

4. The future needs of both individuals to the relationship are then considered, such as the age of the parties, the health of the parties, the income and earning capacity of the parties and care arrangements for any children of the relationship.
5. The outcome is then further considered and if necessary adjusted to ensure that it is fair and just.

After following this approach the entitlement of each party to the assets and liabilities can be ascertained.

GET A FREE PHONE CONSULTATION

5. We can write an agreement between ourselves to formalise property settlement

Sometimes, couples decide to separate or divorce on mutual terms and remain cordial. While this is easier than the alternative, it does not mean that a property settlement should then become a D-I-Y project. An agreement regarding property settlement must comply with the requirements of the Family Law Act in order to be binding and enforceable. Most often, agreements that are written by the parties themselves do not meet the requirements of the Family Law Act and are not binding, even if they have been signed by both parties and witnessed by a Justice of the Peace.

When an agreement does not meet the requirements of the Family Law Act, and is not binding, the effectiveness of the agreement is based solely on the ongoing good faith of both parties. If one party subsequently decides that they are no longer satisfied with the agreement they can simply ignore the agreement and make an application to the Court for alternative property settlement arrangements. Many people have learned the hard way that the agreement that they reached with their former partner or spouse was not worth the paper it was written on. It can be particularly stressful for someone to learn that an agreement is not binding and that their partner or spouse may have a claim on assets attained post separation, for example, an inheritance from a family member, a redundancy payout or a personal injury claim.

The Family Law Act provides two pathways for separated or divorced parties who have agreed about property settlement to formalise their agreement. The first option is Consent Orders, which involves the parties making an application to the Court to have their agreement made into a court order. This process is done administratively by submitting paperwork to the Court and no one is required to go to Court. The second option is a Binding Financial Agreement, which is essentially a private contract between the parties.

6. We can just transfer the property title between ourselves to resolve property settlement

There is nothing to prevent parties who have separated or divorced from transferring the names on the title deed of a property between themselves following the breakdown of the relationship. However, the mere act of transferring the title of the property between themselves does not meet the requirements of the Family Law Act and therefore does not constitute a binding and enforceable property settlement arrangement. If an agreement is not recognised under the Family Law Act then the agreement is based solely on the goodwill of both parties and at any time either party can ignore the agreement and make an application to the Court for alternative property settlement arrangements.

There are also further reasons why parties to a relationship shouldn’t simply transfer the property title between themselves by way of property settlement. Individuals who transfer property title between themselves will be faced with having to pay stamp duty on the transfer of the property. However, if the parties enter into a recognised property settlement arrangement under the Family Law Act, the transfer of the property would then be subject to a stamp duty exemption and no stamp duty would be payable. The cost of having a family lawyer prepare a property settlement arrangement by way of consent orders or a binding financial agreement is almost always much less than paying the stamp duty on the transfer of title of a property.

7. I need to be separated for 12 months before I can do a property settlement

A lot of people think that they have to wait until they have been separated for 12 months before they can take any steps toward property settlement. This is incorrect – there is no waiting period that must run before starting the property settlement process. Property settlement can in fact be started as soon as separation occurs.

There are however some deadlines to be aware of for the completion of property settlement. For individuals who were in a de facto relationship the deadline for completing property settlement is two years from the date of separation. For couples who were married the deadline is twelve months from the date of divorce. If property settlement has not been finalized by these deadlines it may be necessary to make an application to the Court for property settlement. It is critical that this deadline is not missed as although permission may be granted by the Court for an application to be made out of time there is no guarantee that permission will be granted and the costs associated with making an application out of time are much higher than making an application within the required time frame.

GET A FREE PHONE CONSULTATION

Disclaimer
The above information is intended as general legal information only for people living in Queensland and is not a substitute for individual legal advice.

Welcome to the first instalment of our two-part series on domestic violence myths.

Domestic violence is a sensitive topic, but it is still one that needs to be talked about openly and candidly. Domestic violence occurs far too frequently. According to the 2016 Personal Safety Survey completed by the Australian Bureau of Statistics 17% of women and 6% of men had experienced physical and / or sexual abuse by a current or former partner from the age of 15. Further, 23% of women and 16% of men had experienced emotional abuse by a current or former partner from the same age. During this 8 part series we will discuss domestic violence and in the process dispel some common myths and provide helpful information if you are facing this very difficult situation.

Myth 1: Domestic Violence is only Physical Violence

The definition of domestic violence is broad and covers a range of different behaviours that occur within the context of a relevant domestic relationship. These behaviours are not just limited to physical violence. Domestic violence is defined in section 8 of Domestic and Family Violence Protection Act 2012 Qld as behaviour that is

• (a) physically or sexually abusive, or
• (b) emotionally or psychologically abusive, or
• (c) economically abusive, or
• (d) threatening, or
• (e) coercive, or
• (f) in any other way controls or dominates a person and causes the person to fear for their safety or wellbeing.

In the same section of the Act some specific examples are provided of behaviour that is domestic violence. Some of these examples include

• (a) causing personal injury to a person or threatening to do so
• (b) damaging a person’s property or threatening to do so
• (c) threatening to commit suicide or self harm so as to torment intimidate or frighten
• (d) causing or threatening death or injury to an animal.
• (e) stalking

Practical Pointer: Get to Safety and Seek Support

If you find yourself in a situation of domestic violence call the Police and get to safety immediately. Once you are safe, seek support and assistance from family and friends. You should also seek professional advice and information about the legal options for protecting yourself.

Myth 2: Only the Police Can Apply for a Domestic Violence Order

It is not only the Police who can apply for a domestic violence order.

Section 25 of the Domestic and Family Violence Protection Act 2012 Qld provides that an application for a domestic violence order may be made personally by the victim. If, however the victim feels apprehensive or overwhelmed by the application process it is also possible for them to authorise a person to make the application on their behalf. It is also recognised that a person acting as a guardian or attorney can make an application for a domestic violence order on behalf the victim. In these circumstances the application process would involve attending a Police Station or Court House to obtain an application form, then filling out the form and filing it with the Court.  

An alternative approach is for the victim to make a complaint of domestic violence to the Police. The Police will then determine whether to make an application for a domestic violence order and bring any criminal charges if appropriate. In this situation any application form would be completed and filed with the Court by the Police.

There is no fee to pay when filing an application for a protection order with the Court.

Practical Pointer: Detailed Information

When completing an application for protection order you should provide as much information as possible about any incidents of domestic violence that have occurred including the dates and times of the incidents as well as any injuries sustained. In addition, details regarding the reporting of any domestic violence to authorities or medical services should be provided.

GET A FREE PHONE CONSULTATION

Myth 3: A domestic violence order can only protect the victim

The protection provided by a domestic violence order isn’t just limited to the victim of the domestic violence. Section 24 of the Domestic and Family Violence Protection Act 2012 Qld provides that a domestic violence order can also cover other ‘named people’ who have been affected or impacted by the violence, namely:

• a child of the aggrieved (including an unborn child) or a child who usually lives with the aggrieved;
• a relative of the aggrieved;
• an associate of the aggrieved (e.g. their new partner, a flat mate or a work colleague)

A court can name a child of the aggrieved or a child who usually lives with the aggrieved on a domestic violence order to protect the child from associated domestic violence or being exposed to domestic violence. A child is considered to have been exposed to domestic violence if the child has:

• seen or heard an assault;
• overheard threats of physical abuse;
• overheard repeated denigration;
• comforts someone who has been abused;
• seen bruises or injuries to another person;
• is present when police respond to a domestic violence incident.

The court must consider naming a child on a domestic violence order even if the application does not specifically request that the children be named. A relative or associate of the aggrieved may be named on a domestic violence order if the Court is satisfied that naming the person is ‘necessary or desirable’ to protect that person from domestic violence.

When a person is named on a domestic violence order the conditions that apply to protect the aggrieved will also apply to the people who are named on the order.

Practical Pointer

If you are making an application for a protection order and you are seeking to name other people on the order make sure you include their full names, date of birth and addresses on the application form.

Myth 4: A domestic order only prevents physical violence

A domestic violence order protects the victim of domestic violence by restraining the behaviour of the perpetrator.

Section 54 of the Domestic and Family Violence Protection Act 2012 Qld provides that certain standard conditions that must be included in all domestic violence orders. These standard conditions are that the perpetrator must be of good behaviour and must not commit domestic violence towards the victim. In circumstances where another adult is named on the domestic violence order the perpetrator must also be of good behaviour and  not commit associated domestic violence against that person. If a child is named on the domestic violence order, then the perpetrator must be of good behaviour and not commit associated domestic violence and not expose the child to domestic violence.

In addition to the standard conditions, a domestic violence order can also include extra conditions if the court considers it necessary and desirable in the circumstances to protect the victim or a named person. Examples of the types of the conditions that can be included in a domestic violence order are (according to the DFVP Act):

• prohibiting the perpetrator from approaching, contacting or locating the victim or named person or attempting to do any of these things
• prohibiting the perpetrator from being present at a certain location where the victim or named child may be present or attend frequently (e.g. workplace, school or kindergarten)
• prohibiting the perpetrator from remaining at a premises where the perpetrator and victim live or previously lived

If a domestic violence order is made, the perpetrator is not allowed to possess a weapon or a weapon’s licence under the Weapons Act 1990 Qld. The domestic violence order will note that any license held by the perpetrator is revoked and provide information about the surrender of their weapons – this applies even if the perpetrator has a profession that involves working with a weapon.

Practical Pointer: Detailed Information

If you are making an application for a protection order and are requesting that additional conditions be made as well as the standard conditions you will need to outline reasons in support. Carefully read each of the additional conditions set out in the application form and provide the additional information and reasons that has been requested.

This information is intended as general legal information only for people living in Queensland and is not a substitute for individual legal advice.

GET A FREE PHONE CONSULTATION

Wills are like most other legal documents, people have a general idea of what they are about but they may feel daunted by the details and do not fully understand who should make a Will, when one should be made and what should be included. In our 8-part series, we hope to shed light on commonly unknown issues relating to Wills.

1. More than 50% of adult Australians do not have a valid Will

According to research by the Western Australian Public Trustee, more than half of Australians either do not have a Will or do not have a Will which is effective on death. If you pass away without a Will, the law in the state where you live will determine who is responsible for distributing assets you own and who will receive these assets. This means that you will have had no control over who is in charge of distributing your assets and your assets may not be received by the people that you would have chosen.

Even if you have a Will, your Will may be invalid if it has not been properly completed. A Will may be invalid due to common mistakes such as not having a proper witness or deeper issues such as someone having undue influence on the content. We encourage everyone to document their wishes in a valid Will.

2. You can and probably should update your Will

People often think that making a Will is something that you only need to do once. This is a common, but serious misconception about Wills.Many life events can have a significant impact on your Will. These include:

• Marriage;
• Divorce;
• Entering into a de facto relationship;
• Having a child, stepchild or grandchild;
• Family members passing away;
• Change in financial circumstances;
• Moving interstate or overseas.

By way of example, when a person marries, any existing Will that that they have in place is automatically revoked, unless the Will has been made in contemplation of marriage.

In the case of a person divorcing, certain parts of an existing Will are revoked by the divorce.Any clauses in a Will that provide a gift or beneficial interest to a former spouse are revoked by divorce as are any clauses appointing a former spouse as an executor, trustee or guardian.

It is advisable to review your Will every 2-3 years, or whenever you experience any of the above mentioned life events to ensure that it still reflects your intentions. We are able to help you if you have an existing Will which needs to be updated.

3. Wills are not only for rich people

Many people think that they do not need to make a Will if they don’t own any property or don’t have much money. However, Queensland law requires that all deceased estates must be properly administered, no matter how large or small the estate.

Common items that people do not realise form part of their estate include:

• Sentimental possessions such as jewellery, artwork and photos; and
• Unpaid wages and leave entitlements.

In addition to setting out who receives your assets your Will can also:

• Designate guardians to take care of any of your children who are under the age of eighteen;
• Detail arrangements for family pets;
• Set out arrangements for what you would like to happen with social network profiles such as Facebook, Myspace, LinkedIn and Twitter;
• Provide details of wishes for your funeral or cremation; and
• Confirm your wishes regarding organ donation.

It is advisable for everyone to have a Will in place, regardless of their financial circumstances.

GET A FREE PHONE CONSULTATION

4. Your Will doesn’t cover all your assets

Many people believe that if they have a Will, it covers all their assets. However, some assets aren’t automatically covered by your Will; superannuation is one of these assets. Your superannuation is held by the trustee of your superannuation fund and there are special rules that govern how a trustee can distribute your superannuation after you die.

Your superannuation fund may permit you to make what is called a binding death nomination, which allows you to determine who will receive your superannuation after you die. In a binding death nomination you can nominate for your superannuation to be paid to your estate, in which case your superannuation will then be distributed in accordance with the terms of your Will. Alternatively, you can make a binding death nomination nominating a spouse, child or other dependant to be the beneficiary of your superannuation, in which case your superannuation will simply be paid directly to the nominated beneficiary. If your superannuation fund does not allow you to make a binding death nomination or you choose not to make a binding death nomination, then the trustee will decide whether to pay your superannuation to your estate, to then be dealt with by your Will, or whether to pay your superannuation directly to a spouse, child or dependant.

When making or reviewing a Will it is therefore important to also make or review any nominations that you may have made with respect to your superannuation.

5. You can nominate an alternate or back up executor

An executor is the person who you appoint to be responsible for carrying out the wishes in your Will. When choosing an executor, it is a good idea to also name an alternate or back up executor in case your first executor is unable to act as your executor or does not want to become an executor.

When choosing who you want to have act as your executor or alternate executor you should consider the following:

• Do you trust them?
• Are they confident and prepared to deal with your assets in accordance with your wishes?
• Do they have time to do what is needed?
• Will they make sound decisions if disputes arise over your estate?
• Are they likely to outlive you?

Keeping in mind the above, you can choose anyone who is over the age of 18 years to become your executor, including your spouse, partner or children. An executor of your Willcan also be a beneficiary under your Will.

It’s also possible to appoint two people to act as joint executors. If you are having difficulty choosing an executor, or you want someone independent, you can appoint a solicitor, accountant or a person from a trustee company.

6. Your home may not automatically go to the co-owner

If you own a home it may be owned as joint tenants or tenants in common. It is important to understand the difference between these two forms of ownership, as the form of ownership will have an impact on your estate planning.

If you own the family home jointly with another person as joint tenants, the property will automatically go to the co-owner upon your death, rather than forming part of your estate and being dealt with by your Will. Owning a property as joint tenants can be useful if you believe that there is a risk that someone may apply to the Court and contest your Will and seek further provision from your estate upon your death. Owning a property as joint tenants effectively guarantees that the property will go to the co-owner if they survive you and protects the property from falling into your estate and being subject to any claim that may be made.

If however you own the family home jointly with another person as tenants in common, your share of the property will not automatically go to the co-owner on your death, rather, it will form part of your estate and will be distributed in accordance with your Will. Similarly, on the death of the co-owner, you will not automatically receive their share of the property, it will be dealt with by their Will, or the rules of intestacy if they don’t have a Will, and you may end up owning the property with someone you did not initially intend to own the property with.

It is easy to find out whether a property is owned as a joint tenancy or tenants in common. This can be determined by reviewing the title deed for the property or alternatively by completing a title search.

GET A FREE PHONE CONSULTATION

7. A Will can include arrangements for the care of children

It can be overwhelming to think about who would care for your children if you were to pass away. However, by making a Will you can appoint a person to be the testamentary guardian of your children and therefore have peace of mind in this regard.

A testamentary guardian is responsible for making decisions about the long term care, welfare and development of your children, as well as having daily responsibility for your children’s care.If the other natural parent of your children has also passed away then the appointed guardian will be in the same position as a parent and if someone disagrees with the appointment, they must apply through a court process to challenge the appointment. In the event that the other natural parent of your children is still alive then you may still appoint a guardian however the other natural parent may apply to have the guardian you have appointed removed if they do not agree with the appointment.

If you do not appoint a guardian under your Will then your family members will be left to decide who will care for your children. If agreement cannot be reached it may become necessary for an application to be made to the Court and the Court will decide who will care for your children.

It is important to consider a number of matters when appointing a Testamentary Guardian. Some matters to be considered include the following:

• (a) The relationship between your children and the proposed Testamentary Guardian;
• (b) The relationship between your chosen executors of your Will and the proposed Testamentary Guardian;
• (c) The proposed Testamentary Guardian’s location. If the Testamentary Guardian is required to relocate to look after your children you may wish to consider how that might impact on the Testamentary Guardian’s income and lifestyle;
• (d) The proposed Testamentary Guardian’s age and fitness to act; and
• (e) The financial implications for the proposed Testamentary Guardian.

8. Your Will can be contested in certain circumstances

In certain circumstances if you have excluded someone from your Will or not made sufficient provision for someone in your Will, your Will may be able to be contested by way of a family provision application.

In Queensland a family provision application can only be made a spouse, child or dependent. The terms spouse, child and dependant are defined by the law and defined quite broadly. For example, the term spouse includes a husband, wife, defacto partner, registered partner, former husband, former wife and former registered partner while the term child includes a biological child, unborn child, legally adopted child and step child.

A Court can take various matters into consideration in determining whether the terms of a Will should be varied so that provision is made for a person making a family provision application.

These considerations include, but are not limited to

1. The financial position of the person contesting the Will;
2. Whether any other person is liable to support the person contesting the Will;
3. The health of the person contesting the Will;
4. The size and nature of your estate;
5. The strength of any competing claims to your estate;
6. The relationship between you and the person contesting the Will;
7. Any contribution made by the person contesting the Will to your estate;
8. Any conduct by the person contesting the Will which might disentitle them to an order for provision; and
9. Any other matter which the court considers relevant.

There are various ways to minimise the risk of someone contesting your Will by making a family provision application and it is best if you obtain legal advice if you are considering excluding a spouse, child or dependent from your Will.

This information is intended as general legal information only for people living in Queensland and is not a substitute for individual legal advice.

GET A FREE PHONE CONSULTATION