After Separation: what to do with the Matrimonial Home

The family home, which used to be a shared space, filled with joy, sorrow, and countless memories, becomes a complex asset to address when it comes to separation.

The decision of whether to sell, keep, or consider other options requires careful thought and consideration between you and your former partner. It is a decision that should ideally be made jointly if possible.

Here, we explore the various paths you may consider and the implications of each. There can be creative solutions to suit the unique dynamics and needs of different families.

Selling the property

Selling the matrimonial home is a common choice for many separating couples. It is a way to say goodbye to one chapter of life, split the proceeds, and embark on a new chapter of life. Both of you must agree on key decisions of sale if the property is jointly owned, such as choosing a conveyancer, real estate agent, setting the listing price, etc.

While in a fluctuating market, you may want to make sure the sale is profitable after paying off the mortgage and related expenses to ensure there will be a profit to be divided. If the sale potentially leads to debt, retaining the property as an investment or considering alternative options as introduced below, may be more prudent.

Co-owing the property

Some couples opt to continue jointly owning the house for a period of time post-separation. This arrangement can be temporary and allow children to live in a stable familiar environment until they finish school or another period of time as agreed, or until the market has improved for selling, for example.

It requires cooperation and detailed arrangements should be discussed as to the mortgage repayments, and outgoings including rates, utilities, and eventual sale terms. This option may be suitable for families with school-aged children where you and your partner are amicable and can communicate well about decisions.

Keeping the home

One partner may wish to retain the home, often due to the emotional attachment or if they are the primary carer of the children. This typically involves one partner buying out the other’s share and transferring the property’s title from joint to a single name. The challenge here is ensuring the serviceability of the mortgage, as it will need to be refinanced from a joint name to a single name, only relying on that individual’s income.

This process can be challenging and requires the individual to have an adequate and stable income. It could be a concern for a lot of families especially under the current high-interest rate environment. You may need to consult a financial planner and/or a broker who can assess if this option is open in your financial situation. Child support can be considered an income source in some circumstances, depending on whether there is an administrative assessment in place and how long child support has consistently been paid for.

If there is a court order in place requiring the property transfer, our team is equipped to assist with the process.

Renting out the home

Another option is to keep the family home as an investment property, which may offer an alternative income stream. This arrangement involves both of you moving out and renting the property, with the income potentially covering the expenses. This could be a beneficial temporary arrangement when the market is down or if both of you want to keep it as an investment.

It also requires the communication between both of you to be effective and amicable, as you will be handling the tenants, and liaising with the agent. You also need to agree on how the rental income will be applied and expenses paid, as well as allocating who the property management responsibility will fall to.

Making a decision about the family home during or after a separation is never easy. It can require input from third parties such as accountants, financial planners, mortgage brokers, and, for navigating property settlement matters, experienced family lawyers. The team at R+M is here to assist you.
If you have questions about how the family home should be dealt with post-separation, you should obtain specialist family law advice early on. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Married Overseas and Divorcing in Australia?

It can be difficult to navigate the complexities of an international marriage or divorce for foreigners or residents of Australia. If you’ve been married overseas and are considering a divorce in Australia, this blog may shed light on the process for you.

Are Overseas Marriages Valid in Australia?

The key question many face is the validity of overseas marriages in Australia. The good news is that Australia generally acknowledges marriages conducted abroad, as long as they were legal in the country of marriage and would be considered legal under Australian laws. This means if you legally married in Paris or Beijing, it holds the same validity as if you married in a city of Australia like Sydney.

Residency and Jurisdiction: The Gateway to Divorce proceedings in Australia

The primary prerequisite for filing for divorce in Australia is not the location of the marriage, but the parties' residency status, which requires:

• Either spouse must consider Australia as their home and intend to live here indefinitely, or

• Be an Australian citizen (by birth decent, or grant of citizenship), or

• Live in Australia and have done so for 12 months immediately before filling the Application for divorce.

Grounds for Divorce: Irretrievable Breakdown of Marriage

The only ground for divorce is that the marriage has irretrievably broken down and there is no reasonable chance that you will get back together. To apply for a divorce, you must have been separated for a continuous period of at least 12 months. The period can include time living under one roof, but additional evidence is required in such cases. The 12 months starts from the day one or both parties ends the marriage.

It does not matter who was ‘at fault’ or whether both parties want a divorce.

Legal Maze of international Divorce: More Than just Dissolving a Marriage

While the process of applying for a divorce is usually relatively straightforward, it isn’t the only thing you should be thinking about if you are a separating. You may also need to consider addressing property division, parenting arrangements, and possibly spousal maintenance. These aspects can be particularly intricate when international marriages or relationships are concerned.

Seek Legal Advice

At Robinson + McGuinness we have experienced family lawyers that can guide you through the process of separation and divorce, offering fixed-fee divorce applications. We aim to protect your rights and interests, offering a supportive and knowledgeable guiding hand through this challenging time.

Please contact us to make an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Living arrangements post separation

If you have just separated from your partner, you might be wondering what happens next. For example, how do you decide who gets to stay in the house? What do you do with all of your belongings?  

Some couples decide to separate but remain under one roof.  For example, a couple may live together but no longer act as though they are in a genuine domestic relationship (i.e. you might sleep in separate rooms and stop socialising as a couple). Couples may decide to remain under one roof due to a number of factors, such as their financial circumstances or to provide stability for the children.  The arrangements may be temporary or they may last years.

If you are not comfortable remaining separated under one roof, you will likely need to have a discussion with your partner about who will remain in the property.  This decision may be impacted by multiple factors including:

1.  Whether there are children and who is the primary carer of those children;

2.  Who is on the lease if it is a rental property;

3.  Who is on the title of the property if you are owner occupiers;

4.  Whether either of you can meet the outgoings for the property;

5.  Whether either of you are able to obtain suitable accommodation elsewhere; and

6.  Whether there are any safety considerations.

It is important to discuss and establish boundaries around each of you accessing the property and for what purpose.

In the event you do not agree about who remains living in the property, you can also make an application to the Court to determine who will have sole occupation of the property and who shall meet the outgoings in relation to that property.  See the following blog post for more information about what a Court considers in an application for sole occupation: Who gets to stay in the house after we separate)

If you remain in the property, you will also need to think about how to divide the household contents.  You may not agree about how to divide big ticket items, such as whitegoods, furniture and valuable artwork.  It is useful to keep track of how you divide your household contents, particularly if you have valuable assets as this will generally form part of your property settlement.

It is generally reasonable to allow the other party to collect their belongings and in particular, items which are not in dispute such as personal documentation, clothing and personal effects.  If you are concerned about your former partner collecting their belongings, you can seek advice on establishing a process for them to collect their belongings. For example, a lawyer can advise on safety measures to employ to ensure there is no conflict when they collect their personal effects.

As with anyone moving house, you should also think about whether you need to redirect your mail, update any account details (for example, your electricity and gas) and make sure your home insurance is up to date.

If you would like to discuss your accommodation options in the context of a separation, or if you would like to understand your rights and obligations when it comes to the division of your household contents, you can book an initial appointment with one of our specialist family lawyers by contacting us on (02) 6225 7040, by email at info@rmfamilylaw.com.au or get started now online  to obtain advice.

Author: Anika Buckley

Spousal Maintenance – What is it and who can apply for it?

The breakdown of a relationship is a daunting process for many; there are several unknowns, including how life will be funded without a dual income pending the completion of a property settlement.  More often than not, there is an income discrepancy between the parties of the relationship, and this can cause anxiety for the party with a lower income. They may be concerned about how they will afford basic living expenses and accommodation.  

What is spousal maintenance?

The Family Law Act places an obligation on a party to a marriage or de facto relationship to maintain the other party, to the extent that they are reasonably able to do so, in the event that the other party is unable to support themselves adequately due to:

1. The care of a child under the age of 18 years;

2. The party’s age, physical or mental incapacity to gain meaningful employment;

3. Or any other matter considered relevant by the Court.

This obligation is known as spousal maintenance.

In more general terms, spousal maintenance becomes applicable when one party has a shortfall between their income and outgoings, and the other party has the capacity to assist in meeting those outgoings once they have paid for their own reasonable expenses.

There are many forms of spousal maintenance, including:

• Urgent spousal maintenance – where the Court can make an order pending consideration of the need for ongoing maintenance;

• Periodic spousal maintenance – where the Court makes an order, either interim or final, for payments to be made for a period of time (i.e. weekly);

• Lump sum spousal maintenance; and

• An order for the sole use of property (i.e. the former matrimonial home or a vehicle).

Spousal maintenance orders tend to be made on an interim basis, or for a set period on a final basis, to enable the applying party’s circumstances to change such that they can financially support themselves (i.e. return to work once young children go to school, complete studies that will allow them to obtain meaningful employment, or the completion of a property settlement which accounts for the parties’ future needs, including incomes disparity and age).

Who can apply for spousal maintenance?

Spousal maintenance proceedings can be commenced by either party to a marriage or a de facto relationship.  The proceedings can be commenced as follows:

• For married couples: during the relationship, at any point following separation and within 12 months of a divorce order being granted; and

• For de facto couples: within 2 years of separation.

Spousal maintenance proceedings are separate to property settlement proceedings.  While they often run concurrently, there is no need to have a property settlement application before the Court in order to commence spousal maintenance proceedings.

What evidence is required?

When applying for spousal maintenance, the applicant will need to give evidence about the following matters:

• The nature of their relationship with the other party – i.e. was there a marriage or de facto relationship?  

• If the proceedings are to be commenced out of time (see time limits above), an explanation as to why that is the case and a request for leave to apply out of time must be made.

• The applicant’s income and reasonable living expenses.

• Details of why the applicant says they are unable to adequately meet their expenses – i.e. is there something that precludes them from obtaining meaningful employment, or employment with greater renumeration?  Evidence should also be given about the arrangements that were in place during the relationship – i.e. if the Applicant was the primary carer of small children during the relationship, this is a relevant factor for the Court to consider.

If applicable, independent evidence should also be provided to the Court to assist the determination of a spousal maintenance application. Independent evidence would be applicable if, for example, the applicant said they were unable to work due to a disability or illness.

No two family law matters are the same, and while there can be similarities between cases each case must be assessed based on its own facts.  In the event you are considering filing a spousal maintenance application you should first obtain specialist family law advice in relation to the evidence that you can give in support of your application, and the prospects of your application being successful.

Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Peta Sutton

Sole Occupation: Who gets to stay in the house after separation?

Following separation, it is not uncommon that one party may seek to stay in the former matrimonial home, to the exclusion of their former partner or spouse. This is particularly so if there are factors which may limit their ability to obtain alternative accommodation.

The test often referred to in applications for sole occupation is the “balance of convenience” or “balance of hardship”. This exercise requires the Court to weigh and balance the benefits to the spouse seeking to remain in the property versus the hardship that the other party would suffer as a result of being required to leave their home.  

An application for sole occupancy however should not necessarily be determined only with reference to the balance of convenience. In the case of Dean and Dean (1977) FLC 90-213, the Court noted that in order for the Court to grant an application for exclusive occupation of a property, caution should be exercised when making such orders and, “it must not be reasonable or sensible or practical for the parties to the marriage to live in the same house.” 

In the case of Davis and Davis (1976) FLC 90-062, the following criteria were considered by the Court in determining an application for sole occupation:

1. The means and needs of the parties;

2. The needs of any children of the relationship;

3. The hardship to either party or to any children of the relationship; and

4. Whether the conduct of one party may justify the other party leaving the home, or seeking that the first party be excluded from the family home. This does not mean that the removal of one party from the family home is a sufficient basis for a sole occupation application to be granted, in order to enable one party to live more peacefully.

Other factors relevant to the determination of an application for sole occupation have been set out in subsequent decisions, including the following considerations outlined in the case of Plowman v Plowman (1970) 16 FLR 447:

1. Whether a party could be adequately housed elsewhere;

2.Whether there are funds, of either party, that could be used to enable one party to obtain alternative housing;

3. What housing arrangements operate in the best interests of the children;

4. Whether both parties are registered owners of the property;

5. Whether the Court could make an injunction preventing certain conduct from one party, in order to address any concerns raised by the other party regarding the first mentioned party’s conduct.

For advice in relation to your property settlement or obtaining sole occupation of your home, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Margot McCabe

Protection and Separation

Separating from a spouse can be one of the riskiest times for an individual, particularly where family violence has been a feature of the relationship. The legal definition of ‘family violence’ can be found at section 8 of the Family Violence Act 2016 (ACT) or section 4AB of the Family Law Act 1975 (Cth). The definition in both pieces of legislation is broad and canvasses many different types of behaviour that constitute family violence.

Sometimes an individual may not recognise that certain behaviours they have experienced during their relationship constitute family violence until they are out of that relationship. Other times, an individual may have felt powerless or not known what avenues are open to them to protect their safety.

In the ACT, any person can apply for an interim Family Violence Order (FVO) for their immediate protection, or to prevent substantial property damage. Applications for a FVO are generally heard ex parte, meaning that the Court considers the applicant’s evidence in the absence of the respondent (the person who the FVO is being sought against).  

If the Court is satisfied that an applicant is in need of immediate protection, an interim FVO will be granted on the same day as the application is made. The interim FVO generally remains in place for 12 months, pending a final hearing where the Court will determine the application on a final basis (namely whether a final order should be made protecting the applicant). An interim FVO can be extended in some circumstances.

In the ACT, the Australian Federal Police will serve a copy of the application and the FVO on the respondent.

Either party can file documents seeking to amend an FVO, if amending the order will not adversely affect the safety of the protected person. For example, if the protected person’s circumstances have changed since the making of the FVO, or if the FVO restricts the respondent’s rights unnecessarily.    
If you are experiencing family violence, or are at risk of experiencing family violence, it is worthwhile speaking to one of our experienced family lawyers. We can advise you on your prospects of successfully obtaining an FVO and what type of restrictions you might want to seek in a protection order based on your experiences in the relationship, and your concerns.  

We can also advise on the next steps once an FVO has been granted (whether you are the applicant or the respondent), including any flow-on effects that an FVO may have on your family law matter.

In the event you are concerned for your safety, there are a number of services available to you:

1. If you are concerned for your immediate safety, you should contact 000.

2. The Domestic Violence Crisis Service offers assistance with safety planning and can be contacted on (02) 6280 0900.

3. To discuss a potential breach of a Family Violence Order, you should contact 131 444 (the non-urgent ACT Policing number).

For advice in relation to your property settlement, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Anika Buckley

Your Defined Benefit Superannuation Pension is in Payment Phase; So Does it form part of the Property Pool in a Family Law Case?

This question was explored in the 2022 case of Preston & Preston [(2022) FedCFamC1A 157] in which the Full Court heard an appeal of final property Orders made by a judge of Division 2 of the Federal Circuit and Family Court of Australia. The trial judge had Ordered a 58.5/41.5 division of the marital asset pool in favor of the Husband – with the Husband’s defined benefit military pension being included as a capitalized asset in the pool. The Husband appealed the trial judge’s decision on the basis that the judge failed to properly consider the nature of his military pension and incorrectly treated it as a capitalized asset in the pool available for division, as opposed to just an income stream.

The Husband’s defined benefit military pension was in the payment phase. The pension was only payable while justified by the Husband’s medical condition, however, both the Husband and the Wife acknowledged it was unlikely the pension would ever be reduced.

At the commencement of the trial, the Wife had initially sought a superannuation splitting Order but abandoned this position throughout the hearing. In her final submissions Counsel for the Wife did not contend for the pension to be counted as a capitalized asset, but anticipated its treatment as an income stream for the Husband. Notwithstanding the Wife’s concession regarding the treatment of the pension, the trial judge still counted the capitalized value of the Husband’s pension as an asset in the pool (even though neither party sought superannuation splitting Orders).

The Full Court found that the trial judge erred in including the capitalized value of the military pension in the asset pool. The capitalized value of the pension formed an integral part of his proportional share of the divided property, notwithstanding he could never liquidate it as an asset and its continued payment was contingent upon an ongoing future review of his medical condition.

The Full Court said:

From [11] “it was impossible to commute the military pension… and neither party ultimately sought a superannuation-splitting order in respect of it… so the expert opinion evidence of having a capitalized value of $638,109… lost its utility”.

At [14] “Her Honour concluded the husband had a significantly higher income-earning capacity than the wife… which in part stemmed from his indefinite receipt of the military pension…”

At [15] “There was no need to ascribe a capitalized value to the military pension when no splitting order was sought in respect of it…”

At [17] “Having been notionally counted as an asset in the balance sheet… the primary judges’ findings necessarily meant that the husband’s 58.5% share of the assets and superannuation incorporates the military pension at its capitalized value of $638,109, even though he does not and never will have that capitalized sum available for his use”.

The Full Court allowed the appeal and the final Orders were set aside. In re-exercising its discretion, the Court Ordered a 50/50 division of the marital asset pool, the difference being that the Husband’s military pension was treated as an income stream and was not included in the marital asset pool available for the division at its capitalized value.

Family law is specialized and complex. If you are separating and considering your options regarding a property settlement with your former partner, including one that will involve splitting superannuation, you should obtain advice from those qualified to assist you.

To make an appointment with one of our specialist family lawyers contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

Author: Ellen Russell

Spousal Maintenance and Maintenance Orders. What, Why, When, Where, How?

The Family Court has the ability to order that one party to a marriage (or a de facto relationship) pay spousal maintenance to the other if that party is not able to adequately meet their own reasonable needs.

What is spousal maintenance?

Spousal maintenance is the provision of financial support from one party to a relationship with the other (post-separation). Orders for payment of spousal maintenance may be made with the agreement of parties (i.e. by consent), or as determined by the Court. Generally, the provision of maintenance is aimed at enabling one party to meet their reasonable needs, as opposed to meeting discretionary expenditure, or for the provision of luxury items, such as holidays.

The “reasonable need” is generally considered as relating to expenditures such as housing, utility expenses, food, clothing, medical needs, etc.

Why does the Court make Orders for spousal maintenance?

Spousal maintenance may be ordered to be paid from one party to another if the ‘paying party’ is considered to be liable to maintain the other (and if they are reasonably able to do so).

The ‘receiving party’ must be unable to support themselves, as a result of:

1. Having the care and control of a child of the relationship under 18 years of age;

2. Their age or physical or mental incapacity to obtain employment; or

3. Any other adequate reason.

There are a number of factors that the Court can take into account when considering an application for spousal maintenance, including:

1. The age and state of health of the parties;

2. The length of their relationship;

3. The income of each of the parties, and their physical and mental capacity to obtain gainful employment, as well as their financial circumstances generally and financial resources available to them;

4. Whether one party has the care of children from the relationship;

5. A standard of living that is reasonable in the circumstances.

When can the Court order spousal maintenance?

The Court has the power to order that spousal maintenance be paid during a relationship or following separation. In the case of Eliades & Eliades (1981), the Court made Orders to the Wife in an intact marriage. There are time limits that apply as to when a party may seek that orders be made for spousal maintenance, and accordingly, you should obtain advice tailored to your circumstances in relation to a property settlement and/or maintenance as soon as possible after separation.

In terms of the frequency of the payment, spousal maintenance may be ordered to be paid either as a periodic payment (i.e. per week, fortnight, or month), or as a lump sum.

Where can an order for spousal maintenance be made?

Orders can be made for payment of spousal maintenance within Australia, and also in circumstances where a party is living overseas.

A maintenance order made in another jurisdiction may also be registered and enforced in Australia. You should receive advice tailored to your circumstances if seeking to register a maintenance order made overseas. The jurisdictional requirements are complex and vary from one jurisdiction to another, and whether an overseas order can be enforced in Australia is dependent on whether Australia has a reciprocal arrangement with the country where the maintenance Order was originally made.

How does the Court have the power to make an order for payment of spousal maintenance?

The Court has the power to make orders for spousal maintenance pursuant to Section 74 of the Family Law Act 1975, to make such order as it considers ‘proper’.

Adult child maintenance

In certain circumstances, the Family Court can also make orders for a parent (or parents) to pay adult child maintenance to a child aged over 17 years (or to the other parent for the benefit of the adult child). The Court will consider any medical and/or educational issues that may be preventing the adult child from being able to earn an income to support themself. The capacity of the parent being asked to pay the adult child maintenance is also a relevant factor that the Court must consider before imposing any order on a parent.

If you would like legal advice about your specific circumstances, including property settlement or spousal maintenance matters, contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

Author: Margot McCabe

Are you still in a de facto relationship if you’re not living together

Fairbairn v Radecki [2022] HCA 18

The 2022 High Court decision of Fairbairn v Radecki [2022] HCA 18 considers the meaning of “breakdown of a de facto relationship” as per s90SM of the Family Law act 1975.

The parties to the proceedings commenced a relationship in 2005. In 2010, they entered into a formal agreement to keep their assets separate, including that the de faction wife’s home was to remain her property. This was considered to be a fundamental feature of the parties’ relationship.

By mid-2017, the de factor wife was diagnosed with dementia. On the advice of her doctor, she executed and enduring power of attorney in favour of her children from a previous relationship. Shortly after, notwithstanding the wife’s diminished capacity, the de facto husband encouraged the wife to revoke the existing power of attorney, and a new power of attorney was made in favour of him and the wife’s brother. The husband also arranged the wife to execute a new will that was more favourable to him than the wife’s previous will.

In 2018, the NSW Civil and Administrative Tribunal (‘NCAT’) appointed the NSW Trustee and Guardian (‘the Trustee’) as the de facto wife’s guardian and financial manager. NCAT also revoked the power of attorney in favour of the de facto husband.

In March 2018, the wife was moved into an aged care home. The Trustee sought to sell the de facto wife’s home to cover the costs of her ongoing care, however this was opposed by the de facto husband. The Trustee subsequently made an application to the Federal Circuit Court of Australia (as it was then known) seeking Orders for a property settlement.

The primary judge held that the parties’ de facto relationship had broken down by no later than 25 May 2018. The Court found that the de facto husband’s conduct during the demise of the wife’s mental state, was inconsistent with a “fundamental premise” of their relationship, being the strict separation of assets.

The de facto husband appealed the primary decision to the Full Court of the Family Court of Australia. The Full Court overturned the primary Judge’s decision, finding that there was no breakdown of the de facto  as the de facto husband’s conduct was not fundamentally inconsistent with a continuing de facto relationship.

The Trustee (on behalf of the de facto wife) appealed the Full Court’s decision, to the High Court. The Trustee attempted to argue that the parties’ relationship had broken down when the wife moved into an aged care home, arguing that de facto relationships break down when parties to the de facto relationship stop living together. This was rejected by the High Court. The Court held that the term “living together” means sharing a life together as a couple and must be “construed to take account of the many various ways in which two people may share their lives together in the modern world” [33].

Notwithstanding this, the High Court agreed with the primary judge’s finding that where one party to a de facto relationship acts fundamentally contrary to the interests of the other party in relation to the property of the couple, it is possible to conclude that the mutual commitment to a shared life has ended.

The Court noted that keeping their assets separate from one another was an “essential feature” of the parties’ relationship. By 2017, the de facto husband began to act as if he were no longer bound by this agreement. On this basis, the Court upheld the primary judge’s finding that the de facto relationship had broken down by no later than 25 May 2018.

Family law is complex and you should seek specialist advice if you, or a family member, find yourselves in a situation where you may benefit from advice about your entitlements, rights or responsibilities.

If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.

Author: Ellen Russell

Separation essentials: Nine things to know after separation

9 THINGS TO KNOW AFTER SEPARATION

1. Timeframes are important! If you have been in a de facto relationship, you have two years from the date of separation to formalise your property settlement. If you are married, you have 12 months from the date of divorce to formalise your property settlement. You must be separated for 12 months before applying for divorce.

2. Divorce proceedings are separate to Court proceedings relating to parenting and property matters. The divorce application process is generally a relatively quick and simple process.

3. Delay is risky. It is advisable to formalise a property settlement as soon as reasonably practicable after separation, to ensure that there is not any significant change in the financial circumstances of parties from that which existed during the relationship.

There are also risks associated with delay in parenting matters. For example, if there are unsatisfactory parenting arrangements in place, it can become increasingly difficult to change any “status quo” which may come about, the longer that those arrangements are in place.

4. Transparency is required regarding your respective finances while negotiating a property settlement. All parties are required to provide full and frank disclosure of their financial circumstances, including income, property in their name or possession, and any financial resource available to them. If a party has failed to provide disclosure, there could be scope for the other party to have any Binding Financial Agreement or Court Orders set aside, on the basis of that non-disclosure.

5. You are entitled to obtain independent legal advice, and should do so. Each party ought to obtain legal advice from different lawyers. Your solicitor’s job is to give objective and realistic advice to assist you in resolving any dispute. Anything that you discuss with your solicitor is confidential.

6. Children should not be involved in discussions regarding property or parenting arrangements. It is important for children to be protected from conflict, and not placed in a position where they are exposed to any unkind comments made about a parent or other family member.

7. There are a range of alternative dispute resolution options available to parties, including collaborative law, mediations, arbitration. These alternative options of dispute resolution are aimed at reducing the conflict, delay, and cost which can be associated with more traditional methods of dispute resolution, and of course to avoid Court where possible.

8. Most matters resolve without litigating. Those who have recently gone through a separation are sometimes understandably concerned about the risk of being involved in stressful and costly litigation. The vast majority of people reach agreement without being involved in Court proceedings, and only approximately 5% of matters before the Court progress all the way to a final hearing. Litigation is a last resort, and should be treated as such, unless there are safety issues or in matters of urgency.

9. You, and your loved ones, are entitled to feel safe and if you have any concerns about your safety you should urgently obtain advice, including in relation to the possibility of obtaining a protection order to cease or limit contact with another party.

To obtain specialist family law advice in relation to your separation, contact Robinson + McGuinness to arrange an initial appointment. Contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

Author: Margot McCabe

Am I eligible for an Annulment?

People sometimes use the words ‘divorce’ and ‘annulment’ interchangeably, but they are separate processes with different requirements. Regretting a decision to marry, not consummating the marriage, or realising that one of you is actually in a different financial situation to what you thought may all be good reasons to seek a divorce, but they do not qualify as reasons to seek an annulment.

To obtain a divorce your must first demonstrate that you have entered into a valid marriage that you now wish to end. In contrast, to obtain an annulment you must demonstrate that the marriage you have entered into was never valid at all.

The requirements for a valid marriage are as follows:

- Neither party can be married to another person;

- Both parties have to be over 18, although they can be given leave by the Court to marry at age 16 in certain circumstances;

- It cannot be a prohibited relationship, like brother and sister;

- There must have been real consent to the marriage that took place in a real ceremony, and that consent must not obtained by duress, fraud, or mistaken identity, or take place when a person was incapable of understanding what they were entering into.

The case of Nagri & Chapal [2012] FamCA 464 is a good example of where the Court granted an annulment due to duress. In that case, the parties entered into an arranged marriage that was set up by the applicant’s uncle. The applicant did not want to marry the respondent, but the uncle put the applicant under immense pressure to comply with his ‘family duties’, ignoring the applicant’s objections. The applicant went along with the civil ceremony, but ultimately refused to go through the religious marriage ceremony and applied for an annulment.

The Court found that the applicant was subjected to such “strong feelings of family loyalty” and “religious and cultural beliefs” that he “believed his uncle was entitled to demand his obedience”. He was economically dependent on his uncle and felt that he owed his uncle a debt because of the support his uncle previously provided. The Court ultimately found that these factors taken together meant that the applicant was under duress because his will was “overborne to the extent he was not acting of his own free will”, and granted him the annulment.

Annulments can be a tricky business and applying for one is a much more difficult process than obtaining a divorce. If you are considering seeking an annulment, you should obtain specialist family law advice.

If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.

What If I Can’t Serve My Divorce Application?

If you have filed a sole Application for Divorce, you will need to serve the application on your spouse. The application and supporting documents can be served by hand or by post.  If your spouse lives in Australia, you must serve the documents at least 28 days before the divorce hearing. If they live overseas, you must serve the documents at least 42 days before the hearing.

If you are no longer in contact with your spouse, it can be difficult to serve your divorce application. They may have changed their contact details or moved interstate or overseas. If you are unable to locate your spouse, you should make attempts to contact them or locate them in other ways, such as through their family, friends or employer. You should also try searching the electoral roll if possible.

If you are still unable to locate your spouse despite making all reasonable enquiries, you can make an Application in a Proceeding seeking:

1. Substituted service; or

2. Dispensation of service.

It is important from the Court’s perspective that your spouse has an opportunity to respond to your Divorce Application if they wish to.

Substituted service

Order for substituted service allows you to serve your spouse in another way. For example, if you are aware of your spouse’s email address, you could seek an order that allows you to serve the application by email. You can also seek an order that you be permitted to serve the documents to a third party, such as a relative, who can pass the documents on to them. You must be sure that the method of substituted service will be successful.

Dispensation of service

An order to dispense with service means that service is no longer required. This order can be made with or without conditions. The Court must be satisfied that you have taken all reasonable steps to serve your application and that the requirements for divorce have otherwise been met.

Procedural requirements

An application for substituted service or dispensation of service requires an Application in a Proceeding and a supporting Affidavit. Your Affidavit should set out the attempts you have made to serve your spouse, including:

1. Your attempts to contact and locate your spouse, including copies of any messages/emails;

2. The last known address of your spouse and details of your last communication with them;

3. Enquiries you have made of your spouse’s family or friends and any replies received;

4. Enquiries you have made with your spouse’s employer and any replies received;

5. Details of any child support or maintenance orders, including any correspondence with government departments;

6. Details of any jointly owned property;

7. The costs you have incurred trying to serve your spouse and whether further costs would create financial hardship for you;

8. If you are seeking substituted service, details of the way you propose to serve documents and the basis upon which you believe it will be successful; and

9. Any other relevant information.

The application will generally be heard at the same time as your divorce hearing. You should attend the hearing as the presiding Court Officer may ask you to provide further information.  

You may wish to seek specialist family law advice before applying for substituted service or dispensation of service. If you would like to discuss your matter and how we can assist you, please contact us today at (02) 6225 7040 by email at info@rmfamilylaw.com.au or get started now online.

Author: Amy Davis

Divorce Applications – what are the service requirements?

A Divorce Application has been filed and you have been listed before a Judicial Registrar or Deputy Registrar for a Divorce Hearing. What do you need to do to ensure that the Application can proceed at the Divorce Hearing?

In the event you have filed a joint Application for Divorce, there is no requirement for you to serve the Application upon the other party.

If you have filed a sole Application for Divorce, you will need to ensure that you have affected service no less than 28 days prior to the Divorce Hearing.  This is to ensure that the Respondent is aware of the Application and has an opportunity to respond should they choose to do so.

A failure to serve an Application for Divorce in accordance with the Federal Circuit and Family Court Rules 2021 may result in the Divorce Hearing being adjourned to a later date.

What documents need to be served?

The following documents will need to be served on the Respondent:

1. The sealed Application for Divorce and supporting documents;

2. The Marriage, Families and Separation brochure published by the Court; and

3. An Acknowledgement of Service (Divorce).

How do I serve the documents?

In accordance with the Federal Circuit and Family Court Rules 2021 service of an Application for Divorce can be affected in two ways; (1) by hand / personal service (i.e. a process server) or (2) by post. You cannot serve it on the other party yourself.

In the event you choose to serve the Application for Divorce by post, you will need to provide the Respondent with a pre-addressed return envelope to your address for service, and if the Respondent is in Australia, the correct postage for the envelope to be returned to you.

Once you have affected service, and prior to the Divorce Hearing, you will need to arrange for the relevant Affidavit of Service to be filed with the Court, proving you have done so.  In the event service of the Application for Divorce was affected by a person who does not know the Respondent (i.e. a process server), the Applicant will also need to file an Affidavit Proving Signature prior to the Divorce Hearing.

What if I was unable to serve the Application?

If you have been unsuccessful in serving the Application for Divorce despite your attempts, you may need to make a separate Application to the Court and seek Orders dispensing with the requirements for service, or an order that provides for the documents to be served in another way (i.e. via email). Your application will need to be supported by an Affidavit setting out the steps you have taken to try to serve the other party.

It is important that all necessary steps are taken to comply with the service requirements of an Application for Divorce. A failure to do so may result in the Application being delayed, or in some instances, it may be dismissed.

The service requirements for an Application for Divorce have changed since the Federal Circuit and Family Court Rules 2021 commenced on 1 September 2021. If you are unsure how to serve an Application for Divorce, or the Application itself you should seek advice from a specialist family law solicitor.

As specialist family lawyers, we at Robinson + McGuinness will be able to advise you and act for you in relation to your Application for Divorce.  We offer fixed fees in relation Divorce Applications.  We can also act for you in the event an appearance is required by you or on your behalf at Court.

If you would like advice in relation to your family law matter, contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

 Author: Peta Sutton

Capital Gains Tax and why it’s important for your Property Settlement

If you are negotiating a property settlement with a former partner, it is important that you are alert to the risk of any future taxation consequences of the settlement, so you can make informed decisions accordingly.

Why is capital gains tax relevant for my property settlement?

The first step to determining the outcome of a property settlement is to identify and value all property, liabilities, superannuation and financial resources in which each party has an interest.

A capital gains tax liability may be treated by the Court as a liability to be deducted from the net asset pool as part of your property settlement, in the same way that the Court would treat a secured mortgage.

Capital gains or other taxation liabilities may need to be shared by you and your former partner, if there is an intention to sell an asset which will trigger a capital gains tax event. It may impact only one party, depending on how the relevant real property is held/owned.

The Court will not however have regard to a potential capital gains tax liability that may be incurred by one party at some point in the future, if they have no present intention to dispose of the property.

This means that the Court will usually take into account any current or anticipated capital gains tax liability if there is an intention to sell property, or the property has already been sold but the CGT trigger has not yet occurred. For example, an investment property has been held jointly for a period of 5 years during a marriage. One party intends on retaining that investment property, as part of the property settlement to rely on it as a future income stream. That party will not receive an adjustment for any future capital gains tax liability, despite the fact that the property was jointly owned for a period.

In what circumstances might I need to consider obtaining advice in relation to capital gains tax?

In a family law context, capital gains tax commonly arises when there is a sale of an investment property or shares.  You should obtain accounting advice in relation to your eligibility for CGT roll-over relief and any taxation consequences (including stamp duty) associated with your property settlement, and ideally, supplement that with financial advice. We are proud to work with a range of reputable Canberra financial advisors and accountants who we often recommend our clients to, for financial or accounting advice.

How do I ensure that a capital gains tax liability is taken into account as part of my property settlement?

In the same way that the Court requires valuations of real property, the Court must have independent and reliable evidence as to the value (or anticipated value) of a capital gains tax liability. This evidence would need to come from a suitably qualified accountant. 

You should obtain family law advice when negotiating and finalising the terms of your property settlement, to ensure that liabilities such as capital gains tax are appropriately taken into account as part of Court Orders or a Binding Financial Agreement. As specialist family lawyers, we see where things go wrong and the importance of doing things properly the first time around!

If you would like to make an appointment to discuss your circumstances with a member of our team, please contact us on (02) 6225 7040, via email at info@rmfamilylaw.com.au or get started online here.

By Margot McCabe 

What is a De facto Relationship?

You have been seeing the same person for an extended period of time, though you are not married and you do not have an intention to marry.  You may be living together, own a house together, and may even have children together.  So, what does this mean? If you are not married, what type of relationship are you in?

In this scenario, it is likely that you and your partner will be in a de facto relationship.  But what is a de facto relationship?  

The Family Law Act 1975 defines a de facto relationship as two persons who:

1. Are not legally married to each other; and

2. Are not related by family; and

3. That in having regard to the circumstances of the relationship, they have a relationship as a couple living together on a genuine domestic basis.

A de facto relationship can exist between a couple in a heterosexual relationship, or in a same sex relationship.

The Court has discretion under the Family Law Act 1975 to make findings about whether two people are living together as a couple on a genuine domestic basis.  The matters they will consider are as follows:

· The length of the relationship;

· The nature and extent of any common residence (i.e. were you living together on a genuine domestic basis);

· Whether a sexual relationship existed;

· The degree of financial dependence or interdependence the two people had;

· The degree of a mutual commitment to life;

· Whether the relationship was registered;

· Whether there are children of the relationship;

· Whether the people own property together, and how that property was used;

· The reputation and public aspects of the relationship; and

· Any other matters that the Court considers relevant.

If your de facto relationship breaks down, subject to meeting a criteria, you will be entitled to apply for a family law property settlement under the Family Law Act 1975.

There are time limits that apply following the breakdown of a de facto relationship to apply to the Court for a property settlement. People who were in a de facto relationship have 2 years from the date of separation to apply to the Court (either by consent or to commence family law proceedings).  If you miss this time limit, you will need leave of the Court to apply for a property settlement.  If you are out of time, you should see a family law solicitor immediately.

If you are not sure if you were in a de facto relationship, or you would like to know more about your rights and entitlements under the Family Law Act 1975 in relation to parenting and property matters, you should seek advice from a family law solicitor.

If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

By Peta Sutton