Latest Legal Blogs : family law
Gift or Loan - What is the Law in Family Law?
Imagine this, your parents loan you $300,000 to buy your first home, you and your wife are going through a property settlement and now she says it was a gift, not a loan. Property settlement between separated partners requires identifying the property pool, that is all assets, liabilities and financial resources you have, both jointly and solely. It is the net value of the property pool which is distributed between you. A loan owing to parents would be included in the property pool as a liability, so what happens if your former partner says the funds were a gift and not a loan to be repaid? Loan or Gift? When the Federal Circuit and Family Court of Australia are faced with the task of determining whether there is a “loan” or “gift” in these situations the Court must consider the “presumption of advancement”. A parent-to-child relationship gives rise to the presumption of advancement. This is the legal presumption that a transaction is presumed to be a gift. The presumption however can be rebutted. So what will rebut the presumption of advancement? Each case is assessed on its own facts, but considerations by the Court may include: Is there a written loan document? Is there security for the loan, such as a registered mortgage? What was the intention of the parents at the time of giving the funds? Has the loan been called on for repayment? What are the terms of repayment? Is there evidence of any repayments? Is there evidence to support that both separated partners accepted the funds that were loaned? Is there evidence of representation to third parties (such as a bank) about the funds being given as a loan or gift? If parties had not separated would the loan have been called for repayment? What is the likelihood of the loan actually being repaid? Has the limitation period expired for the loan to be an enforceable debt? Who has to prove the loan? The onus to rebut the presumption lies with the person arguing the transfer of funds is a loan, not a gift. To be successful in rebutting the presumption there will need to be evidence that is inconsistent with the presumption applying. Was the presumption not rebutted? The law for property settlement generally follows a five-step approach as determined in the decision of Stanford v Stanford [2012] HCA 52. Broadly the steps are as follows: Consider whether it is “just and equitable” for there to be an adjustment of property ownership; Determine the property pool available for distribution; Assess contributions by each party; Assess the future needs of each party; and Consider whether the proposed distribution is “just and equitable”. If you are unsuccessful in rebutting the presumption and the funds are considered a gift, the funds will be considered during the assessment of contributions. Where parents gift funds, the contribution is to be taken as a contribution by the child of the parent unless there is evidence that it was not the intention of the parents to benefit only their child. The onus to prove the gift was not intended to only benefit you, but you and your former partner lie with your former partner. We can help Our Family Law Team can provide you with comprehensive and specific advice about property settlement with your former partner. Contact our Family Law Department, if you would like to arrange an initial consultation. Our Commercial Team can provide you with comprehensive and specific advice about transactions and agreements between families, assist with preparing a Deed of Gift or formalise a Loan Agreement. If you would like to discuss your property settlement - contact our Family Law Team. If you would like to discuss family agreements – contact our Commercial Team.
The Dreaded D Word: Divorce
No doubt at one point in your life you have heard someone say, “Jack and Jill are getting a divorce”. In most cases, Jack and Jill aren’t really getting a divorce, they are simply separating. In fact, many separated couples choose not to get divorced at all. In simple terms, a divorce is the termination of a marriage. A divorce is entirely separate to a property settlement. As you would expect, a property settlement is dealing with your financial affairs. A divorce is also entirely separate to any parenting issues that may arise. Below are some general details about filing for divorce. When can I file for Divorce? The main requirements for filing an Application for Divorce are:- There has been an irretrievable breakdown of the marriage; The parties have been separated for a period of 12 months; and There is no reasonable likelihood of reconciliation. If you have not yet been separated for a period of 12 months, you will need to wait until the 12 month time period lapses before you can file. For a time, you might have continued to live together but are definitely separated and this can be a part of the 12 month period. Do I file a Joint Application or a Sole Application? There are two (2) types of Divorce Applications which can be filed with the Court, namely, a Sole Application or a Joint Application. If you and your former spouse are amicable and you both agree to file for divorce, we would recommend you file a Joint Application. If there are children of the marriage under the age of 18, filing a Joint Application alleviates the need for either party or their solicitor to appear at Court. Alternatively, if there are children under the age of 18 and you file a Sole Application, you or your solicitor will be required to appear at Court for the hearing. Filing a Divorce Application is a little more complicated if there are children under the age of 18 as you are required to complete comprehensive details regarding the care arrangements of each of the children. The Court needs to be satisfied that you and your former spouse have made appropriate arrangements for the care of the children before granting the divorce. If you require assistance filing an Application for Divorce, please contact our Family Law Team.
Step Parent Adoption or Parenting Orders?
In this day in age, when we think of families, we don’t just think of the traditional nuclear family with mum, dad and children. Children can live with and be cared for by others, such as extended family members, like grandparents, aunts, uncles, or they could be part of a blended family. When children have a step parent, there may come a time when the step parent wants to adopt their step child or children. Common reasons parents consider step parent adoption include:- Death of the other biological parent; Children express they wish to be adopted; Children to have the same surname as a step parent; or The other biological parent has been absent from the child’s life for years. Step parent adoption however is not the only option and you may want to also consider Parenting Orders. Parenting Orders An alternative to adoption, which is viewed as more appropriate in most cases, are Parenting Orders. Parenting Orders can provide a step parent with parental responsibility for step children for major long-term issues and day to day decisions, and include specifics about step children’s living arrangements. Parenting Orders can remove a biological parent’s parental responsibility for children. Seeking Parenting Orders can be by consent of children’s biological parents, or through Court proceedings. When making Parenting Orders, the Family Court of Australia or Federal Circuit Court of Australia, must ultimately consider what is in the best interests of the child or children. Adoption In order for adoption of step children by a step parent to occur, you need to get permission from the Family Court of Australia. Such an Order is rarely made in circumstances where it is serious and a final legal process. Step parent adoption permanently severs the legal relationship between children and the other biological parent. Criteria for a step parent to adopt step children in Queensland are:- The step parent and biological parent must be married or in a de facto relationship; The step parent and biological parent must have lived together for at least three (3) years; The step parent must have lived with the step child or children for at least three (3) years; The step parent must obtain “leave” (permission) of the Family Court of Australia to commence adoption proceedings; The step child or children must be at least five (5) years old and have not yet turned seventeen (17) years old; Either the step parent or biological parent must be an Australian citizen; and The step parent must be resident or domiciled in Queensland. Even if all of the above are satisfied, there is no guarantee that the Family Court of Australia will make an Order for step parent adoption. When considering granting leave for step parent adoption, the Family Court of Australia must also ultimately consider what is in the best interests of the child or children.
Who gets the children at Christmas
Few times of the year can be more difficult for a newly separated family than Christmas. Although it is a joyous time of year, it can also be stressful. And this year Covid-19 adds a whole new level of anxiety and uncertainty to Christmas planning. The best thing for your children – and for you – is to work out where the children will be during the Christmas period. And to make contingency plans in case you, your children or your former partner are affected by travel restrictions, with a lockdown or even quarantine requirements possible. If you have Court Orders or a parenting plan it probably doesn’t deal with the impact of Covid-19. You should both talk about what would happen if things don't go to plan due to Covid? Then if that happens at short notice and in the middle of family time at Christmas it won’t lead to anger and arguments, with the kids caught in the middle. If you have recently separated, and don’t have Court Orders or a parenting plan, how do you work this out? The best way is to think about Christmas through the eyes of your children. Where do you think they would like to spend Christmas, and with whom? If you and your former partner will both be in the same town for Christmas Day, then your children will have the chance to celebrate it with each of you, and extended families. Think about what would work well in your family – and your former partner’s family. If there is a particular Christmas tradition in your partner’s family such as Christmas lunch, see if you can suggest an arrangement that accommodates that whilst still allowing the children to spend time with you on Christmas morning or evening. It won’t be perfect, but if you can work out arrangements so that your children celebrate Christmas with each of you, that’s the best Christmas present you can give them. It can be very difficult to work these things out. We are experienced in negotiating the challenges you face when trying to reach agreement for your children. With Christmas only a month away, if you need help in coming to an agreement about the Christmas holidays, please contact us as soon as you can. You want to know that you will be able to enjoy the festive season with your children, and not be at war with your former partner.
We've Separated - What about the business?
You've spent years building up your business. Now you and your partner have separated, and you're worried you might lose everything you have worked for. How can I protect my business? It’s in everyone’s best interests to make sure the business keeps running. If emotional fallout from separation damages the business or its reputation, everyone will suffer financially. The difficulty is, not everybody is thinking clearly. So what happens if your former partner is doing things that are causing damage to the business? How specialist advice can help We can assess the risks with you and then recommend immediate steps to protect the business operation. In very serious situations, that may include filing an urgent application with the court to get the protection of a restraining order. Often, however, we can recommend practical steps that can make a real difference immediately. Your former partner may not accept what you are saying about the impact their behaviour will have, but they may listen to someone else. If your accountant is trusted by your former partner they can play an important role in discussions. Talking with the business accountant, who your partner trusts and sees as independent, may help them see how their behaviour will damage everyone - including themselves - financially. There is risk, but also opportunity Family law property division creates opportunities to restructure. There may be significant tax benefits to you and your business. Conversely, it creates risks of taxation consequences so advice from your accountant early on is very important. If your accountant is not already involved, it is a good idea for us to have a meeting with you and them. We can discuss what’s been happening with the business and how you might restructure as part of the family law process. If you are faced with this situation the sooner you act to deal with any conflict and destructive behaviour by your former partner, the better. Julie Bligh is an Accredited Family Law Specialist who can advise you in this situation. We also have Accredited Specialists in Property and Succession Law. Our specialists can work with you and your accountant to restructure your business and personal affairs in the event of a relationship breakdown. Contact Julie to arrange a fixed fee initial consultation: julie.bligh@cosu.com.au
Connolly Suthers solicitor receives award as Highest Achiever!
Our Family Law Solicitor, Julie Bligh has been recognised by the President of the Queensland Law Society as the highest achiever in Family Law Specialist Accreditation in 2019. The Queensland Law Society’s Family Law Specialist Accreditation program provides a nationally recognised "mark of excellence" for high level competence and knowledge. Every aspect of the Family Law process is difficult - people going through relationship breakdown face complex and diverse legal problems that compound their emotional challenges. To best serve their clients’ interests solicitors practising in Family law require special expertise. We took five to sit with Julie and asked her about the process of becoming an accredited specialist. She had one word for us, gruelling. “Despite being a Solicitor for almost 25 years and specialising in Family Law, accreditation still required more than a years’ study in areas including tax, trusts and corporate restructuring. When told that I had passed the accreditation process my first thought was relief. All the candidates are experienced Family Law professionals, making me especially proud to be the highest achiever. That recognition confirms that solicitors in regional areas are the equal of any”. High achievement is not new for this locally raised lawyer. Julie also placed first when she attained Specialist Accreditation in Personal Injuries law – making her 1 of only 16 lawyers in the state that hold a double accreditation. Below is information given by the Queensland Law Society: The number of Solicitors currently in Queensland 12,620 The number of Family Law accredited specialists 206 The number of dual accredited specialists 16 We are so proud of Julie's incredible achievement and are so happy to call her one of our own. Should you require expert family law advice, you know who to call.
Considering Adoption, Surrogacy or 3 Parent IVF? How to get legal recognition of your family
The law often struggles to keep pace with developments in science and technology. How can defamation laws deal with the internet? How do we deal with international cyber fraud? And how can family law keep pace with medical developments to have a child? There are many ways for people to have children. A senate committee has recently considered “three parents” IVF. Australia may become the second country in the world, after the UK, to legalise this form of IVF. If a woman has a genetic risk for mitochondrial disease, it will enable her and her partner to conceive a child without that genetic risk. The mother’s egg, a donor’s egg and the father’s sperm create a baby who does not carry the genetic risk of this devastating disease. It provides hope to people with a family history of mitochondrial disease. With new reproductive technology comes consideration of ethical and legal questions, currently being considered in Australia. Sometimes the law does not keep up with technology and social change. Our family law team have been able to assist parents to obtain parenting orders from the family court that reflect the relationship of parents with children who were not born to them in the usual way. People adopting children, or whose children may have been carried by surrogates may need to consider obtaining parenting orders from the court. If you are such a parent, or are thinking of starting a family in such a way, we can offer guidance about current state of the law and the pathway to getting legal recognition of your family.
Who gets the children at Christmas?
Few times of the year can be more difficult for a newly separated family than Christmas. Although it is a joyous time of year, it can also be stressful. The best thing for your children – and for you – is to work out where the children will be during the Christmas period. If you have recently separated, and don’t have Court Orders or a parenting plan, how do you work this out? The best way is to think about Christmas through the eyes of your children. Where do you think they would like to spend Christmas, and with whom? If you and your former partner will both be in the same town for Christmas Day, then your children will have the chance to celebrate it with each of you, and extended families. Think about what would work well in your family – and your former partner’s family. If there is a particular Christmas tradition in your partner’s family such as Christmas lunch, see if you can suggest an arrangement that accommodates that whilst still allowing the children to spend time with you on Christmas morning or evening. It won’t be perfect, but if you can work out arrangements so that your children celebrate Christmas with each of you, that’s the best Christmas present you can give them. It can be very difficult to work these things out. We are experienced in negotiating the challenges you face when trying to reach agreement for your children. With Christmas only 2 months away, if you need help in coming to an agreement about the Christmas holidays, please contact us as soon as you can. You want to know that you will be able to enjoy the festive season with your children, and not be at war with your former partner.
Child Support - key things you should know
In Australia, parents have a legal obligation to financially provide for their children. This obligation continues until a child turns 18 (in most circumstances). In some cases, child support payments can cease before a child turns 18 or can continue to be payable after a child turns 18. What do child support payments cover? Child support payments for children can cover a whole host of different things such as food, clothing, housing costs, medical, school fees and extra-curricular activities. These payments apply to all separated parents. Ordinarily, the party who earns a lesser income and spends more time with the children will receive payments from the other parent.
5 tips for helping your friend through a divorce
Your cherished friend breaks the news that he/she and her husband/wife are going through a divorce. It could be a shock or you may have seen that coming a mile away. It's so important for them to know that they have a supportive network around, even if it's just to lend an ear, be a shoulder to cry or to be a voice of reason at times. Here are our top five tips to help your friend through this difficult time in their life. Think of what's best for your children The Australian Institute of family studies showed that in 2017 there were 47.1% of divorces which involved children under 18 years. It's distressing for the parents, but that's nothing compared to how difficult the situation can be for their children, especially if they are exposed to conflict between their parents. Adjusting to two new households is a big challenge as it's hard enough to have your kids ready in time for school with two parents, let alone one. Getting brownie points with their kids is only going to make things worse and as difficult as it is, they should strive to keep their concerns to themselves and focus on helping their children adjust to the new routines.
How to cope with the stress of your separation
There's no denying it, the stress of separation can have a heavy impact on your mind as well as your body. Although we can help take some of the stress out of your separation, here is a practical tip you can try at home. Take all of your stressful thoughts and put them into two different categories: The 'deal with them' category or the 'release them' category. First category – these are the things that need to be dealt with. They are real issues, choices and decisions that we are faced with. These items require our focus, time and attention - so set aside some time to deal with these issues. Second category – things that don’t need to be dealt with such as negative or stressful thoughts. These are the thoughts that get us caught up in the ‘what if’s’, playing out our worst case scenarios in our mind and letting fear be the main attraction of the show. What can you do when these thoughts want the spotlight? Recognise your negative thought train in its tracks and STOP IT. Do this before it works up too much steam. Take a deep breath. Make an intentional decision to choose a different thought. Continue breathing, aim for a consistent series of rhythmic, smooth and even breaths. This will allow you to centre yourself. Finally, consider whether you can “release it”. If it is something you cannot change or fix, move forward and focus on the things which you have control over. You get to choose what thoughts you give your valuable time and energy to. So, when you're next faced with a stressful thought about your separation (or any part of your life for that matter), place it in the right category and either deal with it, or release it. For those thoughts that fall into the first category, our team of experienced family lawyers can help. In the wise words of Brendon Burchard - "And then one day I decided that hurry and stress were no longer going to be part of my life. Stress is self-created; I decided to stop manufacturing it. We can choose an internal calm and joy even amit the chaos."
So you've split...now what?
Every relationship goes through tough times, some harder than others and in some cases, one (or both) parties call it quits on the marriage. Separation is difficult enough, however, add in one matrimonial home, three children, the family dog, a sprinkle of debt and finally a whole heap of love. What does that make? A complete recipe for a mental break down. How do you handle all of this alone, you might ask? Well you don't, that's where we come in and assist you with what to do.
Let children be children...but when do they get a say?
The breakdown of a relationship can be a difficult time for not only the parties to that relationship, but also for their children. To help your child or children through the separation of their parents, it is important to remember that they are children and to let them be children. Separation can be an emotional and stressful time in someone’s life and with those emotions can come conflict. To a child, separation of their parents isn’t harmful but being exposed to conflict between their parents is.
Top 5 Common Myths About Separation
The law is a tricky thing and can quite often get confused. Many family law myths are spread like ‘Chinese Whispers’ and often, what you have heard is only half of a much greater story. Below we answer five of the most common family law myths. 1. My wife will get everything in our property settlement because women are treated better than men. a) Myth In family law, there is no ‘one size fits all’ approach, as each matter is very different from the next. The Courts look at a range of different factors when considering what is just and equitable for each party. The magic word in family law is ‘contributions’. The Court looks at what both of the parties have contributed to the relationship. This includes both direct and non-direct, financial and non-financial contributions by each party to the acquisition, conservation, or improvement of any of the property. After considering this, the Court will then determine what percentage of the property each party is entitled to. This figure can then be adjusted when the Court considers the ‘future factors’. These include things such as health and capacity to work, the income of the parties, who primarily cares for the dependent children and many more. The Court considers the role you play in the relationship rather than the gender of each person.
To Change or Not to Change Your Surname after Marriage?
What's in a name? In the wise words of Juliet Capulet from Shakespeare’s Romeo and Juliet, "What's in a name? That which we call a rose, By any other name would smell as sweet." Lately, we have found that a lot of people are asking the question “Should I change my surname after I get married?” While it is likely that your mind will be pre-occupied with the finer details leading up to your big day, weddings are not all flowers, gowns, suits and champagne! At some point when you begin your life as a married couple, you and your spouse will probably think and talk about whether or not one or both of you will change your surname. Whether or not you make the change is completely up to you. There are no rules or laws you have to consider in making this decision. However, there are a few things you might like to turn your mind to when you are mulling it over. One factor of the surname-change debate that does come to mind (as an enthusiastic researcher of my own family history) is the impact surname changes have on the tracing back of a family tree. Surnames undeniably make the process of creating your family tree a lot easier! We have discussed a few more of the practical implications below.
Helping Your Children Cope With Your Separation
Though parents are the ones separating, those who can often be most affected by the separation process are the children. After all, they are watching the two most important people in their lives, go through what can be a very tough time. Now, the lawyers at Connolly Suthers like to tell you the truth. We’re not in the business of sugar-coating the reality of a situation or stroking your ego (sorry!). And the truth may not always be what you want to hear. But let’s be frank; you pay a lawyer for legal advice so that you can obtain an honest summary of your options and the likely outcomes of your situation. The cold, hard truth about separating with children is this… being separated parents can be very hard work. There are so many issues to consider when separating or contemplating separation. A quick google search reveals literally thousands and thousands of articles you could read about separation and children. Is it overwhelming? You bet! So let’s break it down.
Who Keeps the Ring?
After a relationship has broken down, there are many aspects to be considered, not least of which is the division of assets from that relationship. We often hear questions such as who keeps the house? Or, is the house to be sold and if so, who gets what from the sale proceeds? Is there a superannuation splitting order and who keeps what furniture etc. A less frequent question is who keeps the engagement ring? Unfortunately, there is not a “one size fits all” approach when determining who keeps the engagement ring and there are many factors to consider. Some of the factors that may need to be considered can include:- who wants to keep the engagement ring; whether there is a sentimental value; and the value of the engagement ring. If the engagement ring is of modest value, then it would most likely be considered by the Court to form part of the parties’ personal effects. However, if the engagement ring is of significant value (for example $20,000.00), it is likely to be treated as a separate and distinct asset. Like with all other assets in the matrimonial asset pool, the value attributed to a particular asset (such as an engagement ring) is not the purchase price of the asset but the current value of the asset.
Top 4 reasons to have a Will
Having a Will is arguably one of the most important things you can do for yourself and your family as life is forever unpredictable and we truly do not know what is around the corner. While each person’s situation varies and the importance of a Will to some will be much greater than others, here are the top four reasons to have a Will. You can ensure your hard-earned assets are distributed to the people you want to receive the benefit of them; You have control over who is to administer your estate; making a Will enables you to choose an executor who will control and administer you estate after you pass away. An executor’s role includes locating your last Will, locating the named beneficiaries, collecting, looking after and sale of your assets where required, identifying and paying all debts and liabilities of your estate, preparing tax returns and distributing your estate pursuant to your wishes; You can indicate your preference of who will take care of your minor children. A Will allows you to nominate a person you trust (or exclude a person who you don’t) to take care of and raise your minor children as their guardian; In the event that you pass away without a Will, your estate is administered pursuant to the rules of intestacy meaning that your assets will be distributed according to the rigid laws of intestacy. The effect that intestacy can have on your loved ones can be catastrophic as it may force the sale of a family home to enable debts and liabilities of your estate to be satisfied and allow other entitled beneficiaries including children and other dependants to claim their entitled share of your assets.
A fresh way to look at Family Law
The breakdown of a marriage or defacto relationship doesn't have to be the end of the relationship, well not in the usual sense. When parties have to sort out parenting or property matters after separation there is often a perception of "winning and losing". If you were told that after separation you and your former partner could walk away with an outcome that was fair and allowed you to maintain a respectful relationship with each other, or even allow you to remain friends, would you be interested? If yes, the answer for you could be Collaborative Law.