Family Law Property Issues in Australia

(Victorian & Australian Law)

In recent times, the jurisdiction of property disputes in Family Law has broadened. Traditionally, property was only divisible between married or divorced couples. De-facto and same sex partners are now able to apply for a property settlement, though under different law. In the absence of agreement between the parties, an application for the settlement of a property dispute is made to the court, to be decided on the basis of need.

The settlement reached becomes legally binding and enforceable by the courts. Here’s a rough guide to what usually happens in these situations…

Applications

Parties can make a property settlement by agreement or, if agreement cannot be reached, make an application to the court for a property settlement. Applications for the division of property after divorce can be made to the Family Court or to the Federal Magistrates Court where a property dispute is worth less than $700,000.

Only parties who are or were married can make an application for a property settlement under the Family Law Act 1975 (Cth). In the case of divorce, an application must be made within 12 months of receiving the decree absolute. De-facto and same sex partners can make an application under the Property Law Act 1958 (Vic) in the Supreme Court, County Court or Magistrates’ Court.

Once an application is made, the parties will be asked to attend a case conference, with the aim of settling the property dispute by agreement before it goes to court. Present at this conference will be the parties, any family lawyer involved and a court registrar. If this conference is unsuccessful, the parties will go to court.

Property disputes in de-facto and same sex relationships (domestic relationships) are dealt with under the Property Law Act 1958 (Vic). A domestic relationship is a relationship between two people (regardless of gender) who live together as a couple on a domestic basis but are not married. The domestic relationship must have existed for at least two years for an application for a property dispute to be made under Part 9 of the Property Law Act . If there are exceptional circumstances, for example children being born out of the relationship, this two-year period can be waived. The relationship must have ended after 8 November 2001 for Part 9 to apply.

Property

The type of property divisible in a property settlement includes assets, cash, real estate, investments, insurance policies and superannuation. Debts are also taken into account. In a domestic relationship, as governed by the Property Law Act , superannuation and retirement benefits are not included in a property settlement. In making an order for property settlement, the court calculates the total pool of assets of the parties.

The division of these assets is based on both contributions made by each of the parties to the asset pool and future needs. The contributions of the parties include non-financial contributions, which means a homemaker will not be disadvantaged in this assessment. Future needs takes into account who is responsible for the daily care of the children, earning capacity, age, health and the financial circumstances of any new relationship. The aim is to distribute the property fairly between the two parties.

If you believe your partner is going to dispose of assets before the total pool of assets is calculated you can obtain an injunction to stop the sale taking place. Bank accounts and proceeds from the sale of any assets that has already taken place can also be frozen.

Spousal Maintenance

A party can apply for ongoing spousal maintenance if they can prove they are unable to support themselves. This application must be made within 12 months of divorce. An application for spousal maintenance is often included with an application for property settlement so that all financial issues are dealt with at once.

Spousal maintenance cannot be applied for where a domestic relationship exists.

Enforcement

If an agreement is reached between the parties, they can apply to the court for consent orders. This will make the agreement enforceable by the courts in case of dispute. Consent orders, once made, are final. A party must prove fraud, impracticality or other exceptional circumstances if they wish the consent orders to be set aside or varied.

If a party is not complying with the orders made, an application can be made to the court for enforcement. In this application, the party applying must set out exactly what the problem is. The court will then decide whether an order is needed to enforce the existing order.

A family law property settlement is an important process to go through after the breakdown of a marriage or domestic relationship. A property dispute can be settled by agreement between the parties or resolved by the court. Each case is unique and will be considered by the court according to its own circumstances. The court will not consider who is at fault in the breakdown of a relationship. Rather, it will be resolved on the basis of fairness and need.

Same Sex Marriage Bill receives Royal Assent

The Same Sex Marriage Bill – which has been working its way through Parliament for the last year – received Royal Assent last Wednesday (17 July 2013), officially making it law.

The new measure became law on 17 July 2013, allowing same sex couples to get married for the first time. There was cross-party support for the Bill, with Conservative, Liberal Democrat and Labour MPs backing the proposal. Under the terms of the Bill, religious organisations in England and Wales are to be given the option to “opt in” to offering weddings to same-sex couples. However, the Church of England and the Church in Wales are banned from opting in.

The legislation – described by the Telegraph as “one of the most radical pieces of social legislation of [Queen Elizabeth’s] reign” has been marred by controversy during its passage through Parliament, with a number of groups protesting against the change that it marks to what they see as the understanding of marriage as solely between a  man and a woman. For example, the Evangelical Alliance criticised the redefinition of marriage as defined by “consumer demands and political expediency”. However, many groups responded positively to the news, with the Roman Catholic Church describing it as a “watershed” and that it marked a “profound social change”. There is expected to be a swathe of new work for family law solicitors after the passing of the Bill.

Maria Miller, the Equalities Minister, stated that marriage would remain the “bedrock” of society and that the passing of the Bill “demonstrates the importance we attach to be able to live freely. It says so much about the society that we are and the society that we want to live in.”

Conservative MP Gerald Howarth – an MP who had voted against the legislation – reacted negatively to the passing of the Bill, stating that it was: “astonishing that a bill for which there is absolutely no mandate, against which a majority of Conservatives voted, has been bulldozed through both Houses”. He also added “I think the government should think very carefully in future if they want the support of these benches. Offending large swathes of the Conservative Party is not a good way of going about it.”

Paul Parker, recording clerk for the Quakers, commented on the news: “It’s wonderful to see same-sex marriage achieve legal recognition. Quakers see the light of God in everyone so we respect the inherent worth of each individual and each loving relationship.”

Media outlets report that the first same sex wedding could take place as early as summer 2014.

Direct 2 Lawyers offer expert advice from employment law solicitors and settlement agreement solicitors

Generational Shifts in Attitudes toward Marriage

Alan Brady is a writer who uses personal experience as inspiration to write about family, the environment, and business practices. He currently writes for attorneys.com which locates local child custody lawyers.

In 2005 a survey was done to determine what views are held by members of Generation Y in regards to marriage and traditional family life. Generation Y is defined differently depending on where you look, but for this article it will be defined as people born between 1981 and 2000. The survey found that 59% of respondents feel that living together, or cohabitating as a couple is an acceptable lifestyle choice, regardless of whether or not children are involved or marriage is the ultimate outcome. Only half felt that marriage is a particularly important social institution.

For someone born into the Baby Boomer or early X generations, this perspective is often completely unfamiliar or even bizarre. Cohabitation doesn’t seem nearly as scandalous as The Greatest Generation found it, but for older Americans the end goal for any relationship is still understood to be marriage. For Generation Y and even those on the younger end of Generation X, the phrase “it’s just a piece of paper” is tossed around as an argument against the importance of marriage. Children are less and less a motivation for marriage, and a study done by the Pew Research Center found that the number of children being born to unmarried women has gone up from 28% to 41% in the last twenty years.

When questioning what influenced these drastic shifts in social mores, the behavior of previous generations must be taken into account. Data collected from 1970 revealed that more than half of all marriages ended in divorce. Even though those numbers have gone down, the idea has stuck in the cultural consciousness, quoted blindly in television and movies, in books and online without stop. In the 80s and 90s, when the young Gen X and Generation Y kids were growing up, it was the most recent data available, and whether or not it remained accurate, it certainly felt that way to them. The children in a classroom whose parents weren’t divorced were often in the minority, and the question ‘are your parents still married?’ was eventually asked less often than ‘do you live with your mom, or your dad?’

For the generation of kids raised in what used to be called ‘broken homes,’ there is often a feeling of disdain for the institution that so gloriously failed their parents. Having experienced the dissolution of their own families as children, these adults now feel a responsibility not to create another generation of latchkey kids, and will often choose single-parenthood over an uncertain marriage. Of course, no marriage can ever be guaranteed, but living together for an extended period of time before they get married lets them feel like they know what they’re getting into, which may account in part for the rise in cohabitation. In 1960 there were approximately 430,000 unmarried couples in the Unites States living together; today that number is closer to 7.5 million.

The debate around gay marriage in this country has raged for decades, but never before has there been a generation who so consistently support it, although they seem somewhat ambivalent about the idea of getting married themselves. According to recent polling data from The Washington Post and ABC News, 81% of Americans between the ages of 18 and 29 believe that homosexual couples should be allowed to legally marry, in contrast to the 44-57% of people in previously polled generations. The rate of change in those numbers is shocking, and they seem to imply a certain amount of inevitability. Even ten years ago, the conversation centered on the possibility of civil unions or domestic partnerships, but this generation view that as a new version of ‘separate but equal,’ and they will have none of it.

What has been more damaging to the perception of the institution itself has been the battle over same-sex marriage. This generation grew up listening to incredibly vitriolic recriminations against the ‘gay culture’ and the violent defense of ‘the sanctity of marriage,’ while every couple of years or so one of the loudest voices would be silenced by a scandal involving an undercover male officer, underage pages, or the services found at RentBoy.com. The hypocrisy demonstrated by these behaviors has to an extent tainted the very concept of marriage, and for many members of Generation Y, the exclusion of same-sex couples makes it a discriminatory institution, and one they want no part of.

The primary benefits of marriage have generally come from two very important spheres of life: the religious and the economic. While most religions still value marriage as the linchpin of the family, the stigma and severity of judgment against those who don’t get married, who get divorced, or who have long-term relationships and children outside of wedlock has to a large extent been weakened. For the first time in American history, the number of people who say they either don’t believe or are unaffiliated with any religious tradition has risen to 16%, and when asked 46% of people between 18 and 25 years old say they do not regularly engage in religious ritual. This means that for many of them marriage is no longer a moral issue. Even the economic benefits are inconsistent, as many low income Americans have discovered that by marrying and combining their incomes they will lose access to desperately needed services, which amounts to a disincentive or even a hurdle to marriage.

Generation Y is one of the most college educated groups in history, but after the crash and Great Recession of 2008 they graduated to find themselves in line for entry level positions behind scores of recently laid off veterans in their fields. With mountains of student loan debt and only minimum wage jobs to support themselves, many of these young people were forced to move back into their parents’ homes for extended periods of time. While this is and has always been a step on the path to financial independence, it has further delayed marriage and kids for millions of young adults. Few people think seriously about getting married while living in their mother’s basement, after all.

These data seem to be creating a misconception that Generation Y is a generation afraid of commitment, distrusting of each other, and generally uninterested in forming emotional connections. Although they may discuss marriage in more practical terms than their parents or grandparents did, there is an element of the romantic in their perspective. They see relationships as partnerships, not hierarchies, which is a lesson that would have benefited many of those divorced Gen X couples, and their reticence about marriage seems to stem from a belief that it should be more about love and respect than tradition or religion.

Is Alimony Still a Reasonable Concept?

Guest post from US family law bloggers.

Despite the salary inequalities that still persist between men and women, many modern-day wives are working alongside their husbands. Some women even earn more. You might wonder why we still have alimony, where the ex-husband pays a monthly sum to the ex-wife. Some people argue that alimony should be a thing of the past, while others feel that it’s still an valid law.

An important point that can’t be overlooked when discussing the relevancy of alimony in today’s culture is that it is not necessarily the responsibility of the husband. Alimony is a court-ordered duty of the top earner in the marriage. The difference in the earnings of the two spouses has to be significant for alimony to be decreed. However, both historically and traditionally, the male has been the one to pay the alimony bills. Judges have consistently awarded alimony to the female, even in cases where both ex-spouses had jobs during the marriage.

Today, many family court justices are working on adapting the law so that alimony isn’t set up as an unfair burden on men, but as a fair distribution of martial property.

How did alimony come to be? In the past, women were not allowed to own property. Thus, in a marriage, all the land and property were owned solely by the husband and never the wife. And in cases of divorce, the ex-husband would keep everything and the ex-wife would be left with nothing. Alimony was established as a way for the ex-wife to be able to survive after divorce.

Obviously, the circumstances have changed today. Martial property is usually divided equally between two parties in a divorce and if there are children, the home is often given to the ex-wife on the grounds that it would be less traumatic for the kids. The more you look at it, the more it seems like alimony should become obsolete.

On the other hand, you could argue that women are still at a disadvantage after a divorce. Even today, many wives choose to leave the workforce in order to stay home and raise children. Some of them move across the country when their husband gets a new job and leave their career behind. After years and years of contributing to the marriage through raising kids, taking care of the home, and managing the finances, should these women be left with no career prospects and no monthly income when divorce happens? Alimony helps level the playing field and allows these women to continue living on as they have before.

What about husbands who took on the stay-at-home role? They probably would benefit from alimony payments from their ex-wives as much as a woman would.

An important issue to consider is whether the ex-husband should be legally required to pay alimony for the rest of his life. Should the sentence of alimony be reduced to a certain amount of years instead, with the purpose of providing support to the women until she is able to enter the workforce and earn enough money to maintain her lifestyle?

Alimony will become a much more acceptable and fair concept if it truly becomes an equal opportunity responsibility.

About the author

This piece was written by Trevor Patterson, a freelance writer and blogger based in the greater metro area of Las Vegas, Nevada. Patterson focuses on law, politics, economics and real estate. Legal needs come in various forms; for those with needs in the area of Pedestrian Accidents be sure to consult a professional with sufficient expertise in this subfield.

The Importance of an Attorney in High Net-Worth Divorces

Marriage can be a rewarding experience for many adults. While a marriage may be founded on love, it can often break apart for a variety of reasons. In some cases, a divorce may be based around financial matters. If a high net-worth individual is getting a divorce, it’s essential to have access to a divorce attorney. The following guide provides simple simple tips and tricks on how to navigate the world of divorce as a high net-worth individual.

When an individual decides to get married, he or she takes a sacred vow that is supposed to last a lifetime. Under ideal conditions, both partners in a relationship will be getting married for the same reasons. However, people may not always get married for the same reasons.

For example, there’s a reason that doctors and other professionals have no problem finding a potential spouse. In many cases, these individuals are considered to be excellent providers. If a relationship is founded on money, it is usually destined for failure.

If possible, it’s a good idea to get a prenuptial agreement before marriage. With a prenuptial agreement, a couple decides on how assets will be split in the event of a divorce. However, it can be challenging to maintain love when money is concerned. If a high net-worth individual wants to get a prenuptial agreement, the other spouse may not want to get married. In addition, these agreements can break the bond of love.

If an individual doesn’t a get a prenuptial agreement, half of his or her earnings after marriage may go to a spouse in the event of a divorce. While assets one obtains before a marriage are usually safe, any assets obtained after a marriage are usually up for grabs. However, it’s important to understand how this can impact one’s assets from before a marriage.

For example, imagine that a high net-worth individual owns a very expensive home. This individual then decides to get married. After 10 years, the marriage starts to fall apart. During this time, the value of the house has appreciated in value 20 percent. The low net-worth spouse is entitled to half of the value that the house has appreciated.

This concept also applies to other types of assets. This can include stocks, bonds, options, valuables, artwork, paintings, intellectual property and much more. Intellectual property can be a very tricky issue. For example, imagine that an individual is an upcoming music artist. At the time of one’s marriage, the artist still hasn’t been able to break out. However, he or she is able to experience success after a marriage.

The low net-worth spouse in this example would be entitled to half of all revenue streams that come from intellectual property created after the marriage started. If an artist becomes very famous, his or her spouse will own half that name. In some cases, courts may award that name to a low income spouse.

In addition, children can complicate the divorce process in several different ways. If a low net-worth spouse receives custody of children, he or she will be entitled to child support payments every month. However, there is no fixed price for child support. For example, a shelf stocker at a supermarket may pay only $150 a week in child support payments. However, an investment banker may pay thousands of dollars every week in child support payments. Since child support payments are often based on an individual’s income, it’s essential to have access to a professional lawyer or attorney.

 

Albert Myburgh has been serving the 5 boroughs in family law matters for 25 years. He strives to solve legal matters in an efficient, amicable, and successful manner.

Top 10 Biggest Celebrity Prenuptials

Below is a guest divorce law blog post regarding some of the biggest celebrity prenuptials.

Going through a break-up is never an easy or pleasant experience. How much worse, then, for those with a mighty fortune and property that will be divided and the pressures of fame to deal with? Although it may not seem a very romantic way to start married life, more and more celebrities are opting for a pre-nuptial agreement to try and make any future break-up easier to administer while preserving as much of their personal wealth as possible.

Why Celebrities Make a Pre-Nuptial Agreement

Although it can seem a depressing thing to do, having a ‘pre-nup’ can be about more than simple greed and wanting to hang on to cash. For some, a pre-nuptial agreement can actually relieve tension that might otherwise exist in a relationship to do with money and property. When the marriage is not the first and children are involved, these agreements can protect the interests of the existing families and make life easier for divorce lawyers if things ever come to that.

Agreements can be extremely flexible. When celebrities find themselves having to go through the divorce process, their lawyers will go through any pre-nuptial agreements with a fine-tooth comb. Sometimes these can have unusual clauses that have been carefully tailored to their clients.

Stay With Me

When Nicole Kidman married Keith Urban, their agreement involved her paying him $640,000 per year while they remained married, but removed his rights to receive anything if he ever used illegal drugs again.

Paying for fidelity or marital longevity seems to have become a mainstay of agreements by trying to actively discourage divorce by making it more financially beneficial to remain married. Take music stars Beyoncé and Jay-Z’s arrangement, which sees her set to receive $10,000,000 in the first two years of marriage and $1,000,000 for a further 15 years.

If Katie Holmes were to remain married to Tom Cruise for more than 11 years, she will be entitled to half his fortune. But the $3,000,000 she receives for every year she remains married to him until then is not a bad income to be going on with.

The Big Pay-Off

Pre-nuptial agreements are better known for defining what someone will receive when they leave. Hell hath no fury like a woman scorned and Michael Douglas would do well to remember it. If he is ever unfaithful to Catherine Zeta-Jones, she would receive a ‘bonus’ payment of $5,000,000 on top of the $2,800,000 for every year of married life.

Charlie Sheen and Denise Richards had a similar idea, agreeing that if either strayed they would pay the other $4,000,000. Russell Crowe would have to stump up an eye-watering minimum $15,000,000 if his marriage to Danielle Spencer ends in divorce. Khole Kardashian is very specific in her requirements, which include a $5,000 per month shopping allowance, courtside season tickets to Lakers games for all her family and a $25,000 monthly amount for support from Lamar Odom in the event of divorce.

So Long, Farewell

Some celebrities use their agreements to avoid large pay-outs. Britney Spears ended up paying her ex-husband Kevin Federline less than £1,000,000 thanks to hers and Kim Kardashian’s assets, including her earnings during marriage, are also protected. Director Steven Spielberg’s agreement was considered invalid as it was written on a napkin and rather than paying nothing, he ended up shelling out £50,000,000 to Amy Irving.

Our guest blogger today is Robert, a blogger and freelance writer with an extensive amount of knowledge on family law. Robert is currently writing for Switalskis Family Law.