Understanding Prenuptial Agreement Australia and Binding Financial Agreements
Prenuptial Agreement Australia (otherwise known as Binding Financial Agreements “BFA”’s) can be drawn up prior to, during or after a relationship/marriage. BFA’s set out how all or any assets or liabilities will be divided in the event of a breakdown of your relationship. This means that the assets and liabilities in the parties’ possession at the time of entering into the agreement can be accounted for and so can any accumulated during the relationship. This also includes Superannuation. Prenuptial Agreement Australia and more information relating to Pre Nups & Binding Financial Agreements in Brisbane can be found on our blog.Spousal maintenance may also be considered in a BFA. If you are contemplating marriage or entering into a de facto relationship it is a good idea to have a competent lawyer advise you on the pros and cons of doing so. It may be in your best interests not to enter into a BFA under certain circumstances. People enter into BFA’s after a relationship to account for special terms that the Family Court may not make whilst apply for Consent Orders. In this instance BFA’s provide future security and certainty so that you can make special arrangements that the Court may not make for a number of reasons. This may be for reasons as simple as they may feel that such a decision would prevent the matter from returning to the Court to such reasons as the Court not believing such a division is fair. BFA’s / Financial Agreements under the Family Law legislation are not simple agreements. Speak with experienced Brisbane family lawyers at your earliest convenience. BINDING FINANCIAL AGREEMENTS Some helpful advice if you are considering entering into Binding Financial Agreements.We will often have clients come and talk to us about BFA’s. Many have done some research on the internet and have formed the view that they are not worth the paper they are written on. If they are done properly they will hold up to any scrutiny and will remain as binding as a Court Order. If the right steps and proper drafting are not done then a Court may have no issue in setting the BFA aside and then your property will be dealt with according to Australian Family Law. Solicitors are required to advise the parties entering into a Financial Agreement on the advantages and disadvantages of entering into Binding Financial Agreements. The advice will need to be written and this is referred to as Independent Legal Advice. This means the parties can sign a certificate attached to the agreement that they have received this independent legal advice. The solicitors also sign certificates stating that they provided the advice required prior to the parties signing the agreement. The advice not only needs to set out the advantages and disadvantages, and your rights and obligations on entering into the BFA it must also advise what would happen if the agreement were set aside and your rights and obligations should you be subject to Australian Family Law under case law and the Family Law Act 1975. Helpful Hint: You will very likely find a lawyer who will witness your signature on an agreement you or someone else has drafted and tell you what the Prenuptial Agreement Australia means. They will then sign the certificate stating that they have given you independent legal advice. They may do this for only a few hundred dollars. If you have not received full written advice as set out on this page it will fall over if challenged. Then it will not be worth the paper it is written on. BFA’s are drafted according to the section your circumstances fall under the Family Law Act 1975. You will need to have the agreement drafted pursuant to different sections depending on whether you are in, intending to enter, or are ending a de facto relationship or marriage. The same weight is attributed to both relationships under the Family Law Act 1975 and this is the same for same-sex couples. To obtain the required written independent legal advice first detailed instructions of the relationship must be obtained by the solicitor. This includes:
Prenuptial Agreement Australia Binding Financial Agreements Brisbane It is then necessary to obtain detailed instructions in regard to the wishes of the parties in regard to assets they wish to maintain full and legal control over and those assets which are to be joint assets. Instructions are also required in regard to superannuation, estate rights, and spousal maintenance should the relationship break down or if there is a death of one of the parties. It is necessary for both parties to provide of t their present assets, liabilities, and other financial resources including superannuation. The schedules are required to be attached to the Financial Agreement. If agreement All of these factors will need to be considered and steps are taken to provide the required full independent legal advice and draft the agreement. It must be remembered that both parties to the agreement need receive this detailed advice from separate solicitors. Unless all these steps are carried out and proper advice given there is a strong possibility that the agreement would be overturned by the Family Court if a party upon separation wishes to set aside the agreement and seek a greater property settlement than that set out in the agreement itself. Once drafted and properly executed one party retains the original agreement and a true copy given to the other party. It is also important that the financial agreement documents are stored in a safe place. The agreement will not come into effect until a point in time in the future when a separation occurs. This may not be for a considerable time, therefore, there is an obligation on the parties to maintain the financial agreement documents until such time it will need to become relied upon. Note: It is necessary that the other party obtains advice from a competent family lawyer and receives detailed advice in writing. There are many cases where the agreements have been set aside when the partner has not obtained that detailed advice. WHAT ARE THE ADVANTAGES OF ENTERING INTO A PRE-NUPTIAL, POST-NUP, OR BINDING FINANCIAL AGREEMENT?
Prenuptial Agreement AustraliaIt is advisable to define clearly the spousal maintenance to be paid should a separation occur. The parties should be aware of the provisions of section 90F of the Family Law Act 1975 and the other provisions in the case of a de facto relationship. These provisions state:
The drafting of such terms in the financial agreement must satisfy the requirements of the trustee of the particular fund as it would in Orders of the court. This is to provide procedural fairness to the superannuation fund. There may be other superannuation funds that a party enters into in subsequent years. For the benefits in a superannuation fund (or any entered into after the drafting of the financial agreement) to be paid to the other party upon separation, the provisions must be specifically set out in the financial agreement so that the trustee of the fund is given procedural fairness to approve the provisions set out in the agreement.
Effectively a child support provision in a financial agreement can only set out on a temporary basis the child support obligations of a party to the agreement. Once a child support assessment is made by the Child Support Agency, any child support provision in a financial agreement ceases to have an effect and is unenforceable. Here is what the legislation says about binding financial agreements that may be set aside under the provisions of the Family Law Act 1975The Family Law Act 1975 sets out that a financial agreement will “end” under two circumstances. It can be either “terminated” under s90J or 90UL or “set aside” under s90K or 90UM. Termination is an action of the parties agree to undertake, however setting aside is an action of the Court. Setting aside a Binding Financial AgreementA Court may set aside an agreement if it is “void, voidable or unenforceable”. If this ground is used, the parties or one of them may already consider that the agreement no longer operates. A party may apply to the court for an order that a financial agreement be set aside in circumstances where that party already believes that the contract has been rescinded, breached or is otherwise unenforceable.
(ii) with reckless disregard of the interests of a creditor or creditors of the party; or (ab) a party (the agreement party ) to the agreement entered into the agreement: (i) for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a de facto relationship with a spouse party; or (ii) for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 90SM, or a declaration under section 90SL, in relation to the de facto relationship; or (iii) with reckless disregard of those interests of that other person; or (b) the agreement is void, voidable or unenforceable; or (c) in the circumstances that have arisen since the agreement was made it is impracticable for the agreement or a part of the agreement to be carried out; or (d) since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the marriage) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (2)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or (e) in respect of the making of a financial agreement–a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable; or (f) a payment flag is operating under Part VIIIB on a superannuation interest covered by the agreement and there is no reasonable likelihood that the operation of the flag will be terminated by a flag lifting agreement under that Part; or (g) the agreement covers at least one superannuation interest that is an unsplittable interest for the purposes of Part VIIIB In some respects, financial agreements are easier to set aside than consent orders and in other respects, they are more difficult to generate.Financial agreements are enforceable after the death of a party to the agreement. Sections 90H and 90UK provides that a financial agreement: “continues to operate despite the death of a party to the agreement and operates in favour of, and is binding on, the legal personal representative of that party”. Parties Terminating a Financial Agreement The parties may terminate a financial agreement by:-
If you would like to read the relevant sections of the legislation in regard to Divorce Property Settlement and in particular Binding Financial Agreements please go to the Family Law Act 1975. Please reference Sections 90 & 90U.Prenuptial Agreement Australia and Financial Agreement before, during and after relationship breakdownParties are able to enter into a Prenuptial Agreement Australia or financial agreement regarding assets acquired:
For more information or If you need any help please contact the Brisbane Family Lawyers team today for a FREE, no-obligation 20-minute consultation.We have Qualified and Experienced Family Lawyers Brisbane at James Noble Law. Find Brisbane family lawyers on Google Maps near you. People were interested in: You may also like to know more about the following:
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Recent parenting decisions are a stark reminder to parents to put the children first in parental disputes, with the Courts stressing a child’s right to have a meaningful relationship with both parents.
The Family Court is taking a tough stance on mothers who deny or interfere with their children’s relationship with their fathers. FATHERS AWARDED PRIMARY CAREIn a recent decision in the Brisbane Family Court, the Court ordered that 2 children should be removed from their mother’s care in circumstances where their mother had hidden the children from their father and tried to take them out of the country, forging the father’s signature on the children’s passports. It was ordered that, despite the children’s objections, the children, aged 14 and 17 years old, should live with their father with only limited supervised contact with the mother. Justice Hogan found that the mother had fostered the children’s anxieties about their father, calling the mother’s behaviour “emotional abuse of the most serious kind’’, and finding that the mother posed a risk to the children’s emotional well-being. In another decision, a judge ordered that a girl aged 8 years, who had lived with her mother since the parents separated, be removed from the mother’s care and live with the father. The court found that the long history of the mother’s interference with the daughter’s court-ordered time with the father and her attempts to undermine the daughter’s relationship with the father denied the daughter’s right to a meaningful relationship with both parents. In this case, the father was awarded sole parental responsibility and the mother’s time with the daughter was restricted to holidays and alternate weekends. These decisions make it clear that the court will not shy away from the rather dramatic step of changing a child’s primary carer where it believes that it is necessary to do so to protect a child’s right to have a meaningful a relationship with both parents. To further discuss Fathers Awarded Primary Care, please Contact our experienced team of Brisbane family lawyers at James Noble Law for more information. If you require assistance with Fathers Awarded Primary Care, please contact the experienced Brisbane family lawyers team at James Noble Law to arrange a free and no-obligation consultation. We have Qualified and Experienced Family Lawyers Brisbane at James Noble Law. Find Brisbane family lawyers on Google Maps Near you now. You may like to know more information about the
No one enters a marriage thinking it’s going to end in divorce one day, but unfortunately, marriages do break down and people go their separate ways. In fact, statistics show that around 30% of all Australian marriages culminate in divorce. Without going into a committed relationship with a negative mindset or doom and gloom attitude, it’s wise to be prepared in case the romance doesn’t pan out.
Those who are entering into a marriage or long-term relationship and already have reasonable assets would be well advised to consider having a prenuptial agreement drawn up before things go further and become fully committed. But, do you need a prenuptial agreement? Some people consider safeguarding themselves in this manner as a sign or belief that things aren’t going to work out, but every smart decision will have some sort of contingency plan if things go south. We do our best to reduce risks in other important areas of our lives, so why should we simply throw caution to the wind when it comes to matters of the heart? A prenup doesn’t have to spoil the sense of romance. A lot of people have the misconception that prenuptial agreements only apply to a legally binding relationship such as a marriage, but in the modern world, a live-in de facto relationship of 2 years or more is view the same way under the law as an actual marriage. So, married or not, if you’re in a domestic relationship long-term, your assets are still at risk without a legally binding document that states otherwise. Why Take Chances When You Don’t Have To? The time to prepare, negotiate and sign a prenup agreement is before entering into a long-term relationship or marriage. Uncertainty regarding any distribution of assets in the event of a relationship breakdown is dissipated once it’s drawn up. The other thing to keep in mind is that a prenup will help speed up the settlement process and keep things simple. Let’s face it, relationship breakups are painful enough without having to endure extensive legal battles and negotiations over the distribution of property and assets. Instead, with this legal document in play, you can focus more on the rebuilding phase rather than finding yourself in a world of stress. Is a Prenup Really Binding? Yes, it is. If it wasn’t, then it wouldn’t be worth the paper it’s printed on and would be totally pointless even preparing in the first place. Once prepared prior to entering into a serious cohabitation, both parties read it and sign it, which signifies that the document is both understood and its stipulations agreed upon. Not only does a prenuptial agreement determine any distribution of assets, but also the responsibility for debts and liabilities as well. Need Legal Help? If you need help, pleasecontact the Best Brisbane Family lawyers team at James Noble Law today for a FREE, no-obligation 20-minute consultation. To schedule an appointment with one of our Qualified and experienced and Best Family lawyers Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to know more information about the
Beware of what you tell to the Judge
The Court has the power to award costs for false statement against a party who deliberately misleads the Court A vengeful spouse in Family Law Matters may seek revenge against a former partner by making a false statement and misleading allegations against his/her former partner, allegations that have no substance or truth. Be careful what you say. Section 157 of the Domestic and Violence Protection Act (DFVPA) confers discretion to award costs for a false statement. The section provides:
The principles for administering the Act, for example in domestic violence proceedings, seek to balance the need for the absence of discouragement to persons “who fear or experience domestic violence” in approaching the Court but also not leaving the door open to manifestly groundless or mischievous proceedings. An award of costs Is discretionary and does not follow automatically upon a finding that the application was malicious and vexatious. For example, in a recent decision in giving reasons for the decision to award costs, the Magistrate found that the appellant had no grounds for bringing the application and that she had misled the court in her evidence. These were significant findings. The respondent had been required to defend the application in circumstances where the Magistrate found it should not have been commenced. While this was not specifically identified by the Magistrate, it was a powerful factor in favor of awarding costs to the respondent. However, a cautious approach should be taken to any determination that the power provided in s 157(2) should be applied. A party seeking the exercise of such power should expect to have to justify the conclusion as a clear one and from an objective point of view, rather than as a subjective and potentially contentious point of view The making of an order for costs about a party’s motivation for making misleading or false allegations must be sufficient to justify an award of costs to a party so that such party might be indemnified for the expense of defending a malicious and vexatious proceeding. Need Legal Help? If you need help, please contact the Brisbane Family lawyers team at James Noble Law today for a FREE, no-obligation 20-minute consultation. To schedule an appointment with one of our Qualified and experienced Best Family lawyers Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to know more information about the
We are heading into uncertain times
But what if it becomes too much and causes a breakdown in your relationship with your partner?What should I do in such a situation?What help is available to me to helpfully relieve the stress and strain in my relationship will and hopefully maintain my relationship? NAVIGATING RELATIONSHIP DIFFICULTIES. OPTIONS FOR ACTIONAre you considering separation? A separation in your family. What does it mean for you? Have you clearly thought it through? Navigating Relationship Difficulties?This could be one of the most traumatic experiences a family will face. Separation can be devastating for everyone involved. How well you handle a separation will impact on how well you and your family cope now and in the future. Are the traumas and conflict that you are now facing so great that they cannot be resolved? There may be issues that cannot be resolved and the only solution is to remove yourself from the impact of not only on your life, but on the lives your children, your friends and associates. There may be no solution to such problems and a separation from the cause may be the only solution. WHAT ARE THE ISSUES THAT CAN BE RESOLVED?WOULD A RESOLUTION BE MORE BENEFICIAL IN THE LONG TERM THAN A DISRUPTION TO YOUR FAMILY, CHILDREN, FRIENDS AND ASSOCIATES? COUNSELLING Counselling for Relationship DifficultiesHave you considered counselling either for yourself or jointly with your partner?Counselors can help you work through your problems. You can find qualified counselors in private practice as well as in government and community-based organizations. Details of this are set out in the additional help information section of our A to Z of Family Law. This can be downloaded from our website Counselling works best if you and your partner attend sessions of your own free will. However, if you and your partner go to the Family Court, you may be ordered to attend counselling before a decision is made by the Court. If counselling does not prevent your relationship from breaking down, it can still help with resolving emotional issues that result from a separation. It is a good idea to shop around to find a counselor with whom you feel comfortable and confident. There are many counselling organizations available to you. There is a Google reference to many counselors and psychologists who engage in family counselling. If separation is inevitable, what are the decisions you may need to make? It is necessary to give consideration to the financial consequences of remaining in the relationship or separating from the relationship. Seek advice from a financial adviser. Work out a budget setting out the expenses you will need to cover and required for your day-to-day living and other expenses. There are expenses not only for yourself, but for your children, their schooling, medical and otherwise. What are your financial needs? You will need to consider not only the financial needs for yourself, but the financial needs of your partner and children should you separate and live separately and apart. You will need to give consideration as to how you will provide for those needs. What arrangements should I make for my children? Are you to remain in the relationship home with the children and is your partner willing to leave the premises? You must bear in mind that the Court will not force someone to leave their own home unless there are real issues involving the family where children and the parties themselves are being affected by the emotions and the stresses involved in living together. The Court will only intervene if such emotional stresses reach a peak whereby the parties or the children are suffering depression and are receiving medical care. The Court will not force someone out of their own home unless it is in the best interests of all concerned that someone should leave. The Court when giving consideration to this would ascertain who is the best person to leave the home. Who would be least affected by such move. If your partner does not move away from the home, are you in a position to move to other premises? Do you have the financial means to meet the rent of renting other premises for yourself and if you wish the children to be with you? Are the premises suitable for the children? Will the children be affected by the move if they move out of the home with you? If you cannot resolve these issues in counselling or if counselling is not available to you, seek legal advice and see what your legal position would be in such circumstances. Where do we go from here? Many couples who separate can agree on what they wish to happen in relation to a distribution of their assets and, if there are children, the arrangements which they wish to make and put in place for the children’s future. When couples are in agreement, the options for formalising the property settlement and arrangements for the children are:
Negotiating an agreement. Around the kitchen table. Negotiating an agreement for Relationship DifficultiesIn your negotiations with your partner in regard to property issues and children, it would be beneficial to seek legal advice from a solicitor who specialises in Family Law so that you are empowered and have knowledge of what is achievable in reaching the settlement. Once you are empowered with this knowledge, are you able to sit around the kitchen table and negotiate directly with your partner to resolve such issues. If you can resolve such matters, then the agreement can be formalised in a manner which I have mentioned. Your legal adviser can assist you in drafting the necessary documents to formalise any agreement reached. Is there an alternative to litigated resolution?Many alternative dispute resolution processes are available. Alternative dispute resolution is available to help parties resolve the relationship issues if they are unable to do so by themselves. Collaborative practice. Collaborative practice for Relationship DifficultiesDo you require assistance to negotiate these matters with your partner. If you are on a fairly good relationship basis with your partner, then the most effective means of assisting you in such negotiations is a new form of family law practice, which is Collaborative Practice or Collaborative Law. For Collaborative Practice to be successful, the solicitors engaged must be trained in this form of dispute resolution, a different mindset to the normal practice of Family Law. The collaborative lawyers are trained to work together with both you and your partner to reach an amicable settlement that you can both live with and which best suits your needs. Collaborative Practice is a popular dispute resolution method developed in the United States in the early 1990s. It gained rapid popularity in the United States, the United Kingdom, Europe and Canada and is now a practice available to help people in Australia. It is quite common for parties to have the same wishes and goals:
Benefits of collaborative practice.
The collaborative practice may be suitable for you and your partner if both of you:
The collaborative approach would enable you and your partner to resolve issues respectfully so that you can arrive at dignified solutions to your dispute with your partner and maintain a sound relationship with each other in the future, especially if long-term financial interests are involved and also to assist in your future involvement with your children. The practice emphasises reaching agreement rather than having to battle it out in Court. You and your partner and your lawyers will work together to share information in a series of meetings. They will be involved in the full process and none of decisions will take place outside your full knowledge. Collaborative practice is different from going to Court. It involves meetings between yourself, your partner and involving your lawyers. Everyone works together towards a common goal resolving the dispute with emphasis on retaining your dignity and best interests. You will have your collaborative lawyer advising and assisting you throughout your negotiations. The playing field will be more even between you and your partner because you and your partner will have your respective lawyers to support you as well as other professionals if necessary and with your consent. If an agreement is reached in these collaborative meetings, then the agreement can be formalised in the manner I have described above. What if collaborative practice is not suitable to you? Are there other means available? Mediation Mediation for Relationship DifficultiesMediation is another form of alternative dispute negotiation which may be suitable for you. Again, it is a voluntary process. However, the Family Court may order mediation if you do instigate proceedings in the Court. Normally, in mediation, you are represented by your own lawyers. The difficulty with mediation is that you will have one version of the dispute and your partner may have a different version to your own. The Mediator is only there to assist with you in negotiation. The difficulty is in bringing together the two opposing views given to your respective lawyers. The mediator’s role is to assist with communication between yourself and your partner so that you may have open discussions in negotiating a settlement. The mediator’s aim is to facilitate the open discussions and communications between you and your partner so that you can identify the issues of the dispute, generate options to address such issues, and hopefully to agree upon ways to resolve the issues and to reach a settlement. The mediator’s role is essentially a neutral one. The mediator will not take sides. The mediator will work with both you and your partner to help you negotiate your own decisions together and will not represent either of you in Court before or after mediation. Cost of alternate dispute resolution Alternative dispute resolution for Relationship DifficultiesBoth Collaborative Practice and mediation can be dealt with quickly, and because of this, the costs are limited. If these forms of alternative dispute resolution are not successful or are unavailable or cannot be agreed upon, then the only solution is litigation in the Family Court. Proceedings in the Family Court should be avoided if at all possible to do so. It is emotionally and financially draining being involved in such a process. If all else fails, this is the final process to help you to resolve the issues arising from a separation. Embarking on this process, it is very important that you seek legal advice. Need Legal Help? If you need help, please contact the Brisbane Family lawyers team at James Noble Law today for a FREE, no-obligation 20-minute consultation. To schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to know more information about the
As technology continues to evolve, it is becoming more common for clients to ask whether they can use secret audio recordings in their family law matters. Before you consider recording your conversation with the other party, there are several important factors that you need to consider, including:
While the legislation varies in the other Australian States, you can legally record a conversation with another person in Queensland, provided you are a party to the conversation. Pursuant to section 138 of the Evidence Act 1995 (Cth) (‘EA’), the Federal Circuit and Family Court of Australia (FCFCOA) has a broad discretion to exclude such recordings if obtained improperly or illegally. In deciding whether to exclude a recording, the FCFCOA must take into account the following:
FCFCOA position The Court is more likely to accept secret recordings as evidence in parenting matters or in matters involving domestic and violence family. There are several notable cases that deal with this issue:
Duty of disclosure In family law, the duty of disclosure extends to audio recordings. Therefore, you are required to disclose to the other party any audio recordings in your possession that are relevant to the proceedings, whether or not you intend to rely on such recordings as evidence. In light of the above, it may not always be in your best interests to use secret recordings. However, the usefulness of a recording may far outweigh the implications in circumstances where domestic or family violence has occurred and/or the children are at risk of harm. If you have any questions in relation to audio recordings and their probative value in family law proceedings, contact the team at James Noble Law for a free, no-obligation, confidential discussion. For more information, please visit our website: Secret Audio Recordings In Family Law A common question asked in Family Law is who legally entitled to the matrimonial home during separation?
It is not as simple as one party kicking the other party out of the home What be done if the property is in your name or What if the property is owned by both parties? Property which is part of a Family law dispute has different rules to commercial and property law. Family Law the possession and ownership do not have the same weight in determining who is able to stay in the home. Both parties are equally entitled to live in the matrimonial home during separation – ownership of the property is not relevant. Either party at any point during separation can choose to leave the matrimonial home but no one can be forced to leave. This means you cannot make your partner leave and then once they are gone change the locks. It is important to note that this is handled completely different in domestic violence matters. What are your rights once you choose to leave the matrimonial home during separation? If you choose to leave the matrimonial home, during the property settlement you can still claim part of the property however, the property no longer becomes your place of residence, and you cannot just enter the property at your leisure. If you are choosing to leave the property it is important to take any important personal belongings that you legally own (individually or together, if agreed). You can make arrangements with your partner who is still residing at the matrimonial property to property to collect any belongings or if there are children of the relationship for changeovers. However, keep in mind that it can create conflict if you attend the property unannounced and can even lead to the other party applying for a domestic violence order. It is important to understand that if you have chosen to leave the matrimonial home you do not lose your right to the home or your possessions. If there are children in the relationship you should also consider whether it is in your children’s best interests to move them out of the matrimonial home. We advise seeking more information and legal advice on coming to an agreement about your children, such as a consent order or parenting plan. What can you do if your spouse won’t leave? If you and your partner cannot reach an agreement, you aren’t able to force your spouse out of the matrimonial property. Although both you and your partner can remain living in the matrimonial home until you reach a property agreement, we often do not recommend this as it can often lead to problems later down the track. Again, this is not necessarily the case if there are domestic violence proceedings on foot or Orders in place. Depending on your circumstances, in special circumstances, the Court can decide to make Orders which remove your spouse from the property. Making an application for the exclusive use of the matrimonial home? You can apply to the Courts seeking Interim Orders for your partner to leave the matrimonial home. This can be done by filing an “initiating application” or an “application in a proceeding” if you already have a case filed in court. You are also required to sign an affidavit which is a document that sets out true facts as a form of evidence to the Court. This is where you would set out the reasons for the Orders you are seeking and if any, evidence of your provable domestic violence. If you considering separating from your partner and you wish to discuss your next steps and property settlements contact the Brisbane family lawyer team at James Noble Law today for a free no-obligation 20-minute consultation to discuss your rights, options, and legal avenues available to you. To schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to know more information about the
Child Support Act and Family Law
Child Support Act, It is commonly recognized that both parents have a financial obligation to contribute towards the cost of raising their child. The national Child Support Agency under Services Australia is responsible for delivering the child support scheme in addition to regulating, collecting, and administering child support services. They are your first point of call for any child support queries you may have. In Australia, the relevant child support legislation is encapsulated in the following Acts:
This depends on a number of variables, such as:
So what does child support actually cover? Child support is to cover expenses related to raising the child such as:
There are avenues to review and appeal a decision as to child support as made by the Child Support Agency. Firstly, an internal review is conducted. If the dispute is not then resolved, the matter can progress to the Administrative Appeals Tribunal (also known as the AAT) to make a final decision. Parents can also chose to enter into a child support agreement being a private document that sets out how their child support is to be paid, how much is to be paid and what it is to cover. There are 2 options for such child support agreements, either a Limited Child Support Agreement or a Binding Child Support Agreement. Parents will commonly enter into these documents to cover additional expenses associated with raising a child such as:
Need Legal Help? If you need help, please contact the Brisbane Family lawyers team at James Noble Law today for a FREE, no-obligation 20-minute consultation. To schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to know more information about the
For more information, please visit our website: Child Support Act Understanding Spousal Maintenance and how it works?
In property settlement matters some parties may be seeking that their partner makes a lump sum payment or for a particular period of time make ongoing payments by way of support. It is important to understand that even if you do not have children with your former partner, you still may be required to pay to them a sum of monies (either in a lump sum or ongoing), which is known as “Spousal Maintenance”. What is Spousal Maintenance? Spousal Maintenance is financial support which is paid by one former partner to the other partner of a de facto relationship or a marriage which has broken down and the circumstances are that the other party is unable to financially support themselves since separation. The monies which are to be paid to your former partner is for the recipient party to apply this to the payment of their reasonable living expenses this can include rent, general household expenses, insurances etc. It is a common question asked after the breakdown of a relationship why one party may need to financially support their former partner if the parties are no longer in a relationship, well in short under the Family Law Act 1975 a person may have a responsibility to financially assist their former de facto partner or spouse if that person is unable to meet their own living expenses. There is a duty to support and maintain each other (this works both ways), and this obligation may continue even after separation. For a party to be successful in an application for Spousal Maintenance (or Orders seeking Spousal Maintenance) there are basically two limbs which must be satisfied by the Court. Firstly, the Applicant (the person seeking Spousal Maintenance) must have a need and secondly, the respondent must have capacity to pay spousal maintenance, this means if the Respondent does not have financial capacity to make payments to the Applicant the Court will take this into consideration when considering the application for Spousal Maintenance. When the Court is hearing an application or Orders for Spousal Maintenance there are a range of factors considered such as the age of the parties (this looks at how long each party has before retirement), the care of children (if any of the relationship) and the parties’ income and financial resources. Time limitation for Spousal Maintenance It is important to understand that there is a time limitation for a party to make a claim for Spousal Maintenance against the other party. If the parties were married this date is 12 months from the date that the divorce order takes effect and if you were a party to a de facto spouse, you have 24 months from the breakdown of your relationship. Although there is a time limitation for a party to make an application seeking Spousal Maintenance, the Court has power to grant leave to the party who is making an application for spouse maintenance (married) or maintenance (de facto) out of time if the Court believes the Applicant has demonstrated hardship. In practical terms this means, in some circumstances, it could be possible for a party to make an application for Spousal Maintenance even after the limitation period has elapsed and/or after property settlement has been finalized. If you are considering separating from your partner or are in the process of separating and would like to discuss costs further, please telephone the Bris bane family lawyers team at James Noble Law and schedule a free 20-minute no-obligation consultation with one of our experienced family law solicitors today. experienced and Best Family lawyers Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to know more information about the
Change Your Child’s SurnameChanging a child’s surname post-separation is a common occurrence in family law. The process is relatively straightforward if both parents agree. However, it becomes complicated when one parent wishes to change a child’s surname post-separation and the other parent opposes such change. In parenting matters, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility in relation to major long-term issues concerning the child. Under section 4 of the Family Law Act 1975(Cth), changing a child’s name is considered a major long-term issue in relation to the care, welfare, and development of the child. This means that parents must consult with each other before making a decision to change a child’s name. Sole parental responsibilityThe presumption of equal shared parental responsibility does not apply if a parent of the child has engaged in abuse of the child or family violence. The Family Court decision of Reagan & Orton [2016] considered whether a mother could hyphenate the child’s surname without the father’s consent in circumstances where she had sole parental responsibility. Despite not being required under the existing Orders to consult with the father in relation to changing the child’s name, the Births, Deaths and Marriages Registration Act 2003 (Qld) requires both parents to apply to change a child’s name unless:
If you are considering changing your child’s name in QLD (Queensland), then contact the team at James Noble Law today for a free, no-obligation 20-minute consultation today to schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane. Find Brisbane family lawyers on Google Maps near you. You may also like to know more information about the
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