North Brisbane Divorce Lawyers

Do I Still Need a Lawyer After I Have Reached Agreement

We as family lawyers love hearing that a separation was amicable, or that someone is still on good terms with their former spouse or partner. However, agreeing to divide your property without obtaining a legally binding property settlement can leave you exposed in a number of ways.

Limitation periods

If the limitation period has not yet lapsed (see our article on time limitations), your former partner may initiate proceedings in Court seeking a legally binding property settlement, even though you have previously agreed something informal between yourselves.

Even where the limitation period has lapsed, if the Court is satisfied that hardship would be caused to your former partner or a child if leave were not granted to bring the action out of time, leave may be granted for your former partner to bring the matter before the Court outside the limitation period.

Generally, the property pool which is available for division between parties is the property pool as it exists at the time that a final property settlement is made.  Any assets acquired by either party post separation from savings or other assets acquired during the relationship may then be included in the property pool available to be divided between the parties (although adjustments may be made in favour of a party regarding their particular contribution post separation). If then, for example, you had received the family home when you negotiated an informal settlement with your former partner and since sold that property and used the funds from the sale to buy a new house, that new house (including any increase in capital value since its purchase) may form part of the property pool available for division with your former partner.

Legally Binding Agreements

There are a number of ways you can make your agreement for the division of property legally binding.

These include:-

  1. Consent Orders- the terms of the Orders are agreed between the parties and an Application signed by each party is filed in the Registry of the Family Court seeking that the Court issue the orders in the terms as agreed;
  2. Court issued Orders – after the parties have progressed through a trial, the Court determines what is a just and equitable division of property; and
  3. A Binding Financial Agreement made in accordance with the requirements of the Family Law Act 1975 (Cth).

When parties are able to agree as to how to divide their property, whether that’s over a cup of coffee or with the assistance of a lawyer, a lawyer can then assist with drafting the Application for Consent Orders as well as the Orders that you are seeking that the Court issue.

North Brisbane Divorce Lawyers

Why you still need a lawyer | North Brisbane Divorce Lawyers

It will be important to first obtain legal advice where you are seeking Consent orders to ensure that the proposed division of property is within the range of what the law would regard as just and equitable for your particular circumstances.

Contact our team of North Brisbane Divorce Lawyers today for an initial consultation regards how best to finalise your property settlement.

Time Arrangements for Children with Separated Parents

Keeping up with the times and the lingo in relation to “custody of children”

When it comes to referring to who has the care of children in family law proceedings, the reference to who has “custody of children” is considered old fashioned and no longer appropriate.

The underlying premise is the right of the child to have a meaningful relationship with both parents.

The terms “equal time” and “substantial and significant time” are now used when it comes to considering the time that children should spend with each of their parents under Court orders.

But what do these terms mean?  In this article, we explain what the terms “equal time” and “substantial time” means to the Court and for you as a parent.

Custody of Children

Custody of Children

 

Parenting Orders: Parental Responsibility

Before a Court will make an order regarding the time a child spends with each parent, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

Parental responsibility encompasses all duties, powers, responsibilities and authority conferred by law upon parents.  This means responsibility for the day to day issues and for the big issues such as their health, education, religion etc.

If equal shared parental responsibility applies, when making decisions about the big issues, also known as “major long term issues” for the children, parents must:-

  1. Consult each other in relation to a decision being made about that issue; and
  2. Make a genuine effort to come to a joint decision about that issue.

The Court can refuse to apply the presumption in certain circumstances (which is referred to as “rebutting the presumption”) where there is evidence of abuse of a child or of another child who was a member of that parent’s family or of any family violence.

If the presumption of equal shared parental responsibility for the child is not rebutted, then the Court must consider whether “equal time” would be in the best interests of the child, whether it is “reasonably practicable” and if so, consider making an order to provide for the child/ren to spend equal time with each of the parents.

Then, if the Court does not make an order for “equal time” the Court must consider making an Order for “significant and substantial” time.

Reasonably practicable

To determine whether time is reasonably practicable, the Court considers the following factors:-

  • how far apart the parents live from each other; and
  • the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
  • the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
  • the impact that an arrangement of that kind would have on the child; and
  • such other matters as the court considers relevant

Making an Order

The Court will rely upon evidence from each party to the proceedings, whether that be the parents, an independent children’s lawyer, or a third party joint to the proceedings, to:-

  1. determine whether the presumption of equal shared parental responsibility is rebutted in cases where this is raised;
  2. Determine what is in the best interests of the child;
  3. Determine what is reasonably practicable in the circumstances; and
  4. Determine what Order should be made regarding the care of the child or children.

Equal time v Substantial and Significant: What’s the difference?

Equal time is just that, a 50/50 care arrangement. Whether that’s with weekly or fortnightly changeovers, or a varied changeover routine that works best for the child, the child spends equal time with each parent.

Substantial and significant time, on the other hand, is defined in the legislation. The legislation says that time will be considered substantial and significant, if the time the child spends with the other parent includes both:

  1. days that fall on weekends and holidays; and
  2. days that do not fall on weekends or holidays; and
  3. the time the child spends with the other parent allows the parent to be involved in:
    1. the child’s daily routine; and
    2. occasions or events that are of significance to the child; and
  1. the time the child spends with the other parent allows the child to be involved in occasions and events that are of special significance to the parent.

What does “being involved in the daily routine” mean?

There is no definition for “daily routine” that applies for all children and all families.

Being a part of your children’s daily routine does not necessarily mean seeing your children every day.

In a 2016 case, the Full Court held that the children spending time with their Father on alternate weekends, alternate Fridays (from after school to 7 pm), special days and school holidays comprised substantial and significant time.

The Full Court said that this was substantial and significant because the practical effect of the orders was that the children would spend time with the Father during school term every week, for a full weekend every second weekend and at school events that parents normally attend. The children would also have time for telephone and FaceTime contact with the Father and also for block periods in school holidays and on special occasions.

Obviously, each child’s routine and life is different as is each family and the practical effect of arrangements will vary for each case.

What should I do next to ensure appropriate care arrangements for children?

If you are considering separation, or if you have already separated, and you have a child or children with your former partner, call our Family Lawyers  on (07) 3506 3651. Our team of experienced lawyers located at the Grange and Brisbane CBD can assist you in your matter regarding custody of children.

To receive a FREE 15 minute consultation with one of our solicitors, contact us today and take the next steps to ensure the care, welfare, and development of your child is protected.

sale of the matrimonial home divorce lawyers

How Long Do I Get the Court’s Assistance After I Leave My Partner?

There aren’t many instances in family law where one law applies for married couples and a different law applies to de facto couples.  However, one instance where this situation occurs, is in the ability to seek property settlement Orders by consent when you’re out of time. Find out the information you need to know about getting a Brisbane property settlement order. 

It is extremely important that parties finalise their financial relationship properly and formalise their settlement either by way of Court Orders or by way of a Binding Financial Agreement.   These forms of agreement are available to both those who were married and those who were in a de facto relationship.

But what if you didn’t do anything about your property settlement at the time and you let it go for a while…is it too late to seek a property settlement now?

In this article, we explain the options available to both married and de facto couples to obtain property settlement Orders, once the relevant time limits expire.

We’ve highlighted where the law differs between married couples and de facto couples to make sure you don’t miss the information crucial to your situation, so keep an eye out for the information that is relevant to you.

First, however, we need to take a step back and address what time limitations apply to seeking the Court’s assistance with your property settlement.

Time limits for applying to the Court for a Brisbane property settlement

You may not have realised that there are time limits in relation to commencing an application for property settlement.

Once these time limits end or lapse, you no longer have the right to apply to the Court for a property settlement with your former partner, unless you can demonstrate to the court why you should be allowed to bring the action out of time.

In family law, the limitation periods that apply to parties wanting to finalise their financial relationship with the Court’s assistance are as follows:-

  1. Marriage: Once your Divorce Order becomes final, you have 12 months to initiate a property settlement in Court; and
  2. De facto: After you end a de facto relationship, you have 2 years to initiate your property settlement in Court.

This means that you can apply to the Court for property Orders at any time after the day that you separate, up to and including the day that your limitation period expires.

It is extremely important that you aren’t even so much as a few minutes late, once midnight strikes on the day that your time limit expires, you don’t want to find yourself looking like Cinderella after the ball.

For those who were married: Although parties who were married only have 12 months to initiate proceedings to finalise their financial relationship with the Court’s assistance, this period takes into account the fact that you must be separated for a minimum period of 12 months before you are able to apply for a divorce.   There is also no maximum period of separation for those who were married.

So that means if neither party applies for a Divorce, the time limit won’t expire.  That clock only starts ticking once the Divorce Order becomes final.

Making an application to the Court out of time

For both married and de facto parties:

The legislation specifically permits parties, whether married or de facto, to seek permission from the Court to commence a Court action even though a limitation period has expired.   This is called “seeking leave” of the Court.

If you are seeking leave from the Court to file property proceedings outside the limitation period, you must demonstrate to the Court that hardship would be caused to a party to the marriage, or a child of the marriage, if leave is not granted.  This can be more complicated than it sounds and you should always seek advice from a solicitor experienced in family law before deciding whether or not to commence a Court action out of time.

Can you and your former partner seek Property Settlement Orders by agreement if you are out of time?

Ideally, property settlement is finalised by consent, or by reaching agreement, with your former partner.  This is usually much quicker and less costly (both emotionally and financially) than filing a Court action for property settlement, where there is no agreement between you.

For those who were married:  If you were married but your former spouse agrees to seek property settlement Orders by consent out of time, you can still apply to the Court jointly using an Application for Consent Orders form.

For de facto relationships:  The big difference

However, if you were in a de facto relationship, even if you and your former partner both want to agree to seek property settlement Orders out of time, you cannot apply to the Court jointly using an Application for Consent Orders.

You must make an Application to the Court seeking special leave to apply for property settlement Orders and have the matter heard by a Judge.

The Court website provides some helpful direction as to how de facto couples should progress in the event that they require the Court’s assistance (out of time) to finalise their property matters:-

“If your de facto relationship broke down more than two years before the date of filing this application, an Application for Consent Orders is not the appropriate form. You should file an Application in a Case + Affidavit seeking the Court’s permission to bring an application for property settlement/maintenance.”

We can also assist you and provide you with advice in relation to making an application for property settlement out of time.

Brisbane Property Settlement

Brisbane Property Settlement

Key points to remember

So far as limitation periods go, the key points to remember are that:-

  1. If you were married, you have 12 months from the date your divorce order is finalised to file an application in the Family Court or Federal Circuit Court; and
  2. If you were in a de facto relationship, you have 2 years from the date of separation to file an application in the Family Court or Federal Circuit Court.
  3. Where the law differs between those who were married and those who were de facto, is if both parties agree to seek property settlement Orders from the Court after their time limitation has expired. Parties to a de facto relationship cannot apply using an Application for Consent Orders once their time limit expires, and must apply for special leave of the leave of the Court to obtain those Orders.

The key is to not wait too long to get advice.

Want to learn more?

It’s never too soon to know where you stand and receive some guidance as to how to legally finalise your relationship with your former partner.

Contact our Brisbane Property Settlement team today to set up an initial consultation for some preliminary advice.

You may also find our “Things to consider on or prior to separation” video useful.

How a New Engagement Ring Might Affect Your Relationship with Your Former Partner

The family court has said that after separating, “parties are entitled to… properly [get] on with their lives.” So, for those people who have separated, and are ready to take the next step with their new partner – fear not! The law is on your side.

If you’re ready to buy that engagement ring for your new partner, or if you are the new partner, the first thing to ensure is that the ring is not being purchased from funds which existed at or prior to the separation of the partner from his former partner. You should ensure that funds being used to buy the ring were acquired entirely post-separation.

Property Settlement Advice

Property Settlement Advice Brisbane

If, for example, after you have separated from your former partner, you sell the car you acquired while you were with your former partner, and then use that money to buy the engagement ring for your new partner, this would constitute a “premature distribution” of matrimonial assets on your part.

This doesn’t mean that you have to give the ring to your former partner; it just means that the Court will consider that you have therefore had the “benefit” of that matrimonial money and an adjustment may as a consequence possibly be made in favour of your former partner out of the net assets that are available for distribution between you.

That’s not to say that every time you spend money that was acquired during the relationship with your former partner, you have to effectively account for it in your property settlement with your former partner.  Parties are able to use funds acquired during a former relationship for day to day living expenses post-separation where needed. However, the purchasing of an item such as an engagement ring for a new partner, would not be considered such a “day to day expense”.

In family law proceedings, so far as practicable, the Court has a duty to end the financial relationship between the parties to a marriage or a de facto relationship. The court must also ensure that it does not “alter the property rights of the parties, unless justice requires it to do so”.

This means that if you buy an engagement ring on a credit card and pay off that credit card debt from funds that you obtained entirely post separation, be that on your own or with the assistance of your new partner, you can expect that the engagement ring, or its value, would not be treated as part of the property pool available for division between you and your former partner. However, where assets are required by a party from post-separation income, they may be considered in the property settlement with the former partner in so far as those assets are available to the party.

If you have any questions on how to move forward financially with your new partner, when you have not yet finally settled your financial relationship with your former partner, call our family law team on (07) – 3506 3651. We can offer you experienced property settlement advice.

Blended Families and Property Settlements

If your former partner from your second marriage has contributed to the support of your children from your first marriage, could this affect your property settlement? Find out from our property settlement North Brisbane Lawyers. 

property settlement north brisbane

Property Settlement North Brisbane

If you and your former partner have been a blended family, you may want to know how contributions towards the living costs of a step child may effect your family law property settlement.

You may have children from a previous relationship and been in a subsequent relationship where your new partner had assisted with their living costs.  If you and that partner separate, can your former partner then claim  some benefit in a property settlement for having provided that financial assistance?

At family law, it is the parent of the child who has a legal duty to maintain the child of a former relationship.   That duty has primacy over the duty of any other person, other than the child’s other parent, to maintain the child.

For example, if Mary has two children from a former relationship with Bruce and Mary then marries Jack, Jack has no legal duty to maintain those two children if there is no court order requiring him to do so.

If Jack does contribute towards the support of Mary’s children from her former relationship, his contribution is a factor that can be taken into account in any property settlement should Jack and Mary later separate. Jack’s contribution may in appropriate cases lead to an adjustment being made in his favour out of the property of Jack and Mary that is available for division between them.

However, Mary’s contribution towards supporting those children is not taken into account in her favour in a family law property settlement as she is the parent and is merely honouring her legal obligation to maintain her children.

Want to know more?

If you’re interested in getting a property settlement North Brisbane or anywhere in Australia, contact our team at LGM Family Law. We offer FREE 15-minute phone consultations, to help you get started.

Contact our team for advice on property settlement North Brisbane or anywhere in Australia today.

Child Maintenance for a Step-Parent

The modern-day Brady Bunch: how step children are viewed in the family law realm.

Blended families are becoming more and more common these days. If you’re a step-parent, you might be surprised to learn that you could be ordered by the court to pay your step-child’s maintenance. Find out more from our North Brisbane Family Lawyers.

North Brisbane Family Lawyers

North Brisbane Family Lawyers

 

The Brady Bunch – how you compare to a 1970’s American Sitcom Family

In 2015, 15% of people getting married, were getting married for the second time. That’s a lot considering 227,190 people got married that year. It also means that if the Brady bunch were around today, they wouldn’t stand out from the crowd for the reasons they did back then.

Blended families (where one or both partners are bringing children from a previous relationship into their new relationship), are on the rise. It’s important to know how your relationship with your step children may affect your legal rights in a property settlement, should you ever leave your new partner. Read on to find out more from our North Brisbane Family Lawyers.

Am I a step parent?

Let’s take John for example. John married Wendy, who has a son, George, to her ex-husband Bruce. So: John and Wendy are married, Bruce and Wendy are George’s parents, and Bruce and Wendy are divorced.

By marrying Wendy, and welcoming George into his family, John has legally become George’s step father.

So, you are a step parent if:-

  1. You are not the biological or adoptive parent of the child;
  2. You are or have been married to one of the child’s parents, or are or have been in a de facto relationship with one of child’s parents; and
  3. You’ve treated that child as a member of your blended family whilst in a relationship with that child’s parent.

What does that mean to John while he is married to Wendy?

As a step parent, unless there is an appropriate court order in place, John has no legal obligation to maintain George. John may feel a moral obligation to look after George but whether he accepts that obligation is entirely up to him.

George’s biological parents have a primary duty to maintain George. If either parent is not contributing towards payment of George’s living costs, the other parent may apply to the Child Support Agency for a child support assessment against that parent.

In the meantime, if John wishes to assist Wendy with George’s costs, he can do that but he has no financial obligation in relation to George unless a court order requires him to maintain George.

Is there any situation where John is legally obliged to look after George?

John doesn’t become obliged to maintain George by marrying Wendy. However, a person can apply to the Court seeking orders that John, as a step-parent, be legally obligated to look after, or in legal terms “maintain”, George. This is a called a section 66M Order.

However, the Court won’t require John to step in, if Wendy and Bruce have the ability to look after George.

If a Court was considering whether it was proper to make an order for John to “maintain” George, the Court must consider certain matters only, including:-

  1. The length and circumstances of the marriage or relationship between John and Wendy;
  2. The relationship between John and George;
  3. The arrangements for the maintenance of George that had existed;
  4. Any special circumstances which if not taken into account would result in injustice or undue hardship to any person (whether George, John or any other person).

Where to next?

If someone has made an application against you, as a step parent, seeking that you be ordered to maintain a step-child or if you want advice whether you may obtain an order for the step parent to maintain a step-child, contact us today for tailored, personal, independent legal advice. Our North Brisbane Family Lawyers are here to help.