There are some important issues to consider following separation!
Going through a marriage or relationship breakdown can be a very distressing time and most often our clients find it difficult to think clearly. There are some important issues to consider following separation.
It is important to compile details in relation to your relationship, including assets, liabilities and financial resources. This will assist your lawyer to provide advice based on your individual circumstances.
Some issues you will need to consider –
Joint Bank Accounts
Firstly, yourself and your partner should take stock of your bank accounts. Most married couples have a joint bank account which either you or your former partner are able to access without the authorisation of the other. Any joint accounts should be closed immediately and any redraw or offset accounts be given consideration as to the requirement of joint signatories for transactions on the account.
Ownership of the Matrimonial Home
Who is the owner of the matrimonial home?. Is it in your name, your former partner’s name or is it held as joint tenants or tenants in common?. All of these scenarios hold different legal implications and affect your situation during a property settlement.
Do you have a Binding Nomination on your Superannuation naming your former spouse as a beneficiary. You will need to give this some thought and contact your Superannuation Fund to make any necessary changes.
Other issues you may wish to consider -
Do you or your partner have any interest in any companies or trusts? Are there director’s loans? Have you provided a personal guarantee in relation to any company liabilities? Are you a Director or Shareholder of any company or trust? Financial statements and tax returns for companies and trusts will need to be provided or disclosed so any orders can properly deal with these interests.
Wills and Powers of Attorney
You will need to review your Will to ensure that amendments are made to reflect your change in circumstances. Should you have given your former partner Power of Attorney on your behalf, it is important that you seek legal advice in order to have a revocation of any such Power of Attorney. For more information about Wills and Estate Planning, visit https://brazelmoorelawyers.com.au/our-legal-services-gosford/deceased-estates-wills-gosford/
If you are going through a breakdown of your marriage or you are separated and would like to know where you stand, Call Michelle Meares, Family Lawyer on 4324 7699 for a free no obligation chat on the phone.
If you would like to attend our upcoming Seminar visit https://www.familylawgosford.com.au/family-law-blog for more details.
Don't miss our upcoming Family Law.
Do you need family law advice on -
- Your legal rights after separation;
- Getting plenty of time with your kids;
- how to get time with your grandchildren;
- dividing property fairly;
Michelle's presentation will cover property settlement, residence of children, defacto relationships, mediation and early settlement options so that you can consider your situation and plan where to from here, especially if you find yourself in the Family Court System.
The Seminar will be presented in a friendly, relaxed atmosphere and there will be plenty of time for your questions.
You'll be helped a lot in understanding the system and will then be able to confidently consider what steps you need to take next.
The Seminar will be held at Gosford RSL Club (https://www.google.com/maps/place/Gosford+RSL+Club/) on Tuesday, 10 November, 2020 from 6.45pm to 8.00pm.
Covid Safe Rules apply meaning a limit of only 20 places available. So call Jo now on 4324 7699 to reserve your seat.
In the 2017–19 NSW Domestic Violence Death Review Report, 99% of domestic violence-related homicides were characterised by coercive control.
Research by Professor Evan Stark, the sociologist who developed the concept of coercive control, found 60-80 per cent of women who seek help for abuse have experienced it. In the 2017–19 NSW Domestic Violence Death Review Report, 99% of domestic violence-related homicides were characterised by coercive control. Research by Professor Evan Stark, the sociologist who developed the concept of coercive control, found 60-80 per cent of women who seek help for abuse have experienced it.
A recent survey of 15,000 women by the Australian Institute of Criminology found nearly 6 per cent of women had experienced coercive control from a current or former partner during the COVID-19 pandemic, with one in five saying it was for the first time. (LINK: The prevalence of domestic violence among women during the COVID-19 pandemic reveals that 4.6 per cent of all women who responded to the survey—and 8.8 percent of women in a cohabiting relationship—experienced physical or sexual violence from a current or former cohabiting partner in the three months prior to the survey.
Many women reported it was the first time their partner had been violent, while others said the violence was getting worse. For 33 percent of these women, this was the first time they had experienced physical or sexual violence within their relationship. More than half (53%) of women who had experienced physical or sexual violence before February 2020 said the violence had become more frequent or severe since the start of the pandemic.
Other jurisdictions have recently moved to criminalise coercive control with Scotland implementing similar legislation in 2018 (Domestic Abuse (Scotland) Act 2018) resulting in more than 1,000 charges with a 96% prosecution rate since it was introduced.
If you have or are experiencing Domestic Violence in your relationship or marriage, it's time to put a stop to it. Call Michelle Meares now on 4324 7699 for a free confidential chat.
So You Can't Reach A Family Law Agreement - What Happens Now?
So you and your ex-partner have tried come to an agreement after separation in respect of parenting, property or both but you haven't been able to do so. The next question you will more than likely ask it 'What now?'. That's a good question which we are about to answer for you.
Prior to answering that question, however, we will say the following about mediation in parenting and property matters:
- Parenting - Parents are required to participate in mediation prior to making any application to the Court for parenting orders. This requirement is contained within the Family Law Act 1975.
- Property - It is not mandatory in property matters for parties to participate in mediation prior to making any application to the Court for property settlement.
You've decided it's time to commence the medation process.
You will need to decide whether you wish to participate in lawyer assisted medation or non-lawyer assisted mediation. We will explain the difference later in this article.
Once you have made that decision, you will need to contact a medation service to ascertain their availability and the cost of the mediation.
You will need to advise the mediation service whether you wish to participate in lawyer assisted or non-lawyer assisted medation. In most cases if the parties are represented by Lawyers and an agreement has been reached to participate in Lawyer assisted mediation, the Lawyers will make the arrangmeents for the mediation.
If the parties are not represented and wish to participate in mediation then it will be up to the parties to make those arrangements.
So what is the difference between Lawyer Assisted Mediation and Non Lawyer Assisted Mediation?
Non Lawyer Assisted Mediation
Parties attend a mediation without the assistance of a Lawyer. The process is conducted in the same way as Lawyer Assisted Mediation.
If an agreement is reached between the parties the paries are able to document that agreement. That agreement should be taken to a Lawyer and advice provided on it prior to it being signed by the parties. However, this is not mandatory. In some instances the service conducting the Mediation may allow parties to sign off on the Agreement whilst at Mediation.
Lawyer Assisted Mediation
Lawyers attend the Mediation with the party or parties. One party may attend a Lawyer Assisted Mediation without a Lawyer if they choose to do so.
The benefit of Lawyer Assisted Mediation is that the parties are able to obtain legal advice during the course of the Mediation. If the parties reached an agreement then the Lawyers, in most cases, will draft the necessary documents and have the parties sign the documents there and then on the spot which enables them to be forwarded to the Court for filing.
This saves both time and money for the parties.
If you have a Family Law Matter and you need the assistance of an experienced Family Lawyer, call Michelle Meares on 4324 7699 for a confidential chat on the phone.
The question of who is a parent is what the High Court of Australia was asked to consider when it heard an appeal in April 2019 in the case of Masson v Parsons and Ors.
The child was conceived by way of artificial conception in 2006. The sperm donor (the “Appellant”) was a friend of the Mother. The Mother was not in a relationship with her current parent at the time of conception. The Appellant had been involved in the child’s life since the time of her birth, was registered on her birth certificate and she referred to him as ‘Daddy’.
The Mother formed a same-sex relationship and they wished to relocate to New Zealand with the child. The Mothers sought orders from the Family Court in Newcastle and in October 2017 Justice Clearly found that the Appellant was a parent under the Family Law Act and that they were not able to relocate as this would not be in the best interests of the children.
The Mothers appealed this decision to the Full Court. The Full Court agreed with them and found that the trial Judge had failed to apply the relevant provisions of the New South Wales Status of Children Act 1996 which would result in the Appellant being excluded as a parent of the child.
The Full Court held that the provisions of Section 60H of the Family Law Act did not apply and as a result the State legislation applied and under this legislation the circumstances of conception can result in some men not being considered a parent. This is what happened in this case.
The Appellant sought leave to appeal to the High Court and on 14 December 2018 special leave was granted to determine the question ‘who is a parent under the Family Law Act 1975.
The Constitutional issue resulted in the Commonwealth Solicitor-General intervening to support the Appellant and the Solicitor General of Victoria intervening in the proceedings to support the Mother.
The High Court ruled in favour of the Appellant, overturning the appeal and reinstating the initial Judgment of Justice Clearly. The Court found that the NSW Law was not applicable and the definition under the Commonwealth law should be applied.
What impact this ruling will have on people undertaking surrogacy remains to be seen.
If you have a question about Family Law, call Michelle Meares Specialist Family Lawyer Mediator on 4324 7699.
With the current Covid 19 Crisis, the Family Court and Federal Court of Australia are now moving to conducting necessary hearings by video link. The following information has has been issued by the Courts to assist in this unusual situation -
GUIDANCE FOR ATTENDANCE OF A WITNESS AT A COURT
HEARING BY VIDEO LINK TO GIVE EVIDENCE
For the purpose of this guidance, a witness includes a party.
The behaviour and manner of a witness should be the same as if they were attending the Court hearing in person. This includes addressing the judge correctly -“Your Honour” - and counsel politely and courteously.
The witness will be sworn or affirmed by the judge prior to commencement of their evidence.
It is expected that the witness has had explained to them the distinction between an oath and an affirmation and be able to say immediately whether they wish to make an oath or an affirmation. If an oath is chosen, the witness should be requested to have available any religious text if they would like to have one.
A witness is to be alone, in a secure room with doors closed.
A witness should have recently re-read all affidavits or statements made by him or her in these proceedings and have a clean copy of those documents with them. Counsel will be able to electronically refer the witness to a document through the OneDrive folder or Microsoft Teams.
The witness is to ensure that there will be no interruptions or distractions for the duration of the video appearance at the hearing.
A witness may have a glass of water with them but a witness is not to permitted to eat or to drink anything else during the course of the hearing, without permission of the judge to do so.
The witness may take notes and have pen and blank paper for doing so but the taking of note will not be permitted to impede the flow of the evidence.
The party cross examining the witness is to ensure that the witness has all documents to which they may be referred. This means that a cross examiner must know in advance what documents will be shown to the witness and ensure that those documents are available to the witness in a timely way. Again, this can be facilitated through the use of a OneDrive folder setup.
A witness must say when they are fatigued. Having regard to international time zones, a witness should not give evidence when the witness would usually be asleep.
A witness should dress as if they were attending Court.
A witness must have the lap top computer used during any test run conducted by the Court.
Recording the evidence, the proceedings or any part of the proceedings is strictly prohibited and doing so will constitute a contempt of Court
We continue to be available to answer your questions during this time. If you need advice in relation to Separation, Divorce, Property Settlement or Children's matters call Michelle Meares, Family Lawyer on 4324 7699.
So you've decided to separate. What happens now -
Firstly, the decision to separate from a spouse is a huge decision and should not be made lightly. However, once the decision is made, we would suggest the first steps to take are -
Communicate your intention to separate with your spouse;
Note down the date of separation; and
Following on from your conversation with your spouse, you will need to have a conversation about who will remain in the matrimonial home, who will care for the children, will the matrimonial home be kept by you or your spouse or will the home be sold. These issues will form the basis of any property and children's orders to eventually be filed with the Court in order to formalise your agreement.
You will then need to give some thought to the following -
Closing any bank accounts in joint names;
Opening a bank account in your sole name;
Discuss how to pay out any joint credit cards;
Arrange to redirect any salary that may have been going into a joint account to go into an account in your sole name.
Review your Superannuation, Health Insurance and other Insurance Policies in joint names.
Work out what is owed on utilities such as water, rates, electricity, telephone etc and bring payment up to date.
Arrange to change any utilities in joint names into the name of the party who will be responsible in future.
The above is a brief list of matters that will need to be attended to after separation. It is always important to seek expert legal advice from a Family Law Specialist Lawyer. For more information, call Michelle Meares, Family Law Lawyer and Mediator on 4324 7699.
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