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Financial Separation Agreements

Can A De Facto Relationship Get A Prenuptial Agreement?

The same circumstances that arise in a marriage can occur in a de facto relationship as well. As a result, since 2009, the same laws apply to de facto relationships. This means that a couple in a de facto relationship can get a prenup or postnup.

Children Support & Factors in Prenuptial Agreements

When entering a binding financial agreement, it is important to consider all future possibilities. This includes children. Even if you are not sure whether you and your partner want children, it is important to include details regarding child support and maintenance.

If you do have children in the future, and this wasn’t mentioned in the prenuptial agreement, then any understanding is not legally binding.

Under Section 90A of The family law act (1975), prenuptial agreements can only provide for child support if the child has been born and can be named. The exact amount of maintenance will need to be included in the agreement.

Keep in mind that the terms of the prenuptial marriage contract can be overridden by the Court if it is deemed to not be in the best interest of the child.

Wills Trusts & Other- Made in Contemplation of Marriage/De-Facto?

Lastly, there are other matters that need consideration before marriage.

A will that is made before marriage is usually revoked when the marriage occurs, unless the Will is made in contemplation of marriage.

It is also important to look at the way in which an asset is legally owned so as to meet all your needs after death such as testamentary and inter vivos trusts, gifts and binding death nominations of certain insurances and funds.

Prenuptial Checklist for a Couple - What it Can Cover!

• You don’t want the division of your property and assets decided by the courts
• You want to avoid the emotional turmoil of a divorce
• You want to keep pre-marital assets separate
• A safeguard and financial protection for both parties
• The other party has debt that you are concerned by
• One party owns a business
• One party is from a wealthy family and wants to protect a potential inheritance
• Parties who already have children from a previous relationship
• Spousal support
• Cash
• Real estate
• Superannuation & pension entitlements
• Joint investments
• Joint businesses
• All future aspects such as children and future asset purchases

Children Compliance & Enforcement

What Happens If A Parenting Order Has Been Breached?

If the Court finds that an order has been breached, depending upon the seriousness of the contravention, the Court has the power to make a variety of orders. For example, the Court could make an order for:

  • Make up time to compensate for the time that the person missed;
  • A person to attend parenting education programs such as a post separation parenting program;
  • A person to enter into a bond with the Court to do certain things for a period of up to 2 years. This may involve attending appointments for counselling or being of “good behaviour”. Good behaviour could include making sure that a person complies with the Court orders in the future;
  • A fine to be imposed;
  • Imprisonment for up to 12 months; and/or
  • The party who breached the orders to pay the other party’s legal costs. In addition, the Court can decide to vary or change your original parenting order as part of the contravention proceedings. This can be done even if you did not apply for the Court to change the order. Often the first thing the Court will do when a breach has been proved is assess whether an order needs to be varied to prevent any further problems in the future. The most common outcomes in contravention applications are orders for make up time and for the breaching party to attend a parenting course, especially the first time a breach of the Court orders is found to have taken place.

Who Is Involved In Contravention Proceedings?

The person applying for a contravention order is called “the applicant”. Any person that has previously been a party to a parenting order is able to apply to the Court.

The “respondent” to a contravention application is the person alleged to have contravened or breached the parenting orders. This will usually be the other parent.

Should I Be Worried About Court Costs?

The Court is required to consider whether to make an order for the applicant to pay the respondent’s costs in the following circumstances:

  • The contravention application is dismissed because the alleged breach could not be proved.
  • A respondent successfully argues that there was “reasonable excuse” for contravening the order.
  • There have been contravention applications made by the applicant in the past which have failed.

The Court must consider making a costs order against the respondent if it finds that there has been a contravention of the orders.

Financial Separation Options II

Grounds for Setting Aside a BFA?

  • Misrepresentation or fraud
  • To establish fraud can involve some failure to disclose something a court considers relevant to enter the BFA.
  • Misrepresentation; it must be shown that there was a false statement that effectively induced the other partner to enter into the BFA.

Change of Circumstances in Relation to Children?

  • Any circumstantial changes relating to the best interest of the child or children that the court regards as “material”, such as wellbeing, child development and health are paramount when the court considers setting aside a BFA.
  • For instance, when the BFA was entered into, the child may have originally lived with the mother, but later moved to live with the father. This might form grounds for the court to set aside the BFA.
  • If the child becomes disabled or sick requiring expensive medical treatment, the BFA may be set aside if it runs contrary to the interests of the child.

Fraud Against 3rd Parties Such as Creditors?

  • For example, if assets are transferred prior to a BFA prior to bankruptcy in circumstances the trustee in bankruptcy and/ or the family court may investigate and set aside the BFA.

Uncertainty and Incompleteness?

  • Impracticability
  • It would be unreasonable to enforce the agreement and so a court will have it set aside.

Unconscionable Conduct, Duress and Undue Influence?

  • Unwarranted pressure on the other partner to take part in a BFA. Violent threats, intimidation and bullying are common examples of undue influence and duress.

Splitting Orders and 'Unsplittable Interests'?

  • It will not, however, be possible to split a superannuation account with very little money.
  • Other types of interest have been deemed unsplittable.

Fair and Reasonable?

  • A court will only make orders on your consent orders if they think that what you have agreed on is fair and reasonable to both parties.
  • A BFA may not necessarily be fair to both of you and it is possible that you or your partner may have a more advantageous settlement.
  • A lawyer may also prepare a “Letter of Advantage/Disadvantage” when they review a BFA so that their client is aware of the effect of the BFA.
  • If a BFA is prepared without this independent legal advice, the BFA is void and unenforceable.

A “Certificate of Independent Legal Advice” is required to be prepared and signed to
show that both of you have received independent legal advice.

Full Disclosure a Must?

  • In both cases the parties must disclose all assets, whether in their name or not, and liabilities. The documents may be overturned and contempt of court penalties may apply if full disclosure is not made.

What Assets are Covered in a Property Settlement?

  • All of the parties current assets, liabilities and financial resources are considered. This will include both parties superannuation and pension entitlements.

Liabilities?

  • Liabilities are also considered in the same way and they will include both parties, debts, credit cards, loans, tax and stamp duty obligations and that is irrespective of whether they are in joint names or the name of one party.

Divorce – Guided Self-Help

Can I Apply For A Divorce?

You can apply for a divorce in Australia if either you or your spouse: regard Australia as your home and intend to live in Australia indefinitely, or are an Australian citizen by birth, descent or by grant of Australian citizenship, or ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

Living Under The Same Roof Can Be Living 'Separately'

You need to satisfy the court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated.

Seeking Legal Advice and Our Fixed Fee Offer

You can obtain legal advice to understand your rights and responsibilities before applying for a divorce or other applications in relation to a divorce. A lawyer can help explain how the law applies to your case.

What A Court Considers In Divorce Applications

The only grounds for divorce is that the marriage has broken down irretrievably. That is, that there is no reasonable likelihood that you will get back together. You must have been separated for at least 12 months and one day in order to satisfy the Court that the marriage has broken down irretrievably.

If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them.

What Will A Divorce Cost And Our Fixed Fee Offer?

There is a filing fee for divorce applications and your lawyer will also charge a fee. Goldman lawyers has some fixed price offers for those seeking to have a clear transparent legal process and cost in our offers

In some cases; for example, if you hold certain Government concession cards or you are experiencing financial hardship, you may be eligible for a reduced fee.

What Will A Divorce Cost And Our Fixed Fee Offer?

There is a filing fee for divorce applications and your lawyer will also charge a fee. Goldman lawyers has some fixed price offers for those seeking to have a clear transparent legal process and cost in our offers

In some cases; for example, if you hold certain Government concession cards or you are experiencing financial hardship, you may be eligible for a reduced fee.

Can I Oppose A Divorce Application?

If you have been separated for more than 12 months, there are few opportunities to oppose a divorce application. You can only oppose the divorce where:

There has not been 12 months separation as alleged in the application, or the court does not have jurisdiction.

If you do not want the divorce granted, you must complete and file a “Response to Divorce” and appear in person on the hearing date.

You need to set out the grounds on which you seek the dismissal in the “Response to Divorce”.

If you file a response, you should attend the divorce hearing. If you do not attend, the court may decide the divorce application in your absence. If it is difficult for you to attend in person, you may ask the court to appear by telephone.