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What is a Will

What is a Will and Why Do You Need One?

By | Wills & Estates
A will is one of the most important and practical legal documents you will create in your lifetime. By making a will, you ensure a number of things will happen once you pass on – specifically, that your property and assets will be distributed after your death in the way that you want them to be, and also to provide certainty and clarity for your loved ones in terms of their inheritance from you.

When should you make a will?

When you’re young it’s easy to put off the idea of making a will. You don’t have dependents, you don’t have many assets and you may not yet have a partner. But as you get older you will likely gain some or all of these things and it becomes essential to detail what should happen to the things you leave behind in the event of your death. In truth, it’s advisable for anyone over the age of 18 to consider making a will, particularly once they start working. This area is commonly referred to as ‘estate planning’.

Once you’ve made a will, it’s recommended you review it every five years to ensure it accurately reflects your current circumstances.

What are the consequences of not making a will?

Should you die without having made a valid will, you are said to have died ‘intestate’ and your estate will then be subject to the laws of intestacy such as Queensland’s Succession Act 1981. This can mean your estate is not distributed as you had intended – even your sentimental belongings may not go to the loved ones who you wished to inherit them.

The lack of a will can lead to a messy and potentially costly situation for your family if they then wish to seek to assert their rights in relation to your estate.

Things to consider in making a will

As the maker of a will you are known as the ‘testator’. You must also appoint an ‘executor’, a person or persons who will be responsible for managing and distributing your estate when you die, and therefore someone in whom you have implicit trust. This is because the executor/s role is an important one which can be both time consuming and complex, given they possess unique powers to deal with your estate.

In assessing the ‘estate’ you detail in your will, it’s important to remember that it is the sum of your assets minus your liabilities. Assets might include real estate holdings, cars, shares, super, life insurance and any money owed to you, while liabilities might include things such as outstanding tax debts, mortgage debts, household and medical bills.

It’s not always clear, at the time of your death, what will constitute either an asset or a liability and this is where a legal professional with experience in estate planning can assist at the time you make a will.

The importance of advice

While there are many DIY kits available which aim to defray the costs of making a will, people who use such means should be aware that legislation relating to wills in each state contains specific provisions governing the process.

In making their own wills, people often make fundamental mistakes such as:

  1. Not detailing the full name and relationship to a person mentioned in the Will, i.e. a father and son might have the same name, or a person might inherit a surname after marriage;
  2. signatures in different coloured inks which indicate testator and witnesses were not present together at the signing;
  3. making later amendments to the will after it has been signed, which can render it invalid; and
  4. even storing the will incorrectly, so that it’s obvious paperclips or staples have been removed to add or remove pages.

Even these basic examples indicate the importance of consulting an estate planning expert when it comes time to either make or update a will. Contact us today to discuss creating this important life document.

Testamentary Trust

What is a Testamentary Trust and Why Should I Consider One?

By | Wills & Estates

An unavoidable fact of life is that, someday, we all die. While many avoid thinking about this particular reality, it doesn’t change the fact of the matter and by putting off issues around death entirely, many place themselves or their loved ones in a position of risk when the time finally does come. One way to protect yourself, your estate, and your family is to tackle these issues head on and engage in various types of estate planning. By going beyond just executing a will, you will be able to provide yourself and your family peace of mind when the inevitable does finally come to pass. For additional benefits, consider a testamentary trust.

A Trust Is: First, it might be helpful to know what a trust is. A trust is a legal arrangement between three parties. The first party (the trustor) transfers property (assets) to a second party (the trustee), who holds these assets for the benefit of the third party (the beneficiary).

A Testamentary Trust is: A testamentary trust is a trust that is created through a will and only comes into effect after the death of the person who created the will (the testator). In short, when the testator dies, the assets will go into the trust rather than be distributed through the will. The reason that these assets are not considered to be part of the estate as defined by the will is that the trustees are not beneficiaries of the estate and do not control asset distribution.

Benefits to a Testamentary Trust

Tax implications: Trustees of a testamentary trust will have the discretion to distribute and divide the capital gains of the trust however they choose in order to minimize the tax implications on the beneficiaries. On the other hand, if a beneficiary inherits directly, they will be forced to pay taxes on that income based on their personal marginal tax rate.

Asset protection: Due to the fact that the trust assets are not considered part of the deceased’s estate, these assets will be protected from the claims of third parties, such as creditors or ex-spouses. Similarly, if a beneficiary is involved in a property settlement, the assets will not be accessible as they technically belong to the Testamentary Trust and not to the beneficiary themselves.

Types of Testamentary Trusts: There are two common types of testamentary trusts.

Discretionary Testamentary Trusts: This is when the executor grants the beneficiary themselves the option to place all or part of their inheritance into a testamentary trust. In this scenario, the named primary beneficiary has the ability to appoint or remove a trustee as they see fit and are even allowed to manage their inheritance within the confines of the trust. This is more common with competent adult children or spouses.

Protective Testamentary Trusts: This occurs when the executor does not allow the beneficiary to choose and the beneficiary is forced to take their inheritance via testamentary trust. Additionally, the beneficiary will not have the power to appoint or remove trustees. This is more common when the beneficiary needs guidance due to age, responsibility, or disability.

Including a testamentary trust as a part of your estate plan may be a good idea for a lot of reasons, many of which have been outlined here. However, if you or someone you love has any questions about planning ahead for the financial wellbeing of their estate, contact an experienced lawyer today and receive personalised guidance.

Power of Attorney

What is a Power of Attorney and Why Might You Need One?

By | Wills & Estates

Though we may not like to think about it, accidents happen every day. Some accidents or unplanned events may leave you or the ones you love unable to speak for yourselves. In fact, the only certainty in life is getting older, which also carries the possibility of losing the capacity to make your own decisions regarding health care, finances, and more. On a more positive note, you may want to spend some time travelling overseas where you are not reachable to conduct your own business. No matter the circumstances, you are faced with the very real possibility that, at some time in your life, you may be unable speak for yourself. If this happens, you should prepare through the legal document known as Power of Attorney.

What is a Power of Attorney?

A Power of Attorney operates during your lifetime to direct your affairs and can either be ‘General’ or ‘Enduring’.

General: A general power of attorney is usually used for temporary absences. For instance, if you were to go on a vacation and want to grant someone the power to sign documents in your absence, you could give them a general power of attorney and their power to act on your behalf would end when you returned. A general power of attorney will also come to an end if you were to lose capacity for some reason.

Enduring: On the other hand, an enduring power of attorney will enable your appointed  agent to be able to continue to act on your behalf in the event that you lose capacity. They will be the ones to make decisions about your care and conduct your affairs if you develop a cognitive medical condition like Alzheimer’s, or are in a coma. In the absence of an enduring power of attorney, the government will appoint someone to make decisions on your behalf, and sometimes this will draw a fee.

What decisions can be made under the Power of Attorney?

You may grant the power to make decisions regarding your personal matters, health matters, or financial matters.

Personal & health matters: These two go hand-in-hand because while who you live with may seem personal, your healthcare needs will likely play a large role in who will be the best choice for you to live with. Same goes for whether you are able to work, attend school, receive training, obtain a driver’s licence, and the mundane issues of day-to-day life (clothing, food, etc.). These powers will also include decisions about what care to pursue, accept, or refuse (like surgery or medication).

Financial matters: These powers will include distribution of income, investments, purchases, sales and real estate transactions, as well as the management of assets, bank accounts, and using the money for your care.

Definition of capacity

A Power of Attorney will protect your interests if you lack the capacity to make your own decisions any more but in order to grant the power at the outset, you need to be an adult who is capable of making your own decisions. In order to have ‘capacity’, you must be able to understand the nature of your decisions and their effect, free and able to make said decisions, and be able to communicate your decisions. If you are unable to meet these criteria, it will be determined that you lack capacity.

For over 30 years, Twohill Lawyers have been providing comprehensive legal help to the people of the Gold Coast community. If you require further information or legal assistance, please contact us today for a 15-minute, no obligation advice over the phone on 07 5571 1450 or email admin@twohilllawyers.com.au.

Mediation

Mediation or Going to Court: Which is the Best Option in Family Law Matters?

By | Family Law
As the old saying goes, love hurts. And that’s what makes certain decisions in family law matters so difficult. One of the toughest decisions a couple has to make as their partnership or marriage breaks down irrevocably is how to end things in a legally appropriate manner. Should you try do so through mediation or just go to court? Here’s what you should know in order to make an informed decision.

An adversarial process

If you’re bitter or angry, taking your partner or spouse to court may seem like the best option. This may also seem like the best choice if you are convinced that you’re entirely right and the other person is entirely wrong. In this case, you may mistakenly believe that the judge will simply take your side and you will get everything you want.

However, you should be aware that decisions made in haste or anger may have unintended consequences. In court there is no guarantee that either one of you will get everything you want, so you may very well end up disappointed if you pursue this option. Furthermore, appealing the court’s ruling is difficult, time-consuming and expensive.

Another point to consider is that going to court is a largely adversarial process, pitting one of you against the other (or your lawyers against each other) and leaving little room for negotiation and constructive dialogue. So even if you don’t resent the other person to begin with, you may end up feeling resentful and hostile towards them in the end.

Having said all of that, there are some situations in which going to court is the only option. This is the case when:

  • you are requesting parenting orders from a family law court;
  • you are using ‘consent orders’ to formalise the arrangement;
  • there is a history of family violence or child abuse;
  • you are responding to an application to court;
  • one of you is unable to engage in meaningful participation for various reasons;
  • one of you has acted against or ignored a court order issued within the past year.

Why opt for mediation?

Flexibility is one of the biggest benefits of mediation. Even the term itself has several definitions. Mediation within the context of family law can be defined as informal discussions facilitated by friends or relatives; or a more structured process facilitated by someone with special training called a mediator.

In either case, mediation has the following goals and characteristics:

  • It is focused on constructive dialogue, healthy conversation and reaching consensus on key issues rather than finger-pointing and casting blame.
  • It is designed to help couples going through separation or divorce avoid costly and unpleasant court battles.
  • It allows you to have significant say in the outcome.
  • It allows and encourages creative solutions to reach consensus.

Mediation can be used to help  you reach consensus on key issues including:

  • The division of property (assets and liabilities);
  • parenting matters;
  • child custody and visitation;
  • spousal support and child support.

What is family dispute resolution?

Family dispute resolution or FDR is a form of mediation used only in certain circumstances. Specifically, it is used to help separating couples who are otherwise unable to agree on parenting matters reach consensus on future parenting plans. In this process, a specially trained FDR practitioner leads the discussions and ensures that the parents remain focused on the children’s needs.

Australian law mandates that separated parents try to reach consensus through FDR   before applying to a family law court for parenting orders. The only exceptions to these rules are those detailed above.

Families in need of FDR services can find them through Family Relationship Centres, Legal Aid Commissions and similar community-based organisations or government agencies. You can learn about the government-funded FDR providers in your area by calling 1800 050 321 or use the Find Local Help search to find one nearby.

Some FDR practitioners also make their service available privately. To find one, simply consult the Family Dispute Resolution Register. You’ll be able to to find information about private provider’s costs there as well.

Options for families in isolated areas include telephone or internet based FDR through the Family Relationship Advice Line or a private FDR practitioner.

You can learn more about FDR here.

The bottom line is that traditional family mediation and FDR are both worthwhile alternatives to court in family law matters. Although FDR is only used when separating families are unable to come to an agreement on parenting plans, it has a lot of the same benefits as traditional family mediation. Both offer flexibility, allow for creative thinking and focus on constructive conversation. Both are facilitated by specially trained professionals and tend to be less expensive than protracted court battles.

To learn more about the use of different types of mediation in family law matters, contact us today.

Separation

Separation – What is Required to be Considered Separated Under One Roof?

By | Family Law
It may be a cliché but it’s also true: no matter how long you’ve been together, breaking up is hard to do. For married couples, coping with the fallout can be especially complicated – and that’s one reason why so many Australians continue to live together even after separation. But what’s required in order to be considered as “separated under one roof”?

Separation under one roof can be short or long-term

For some separated couples, continuing to live together is just “easier”, at least in the short term. It gives the person who is planning on leaving time to find another place to live, save some money for rent, or make other arrangements. It also gives someone who hasn’t held a steady job time to find one.

Then there are other couples that prefer to keep living together after separation for a longer period. In many cases, they choose to do so “for the sake of the children”, especially when the kids are younger. Although this is generally discouraged, supporters say it allows both parents to maintain ongoing relationships with the children. Depending on the situation, such as one in which the parents remained civil or even cordial, this may also provide some semblance of stability and normalcy for the kids.

Legal considerations

If you are considering separation but want to keep living with your former partner or spouse afterwards, you may also be concerned about the legality of doing so.

More often than not, it’s perfectly fine. The only time separation under one roof can be tricky from a legal standpoint is if you also plan on getting divorced, or if you and your ex have a disagreement that requires court intervention.

In fact, section 49 (2) of the Family Law Act specifically allows for separation under one roof. It states: “Parties to a marriage may be held to have separated and to have lived  separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household  services to the other.”

Seeking divorce after separation under one roof

To get divorced in Australia, you must be separated for one year (12 months). Living together for some or all of that time won’t prevent you from seeking divorce, but you must provide additional information along with your application.

Here are a couple of examples. First let’s say you’ve separated for a year, but you lived together for half that time. In this case, you must provide supporting evidence with your application.

But now let’s say you’ve been separated for five years. In this scenario, you stayed in the same home for the first three years, but lived in different homes for the last two. In this case you don’t have to provide any supplementary information.

What type of supporting material is required?

An affidavit is a sworn statement that you must file along with your application for divorce if you have been separated under one roof. In this document, you give a detailed account of your living arrangements demonstrating your separation during the 12-month period. Specifically, you must explain:

  • different sleeping arrangements (i.e. if one of you moved into the guest room);
  • changes in common activities;
  • specific divisions of household responsibilities;
  • establishment of individual bank accounts and changes in how household bills are paid;
  • the extent to which you informed friends, family and any other relevant people (such as your children’s teachers or caregivers) about the separation.

You should also be prepared to address any other significant issues in the affidavit, including:

  • Your reasons for staying in the same home after you separated and any forthcoming changes to the current arrangement (if applicable).
  • Any changes directly affecting or related to any minor children (those less than 18 years of age) that you have in common with your former partner/spouse while you were separated under one roof.
  • Which government benefits you receive (if any) and which agencies you notified about your separation. Copies of any relevant correspondence should also be submitted along with the affidavit.

Generally speaking, you won’t have to appear in court unless you made an individual application for divorce and you have a minor child in common with your former partner/spouse. This provision only applies as long as you fully explained your situation and submitted the required affidavits to the court. You may also be directed to appear in court or provide additional material if the court needs more information.

You are not alone

In summary, if your marriage can’t be salvaged and you are considering separation under one roof, you are not alone. Many Australians choose to live together after separation for a variety of reasons. Although this is legal, it can complicate matters if you want to get divorced. Therefore, it is important to get proper legal advice before making this decision.

To learn more about how we can help if you are considering this option, contact us today.

For over 20 years, Twohill Lawyers have been providing comprehensive legal help to the people of the Gold Coast community. If you require further information or legal assistance, please contact us today for a 15-minute, no obligation advice over the phone on 07 5571 1450 or email admin@twohilllawyers.com.au.

Inheritance

Is Your Inheritance at Risk of a Claim by Your Former Spouse?

By | Family Law
Historically the question of whether money is really the root of all evil has been a matter of debate but within the context of family law, there is no doubt that disagreements over finances frequently morph into something worse. There are many reasons these heated and bitter arguments over “who gets what” erupt when couples separate. In some cases, for example, fights begin when former spouses or partners can’t agree on what should happen to an inheritance.

Here’s what you should know about how the courts view a situation in which only one of you has received (or is soon likely to receive) the inheritance in question.

General Considerations

Because it is legally categorised as property, any inheritance you receive must be included in relevant negotiations. However, it is important to note that how it will be treated depends on your specific circumstances.

In general an inheritance will be treated as an asset that can be split between the two of you, or as an asset (financial resource or benefit) belonging only to the recipient. A cash inheritance will most likely be viewed as the latter. If it is, the court will likely determine that you (as the recipient) are in a better financial position than your former husband or spouse, and act accordingly.

In reaching its decision, the court may consider when you received (or will receive) the inheritance and how you used it. As an example, let’s assume you received a considerable inheritance while you were married. Now let’s also assume that you used the money for household expenses, family holidays, home improvements and so forth. In these circumstances, the court could reasonably find that this was simply your contribution to the marriage and issue an order accordingly.

On the other hand, let’s consider a scenario in which you inherited some money from your grandmother before you got married. Let’s say you weren’t living with the man or woman you eventually married, and he or she was aware of the inheritance. However, you kept the money in your own bank account and never used it for any relevant expenses or activities before or during your marriage. In this case, the court could reasonably find that the inheritance was always yours before the relationship, meaning you brought it in as an initial contribution. If you never used it and always kept it separate, depending on your partner’s circumstances, you may be able to keep it.

Other factors that the court may take into consideration are:

  • Value: The amount inherited or worth of the inheritance in comparison with the total asset pool.
  • Contributions: Whether the person who didn’t receive the inheritance contributed to it.
  • Purpose: The intended use of the money, as expressed in a will or any other specific instructions.
  • The extent of care: How much the person who did not receive the inheritance helped care for the deceased, if at all.

Relevant Cases

Of course the outcome in your case will be based on the court’s assessment of your specific circumstances. Having said that, here are a few summaries of relevant cases to help you understand how the court reaches various decisions.

First let’s look at a case called Elgabri & Elgabri. In this particular matter, the husband received an inheritance shortly before the couple separated and the judge excluded it from the general pool of marital assets. Upon further assessment of the evidence, the judge found that the husband and wife made equal contributions to the remaining assets. However, the judge also determined the wife should have an additional percentage of the assets because her husband’s inheritance gave him a financial advantage.

In another case called Elgin v Elgin, the court found that an inheritance received roughly one decade prior to the couple’s separation was insignificant in comparison to the value of the total asset pool. Specifically, it accounted for less than five percent of all available property by the time the couple separated. The judge in this case also decided that each spouse made equal contributions to marital assets. As a result, each person received an equal share of the assets.

Finally, in Sinclair v Sinclair, the wife received a considerable inheritance several years before she and her husband separated. However, the court determined that most of the assets weren’t related to direct contributions made by either person, and the wife received a significant percentage of the total assets.

In summary, it doesn’t matter whether you’ve received a small inheritance or you stand to inherit a fortune. If you are separated, it will be legally classified as property. Depending on your specific circumstances, you may be allowed to keep all of it, or it may be included in the marital asset pool. In any case, it is essential that you obtain clear legal advice on your specific circumstances.

Divorce

Four (4) Ways to Protect Yourself Financially in a Divorce

By | Family Law
No one wants to think about their marriage ending badly in Divorce. But the reality is that it happens.

 

When it does, the question of how to safeguard your finances is a common concern. Fortunately, there are several precautions you can take to protect yourself financially in divorce.

  1. Consider a binding financial agreement

Technically, you and your partner or spouse can enter a binding financial agreement before, during or after your marriage. But doing so before you get married is one of the easiest ways to protect your finances in divorce.

Also known as a prenuptial agreement or ‘prenup’, this is a formal agreement that is similar to a contract. In it, each of you states what you brought into the relationship and how the assets/liabilities should be divided in the event of separation and divorce.

As long as the binding financial agreement meets the requirements included in applicable laws, it doesn’t have to be reviewed or approved by the Family Court. In this context, it is also important to note that the court can’t change an agreement that complies with relevant requirements. However, the court can choose to disregard an agreement in certain circumstances.

On the other hand, not having a binding financial agreement at all puts your assets at risk for inclusion in the total asset pool and potential allocation to your former partner or spouse.

Although the extent of your contributions to this pool are given due consideration before it is divided, other mitigating factors may also come into play. These include but are not limited to how long you were together, how the marriage affected each of you, and your respective monetary/non-financial contributions to the marriage.

  1. Obtain sound legal and financial advice

As we have just noted, it is not too late to enter into a binding financial agreement once you are married. However, it is important to get sound legal and financial advice before pursuing this option. There are two key reasons for this. The first is because it is legally required, and the second is because every situation is different and there may be other options worth considering.

In any case, don’t be afraid to be proactive. Consulting relevant professionals sooner rather than later can help alleviate any stress you’re already experiencing, giving you time to consider the advice and plan accordingly.

  1. Maintain some financial independence

Devising a strategy that allows for some separation of assets is another way to protect yourself financially in the event of divorce. Some simple ways to maintain financial independence are to:

  • Keep separate bank accounts;
  • keep the deed of any property owned/purchased by one person prior to or during the relationship in that person’s name;
  • establish a joint household/family account for living expenses and individual bank accounts for other, unrelated expenses.

However, you should never open a bank account or take any other steps in a deliberate attempt to conceal assets. You should also be aware that the existence or creation of an individual bank account won’t automatically guarantee that you can keep all the money in it. If the court determines your former partner or spouse has a right to it, the money will be distributed accordingly.

  1. Careful documentation is key

The division of assets can be complicated when one or both of you receive gifts or inheritances prior to or during your relationship. Therefore, it is important to establish who received it and how the person who gifted it meant it to be used. In other words, was the gift given to only one person or to both of you as a couple? If someone gifted you money, did they instruct you to keep it for yourself, or use it for the family?

The answers to these questions will determine if you will be allowed to keep the asset(s) or if they will be included in the overall asset pool for allocation. Having proper, written documentation will substantiate your arguments about any assets that were given directly to you for personal rather than family use.

Careful documentation of joint and individual debt is also important when it comes to protecting your finances in a divorce. Unless you have proof that only one of you incurred a certain debt, all debt (joint and individual) will be divided in the property settlement. In other words, without proper documentation you may be responsible for paying off your former spouse or partner’s debt.

In any case, separation and divorce are never easy. But you don’t have to go through it alone. If you have questions about how to protect yourself financially, contact us today.

break-up

The Things You Need to Do Before a Break-Up

By | Family Law
As any mental health professional will tell you, a break-up is one of the most stressful experiences in life.

If you’re facing a bad break-up or divorce , it’s important to get the best possible legal and financial advice. It’s also important to lean on family and friends for emotional support, especially when you feel overwhelmed. But there are also some things that you can – and should – do on your own prior to separation. Here are some tips to get you started.

Emotional considerations

Before you do anything rash, make sure you really think everything through to ensure that separation is the only solution. If you are not in immediate danger and you can still communicate with your partner or spouse, consider exploring methods for reconciliation. Seeking help from a marriage counselor or similar professional who can help you resolve misunderstandings, identify and change negative behaviour, and facilitate effective communication may save a lot of heartache, time and money in the long run.

Practical considerations

If the behaviour of your spouse or partner has jeopardised the safety of either yourself or your children, or if your marriage simply can’t be salvaged, there are certain important decisions that need to be made sooner rather than later.

  1. Make sure your finances are in order. Specifically, you should make sure you have enough money – or access to enough money – to meet your own immediate needs and your children’s immediate needs. If you and your spouse or partner share bank accounts, be sure to access any funds you’ve contributed and use them to open your own accounts. You should also take this opportunity to establish your own credit if you haven’t already done so.
  2. Make sure you (and the kids) have a place to live. If you’re solely responsible for the rent or mortgage, you’ll probably want to stay in your current home. And ideally, your husband, wife or partner will simply agree to move out. If he or she refuses to leave, don’t be afraid to move out yourself; ultimately the law is on your side.
  3. Who “gets” the kids? If you have children, their welfare will obviously be one of your chief concerns. This means you’ll have to make certain decisions about where they’ll live when you and your spouse or partner are no longer together. In other words, you must decide who will have primary custody, and if possible, come to terms about visitation for the non-custodial parent. When making these decisions, keep in mind that the court will also view any agreements and issue relevant orders based on the child’s best interests.
  4. Be proactive about “your” belongings. As far as the Family Court is concerned, both of you own the furniture and personal belongings accumulated over the years. If you are staying in your current residence, take steps to safeguard ‘your’ belongings. Legally, you can even change the locks to prevent your husband, wife or partner from returning to take anything that belongs to you after they’ve moved out. On the other hand, if you’re moving out, you should be sure to take as much of your stuff as possible.
  5. Make sure all relevant paperwork is organised. While going through separation and divorce, you will be legally obligated to make certain information available to your former spouse, relevant professionals (your lawyer) and the court. Therefore it is critical that you put important legal and financial documents in order as soon as possible. Specifically, you should make sure you have immediate access to your marriage certificate, tax returns, bank statements, any documents related to the acquisition or sale of real property and so forth.

Additional steps you can take

Further things you should do as soon as possible include changing your life insurance or superannuation details if your spouse is designated as a beneficiary, and amending your Will if they are named as the executor or a beneficiary.

You should also take steps to protect your personal information, especially the information stored on electronic devices such as your home computer, laptop, tablet or smartphone. This is especially important if your spouse or partner knows or can access your passwords or personal identification numbers (PINs).

Be aware this is not an exhaustive list. The other issues requiring your attention prior to separation will depend on your unique circumstances. For more information about separation, and the steps you can take to protect yourself and your children, contact us today.

Blog

How to Keep Your Family Law Matter Out of Court

By | Family Law
If you’re at odds with a spouse or partner, you’re probably experiencing a lot of conflicting thoughts and feelings.

And you’ve probably got lots of questions. Should you try to mend the relationship and stay together for the sake of the kids? Or should you just end it before things get any worse? And if you do want to end it, how can you do so without taking the matter to court?

Fortunately, there are options. Government-funded dispute resolution services are employed by both the Family Court and also the Federal Circuit Court of Australia. In many cases, the courts order former spouses or partners who can’t agree on financial, property or parenting matters to try dispute resolution prior to any hearings. Family lawyers also recommend these services to their clients.

Here’s a closer look at the different types of dispute resolution commonly used in family law cases.

Family Dispute Resolution (FDR)

This is a confidential process in which someone with special training in dispute resolution will help you and your former spouse or partner reach consensus on important issues related to your separation and divorce.

Your family lawyer may recommend Family Dispute Resolution, or FDR, if you and your former spouse or partner disagree on property allocation, financial matters or parenting issues. Because lots of people and community groups offer FDR services, you may meet with a social worker, lawyer, or even someone from a Family Relationship Centre.

You can learn more about the FDR providers in your area by visiting www.familyrelationships.gov.au, or calling the Family Relationships Advice Line on 1800 050 321.

You should be aware that dispute resolution is not necessarily free. As a rule of thumb, private providers set their own fees, whilst Family Relationship Centres offer free services for a limited time and then charge based on your financial situation. To learn more about FDR costs, visit www.familyrelationships.gov.au/talk-someone/centres

Finally, you should also be aware that you won’t need legal representation during FDR. However, it’s always a good idea to get advice from a lawyer before your first session.  You’ll also need a legal representative to document any agreements so they are legally binding and enforceable.

Mediation

Mediation is another alternative to court that is frequently used in family law cases. Like FDR, it can be used to address key issues that surface during separation and divorce.

In mediation, a neutral third party with specialised training in facilitating discussions about family law matters, will work with you and your lawyers to help you come to an agreement on relevant issues. Again, you will likely have a choice of qualified professionals to work with if you agree to pursue this option.

Some other options

Sometimes, mediation and FDR aren’t effective or viable. But this doesn’t mean that all of your options have been exhausted.

Another option is to have your family lawyer conduct relevant negotiations with your former partner or spouse and/or his or her lawyer. If these negotiations break down, the next step is to consider an informal conference.

At this type of meeting, yourself and your ex, with your respective lawyers, will meet (without a mediator) to try and reach a consensus on all of the issues in question. Although you will both have to attend this meeting, you won’t necessarily have to deal with one another directly. If you are uncomfortable or it is not safe for you to be in the same room, you may be able to wait in a separate space while the talks are held.

If all else fails…

Unfortunately, there are some cases in which an estranged couple simply can’t come to terms on property, financial and/or parenting issues related to separation or divorce. If FDR, mediation, negotiations and informal conferences aren’t options or don’t work, the case will simply go to court.

The types of matters that typically end up in court include:

  • those involving child safety;
  • matters involving family and/or domestic violence;
  • cases involving parental kidnapping;
  • cases in which one person flatly refuses to engage in any attempts to resolve the issues in question.

It goes without saying that separation and divorce are never easy. Even if both parties can still communicate well and there are few points of contention, it is important to get proper legal advice from a qualified and experienced family lawyer. If you want to know more about how you can resolve any disagreements related to your separation or divorce without going to court, contact us today.