Bowen Buchbinder Vilensky

Archive for September, 2014

Time Limits & Family Court Proceedings– Has the Ship Already Sailed?
Monday, September 22nd, 2014

AnnaW

By Anna Westphal, Solicitor at Bowen Buchbinder Vilensky Lawyers

22 September 2014

Separated from your partner and want to stick your head in the sand? Not always a good idea. It is important to be aware of the time limits in the Family Court for commencing proceedings for property and spousal maintenance. Missing limitation dates could cause you unnecessary stress, paperwork, and legal fees. You may also suffer financial prejudice. The limitation dates discussed below are in relation to property and spousal maintenance applications only.

De Facto Couples
De facto couples have two years from the date of separation to commence proceedings in the Family Court. If this limitation date has passed, leave must be sought from the Court to start proceedings. Whether or not an application for leave is successful will depend on the circumstances of the particular case.

Married Couples & Divorce
When a married couple separates, their time limits are dependent upon divorce. Married couples cannot obtain a Divorce Order until they have been separated for a period of twelve months. A Divorce Order does not take effect until one month and one day after the Order is made (unless the Court orders otherwise). They then have twelve months from the date that their Divorce Order takes effect to start proceedings. As with de facto couples, leave must be sought from the Court to start proceedings after the time limitation date.

Summary
It is important to appreciate that every Family Law case is different. The relevant legislation provides the legal framework, but circumstances are rarely black and white. If your relationship has come to an end and you are in doubt as to when you ‘legally’ separated, or about your financial circumstances and entitlements, make an appointment to see a lawyer and get some advice. The website for the Family Court of Western Australia also has useful information for those dealing with a relationship breakdown (see: http://www.familycourt.wa.gov.au/).

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Why You Should Never Think of Insurance Renewal Notices as ‘Routine’
Friday, September 5th, 2014

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By Les Buchbinder, Director at Bowen Buchbinder Vilensky Lawyers

5 September 2014

When most of us receive renewal letters from our insurers for our house, car or healthcare, we usually focus on the cost of the renewal and ignore the rest of the document.  But spending just a few minutes checking the details and reflecting on what has happened since the last renewal document can mean all the difference between dealing with life’s inevitable challenges with relative ease, or suffering serious financial hardship.

Omitting to mention changes is different from material non-disclosure.  But how are they different?

Omission

Let’s say you buy an expensive new item of jewelry or furniture. When your contents insurance renewal paperwork arrives, because you made the purchase nearly a year ago and don’t spend much time thinking about new capital items, you forget to list it on the renewal document.

Some weeks later there is a burglary.  Apart from having to deal with repairs and disruption, when you put in your claim for the expensive stolen items, the insurer rejects the claim because they were not nominated on your Policy Schedule.

Maintaining an inventory of all items to be listed on a contents insurance policy may seem a tedious task, but it’s an important one.  Forgetting to mention an item on your Policy is, in insurance speak, an ‘omission.’  Material non-disclosure is rather a different matter.

Material Non-disclosure

Let’s use an example from private medical insurance, when a person forgets to mention the fact that he consulted a medical specialist about a back injury a few years before taking out a policy.  Having not had any back problems for years, perhaps it doesn’t even cross his mind when he completes the paperwork.

Fast forward to a weekday afternoon when some routine activity at work results in the person suddenly and unexpectedly putting his back out.  What at first impression seems to be a minor injury seems a lot more problematic after medical examination – he is told by doctors he may need extensive treatment.

If he subsequently makes an insurance claim, the insurer will request a full medical report, including historical records.  The chances of having the much earlier back injury discovered are high – at which point the insurer could reject his claim on the basis that he failed to disclose significant information that was material to whether or not the insurer would have taken on the risk in the first place.  Or, if the insurer had been willing to take on the risk, it would have been for a substantially higher the premium.

After years of faithfully paying their insurance premiums could you be forgiven the sin of omission?  I’ve seen insurance companies reject claims by loyal clients of many years standing.  Whatever the policy wording, insurers do have the discretion to waive potential defences to claims made under insurance policies and nevertheless pay out the claim.  But I wouldn’t count on it!

Renewal notices should never be seen as a routine chore.  They deserve quality time and proper consideration.  Contrary to popular belief, the two words I never want to hear a client say is ‘if only!’

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