Bowen Buchbinder Vilensky

Archive for the ‘Family Law’ Category

The Cost of Separation – Certainty of Mind and Certainty of Legal Fees
Monday, April 10th, 2017

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By Rhonda Griffiths, Special Counsel at Bowen Buchbinder Vilensky Lawyers

10 April 2017

Along with the disruption and uncertainty surrounding a marriage breakdown separating couples have to also consider whether or not they need to engage a lawyer.

Although there are many services available for couples, in particular through the Family Relationship Centre system, in most cases it becomes very obvious that both parties need to have some legal advice.

The Process of Separation
There is always one party who knows they are going to be leaving the relationship before the other. That often causes great distress when a party realises that the other one has ceased contributing to their relationship and is out the door, or wants you to leave.

The law does not give any pathway for separation. Parties enter a relationship voluntarily and entirely without any government intervention. It is entirely their personal decision.

It is always advisable for legal advice to be obtained before the physical separation, particularly if there are children involved.

While separation is a personal decision, it may have immediate legal consequences. So the first service that lawyers can offer a person when they separate is to give them initial advice.

Mediation
Mediation can be held before Court proceedings commence. If a mediation is successful, in that the parties come to an agreement about the matters in dispute, a couple can avoid Court altogether. The couples must however prepare and lodge a Form 11 Application for Consent Orders with the Court.

Mediation can also take place during Court proceedings as part of the Court’s programming of cases to ensure that, before a case is programmed towards a trial, the parties have had the opportunity of considering an agreement.

Issuing Court Proceedings
If the mediation processes have failed or there is something urgent that needs to be attended to, Court documents will be required to set out properly what your case is about with the kind of information that the Court requires (that will not necessarily be what you would like to talk to the Court about).

Court documents have been prepared to make it possible for people to fill in the forms themselves without legal support. However, most people find the forms daunting and unfamiliar.

There is no substitute for having a competent family lawyer assist with the preparation of your Court documents. That process will also identify the orders you want the Court to make and will enable you to be advised and tutored about what to expect in your Court case and how you can assist in your case.

Once The Court Documents Have Been Lodged, What Happens Next?
Once Court documents have been filed in the Court, parties face considerable delays before their case finally comes to trial. Many cases, especially those involving children, require assistance from the Court in the early stages of the proceedings in settling urgent interim issues.

Once parties have obtained some interim orders and assistance from the Court often a case does not have to progress past that point and in many instances mediation at this stage will be successful.

Where financial matters are involved parties have to take steps to establish valuation of assets and to consider what the issues in their case are that may require accounting and legal assistance.

Readiness Hearing and Trial
A readiness hearing is a date the Court allocates by which time parties need to have prepared their trial documents, issued all necessary subpoenas, and generally be ready for a trial. A great deal of work needs to be done at this time and a Fixed Fee can be offered for this stage of the proceedings and for the trial.

The majority of cases filed in the Family Court end by agreement before a trial actually commences.

Costs of Getting Legal Advice
Many lawyers provide Family Law services on a time cost basis, meaning that when you engage them, they will work for you from the beginning of your matter until the end, sending usually monthly accounts, charging you for every 6 minutes of time spent on your matter. This includes every email, telephone call, letter and meetings. Lawyers are obliged to advise clients you at regular points in the service period what is the estimate of the legal costs of the service will be. However, this is not a quote and does not bind the lawyer if the services turn out to cost more than the estimate given by the Lawyer.

At Bowen Buchbinder Vilensky we provide Fixed Price services. This involves an assessment of what work is required at various stages of your matter and providing a fixed fee for that service. The fixed fee is agreed to in advance before any work commences which provides certainty and peace of mind.

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Before Taking the Plunge: What are Pre-action Procedures?
Tuesday, August 9th, 2016

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By Rhonda Griffiths, Special Counsel at Bowen Buchbinder Vilensky Lawyers

9 August 2016

Googling Pre-action Procedures will bring up formal documents that have been published by the government relating to Family Law called “Before you File” (the link to the Family Court of Western Australia version is at the end of this article).

Pre-action Procedures set out what couples are directed to do by the law to avoid going to court about their settlement, if possible.  Couples are expected to engage in family dispute resolution.

If a person doesn’t take part in the processes described in the Pre-action Procedures documents, there are consequences that range from having a legal fight when they should have been able to avoid it, to having to pay legal costs for the other party’s lawyer.

Many couples have it clear in their minds that they don’t want to go to court but are not sure how to avoid that process.

This article is about three steps to set you on the way to a successful settlement.

Your particular case: which process to use?

The first step is to provide my client with a clear picture of the processes that can be considered in their particular case.

There will be discussion about the options of mediation and collaboration and negotiation outside of those processes.  These are different approaches to a negotiated settlement.  Both mediation and collaboration is designed to empower the parties with the skills of their professional advisors and in mediation, the mediator.  Negotiation (without mediation or collaboration) is a less formal process.

The ethical approach of the professionals, the lawyers and other experts, provides support for what can be a difficult process to be as smooth and comfortable as possible.

For some couples, some water needs to go under the bridge before they can deal with issues.  Often one partner will become frustrated at the speed at which the other wants to proceed.

Often legal advice is required urgently to deal with immediate practical problems or issues, even though it may be some time before settlement can be contemplated.

The first step towards a successful settlement is assessment of the best approach to take.

Time lines: how much time should be spent?

The second step is to establish the time line that is going to suit the situation and circumstances.  Before the settlement process can properly get underway there has to be “disclosure”. The Pre-action Procedures document lists what paperwork each party has to provide to the other.

It may seem odd to be giving your ex documents that they may already have or have seen, and confronting to give over documents to the other party that they have never seen before.

Disclosure is about ensuring that there is a level playing field for the couple.  One spouse or partner is usually across the financial details more than the other.

Until there is proper disclosure and the opportunity for reflection and advice about the disclosure, a person shouldn’t be asked, confronted or challenged to say what they want.

In a successful settlement process, it is not so much about what a person wants, as having the opportunity to find out and understand what is reasonable and fair in the particular circumstances and to explore all the options that are available.

Couples who have an out of court settlement can generate options that may not be available to parties in contested litigation.

For whatever reason, a time line necessity may require fast tracking of Pre-action Procedures and a limited time for settlement negotiations before litigation, while a last resort, has to be considered.

Disclosure and Resources

The third step in preparation for settlement is to achieve disclosure and to access relevant resources.

Disclosure usually takes some time and can be complex and time consuming.  Valuations are usually needed. Consideration may be given to instructing financial advisors to assist in establishing the asset pool.

There are services and resources that can assist in preparation of a couple for engagement in their negotiation and settlement processes.

As part of the preparation to be able to engage properly, I encourage my clients to access relevant services and often to seek counselling support, having in mind that most people go through a difficult adjustment during this time.

Finally

Any person in the circumstance of considering a separation from their partner should access legal advice even if they are still uncertain about the future of their relationship.  As lawyers we are duty bound to assist you to consider whether marriage and relationship counselling might help you.

We can also reality test your circumstances with you and talk about what might happen, without you making any final decisions.  Because separation is a complex and difficult step, advice about the way to separate can be of great assistance.  It can support a process that will ultimately lead to a final settlement by agreement.

The Family Court of Western Australia website www.familycourt.wa.gov.au provides downloadable access to the brochures with the link as follows: www.familycourt.wa.gov.au/B/brochures.aspx

Brochure 2 in Children’s matters: Before you file- Pre-action procedures for Parenting Cases

Brochure 2 in Financial cases: Before you file-Pre-action procedures for Financial Cases

If you would like any further information in relation to this topic please feel free to contact the author to discuss the matter further.

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Marriage Breakdown – Keeping it in the Right Perspective
Monday, June 20th, 2016

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By Adam Spashett, Senior Associate at Bowen Buchbinder Vilensky Lawyers

20 June 2016

Separation and relationship breakdown is one of the most difficult situations that a person can find themselves in, even if it is not apparent from the outset.  Unfortunately, the majority of cases involve litigants who are usually at one of the most vulnerable points of their life.

It is of utmost importance to maintain perspective and composure in legal disputes. This is particularly in the case in family law matters.

In the case of parenting disputes involving the care and custody of children, lawyers are increasingly being retained to assist a party where the primary issue of dispute between the parties relates to their level of communication and understanding of their respective situations. Obviously, there are those cases where, due to issues such as family and domestic violence, addiction, use of illicit drugs, or mental health issues, the parties are unlikely to be able to effectively communicate with each other concerning their dispute.

It is important in all cases that the parties assess their ability to effectively communicate with each other, even on the smallest of levels, and take steps to address those issues.

There are also an increasing number of parenting matters where the parties have engaged one or more other professionals to assist them in resolving their legal dispute. In particular, the use of family counselling to provide therapeutic intervention for the parties themselves (and with the children if that is what is recommended as necessary and agreed by the parties) seems to be steadily rising.

The Family Court has the power to order family counselling in certain circumstances.

There are a variety of private and public services that are available for parties to consider that are available to teach strategies, not only individually, but as parents together, to assist in improving their communication and understanding.

It is also particularly helpful for parties to consider individual counselling in this regard, if they consider that they need assistance in maintaining their perspective, or indeed to assist them in dealing with issues that may pose a risk to the children.

It is also important to consider issues of a practical nature, which will impact the legal ramifications of their dispute.

A good example is in financial and property settlement cases involving clients who retain lawyers on the basis that an agreement has been reached with their spouse in the absence of legal, or other professional, advice. The current economic climate, and particularly the real property market, has created numerous problems with parties who are attempting a series of complex property transfers and refinancing in order to implement their agreements.

In the midst of all the tension and angst and possible relief of the parties in agreeing in principle, it is necessary for the parties to consider, as the initial step, whether or not the property transfers are able to proceed by giving due consideration to the practical hurdles and consequences, such as the overall ability to refinance and possible capital gains tax consequences on investment properties. This may mean that retention of property in a settlement may not be possible.

The above issues also highlight the importance of taking professional advice in your legal dispute at an early stage.  An experienced family lawyer will be able to raise these issues with you, and discuss with you options to address these issues and the benefits and detriments to you in your family law case.  They should also be able to assist by referring you to other professionals to provide assistance in family counselling, or the accounting, taxation or other financial advice that may be required.

It is important to seek such advice early on in the piece as this will greatly benefit you in your negotiations with the other side, whether they are conducted directly, or with the assistance of legal representation.

For a further discussion and advice in your legal dispute, and the practical implications, please contact me to discuss your individual circumstances at aspashett@bbvlegal.com.au.

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What is the Net Asset Pool?
Thursday, March 10th, 2016

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By Adam Spashett, Senior Associate at Bowen Buchbinder Vilensky Lawyers

10 March 2016

Following on from my colleague’s article “What Do You Mean It’s Not Mine?”, I have reflected upon one of the more basic, yet most important, question in family law property settlement – what makes up the net asset pool?

Simply stated, the net asset pool is all of the parties’ assets minus their liabilities.

That sounds simple enough, but what exactly is an asset, a liability, or a financial resource, is sometimes not so simple.

Identifying and Valuing the Net Asset Pool

The asset pool includes assets which are:

  • owned by either party prior to the marriage;
  • accumulated during the marriage; and
  • acquired post separation.

The Family Court can deal with an asset which is:

  • registered in the sole name of a party;
  • registered in joint names; and/or
  • registered in the name of a company or trust which a party controls or in which a party has an interest.

The Court also has regard to the financial resources of a party, such as any benefits which may flow to a party from a trust.

There are often disputes between parties as to:

  • the identity of assets;
  • the value of assets; and/or
  • assets which may have been dissipated either before or after separation.

The Court recognises the concept of an “add-back” or “notional property”.  This means that the Court can “add-back” into the net asset pool those assets which:

  • formed part of the asset pool but have been spent (for example, funds in a joint account spent on a party’s legal costs);
  • have been gifted to a third party;
  • have been recklessly wasted by one of the parties (for example, gambling or extravagant expenditure); and/or
  • have not been disclosed or are unaccounted for.

In determining the net asset pool, it is necessary to consider any contingent or latent tax liabilities which may arise upon the division or transfer of assets.  Transfers of assets between parties, pursuant to orders of the Family Court are normally exempt from stamp duty and parties can claim capital gains tax rollover relief.  However, where other assets are transferred, such as sale or transfer of shareholdings, or superannuation splits, different considerations may apply.  Parties should obtain independent financial or accounting advice in relation to these matters.

The relevant date for the determination of the net asset pool is the date when the Court hears the application.  If parties negotiate a settlement, the appropriate valuation date will be at the time of a settlement.  Many litigants do not appreciate that assets acquired pre-marriage or post separation can also be brought to account by the Court.

What is an Asset for the Purposes of Property Settlement?

Some of the more common assets are

  • real estate
  • motor vehicles
  • personal property (artwork, jewellery, furniture, antiques and personal possessions of value)
  • shareholdings in publicly listed or private companies
  • savings/deposits
  • superannuation (save and except in de facto property cases in Western Australia)

The following may also be deemed an asset of a relationship

  • goodwill of a business
  • interest in a partnership, franchise or other business
  • property held overseas or interstate
  • surrender value of a life insurance policy
  • patents and copyrights
  • antiques and artwork
  • lump sum redundancy/long service leave payments, provided they have already been received
  • lotto winnings or other windfalls (such as insurance payments and inheritances in certain circumstances)
  • contingent assets such as loan accounts in family trusts
  • vested interest in an estate, such as a life interest in property
  • frequent flyer points
  • water rights for rural properties
  • livestock

The assets taken into account by the Family Court include those owned by either party prior to the marriage, accumulated during the marriage or acquired post separation.

The Court also has regard to the resources of a party, which may include the following

  • benefits which may flow from family or discretionary trust or other entity
  • benefits received as a company director (company car, computer, phone)
  • inheritance shortly to be received
  • superannuation (in de facto property cases in Western Australia)

What is a Liability for the Purposes of Property Settlement?

Some of the more common liabilities are

  • mortgages
  • credit cards
  • personal loans (car loans and hire purchase leases)

The following may also be deemed a liability of the relationship

  • current outstanding taxation liabilities including income tax liabilities and capital gains tax
  • tax liabilities which may arise upon the division or transfer of assets
  • capital gains tax to be incurred from the sale of a property or shareholdings
  • outstanding land tax
  • HECS/Fee Help debt
  • monies owed to family entities

Ultimately what forms part of the net asset pool varies on a case by case basis.  A careful analysis of your financial position is prudent.  You may also need to speak with your accountant to help you prepare a schedule of your assets and liabilities.

For advice about property settlement please contact me to discuss your individual circumstances at aspashett@bbvlegal.com.au.

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You Have Decided to Separate… Now What?
Friday, February 12th, 2016

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By Adam Spashett, Senior Associate at Bowen Buchbinder Vilensky Lawyers

12 February 2016

Separation and divorce can and do occur at any time.  No matter what your circumstances are, whether you and your partner have mutually agreed, or if you have seen it coming for a long while, or it was completely ‘out of the blue’, separation will be one of the most difficult times of your life.

What makes separation even more difficult is when you and your partner have joint assets and/or children.

When you have decided to separate or divorce, getting confidential legal advice from an experienced family lawyer, and from a wills and estate planning lawyer, is unlikely to be at the forefront of your mind.  However, engaging a family lawyer on a confidential basis will ensure that you are provided with specific legal advice tailored to your situation.  It does not mean that you are committed to anything, and in most cases you will walk away with knowledge and understanding of what is ahead of you, and what your entitlements may be.

Each and every case is unique.  There will be cases where the parties will amicably negotiate and reach agreement, those where only a partial agreement will be achieved, and those where there are pressing or urgent issues which require immediate intervention.  Parties with complex financial arrangements will likely require additional services to assist them in achieving a resolution.

Outlined below are some things to keep in mind:

Financial Matters/Property Settlement

In regards to joint bank or share trading accounts, if things are amicable, perhaps a broad discussion about usage will suffice.  If there are accounts with significant funds, consider changing them so that both signatures are required to transact. Most banks will assist parties to make such changes.  Where you are both working, consider having your salaries paid into separate accounts in your sole name as a first step towards practical financial independence.

Cancel secondary credit cards if you suspect a vindictive shopping spree may be on the horizon. If possible, give some notice beforehand to limit the potential conflict likely to be caused.

If you are living under the same roof for the time being, think about setting up a PO Box for your personal mail.  If you’re moving out, be sure to redirect all of your mail and advise your lawyers, accountants, or other service provider to change your mailing address.

If you have a prolific online presence, be sure to change all of your passwords for everything, even if you think your significant other doesn’t know them.  Some of my clients will now set up a separate email address following separation.  It is wise to change all internet banking and other passwords, and ensure that any electronic devices that might synchronise passwords, emails, text messages, etc, cannot be accessed by your former partner.  The same goes with pin numbers for bank and credit cards.

Get some advice from a wills and estate planning lawyer.  Changing your Will to reflect your new circumstances is important. Keep in mind that unless the will is drafted ‘in contemplation of a divorce’, a divorce order will invalidate it.

Consider contacting your superannuation fund to change the nominated beneficiary. Whilst superannuation does form part of the estate (unless there is a Binding Death Benefit Nomination), the Trustee of the fund does not have to pay the funds to your estate in the absence of a Binding Death Benefit Nomination.  Similarly with Life Insurance and nominated beneficiaries.

Once your financial and property division has been agreed, be sure to have it properly documented by an experienced family lawyer.  This will ensure that all loose ends are tied up, and that consideration has been given to all aspects of your respective financial positions.  You agreement can be documented by way of a Form 11 Application for Consent Orders in the Family Court, or a Binding Financial Agreement.  Your family lawyer will advise you on the benefits and detriments of both options.

Parenting Matters

It is in everyone’s best interests, including, most importantly, the children, to present a united front to the children, being supportive of them and each other as parents whilst you guide them through this big change in their lives.

Creating or enabling conflict and exposing the children to such behaviour is looked on poorly by the Family Court.

If you parenting matters look as though they might become contentious, try to keep your own record of what arrangements have been put in place, and your discussions with your former partner.  Saving your emails and text message conversation is also handy.  In stressful times such as these, memory often falters, so records of your arrangements, including who the children spend time with and for how long, etc, may assist the parties in the future.

Try to agree with your partner on a routine, and then stick to it.  If the arrangements for the children are agreed, be sure to write them down clearly and concisely, so everyone is on the same page.

There are numerous private and government agencies who provide counselling, mediation services, and other helpful programs.  These service providers can help you negotiate with your former partner, and enter into a parenting plan.

You should also seriously consider documenting your agreement by way of a Form 11 Application for Consent Orders, which provide much greater certainty to the arrangements for the children.

Our Family Law team is happy to assist with any queries you may have.

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Served With a Violence Restraining Order (“VRO”)? – Now What?
Friday, December 18th, 2015

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18 December 2015

Often over the past few years a client will come to see me because they have been served with an interim violence restraining order.

The client is now prevented from returning to the home (once) shared with their partner, cannot return to the family business, and cannot spend time or communicate with the children.

The situation is usually made worse because their communications are now limited, or even prevented altogether, by operation of the orders.

What You Should Do First

Read the interim order that has been served on you.  Then read it a second and third time.  The orders are in plain language and are generally easy to follow.

Despite what you may think, for the most part, there are reasons that the Order was granted.  Do not be tempted to simply contact the person protected to “talk through it” – this is the first (and sometimes most costly) mistake one can make.  Emotions can run high at this time, but it is important to remain clear, calm and collect.

Do not contact the protected person unless you are absolutely sure that the interim order provides an exception (usually Part B to the interim order on the bottom of the first page).

Sometimes, there is an exception to allow some level of communication between the parties only concerning their children (and usually only by email/text message, and only during certain hours of the day).  Increasingly, I am seeing interim orders made without that exception.

Sometimes, other exceptions are made which allow the restrained party to attend the property (usually under supervision of the police) to remove personal items, or for the purposes of operating a business.  If these exceptions do not apply, it may be necessary to take further action.

What You Should Do Next

Contact a lawyer immediately to get legal advice about the effect of that interim order.

The clock is now ticking.  There are timeframes within which you must respond, otherwise the interim order can be made final without further notice to you.  There are also relevant documents you can obtain from the Magistrates Court which tell you what was said to the Court to get the interim order.

What About Your Parenting & Financial Matters?

Speak with a lawyer about your situation.

You may need a variation of the interim violence restraining order to return to the home for any reason, even to speak with or contact your children.

You may also need to make an urgent application to the Family Court for interim financial orders, such as injunctions for the preservation of assets, the interim operation of a business, or interim spousal maintenance or costs to proceed with your case, or seek injunctions for the preservation of assets, the interim operation of a business, or interim spousal maintenance or costs to proceed with your case.

Again, your emotions may be running high, and sometimes anger and frustration can take over.  It is important to know your rights, responsibilities and options.

The Family Court is unable to hearing an application for parenting orders unless at the time of filing you are able to provide a certificate from a registered Family Dispute Resolution Practitioner, or an Exemption Form.  Parties may only seek an exemption under certain circumstances.

It is important to know the jurisdictional limits of each Court, and again should get advice from a family lawyer about any urgent application, or exemption.

There is a great deal of interplay between family law matters and violence restraining orders.  A violence restraining order may, or may not, be sufficient grounds to apply for an exemption, or make an urgent application.

What Next?

Competent, specific and measured legal advice from an experienced lawyer is invaluable.  It will end up saving you time, effort, and even money in the long run.

It is important to obtain legal advice regarding both the violence restraining order application, and any Family Court applications, from a lawyer competent in both jurisdictions.

Our Family Law team is happy to assist with any queries you may have.

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Ending Your Marriage with Dignity
Wednesday, September 2nd, 2015

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By Damien Bowen, Director at Bowen Buchbinder Vilensky Lawyers

2 September 2015

You may have seen the selfie which has “gone viral” showing a smiling Canadian couple, Sharon and Chris Neuman, posing outside the Calgary Court Centre after filing their divorce.

The Neuman’s attitude to their marriage break up is to be complimented.  They have young children and have expressed how important it was that they were able to end their marriage in a way that would allow them to continue to be partners in parenting their children.  They understood how important it is for children that their parents are able to get along together after divorce.

I tell my client’s that what I would like to achieve for them at the end of a marriage where there are children is a situation where while they may not have a marriage, they still have a family. They are parents to their children who undoubtedly love them both.  They will be the parents of these children for the rest of their (the parents’ lives) lives.  There will be graduations and birthdays and engagements and weddings and grandchildren.

If they can end their marriage with dignity and consideration for what is best for their children, they will have achieved a good outcome from what might, if handled differently, have been a very unhappy situation.

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Happy Wife, Happy Life – Observations by a Family Lawyer
Tuesday, September 1st, 2015

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By Damien Bowen, Director at Bowen Buchbinder Vilensky Lawyers

1 September 2015

Research suggests marriages last longer if the husband is the one who is miserable…

In a recent article in the Weekend Australian (July 18-19 2015), Bettina Arndt the well known sex therapist, journalist and clinical psychologist took a look at social science research into marriage and marriage breakdown.  She outlined how research has been used by media and other interest groups to paint men as “the bad guys” and how conclusions drawn from research which portrays negative images of men always captures the attention of the media.  She argues that the annual Household Income and Labour Dynamics in Australia (HILDA) survey had been inaccurately interpreted and poorly reported in the media upon its recent release.  Arndt argued that the media really only reported half the research, and that was the half least complimentary to males.  HILDA reported that males whose wives work outside the home either full time or part time are less satisfied with their relationships than those whose spouses do not work.  The conclusion the media and commentators drew from this was that men prefer to have, “… their little ladies safely installed behind the white picket fence.”   Arndt however, ventured the opinion that these findings more likely reflected the wisdom of the old saying: “Happy wife, happy life”.  The reason most women are out of the workforce is because they are mainly the mothers of very young children.  The research suggests that both parents are happy in the relationship in those circumstances.

Arndt went onto say that the “stay at home mum” carries the burden of child rearing and studies such as the HILDA survey showed that the hours a wife spends on home duties and child rearing inevitably exceeds the hours a man puts into to similar duties.  What is ignored is that the man is the sole bread winner and the contribution he makes as bread winner is a contribution to the family which is being ignored in the exercise.  Frequently when “in the home” and “out of the home” work is added together, the hours a man puts into paid and unpaid work is roughly equivalent to the hours the wife puts into unpaid housework and child rearing duties.  It frequently works out that each party contributes about 70 hours a week.

Marriage rates in Australia have been dropping.  Increasing numbers of couples live in defacto relationships whose numbers are up from 1.5 million in 1996 to 2.9 million in 2012.  The latest HILDA data shows that cohabitating couples tend to be happier than married couple.  Yet about 90% of married couples are still together after 4 years compared 74% of defacto couples.  After 11 years the figures are 80% for married couples and 57% for defactos.

John Gottman, one of America’s foremost marriage researchers conducted a survey tracking newlyweds and following them up for six years to see which marriages were happy and stable and which ended in divorce.  They were surprised at the outcome but that outcome led them to sum up with this advice to men “If you want your marriage to last for a long time … just do what your wife says.  Go ahead, give into her.  The marriages that did work all had one thing in common – the husband was willing to give into the wife.  We found that only those newlywed men who are accepting of influence from their wives are ending up in happy stable marriages”.

From this you could conclude that men know they can’t afford to have unhappy wives because it affects their own life happiness if their wives are miserable.

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The Legal Effect of Recognition of Same Sex Marriage
Wednesday, August 19th, 2015

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By Adam Spashett, Senior Associate at Bowen Buchbinder Vilensky Lawyers

19 August 2015

Well it seems that we will be heading to an election on the issue of same sex marriage.

There is presently a very heated debate throughout our community regarding the recognition of same sex unions by allowing those couples to enter into a marriage.

Whatever side of the fence one decides to sit, there are various implications to such recognition: socially, religiously, and legally.  There are many opinions and assumptions being touted throughout the media, both in support of, and against, the concept of same sex marriage.

The question is though, what is the likely legal effect of such recognition upon the breakdown of a relationship?

In Western Australia, the “recognition” of same sex couples for the purposes of Family Law, is by way of recognition of de facto relationships.  The Family Court of Western Australia has the power to deal with married couples under Federal legislation, and de-facto couples (including same-sex couples) under State legislation.

Non-married couples who satisfy certain criteria are referred to as “de facto”, which (literally translated from Latin) means “from fact”.  Essentially, it is a term used to describe the reality of such a union: whilst the parties cannot be legally married, the fact is, they are in a “union”.

There are some particular jurisdictional requirements.  Specifically, in relation to “property adjustment orders” and “[de facto] maintenance orders”, the parties must first be in a “de facto relationship”.  Where this is disputed, the Court must find that there is a de facto relationship before it may make an order.  Before making an order in de facto property cases, the Court must be satisfied:

1) that one or both of the parties to the application were living in Western Australia on the day the application is made; and

2) that:

a) both parties have lived in Western Australia for at least one third of the duration of their de facto relationship; or

b) substantial contributions have been made in Western Australia by the applicant.

Where the existence of a de facto relationship is agreed (or determined by the Court), the Court may make such an order only if satisfied that:

1) there has been a de facto relationship for at least 2 years; or

2) there is a child of the de facto relationship under 18 years and failure to make the order would result in serious injustice to the partner caring or responsible for the child; or

3) substantial contributions have been made, and failure to make the order would result in serious injustice.

The Court also has the power in de facto cases to make various other orders in relation to property matters, such as injunctions, as they have in the case of married parties.  However, in Western Australia, no provision has been made for de facto couples to divide their superannuation entitlements.  Therefore, superannuation is treated as a financial resource, rather than as an asset available for division.

From the Western Australian Family Lawyer’s perspective, the ultimate effect of a legislative change to allow same-sex couples to marry will be limited; same-sex couples who decide to marry can do so.  If they subsequently decide to separate, they will be subject to the Federal legislation.  Alternatively, if same-sex couples decide not to marry (and subsequently decide to separate), they will be subject to the State legislation.

It is a timely reminder that parties to such disputes should seek the advice of a competent Family Lawyer who will provide advice as to any jurisdictional issues. Our Family Law team would be happy to assist with any queries you may have.

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Getting a Divorce – What happens if She Empties the Joint Account?
Thursday, April 30th, 2015

Damien Bowen

By Damien Bowen, Director at Bowen Buchbinder Vilensky Lawyers

30 April 2015

A question that we family lawyers are often asked is: what happens if she empties the joint account and spends it? Does she have to give it back, or is it taken into account in some way?

When a couple separates, and emotions are often highly charged, their behaviour can be unpredictable.  What happens if she spends their money on a new car?  Or he spends it on a holiday with his new girlfriend?

First, a distinction can be made between money used to buy an asset, like a new car, versus money spent on a holiday.

In the case of the car, it is an asset to be included in the pool of matrimonial assets for division between the parties.  So no, the money hasn’t evaporated.

However, if the money is spent on a holiday with the new girlfriend, it’s gone. It is not available to for division between the parties.

What does a judge do? Can the cost of the holiday be  notionally added back to the pool of assets?  Unfortunately, there is no certain answer to that.

Up until 2012, a Family Court judge may have notionally “added back” to the matrimonial pool of assets the money spent on the holiday with the new girlfriend, treated it as an early distribution of assets and taken the money from the share the husband would otherwise have received.

But in 2012 the High Court in the case of Stanford and later in 2013 the Full Court of the Family Court in the case of Bevan dealt with the issue of (“add-backs”).

Instead of ruling that “add-backs’ should always be applied, what the Courts  said is that where the money has been spent, where an asset or property no longer exists, the judge must “take it into account” in arriving at a just and equitable outcome for both parties.  Family Court judges therefore have a wide discretion to take all the facts and circumstances of every case into account to arrive at a just and equitable outcome for both parties.

This stipulation that a judge “take it into account” introduces a level of uncertainty and unpredictability which generally did not exist previously.

The law changes constantly. Sometimes the changes bring certainty  and sometimes uncertainty. It is an unfortunate fact of life that the consequences of one party’s bad or unreasonable conduct cannot always be fairly recompensed in a settlement or court judgment.

What can we learn from this?    More than anything, that if you are considering separating, or if separation has occurred, get  prompt advice from a competent family lawyer.

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What You Risk by Not Finalising Financial Arrangements When You Separate
Thursday, March 26th, 2015

damienbowen

By Damien Bowen, Director at Bowen Buchbinder Vilensky Lawyers

26 March 2015

Something I’ve seen a lot of lately is people finding themselves in all sorts of problems as a result of not properly ending the financial relationship with their former spouse or de facto partner when they separate.  These situations seem to arise in one of three ways:

  1. The couple never discussed, or never finished discussing, the division of their assets and simply moved on with their lives;
  2. They discussed it and came to an agreement but never formalised it; or
  3. They discussed it, agreed, and formalised that agreement, but not in the proper way.

When this happens, it often leads to difficulties with ownership of property or exposure to liabilities.  But the big problems typically arise when they’ve gone their separate ways, then one person:

  1. Enjoys a windfall like a lotto win, gift or inheritance, or begins to make a lot of money from business venture; or
  2. Suffers a significant loss, such as a poor investment in shares, property or some unsuccessful business venture.

In these circumstances, there is a very real risk that a person could, quite properly, apply to the Family Court to try to ‘level the playing field’.  While the Court would take the source of the gain or loss into account, it typically applies a very broad brush approach.  If financial arrangements are not finalised in the correct way, the Court might well order an adjustment one way or the other.  Even if the Court decides it should not make an order, there would be significant legal costs incurred by both sides.

The only way to avoid this from happening is to enter into consent orders or a binding financial agreement following the breakdown of a marriage or a qualifying de facto relationship.  No other agreements or documents will prevent the Court from dealing with your matter.

For binding financial agreements to satisfy legislative requirements, each party must have received, among other things, independent legal advice.  This is not the case with consent orders though.  In relatively simple matters these can be prepared by the parties themselves with minimal help from lawyers.

To enter into consent orders you need to down load a Form 11 Application for Consent Orders from the Family Court of Western Australia website www.familycourt.wa.gov.au.  These are completed by both parties, then executed in the presence of a qualified witness (eg a lawyer or a JP).  They are then filed in the Court at a cost of $155.

The long and the short of it is this: if you want to be financially independent moving forward after the breakdown of a marriage or de facto relationship, putting an end to your financial relationship is an absolute must.  Those who neglect to deal with this, do so at their peril.

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What is a Binding Financial Agreement, and Why is it Useful?
Friday, March 20th, 2015

Damien Bowen

By Damien Bowen, Director at Bowen Buchbinder Vilensky Lawyers

20 March 2015

A Binding Financial Agreement (BFA) is an agreement between two parties in which they set out how assets are to be dealt with in certain circumstances.  There are three types of BFA :

  1. An agreement made before a couple marries, setting  out how their assets will be divided if the marriage comes to an end (a Pre-Nuptial Agreement).
  2. An agreement made during a happy marriage  setting how  assets will be divided if the marriage comes to an end; and,
  3. An agreement made after divorce recording how they have agreed to divide their assets.

These three types of BFA are also available for people in de facto relationships, whether straight or gay, where:

  1. They are about to start living together;
  2. Are living together; or
  3. Are separated.

To be binding:

  1. The agreement must be in writing;
  2. Each party must have independent legal advice before they sign the agreement;
  3. The parties and their lawyers must all sign the agreement.
  4. One party holds the original and the other the copy.

BFA’s can only deal with property and spouse maintenance.The definition of property is very wide and  encompasses house, furniture, cars, a business, shares, investments, intellectual property rights, patents, jewellery and artwork, superannuation and entitlements in trusts and estates.

Typically, BFAs have the following uses:

Before marriage.  In cases where there is a wide disparity in the wealth of the two individuals, a BFA can essentially get this disparity out of the way of the relationship, by resolving, up-front, how assets would be divided should the relationship come to an end.

During marriage.  In cases where one of the couple benefits from, say, a major inheritance, a BFA can help remove tensions about what would happen to assets should the relationship come to an end.

After separating.  A separating couple can agree on how they are dividing their assets using a BFA, rather than through proceedings in the Family Court, as a quicker and less stressful way of resolving matters, so that they can move on with their lives.

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You Want a Divorce? Things to Keep in Mind
Tuesday, February 10th, 2015

AnnaW

By Anna Westphal, Solicitor at Bowen Buchbinder Vilensky Lawyers

10 February 2015

For many people, the finality of ending a partnership that was intended for life can invoke various conflicting and unexpected emotions. Dealing with these emotions is tough enough without having the added delays and stress caused by not knowing about the divorce process.   Many individuals (and couples) apply for a divorce themselves, while others choose to engage a lawyer. Whichever way you go, what are some of the key points you need to keep in mind?

Some General Requirements

  • You and your spouse need to be separated for at least 12 months before you can apply for a divorce. Make sure you are clear on the actual date of separation, as one party may object to the divorce if the date is ambiguous. You do not need to be divorced to settle financial and child care arrangements.  See the blog by my colleague, Damien Bowen on exactly this point.
  • Before granting a Divorce Order, the Family Court (‘the Court’) needs to be satisfied that your marriage has broken down irretrievably and that there is no reasonable likelihood of you and your spouse resuming married life.
  • If you and your spouse have been living separated under the same roof, you may need to provide the Court with additional supporting information (eg Affidavit from a third party).
  • You can apply for a divorce on your own (sole application), or together with your spouse (joint application).
  • You need to make sure you and/or your spouse satisfy certain citizenship requirements.
  • If you and your spouse have been married for less than two years, you will need to attend counselling or seek permission of the Court before you can apply for a divorce.

Attendance at Court

If you apply for a divorce on your own and have children under the age of 18 years, you will need to attend at the Court for a Divorce Hearing. If you apply for a divorce jointly with your spouse and you have children under 18 years of age, you will not need to attend Court (unless you wish to do so). The Court will usually want to make sure that proper arrangements have been made for the children, specifically in relation to their physical care and financial support. If you are required to appear at a Divorce Hearing, the Registrar may ask you questions in relation to your children. If you apply for a divorce on your own and you do not have children under the age of 18, you will not be required to attend Court.

 Service

If you apply for a divorce on your own, the Court will want to make sure that your spouse has been served with your divorce application correctly. Your spouse must be personally served at least 28 days before the allocated Court date if they are within Australia, and at least 42 days before if they are outside Australia.

If you cannot find your spouse or they avoid service of your divorce application, you may need to apply to the Court to dispense with service or for ‘substituted service’. If granted, the latter will allow you to serve your spouse through other means (eg through family members).

Timing

If the Court grants a Divorce Order, it does not come into effect until one month and one day after the Order is made. It is important to remember that you cannot get re-married until the Divorce Order has come into effect. The Court may shorten this time period in special circumstances.

Other

Once your Divorce Order comes into effect, you have only 12 months to commence proceedings in the Court for Orders in relation to property and spousal maintenance. After this time, you must seek leave from the Court to do so. It would be prudent to speak with a family lawyer in relation to your entitlements.

A Divorce Order invalidates an existing Will unless it is made in contemplation of divorce. It would be wise to speak with a lawyer practising in Wills and Estates once you and your spouse separate. Morgan Solomon is an experienced Wills and Estates lawyer in our firm and will gladly assist you if you wish to speak to someone about this.

The above points are a general guide only and do not cover all factors that must be considered when applying for a divorce. The Family Court of Western Australia provides useful information on their website, including a ‘Divorce Kit’ (see: http://www.familycourt.wa.gov.au/). Applying for a divorce may be fairly straight forward if care is taken, but complexities may arise. If you find the divorce application process difficult or confusing, feel free to speak to any of the family lawyers in our firm.

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You Don’t Have to Wait Till Divorce to Sort Out Your Financial Arrangements
Wednesday, January 28th, 2015

Damien Bowen

By Damien Bowen, Director at Bowen Buchbinder Vilensky Lawyers

28 January 2015

When a married couple decides to part ways, they cannot apply for a Divorce until they have been separated for twelve months.

Some people mistakenly believe this means that important decisions about property and money and children must be left in limbo for the year that they are separated. But this is not the case.

They do not need to be divorced, or separated for 12 months, before they can conclude a financial settlement or formalise arrangements for their children. If they are not able to agree on these issues, they can commence proceedings in the Family Court.

Whether the separating couple have been married or have lived in a de facto relationship, or are straight or gay, they can negotiate and record a settlement agreement about property, spouse maintenance, arrangements for the children and child maintenance.

Agreements can be recorded in two ways.

The most usual way is to formalise settlement agreements by consent orders. Consent orders are obtained by the couple making a joint application to the Family Court for orders in terms of what they have agreed. The documentation lodged at Court contains information which enables a Family Court Judge or Magistrate to approve the orders. It is advisable for the parties to each obtain their own independent legal advice in relation to the agreement and the orders they are asking the court to make.  While legal advice is not an essential requirement, there is the potential for exploitation or manipulation when one of the couple is in a weaker position than the other and has no one to protect his or her interests.

The second way to formalise settlement agreements (but for financial matters only – not children) is with a Binding Financial Agreement (BFA). A BFA must be signed by both parties; each party must have independent legal advice about how the agreement affects their rights and whether it is in their interest to sign the agreement. There is no Court oversight of a BFA.

For couples wanting to go their separate ways and get on with their lives, consent orders or a BFA provides the basis on which they can do this. In the case of married couples, they can achieve a settlement even though they may not yet be legally divorced.

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The Statistical Facts About Marriage and Divorce
Friday, December 5th, 2014

Damien Bowen

By Damien Bowen, Director at Bowen Buchbinder Vilensky Lawyers

5 December 2014

The media is fond of whipping up emotions about the state of marriage and divorce.  Every emerging trend tends to be scrutinised as possible evidence to support often wildly contradictory arguments, for example, that “marriage has become irrelevant” or “marriage is the new cool;” that “people can’t afford to get divorced because of the economy” or “narcissism is driving divorce rates higher.”

Time for a cold shower in the form of the statistical facts about marriage and divorce in Australia.

Marriage rates steady for the past 60 years

The number of people getting married each year, per thousand of the population, has remained comparatively steady.  Marriage rates were around 7 per 1000 for most of Australia’s history, with a peak during the Second World War, when troubled times saw marriage rates spike at 12 per 1000.  Since then, figures returned to their long term average, trending downwards since the 1980s to around 5 people per 1000 by 2010.

Yes, 5 per 1000 is a fair bit lower than 7 per 1000, but given the profound changes our society has experienced over time, what strikes us most about these figures is the enduring significance of marriage, through both good times and bad.

One third of marriages end in divorce

One in three marriages ends in divorce, a figure which has been stable for decades.  The number of divorces increased dramatically after 1975, when the Family Law Act was promulgated.  Since then, divorce rates have declined steadily, with a small kick upwards in the 2000′s until present when the number of divorces is down in all States except WA.   Why is WA the exception?  This calls for speculation.  One explanation may be the number of FIFO workers in WA. They are earning good money but long absences can be destructive of family life, particularly if there are children.

Writing in the New York Times a few days ago, journalist Claire Cain Miller made a point about marriage and divorce in America which I would say holds true in Australia too:

“Despite hand-wringing about the institution of marriage, marriages in this country are stronger today than they have been in a long time. The divorce rate peaked in the 1970s and early 1980s and has been declining for the three decades since.”

The rise of de facto relationships

Perhaps the most noteworthy trend of all has been the increase in the number of de facto relationships over the last 25 years. In 1986 5% of couples lived in de facto relationships; now 16% of couples do. An increasing number of people are living together before marriage.  Perhaps its “try before you buy”, but while, in 1975, 16% of people marrying had been living together previously, by 2008 that figure had risen to 77%.

Do more people separate after Christmas?

Is it true that there’s a post-Christmas spike in divorce after yet another unpleasant experience of enforced jollity with the spouse and in-laws?  The ABS does not publish statistics on this trend, so it is mainly anecdotal.  But my personal experience over more than 30 years in family law is that there is a definite seasonality about divorce, with a peak after Christmas and the New Year, and a trough during winter.

Summary

In short, whatever the ups and downs of any particular set of statistics, the trends set by celebrities and excited chatter in opinion columns and blogs, marriage has always been a stable social institution in Australia and continues to be so.  Two out of three people who get married will never need to concern themselves with the details of divorce.  But for the one in three who do, we’re here to help make it as civilised and painless as possible.

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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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You’ve Told Him It’s Over… Now What?
Wednesday, June 25th, 2014

PatS

By Patricia Schrape, Associate at Bowen Buchbinder Vilensky Lawyers

25 June 2014

Whether it comes out of the blue for one of you, or you’ve both been avoiding the elephant in the room that is your broken relationship for months or years on end, the moment when it is finally acknowledged that the end is here can be a mighty big relief.

But what to do to extricate two separate lives from one which has been forged jointly?

If you haven’t done so prior, you should strongly consider getting confidential legal advice from an experienced family lawyer. Seeing a lawyer doesn’t mean you are committed to anything, and in most cases should be able to provide you with a good idea of what is ahead of you and what your rights and entitlements may be.

Obviously every couple have factors which will be more or less pressing, and the degree of animosity will determine how urgently action needs to be taken, but below are some things to keep in mind:

Finances/Property

  1. Think about joint bank or share trading accounts – if things are amicable, perhaps a broad discussion about usage will suffice. If there are accounts with significant funds, consider changing them so that both signatures are required to transact. Also consider each of you having your salary paid into accounts in your sole names, a first step towards practical financial independence;
  2. If you are living under the same roof for the time being, think about setting up a PO Box for your personal mail. If you’re moving out, be sure to redirect all of your mail;
  3. If you have a prolific online presence, be sure to change all of your passwords, even if you think your significant other doesn’t know them;
  4. Same with pin numbers for bank and credit cards;
  5. Cancel secondary credit cards if you suspect a vindictive shopping spree may be on the horizon. If possible, give a little notice before doing so to avoid their experiencing the embarrassment of a refused transaction and that embarrassment turning into wrath towards you;
  6. Change your Will to reflect your new circumstances, keeping in mind that unless the Will is drafted ‘in contemplation of a divorce’,  a Divorce Order will invalidate it;
  7. Contact your superannuation fund to change the nominated beneficiary for your super – superannuation does not form part of a deceased estate, so your Will can’t deal with it;
  8. Once your financial and property division has been agreed, be sure to have it legally documented so that all loose ends are tied up and everything is properly finalised. This can be done via Family Court Consent Orders or a Binding Financial Agreement.

Parenting

If you and your partner have children, this often introduces a whole other kind of complexity to the end of your relationship.

It is in everyone’s best interest to present a united front to the children, being supportive of them and each other as parents whilst you guide them through what will invariably be a big change in their lives. Try to agree with your partner on a routine, and stick to it.

Sometimes, however good the intentions, issues arise in relation to children.

There are numerous private and government agencies who provide counselling, mediation services and other helpful programs.

If things regarding the children look like they may become contentious, try to keep a record of arrangements – who they’re spending time with and for how long etc. In stressful times such as these, memory often falters.

Should the situation deteriorate, lawyers can assist in negotiating arrangements, and if necessary bring proceedings in the Family Court.

If the arrangements for the children are agreed, be sure to write them down clearly and concisely, so everyone is on the same page. You should seriously consider getting Family Court Consent Orders, which provide much greater certainty.

A final note on Facebook and social media. As much as your hundreds of friends and followers may happily provide support to you in this difficult time, it is usually best to stop altogether, or carefully limit usage. A tipsy posting about an estranged partner can all too easily get back to them and cause all manner of grief.

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Bowen Buchbinder Vilensky’s team of family lawyers is comprised of Partner Damien Bowen, Senior Associates Catriona Kilgallon and Sam Fahey, Associate Patricia Schrape and Solicitors Vince Bradley and Anna Westphal. You are welcome to telephone to make an appointment with any one of us.

 

Two Things to be Sure of When Designing Your Wedding
Tuesday, May 13th, 2014

damienbowen

By Damien Bowen, Director at Bowen Buchbinder Vilensky Lawyers

13 May 2014

Australia is a relaxed country to get married in.  Your wedding ceremony can be on a beach, in a treehouse or even, as some prefer, in an aquarium surrounded by tropical fish.  Long gone are the days of churches or registry offices being the only options.

Despite the more relaxed approach to venues, from a legal perspective there are still a couple of things you need to be sure of for the marriage to be valid.

Registered marriage celebrant

You can only be married by a registered marriage celebrant or a registered Minister of Religion of a recognised denomination.  You and your spouse-to-be may both be Elvis Presley tragics, but unlike Las Vegas, hiring an Elvis look-alike to perform the deed won’t cut it legally in Australia – unless, of course, your Elvis impersonator also happens to be a registered marriage celebrant.

It isn’t often that I come across someone whose marriage is invalid because of who married them.  But this can happen when people think the rules about getting married have all been thrown out.  Finding a registered marriage celebrant is easy if you go online.

Using the right words

The Commonwealth Marriage Act requires the celebrant to explain to the bride and groom the nature of a marriage relationship.  The celebrant must use these words or words to the same effect:

” I am duly authorised by law to solemnise marriages according to law. Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter. Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”

Once this explanation is given, the husband and wife to be must, in the presence of the celebrant and the witnesses say to each other the following word or words to the same effect:

” I call upon the persons here present to witness that I [a] take you [b] to be my lawful wedded wife (or husband).”

It is very common these days for husbands and wives-to-be to make up their chosen promises – the time-honoured “love, honour and obey” having declined in popularity.   Making pledges more personal can certainly enrich the ceremony and make it more meaningful for everyone involved.  The important thing is to ensure that the wedding vows don’t get left behind in the romantic haze.  From a legal perspective they are all important!

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First Things First: Children’s Passports
Friday, February 28th, 2014

PatS

By Patricia Schrape, Associate at Bowen Buchbinder Vilensky Lawyers

28 February 2014

When marriages and relationships break down, there can be very little trust left. This is often amplified when the people in question have children. When relations between parents are extremely dire, particularly when there is extended family overseas, many people start thinking of a worst case scenario and their minds turn to their children’s passports.

If your child does not have a passport

  • An application for a child’s passport must be completed and signed by all the people who have parental responsibility for the child. Unless there is a Court Order stating otherwise, this means the child’s parents as stated on their birth certificate.
  • If you are concerned that your child’s other parent may make a false application for a passport (ie forge your signature) you can submit a Child Alert Request to the Department of Foreign Affairs and Trade (DFAT). This will put a ‘flag’ on your child’s name for a period of 12 months, so that DFAT are aware of the parental conflict should a passport application be received.

If your child has an Australian passport

  • If you have possession of your child’s passport, then there is little that the other parent can legally do to remove them from Australia.
  • If the other parent has possession of the passport, and will not provide it to you, you can request that the passport be held by a third-party for safe-keeping. In some cases family lawyers will hold the passport/s and give an undertaking (a very serious kind of promise) that they will not release it without the consent of both parents. In some circumstances the passports can also be held by the Family Court of Western Australia.
  • If the other parent has possession of the passport and you have a very real concern that they may take the children overseas, you can make an urgent application to the Family Court asking for an order that the child’s name be placed on the Airport Watch List by the Australian Federal Police. Being on the List means that the child cannot leave Australia under that passport.

If you have concerns about your child’s passport, or other related issues, the Family Law solicitors at BBV are able to provide advice regarding your specific circumstances.

NB – in the above comments references to ‘child’ relate to Australian citizens under the age of 18 years who have never married. For the full legal definition of child for Australian family law purposes see the Family Law Act 1975 or Family Court Act 1997. If your child is a dual citizen and has a passport/s from countries other than Australia, there are numerous additional considerations.

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Pre-Nups: Are They Useful?
Monday, February 10th, 2014

damienbowen

By Damien Bowen, Director at Bowen Buchbinder Vilensky Lawyers, and Accredited Family Law Specialist

10 February 2014

Binding Financial Agreements (BFAs), better known as ‘pre-nups,’ are a useful but no means watertight solution to protecting the wealth of you and your children.

In the past it was usually richer, older men marrying younger, asset-free women who wanted a BFA.  These days I’m finding it is just as likely to be younger FIFO workers, male or female, who have accumulated significant savings and/or investments by working very long hours in remote locations.  They now find themselves in relationships with partners who do not have the same assets and earning capacity as them and they are seeking protection for the assets they have worked very hard to accumulate.

BFAs signed before a couple gets married serve the purpose of setting out the division of assets in the event of them divorcing, or for de facto relationships on the termination of that relationship.  A BFA can also be used during an otherwise happy relationship to set out what happens if the relationship breaks down.

BFAs can also be used when a couple who are divorcing or separating are able to come to an agreement about a division of assets as an alternative to court orders.  This can provide an effective short cut, enabling couples who are able to agree on a split of assets, to move on with their lives, rather than get involved in the litigation process and maybe having to wait many months for a judge to decide on the division of assets for them.

But BFAs are not straightforward.  Asking your girlfriend or fiancé to sign a legal agreement spelling out the division of assets in event of divorce or separation is not an area where the law and human relationships sit comfortably.  This will no doubt remain the case unless BFAs become more commonplace.

A second and a very important concern is that Courts across the country have set aside BFAs for a variety of reasons.  These include if there has been a material change of circumstances, such as the birth of a child; if one or both parties did not receive competent, independent legal advice before the BFA was signed, and  other reasons.

Being aware of these reasons is critically important to ensure that, when drafting a BFA, the risk of it being challenged is seriously reduced.

My view is that while a carefully drawn and correctly executed BFA may not guarantee a complete and irrevocable solution, if it is used in conjunction with other legal protection, it can serve as a powerful protection of one’s assets.

Click here for the full article in the BBV Media page.

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