Legal Considerations For De Facto Relationships… What Would Beyonce Say?

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For many years, the stats have shown that for many couples, a formal marriage ceremony has followed a de facto relationship. Other couples who have made a conscious decision not to marry, despite passing the two or three years that couples often cohabit before marrying, will assure their family and friends that this is their choice and so it is. Perhaps the value of the marriage certificate to those couples is more in its lack of existence, in that they don’t need a marriage certificate to live out their bliss.  

De facto relationships are recognised in family law as having the same consequences as a marriage, once the couple has lived together for two years (generally).  Some de facto relationships can be recognised in family law earlier than that, if there is a child or some other reason, such as a major financial contribution by one to the other.  

While not getting married means a couple misses out on the party, they will get all the legal consequences of a formal marriage.  

But if the relationship breaks down and 

  1. They don’t agree about what their relationship was;
  2. They don’t agree about how long it lasted, 

And they have a financial dispute, they will have the dispute about whether they qualify as a de facto couple in the Family Court and are allowed to have their dispute heard there, rather than the general law courts.  

That is truly money wasted on legal fees.  

Because after they have argued about that, then they will have a dispute every married couple has, about what they each contributed in monetary terms and probably also their contributions in making the home together, the non-financial contribution.  

Having a home together does not even have to be part of a de facto relationship, although it usually does.  

The range of what can be found to be a “genuine domestic relationship” is deeply varied, complex, and personal to the couple, so de facto relationship law is very broad to reflect how people live, capturing secret relationships as well as polyamorous ones.  

The recommendation that we make as family lawyers, is that whatever your relationship is, you should both be able to agree on what it is.  That might not even protect you from a dispute, because friends with benefits can look a lot like a de facto relationship and might in some cases be one.  

But if you must have a financial dispute, the family court is a better environment for that, than maybe finding yourself in one or more of the several general law courts, depending on the value of your dispute.  

Notoriously many people are leaving home as adults later in life than their parents did, when they are likely to move into shared housing of some kind.  Many couples who start living together, thinking it is an expression of their committed romantic relationships, may find after the love has worn off, they are still together because it’s hard to find somewhere else to live.  

So, while formally married couples will still dispute the outcome of the breakdown of their relationship, the bit of paper they have may simplify matters.  But for de facto couples, a great deal of their accumulated wealth can be used up in a legal case about when they began living together; or whether it was just a passing intimate relationship, even if one or more in the couple might have had other interests, as well, along the way.   

If this seems a little cynical and bleak, the optimism of couples beginning a romantic relationship is evergreen, so at that time, if it is your wish to formally marry, then when the romance is strong and true, is the best time to put a ring on it.  

And if the other party is adverse, because of the ruinous cost of weddings as promoted in the wonderful world of online reality (and you can’t bear to have a little party), then just understand that you are still married in a de facto relationship, and not having the party might cost the value of a wedding or more.  

If you are uncertain as to what to do you should seek legal services as quickly as possible. Bowen Buchbinder Vilensky has experience in dealing with interests in land and will be happy to provide further advice to you. Contact Bowen Buchbinder Vilensky.

Land Titles – Not What They Used To Be – Be Warned!

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 A Certificate of Title is a government-created document which provides evidence as to who owns a particular piece of land in WA.

The Certificate of Title is an important legal document in Western Australia describing among other things the location of the land, historically who have been past owners of the land, and the recorded encumbrances (if any) registered against that land.

 

Until 1996 all landowners in Western Australia were issued with a duplicate Certificate of Title (the original Certificate of Title being held by the Land Titles Office or Landgate as it is now known).  In 1996 the issuing of a Certificate of Title became optional.

 

A Certificate of Title was one of those important documents that were safely and securely stored away along with your Will, Passport, and list of software login codes.

 

A Certificate of Title has often been used as a form of security for a financial loan whereby the lender would keep the Certificate of Title until the loan was repaid.  During this period of time, the land owner could not sell or otherwise deal with the property because any transaction in relation to the property required the physical presentation of the Certificate of Title to the Land Titles Office.  This way the loan was protected even though a formal mortgage or caveat had not been registered against the title to the land to protect the lender’s interests.


The Western Australian Parliament has recently passed amendments to the Transfer of Land Act 1893 (WA) and one of the results of which is that with effect from 7 August 2023 Certificates of Title will no longer exist in Western Australia.


Importantly, what this means is that not only will Certificates of Title not be issued any more, but any Certificate of Title currently in existence ceases to have any legal effect as and from 7 August 2023.


Therefore, if you hold a Certificate of Title to property as security for a loan or other interest in the property without having that interest registered on the Certificate of Title, then this security will no longer have any legal effect.  You will need to urgently make alternative arrangements to protect your interests and secure payment of the loan or other interest being secured previously by the Certificate of Title.

If you are uncertain as to what to do you should seek legal services as quickly as possible.  Bowen Buchbinder Vilensky has experience in dealing with interests in land and will be happy to provide further advice to you. Contact Bowen Buchbinder Vilensky on 08 9325 9644.

Bankruptcy And Superannuation Remedies – The Family Law Position

Bankruptcy-and-Superannuation-Remedies

Family lawyers are often asked the question “can my ex-partner avoid paying my entitlement by going bankrupt“. 

In most cases, the answer will involve a discussion about the assets in the asset pool, and how a particular settlement should be worded. 

In cases where a party actually does go bankrupt to defeat a Family Court settlement, the same topics can arise.  

In Rahman v Rahman [2020] FamCAFC 279 and Wilkinson v Kemp [2020] FCCA 69, the husband in each case went bankrupt, voluntarily, after a final property settlement order had been made.

In these cases, the initial result for the wives was harsh.  In both matters, the husband had or was accruing superannuation entitlements and the Trial Court had not made a splitting order.

As superannuation is a protected or “exempt” asset under bankruptcy law, the husbands were able to keep and build their superannuation despite going bankrupt.

This left the husbands in a far stronger financial position, relative to the wives, than the Trial Court had ever intended. 

To rectify that, the wives in each case asked the Family Court to give them a portion of their husband’s superannuation (under a splitting order) in substitution for the unpaid money. 

In both cases, the Court said that this option was possible.  However, as the wife’s cases hadn’t been drawn up and argued correctly, neither succeeded at first instance. 

What these cases demonstrate is that the Court will entertain a claim to substitute unpaid money with superannuation, when there are no other assets left to satisfy the judgment.  

The decisions also, to a lesser extent, indicate how property agreements and orders can be structured to better protect against future bankruptcy.

Background

Prior to 2005, a financial order made by the Family Court against a party could not be enforced if that party later went bankrupt.  

Historically, a Family Court judgment was considered a “provable debt” in bankruptcy law.  

For the non-bankrupt spouse, that meant that there was no ability to use the Family Court to enforce a property settlement judgment. The non-bankrupt spouse had to lodge a debtor’s petition in the bankruptcy Court instead. 

The trustee-in-bankruptcy then determined the claims and priorities of all of the bankrupt’s creditors under the general bankruptcy law.  The non-bankrupt spouse did not hold any special status above the other creditors.  The trustee was not bound to give effect to the Family Court judgment. 

When the bankruptcy period ended, the bankrupt spouse’s debt to the non-bankrupt spouse was extinguished and could no longer be pursued.

In 2005, with the implementation of the Bankruptcy and Family Law Legislation Act 2005 (Cth), the law changed to allow certain Family Court judgments to sit outside of, and survive, the bankruptcy. 

This included orders for transfers of property from one spouse to another, child support orders and spousal maintenance orders.  This meant that these orders could be pursued by the non-bankrupt spouse through non-bankruptcy processes (i.e. enforcement applications to the Family Court). 

Other common Family Court awards such as payments of money and costs orders were not included in the reforms and remained “provable debts”.   

Another key aspect of the 2005 reforms was to grant the Family Court the power to sit as a bankruptcy court.  

The amendments allowed that in cases where a spouse went bankrupt before a Family Court settlement was ordered, or if bankruptcy occurred while the Family Court proceedings were running, the trustee-in-bankruptcy could be brought into the Family Court proceeding.  

The entitlements of all the creditors, as well as the bankrupt and non-bankrupt spouse, could then be resolved at the same time, in one proceeding.

But what happens if the bankruptcy occurs after the Family Court case has finished?

Rahman: initial decisions

Rahman dealt with a situation where the husband had unilaterally withdrawn $580,000 from the home mortgage and transferred it overseas after the parties separated.  

In February 2012, the trial judge ordered that the husband transfer the wife the sum of $377,000 from the $580,000.  The trial judge also placed a travel ban on the husband. He was restrained from leaving Australia until the wife had received that money. 

The husband refused to transfer the money to the wife. He brought an appeal against the decision (which he lost). He then entered into voluntary bankruptcy a few weeks after the appeal ended.

The husband’s period of bankruptcy ended in 2016.  In 2017, the husband then applied to the Court to lift travel ban. He argued that his debt to the wife under the Orders had been extinguished by the bankruptcy which meant that the travel ban had no legal basis anymore.

The husband’s application to remove the travel ban was not decided by the Court until March 2020.  The Court rejected the husband’s arguments and confirmed the travel ban.  The Court found that the payment order was a “transfer order” protected by section 59A of the Bankruptcy Act 1966.   In other words, the order had survived the bankruptcy and the wife could pursue the $377,000.  

In April 2020, the wife brought a fresh application, to the Family Court, to pursue the $377,000.  The wife asked to be paid superannuation in substitution for the unpaid money.  She also sought an interim Court order to “freeze” the husband’s bank accounts.  

The lower courts heard the wife’s interim application in May 2020 and granted the freezing order.

The husband appealed both of the March 2020 and May 2020 decisions.  The appeal was determined in November 2020 and is discussed below.

Rahman: decision of the appeal court

The Full Court of the Family Court of Australia agreed with the lower Court’s decision in March 2020. The travel ban and the $377,000 payment obligation were confirmed, for the same reasons given by the primary judge. 

The Appeal Court did not agree, however, with the primary judge’s decision in May 2020.  The Court dismissed her case on a legal technicality.

Essentially, the Appeal Court found that the wife had made her application in the wrong way, in the wrong form, and that she’d asked the Court to use a power it didn’t have.

More specifically, the problem lay in the fact that the wife has asked the Court to order the superannuation payment as a second Final Order in circumstances where there’d already been a trial and Final Orders made in 2012.  

The Court found that the wife’s application was incompetent and dismissed it, along with the interim freezing order on the husband’s bank account which was connected to it.

His Honour Justice Austin, who wrote the main judgment, said:- 

  • As Final Orders had been made in 2012, the Court’s power to decide the parties’ interests in the property had been exhausted;
  • The Court could not now change the 2012 Orders, other than through an appeal or a section 79A Application;
  • If the wife decided to bring another application to enforce the 2012 Orders, it should be an enforcement application in both style and substance.

In doing so, the Court left the door open for the wife to reapply in the correct way. At this point, there have been no further reported Family Court cases involving these parties.

Wilkinson: initial difficulties

In Wilkinson, the asset pool was smaller than in Rahman. There were no existing cash reserves from which a transfer order could be made.

In this case, the Trial Judge made a Final Order in 2015 that the husband keep certain assets and pay the wife the sum of $45,352 within three months.  This Order effectively created a debt in the husband’s name.  

Importantly, the Final Orders did not include any “fallback” provision. That is, there were no orders that required the husband to sell, transfer or provide assets to the wife if he didn’t pay her. 

The $45,352 payment, therefore, was not a transfer order (as had been the case in Rahman). The payment was not covered or protected by section 59A of the Bankruptcy Act 1966.  The obligation was a “money order” and thus a “provable debt” which had to be dealt with under general bankruptcy law.

The Court confirmed this in 2015 when the wife made a Family Court enforcement application to recover the money due under the judgment. By that time, the husband had gone bankrupt and hadn’t paid.  

Importantly, the husband’s period of bankruptcy was still running when the case was brought. The wife did not seek to change the Final Orders. She had simply asked the Family Court to compel the husband to pay the money previously ordered. She wasn’t seeking any superannuation orders at that time. She had not obtained the bankruptcy trustee’s permission to bring the case to the Family Court. The wife had not lodged a debtor’s petition with the bankruptcy trustee.

For these reasons, the Court found the wife’s application was incompetent and dismissed it. 

In April 2016, the wife again applied to the Family Court, this time for superannuation splitting orders in substitution for the unpaid money. Unfortunately, the wife’s case contained technical mistakes, similar to those made in Rahman.

In June 2016, the wife’s case came before a Judge who told her why it was defective. The wife then withdrew her case, before it went any further in the Court process.

Wilkinson: subsequent success

In 2019, the wife brought a fresh case to the Family Court and was successful.  

The wife asked the Court to discharge the original orders and make new final orders in their place (i.e. a section 79A Application) which included a superannuation splitting order. 

In the alternative, she argued that the Court could make a superannuation order, without having to change the old Orders, using its enforcement powers.

Importantly, in both the “section 79A” claim and the “enforcement” claim, the wife was not asking for a greater share of the asset pool than she’d been awarded in 2015.  Rather, she sought an outcome that had the same overall effect on a “percentage basis” that the 2015 orders had intended.   

The husband was no longer bankrupt when the 2019 case began.   However, he went into voluntary bankruptcy again shortly thereafter. 

At the hearing, the wife tendered a letter from the bankruptcy trustee. The trustee confirmed its consent to the wife’s case being heard in the Family Court.  It confirmed it had no power over the husband’s superannuation because it was a protected asset. It confirmed that the case didn’t affect their rights as trustees.  The Court agreed with the trustees. 

As to the wife’s “enforcement” application, the Court agreed with the wife’s reasoning.  The Court found that it had the power to alter the 2015 Final Orders by means of a “machinery provision” amendment and that in this case, it was appropriate to do so.   In deciding this, the Court referred to the case of Molier v Van Wyk [1980] FamCA 851 which deals with enforcement powers and when they should be used.

As to the “section 79A Application”, the Court found it had legal merit, albeit on only one of the grounds she’d argued.  The court accepted that the husband’s act of defaulting on the payment obligations meant that the 2015 Final Orders could be set aside and amended  The Court considered it was just and equitable to do that, in all the circumstances.  

The Court made the superannuation order the wife sought, primarily as an enforcement order, and as a section 79A Order in the alternative. The Court appeared to prefer the enforcement remedy over the section 79A remedy, although both were available.   

During the proceedings, the husband tried to invoke a legal doctrine called “Anshun estoppel”. He argued that the wife shouldn’t be allowed to pursue a superannuation order because she hadn’t asked for his superannuation in the original 2015 case and because she’d already in 2016 to get it and been unsuccessful. 

In this case, the Court said that the husband’s poor conduct and ongoing attempts to defeat the Court orders effectively disqualified him from using Anshun estoppel.

Conclusion

These cases show that the legal distinction between money orders and transfer orders can be important in an enforcement context.

Failure to seek superannuation splitting orders in the original proceedings does not necessarily prevent them from being sought later, in the enforcement or Section79A application.  

As always, care should be taken when negotiating final orders at first instance, to ensure enforceability in the event of non-payment.  

It is best practice to obtain the consent of the trustee in bankruptcy when seeking enforcements of Family Law judgments, of any kind.

Western Australian couples

Presently, the Family Court of Western Australia does not have the power to alter the superannuation interests of de facto couples or to hear bankruptcy proceedings.

This means the de facto couples in Western Australia do not have the superannuation remedies indicated in the Rahman and Wilkinson cases.  

This anomaly is scheduled to change in the near future, with legislation having recently passed the Western Australia upper house of parliament and awaiting proclamation: see Family Law Amendment (Western Australia De Facto Splitting and Bankruptcy) Act (Cth) 2020 and Family Law Amendment Bill (WA) 2022

 

References:

  1. 1 Ejje and Ejje (2003) FLP 93-129; Melnik v Melnik (2005) 144 CR 141.
  2.  See in particular sections 59A and 116(q) Bankruptcy Act 1966.  Initially, these measures were available only to married couples. On 1 March 2009, they became available to de facto couples: see Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008. The reforms did not extend to Western Australian de facto couples.
  3.  Pursuant to section 79A of the Family Law Act 1975, the Court has the discretion to vary or set aside a Final Order, and if it considers appropriate, make another Final Order in substitution for the order so set aside.
  4.  Ie made under Part XIII of the Family Law Act and Part 20 of the Family Law Rules 2004.
  5.  Superannuation is a non-divisible asset protected under section 116(b) of the Bankruptcy Act 1966
  6.  The case was held to found to come within section 79(1)(b) only.  The husband had defaulted on his payment obligations including during periods when he was not bankrupt. None of the other criteria contained in section 79A were found to have been satisfied, including section 79A(1(c) which considers orders that have become “impracticable”.
  7.  See Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 and the cases which refine it including: Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015-16) 256 CLR 507.

The Family Court – financial settlements, cryptocurrency and the photo finish

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In a family law settlement, the couple must exchange all relevant information about their assets and liabilities and financial resources, which is called the “disclosure obligation”.   

A financial resource is something that a party has a financial interest in but doesn’t control or have the power (usually) to deal with, such as a beneficiary of a family trust. 

Cryptocurrency, on the other hand, is something that a person who has a holding of it owns. Knowing whether to cash it in when a financial settlement must occur or to share it with the other party will be difficult to decide. 

That is because cryptocurrency is highly speculative, that is, it might be worth a great deal one day, then much less the next and then up and down again. 

Bowen Buchbinder Vilensky’s experienced team of family lawyers in Perth would not advise you whether you should sell the currency or share it with the other party at settlement.  That is because lawyers are not financial advisors.  

For our clients, a practical outcome will be sought.  In some cases, sharing the asset might be the best result, reflecting the old words of the marriage vows, that a couple is to share “for better or for worse”. 

The disclosure obligation in family law is serious.  If one party to the relationship fails to give full disclosure, the outcome in a trial might be that the judicial officer increases the share the other party is to get, to consider what is missing by guessing what it might have been. For cryptocurrency, the shares in the currency might be worth $20,000 one week, and $5,000 the next.  The judicial officer might decide to take the higher amount as the amount that should be considered.  

An aspect of family law settlement that underlines the uncertainty of outcomes is that while the Court deals with the assets liabilities and financial resources as they are, the court also must speculate about what the future holds for each party, part of the discretionary aspect of family law that makes it difficult to predict and advise about. 

So, while the capital assets the parties have, is split up based on what they are worth at the time of settlement, like the photo finish at a horse race, the court also considers the future earning capacity of the parties and their responsibilities as separate individuals for themselves and others. 

Understanding family law is complex; our family lawyers have great experience and work hard to stay up to date with the ongoing changes in law and practice that happen.  We build a personal relationship with our clients and seek outcomes that best meet their particular needs and expectations.

Increased Visibility Of Superannuation Interests For Married Couples

Superannuation-Interests-for-Married-Couples

Much has been made of the recent developments for de facto couples in Western Australia, who are now a step closer to being able to split their superannuation entitlements following the breakdown of their relationship.

There has also been a recent development for married couples, providing for increased visibility of superannuation interests.

As of 1 April 2022, a party to a marriage may apply to the Court to request superannuation information from the Australian Tax Office (ATO) about their former spouse.

Such an application must be made in the context of existing Family Court proceedings.

In response to the application, the ATO provides the requested information to the Family Court, who pass that information to the requesting party, their spouse, and their legal representatives if applicable.

This process allows a spouse to efficiently identify superannuation interests held by the other party. 
This is a welcome development for those who have concerns about superannuation assets being concealed.

Once the applying party knows the identity of each fund their spouse holds an interest in, they can obtain further information about the value of those interests by applying directly to the fund for that information.

Unfortunately, at the time of writing, like superannuation splitting, this process remains unavailable for de facto couples in Western Australia.

For more information, see the below information on the ATO and Family Court of Western Australia website (current as at 1 June 2022):

No Will? Insert An Outdated Formula For Distributing Assets

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Perhaps the cost of having a Will prepared has put you off doing so, or maybe it is just one of those tasks that you just haven’t got around to doing yet? Beware that there can be significant and distressing consequences of not having an up-to-date Will in place.

What is a Will?

A Will is a legal document that expresses a person’s wishes as to how their assets are to be distributed after their death. A Will also appoints a legal representative to manage the estate assets until the final distribution to beneficiaries has taken place.

Why do I need a Will?

Statistics show that approximately 50% of Australians die without a Will. One of the most common reasons for people not making a Will is because they feel as though their current assets do not warrant one. A person’s assets do not need to be substantial for it to be necessary for them to make a Will. Anyone that has assets, be it a bank account, property, motor vehicle or personal effects, needs a Will. A Will saves time, money and stress for your loved ones and provides you and your family with peace of mind that your wishes will be given effect (to the greatest extent possible).

What happens if I die without a Will?

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No Will? Insert An Outdated Formula For Distributing Assets 2

If you die without a Will, you are considered to have died ‘intestate’. If you die intestate, a person entitled to your estate must make an application to the Court for letters of administration. In these circumstances, your estate will be distributed according to the intestacy provisions contained in the Administration Act 1903 (WA) (“the Act“) – a formula determined by the Government. 

The Act is in most cases inconsistent with a deceased person’s wishes and where there is a husband, wife, or de facto partner, it will likely result in financial hardship during an already distressing time. This is largely because these provisions have not been amended since 1982 and are not reflective of asset values today.

The common position is that a husband, wife or de facto partner, generally wishes to leave their entire estate, or at least the matrimonial home, to their surviving spouse. In these circumstances, it is often intended that children will only inherit once both parents have passed away.

The example below illustrates the inadequacy of, and issues associated with, the current intestacy provisions.

Mary dies without a Will and leaves behind a husband and 4 children. She leaves an estate worth $650,000 the value of which is primarily the family home owned in her sole name. According to the Act, Mary’s estate will be divided as follows:

Her husband receives the first $50,000 and all household effects. Of the residue ($600,000), the husband receives one-third ($200,000) and the 4 children receive two-thirds ($400,000) in equal shares – $100,000 each. The family home must be sold to make the distributions to the children and her husband cannot afford to purchase another home with only $250,000.

Had Mary prepared a Will in which the family home was left to her husband, the distressing scenario that her husband finds himself in could have easily been avoided. Many are of the view that the entitlement of a surviving spouse needs to be increased significantly to reflect today’s cost of a modest house. In no other State or Territory in Australia is the entitlement of a surviving spouse on intestacy so low.

Whilst the Administration Amendment Bill 2018 (WA) (“the Bill“) was introduced in June 2018 for the purpose of amending the Act to reflect today’s asset values, it remains before Parliament. Whilst the Bill will see the amount increased from $50,000 to $435,000 where an intestate dies with a surviving spouse and children, the changes are yet to be implemented and it is not certain when they will be. For many Western Australians, their homes are also now worth far more than $435,000. There simply is no better way to ensure that your loved ones are looked after than by having in place a Will reflective of your current wishes. Now is the time to contact Bowen Buchbinder Vilensky to arrange an Estate Planning review with one of our experienced Solicitors.

E-Sign of the Times

esign-legal-documents

The permanent modernisation of key aspects of the Corporations Act 2001 (Cth)

Under Australian law contracts and company documents must be correctly signed to be valid, binding and enforceable.  Among the archaic common law rules that have existed is that deeds had to exist in ‘paper, parchment or vellum’.  Until now.

The long awaited Corporations Amendment (Meetings and Documents) Act 2021 became law on 22 February 2022.  This legislation has permanently modernised a number of aspects of the Corporations Act 2001 (Cth) by allowing companies to use technology to meet regulatory requirements including the electronic execution of company documents by the use of what we currently refer to as “e-sigs”.  In the process these archaic laws have rightly been consigned to legal history making it clear that corporate deeds can now exist in purely electronic form.  

Importantly, the new legislation ensures that company documents will no longer be invalid or unenforceable due to non-compliance with mere formalities.  For example, it is no longer a requirement that a corporate deed be witnessed or delivered to be valid.  

The new legislation also introduces new provisions to enable companies to send notices electronically as its default position and to hold online meetings.  

The reforms build on temporary relief measures (due to COVID) which will remain in place until 31 March 2022.  

Regarding the timing of the implementation of the changes introduced by the new legislation, it applies to documents executed on or after 23 February 2022 and meetings held after 1 April 2022.

If you would like further information in relation to any of the reforms noted in this article please contact David Vilensky or Alana Shaddick of our corporate advisory team on 9325 9644.

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Wills – Informally Yours

Pen nib on top of a will contested estates perth

A Will is a legal document which sets out your wishes as to how your assets will be distributed on your death. Read our Wills – Informally Yours article for more information.

A Will must meet a number of formal requirements under the Western Australian Wills Act 1970 which includes that it be in writing and be signed by you as the Willmaker in the presence of two independent witnesses.

However, what happens if your Will fails to meet one or more of these formal requirements?

A person who does not leave a Will at all is said to die Intestate and their assets are distributed in accordance with the provisions of the Western Australian Administration Act 1903. This Act sets out a formula of relatives who are to receive a share of your assets on your death. This may mean that persons to whom you want to leave something may not receive it and those to whom you may not have wanted to leave anything may benefit from your Estate.

Where a document fails to meet the formal requirements of a valid Will, it may nevertheless still be deemed to be valid. In such a case it is referred to as an Informal Will.

However, the procedure required to have an Informal Will approved to be Probated may be very costly and become drawn out. A person seeking to have an Informal Will Probated must convince the Supreme Court of Western Australia that the document satisfies the criteria of an Informal Will. That is, the Will must:

(a) be contained in a document or part of a document;

(b) set out the testamentary intentions and wishes of the deceased; and most importantly

(c) it must be demonstrated that the deceased intended that document to constitute their Will.

A document may be any record of information including anything on which there is writing or anything on which there are marks, figures, symbols etc. In the technological age in which we now live, what may constitute an Informal Will has become much broader and less well defined. For example, in 2017 the Supreme Court of Queensland held that an unsent text message that had been saved in the drafts folder of the deceased persons mobile phone constituted an Informal Will under similar Queensland legislation (Re Nichol; Nichol v Nichol & Anor (2017) QSC 220).

One of the hardest elements to prove is that the deceased intended the document to constitute their last Will. Whilst there may be some indications in the document itself that this was the intended last Will of the deceased through the words used, invariably it will be necessary for friends and relatives of the deceased to give evidence about the deceased and what he or she may have told them at various times about his or her testamentary intentions.

Take Away

Where doubt exists as to whether or not a document will be found to be an Informal Will the assets that you leave can be swiftly consumed by legal costs. The best way to avoid the uncertainty, anxiety and unnecessary expense of having to bring an Application to the Supreme Court of Western Australia for an Order that a document is an Informal Will is to ensure that you have in place a properly drafted valid Will. This ensures that all of the relevant legal requirements are met and that your assets upon your death will go to your named beneficiaries.

Now is the time to contact BBV Legal to arrange an appointment today for a detailed Estate Planning review.

The Family Court – The “Helping Court”- Is The Court Becoming Tougher?

divorce-law-bbv-legal

Most people would appreciate that if you have a right to take someone to court it is a good idea to do that without delay.  For personal injuries, there is a time limit of 3 years and for breach of contract, 6 years to go to court. 

The time limits in family law are much shorter, one year from a divorce order taking effect for a married couple (a divorce can’t be granted unless the couple has been apart for one year) and two years from separation for a de facto couple.

The short family law time limits are for practical reasons.  The longer a couple is separated the harder it can be to untangle their finances; even if they kept things separate there might still have to be an accounting.  What they each had at separation, and what happened in relation to income and assets before and after separation will likely need to be considered.        

Recently a party in Wellard & Hawthorn [2021] FedDFAMC1A (the names are changed to protect the privacy of the parties) complained of significant difficulty in bringing their application in time and asked the Court to extend the time, arguing that they would suffer hardship. While the Court could have granted the application, the court refused the extension of time, allowing the other party to avoid a financial accounting.

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The Family Court - The "Helping Court"- Is The Court Becoming Tougher? 5

The Family Court of Western Australia was set up when ‘no fault’ divorce was introduced in 1975 to be the “helping court”.  Even if it is no-one’s fault a relationship has failed, it can be difficult for parties to move on and deal with their situation. 

Since 1975, the Family Court system has been greatly expanded to include de facto relationships, relationships that are treated just like a marriage even if the parties are not married and didn’t have a party to celebrate their union.

Arrangements for children have become more complex too, where the principles guiding how parties should make arrangements for their children changed in 2006. Now both parents are expected to be involved in their children’s lives, as long as that is in their best interests.   In 2012, the Family Law legislation was amended to reflect a greater understanding of the endemic presence of family violence.    

Does the recent decision send a message that the Court will not tolerate parties seeking more time to come to the court unless they can make out a strong case?  Is the court becoming stricter than it might have been in the past, where the pressures on the court’s limited resources are unrelentless? Possibly yes.    

A stricter approach could have a heavy impact on de facto couples, where their circumstances tend to be less formalised than married couples.  In Western Australia despite the best efforts of family lawyers in seeking reform of the law so it falls in line with every other state and territory, superannuation splitting is still not available. Legislation to provide for super splitting has been drafted but not yet passed by the Western Australian parliament.     

Get in Touch With Our Family Lawyers

If you would like advice in this area please contact Rhonda Griffiths at rgriffiths@bbvlegal.com.au.

Our Family Lawyers in Perth can provide you with information, advice and legal representation on a range of family law issues on a fixed fee price basis.

Tougher Laws – Are You Ready?

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New Work Health and Safety Act 2020 (WA)

Are you ready for tougher laws? In November 2020, the WA Parliament passed the Work Health and Safety Act 2020 (WA) (“the Act”). The Act will take effect once the industry regulations have been finalised, which is now likely to be sometime in early to mid-2022.

When implemented, all Western Australian workplaces will come under this single Act.

The Act will be supported by regulations including which include the Work Health and Safety (General) Regulations  (which apply to all workplaces except those covered by the other regulations), the Work Health and Safety (Mines) Regulations (which apply to mining and mineral exploration operations); and the Work Health and Safety (Petroleum and Geothermal Energy Operations) Regulations (which apply to onshore and offshore petroleum, pipeline and geothermal energy operations).

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Tougher Laws - Are You Ready? 7

Will It Affect Me?

The following are some key aspects of the new Act of which you should be aware.

The Act has wide application and applies to Persons Conducting a Business or Undertaking (“PCBU“).

The terms business and undertaking have their ordinary meaning. It is intended to cover a wide range of businesses or undertakings. 

The Act applies to workplaces and workers. These terms are also defined broadly to incorporate a range of environments and situations. A workplace is defined to be a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.  A person is a worker if the person carries out work in any capacity for a PCBU, including work as an employee, a subcontractor, or an employee of a contractor or subcontractor.

This definition is likely to capture working from home arrangements. 

The term health has also been expanded, to include both physical and mental health.

Labour hire employees are also now deemed to be workers.

Primary Duty of a PCBU

A PCBU will have a primary duty of care to ensure that workers and others are not exposed to a risk to their health and safety.

This applies where the PCBU can engage or cause to engage a worker to carry out work (including through a subcontracting arrangement), can direct or influence work carried out by a worker, or has management or control of a workplace.

A PCBU must ensure, amongst other things, that the health of workers and conditions in the workplaces are reasonably and sufficiently monitored to prevent illness or injury arising in the workplace, and that there are adequate facilities to ensure workers’ welfare when carrying out certain functions.

Officers of a PCBU are also required to exercise due diligence, to ensure that the PCBU is complying with its duties and obligations. This requires taking reasonable steps to become familiar with the relevant work health and safety knowledge base, and to ensure that the PCBU has appropriate resources and processes to minimise if not eliminate health and safety risks in the workplace. 

Enforcement And The New Industrial Manslaughter Laws

Significantly, the Act introduces strict enforcement measures including a new regime of industrial manslaughter provisions.  

The Act creates two categories for industrial manslaughter – one for simple offences (Category 1) and one for crimes (Category 2). A Category 2 offence has substantial maximum penalties.

A Category 1 offence is committed where the person fails to comply with a health and safety duty as a PCBU, and this failure causes the death of an individual. An officer of a PCBU will commit a Category 1 offence where the PCBU’s conduct can be attributed to any neglect on the part of the officer or is engaged in with the officer’s consent or connivance. For these offences, an individual (including an officer) will face a term of imprisonment of up to 10 years and a fine of up to $2.5 million and a body corporate will face a fine of up to $5 million.

A Category 2 offence is committed where:

  1. the person has a health and safety duty as a PCBU;
  2. the person engages in conduct that causes the death of an individual;
  3. the conduct constitutes a failure to comply with the person’s health and safety duty; and
  4. the person engages in the conduct:
    1. knowing that the conduct is likely to cause the death of an individual; and
    2. in disregard of that likelihood.

An officer of a PCBU will also commit a Category 2 offence where, the PCBU’s conduct above is:

  1. attributable to the neglect of the officer or engaged in with the officer’s consent or connivance; and
  2. the officer knew that the PCBU’s conduct was likely to cause death or serious harm and disregarded that likelihood.

For these offences, an individual (including an officer) will face imprisonment for up to 20 years and a fine of up to $5 million whereas a body corporate faces a fine of up to $10 million.

With the imminent introduction of the Act and its more severe penalty regime, all PCBU’s and their directors and officers should act now to audit their safety and risk management controls, culture, and practices to ensure that these will meet their obligations under the Act.

 Contact BBV Legal to book an appointment today.  Bowen Buchbinder Vilensky has over 25 years of experience providing legal services in Perth.