Are you currently in a relationship but not married? Maybe you're in a relationship but not living together? Worried that your partner can take your assets? Well, just because you're not married and not living together, your partner may actually be entitled to make a claim for property settlement or spousal maintenance.
HOW DO I KNOW IF I'M IN A DE FACTO RELATIONSHIP?
You're deemed to be in a de facto relationship if you are in a relationship as a couple and are living together on a "genuine domestic basis" and not legally married. However, you could also be in a de facto relationship, if one or both of you are still legally married, in a de facto relationship with someone else or are not living together on a full time basis.
We don't live together....
You don't have to be living together for the Court to determine your relationship as de facto. This is just one of the factors that the Court will consider.
The Court will also consider the duration of the relationship, whether a sexual relationship existed, the degree of financial dependence, ownership of property, the degree of mutual commitment to a shared life and more.
PROPERTY SETTLEMENT & SPOUSAL MAINTENANCE
If you want to make a property or spousal maintenance claim, you have a limit of two years from the date your relationship ended and you must prove that your relationship lasted for at least two years.
If you and your de facto partner had a child together, if one party made substantial contributions or if you registered your relationship, the proof of a two year relationship is not needed.
If you're unsure of how your relationship could impact your personal assets, call us today to discuss your circumstances and how we can assist in protecting your assets.
The main reasons Trusts are typically used is for tax planning and for asset protection purposes. The beneficiaries do not own property held under a Trust until it is distributed and transferred to the name of the beneficiaries.
Family Trusts (Discretionary trusts)
Discretionary trusts are often referred to as family trusts. Family Trusts, if set up correctly, can protect your pre-marital assets (assets that you have brought into the marriage).
They give trustees the discretion to distribute income earned in the trust, or capital derived from the sale of assets within the trust, to each of the named beneficiaries.
Testamentary Trusts (as part of a Will)
Testamentary trusts, are discretionary trusts established in Wills. They only come into effect after you die.
What are the benefits of a Trust?
They can be used as a means to possibly reduce tax paid by the beneficiaries from income earned from their inheritance (Testamentary Trust) and to protect the trust assets (Discretionary Trust) in the following circumstances:
Divorce/ breakdown in relationship of a beneficiary:
If a beneficiary is in a ‘shaky relationship’ (such that the marriage or a de facto relationship is going to be dissolve in time), then the assets held in a testamentary trust is to be construed as a financial resource and may have some effect on terms of the property settlement. But this is far better than the property being considered as an asset and being at the disposal of a Court order.
Many families are concerned that the spouse may remarry and divert the family assets to the new family, or use the family assets in risky or unprofitable way. Testamentary trust can be useful for families who wish to provide for their spouse and alleviates the concern.
If an intended beneficiary had a number of creditors and or is likely be at risk of being made bankrupt, or the beneficiary is in a high risk profession or business where negligence are likely, then a Testamentary Trust, especially a Discretionary Testamentary Trust will protect the trust assets by minimising its share and diverting most of the trust assets to other beneficiaries.
In their Will, most people will set up a Testamentary Trust if they have young children, children under 25 years old or children with a disability who would not be able to manage their inheritance. They will specify a Trustee to manage how the income from the Trust is to be used for the benefit of the children. This may include directions on using the money for the living expenses and education expenses of the beneficiaries until they attain a certain age.
There are also disadvantages to setting up Trusts. Contact us to discuss your requirements and determine if a Trust is suitable for your situation.
It's important to know that there are specific time restraints on when you can approach the Court to make orders. Although this may be the last thing you would want to think about during a separation, it will save you potential future issues.
You have 12 months after your divorce order is granted to apply to the Court for property orders. This is generally why we recommend finalizing the distribution of your property prior to filing an application for divorce.
If you are in a de-facto relationship, you have 24 months after the date of your separation to apply to the Court.
The above time restrictions also apply for Spousal Maintenance orders, that is; 12 months after your divorce is final or 24 months after the date of separation in a de-facto relationship.
I MISSED THE DEADLINE, NOW WHAT?
If you missed the timeline to make an application, you will need to ask the Court for "leave". This means that you must ask the Court to allow your application outside of the timeframe.
You will first need to explain to the Court why you could not or did not, make the application within the time frame due to hardship. For example, you were prevented from making the application due to mental or emotional difficulties or what you could not receive legal advice.
Secondly, you need to demonstrate to the Court that you have reasonable prospects of getting the orders you wish to seek if you were allowed to proceed with the application.
Finally, you need evidence to show the Court that you or a child of the relationship will suffer 'real and material loss' if the application cannot proceed. For example, that you do not have enough available assets to secure a place to live, or that you will not be able to secure appropriate education for the child.
We can help you prepare the application for leave if you have run out of time. We will ask you a range of questions to understand your position and draft your affidavit to include the areas of hardship you are experiencing.
How to file:
When filing for divorce, you can make a sole application (by yourself) or a joint application (together with your spouse). If you file a sole application, you must serve the application on the other party.
Married for less than 2 years:
If you have been married for less than two years, you are required to file a counselling certificate that is obtained through attending counselling with your spouse. If you are not able to attend counselling, you must file an affidavit to the Court.
How much does it cost?
There is a filing fee associated with applying for divorce. The current fee is $940 however is subject to change. You can check the updated Filing Fees HERE.
Why do I need a lawyer?
Your lawyer will explain your rights and responsibilities before applying for a divorce and can explain how the law applies to your particular circumstances. The process is much more stress free when your lawyer is preparing your application and organising service of documents.
Did you know there are approximately 2 divorces per 1000 people in Australia?
Unfortunately, lock down has been difficult for us all, but for people living in an unhappy marriage, the time at home during lock down is unbearable.
We always hear the stories of the "nightmare divorce", but many couples can manage a civilized separation with the right lawyer.
To apply for divorce, you must show the court that your marriage has 'irretrievably broken down'. This is shown by being separated for 12 months or more and there being no likelihood that the marriage will resume.
Our years of experience allow us to manage your expectations to achieve a fair outcome without the high costs. Where possible, we set a fixed fee at each stage of the process to assist you with your financial expectations.
Call us on (03) 90 868 666 to discuss your separation and how to navigate a new path.
What is Estate Planning?
Estate planning is about making sure your assets go where you want them to go after your passing.
Why do you need to plan?
May people have worked hard during their life and have a large portfolio of assets to their name. At the event of their death, they want to ensure these assets go to family members or in the case of a Will, the beneficiaries.
In planning your Estate, you can minimize the tax payable on the transfer of ownership of these properties and can also protect the properties from being given to a family member who are financially careless.
What do I need to consider when considering Estate Planning?
The obvious part of Estate Planning is your Will. A lawyer will ensure that your Will is "airtight" without ambiguities to avoid any disputes after your passing.
The other part of Estate Planning is your Superannuation. Many people fill out their superannuation forms when they commence work and forget to update these throughout there life as it changes. We recommend that instead of stating a beneficiary on your forms, you state "As per Will". This insures that the Superannuation company cannot decide on your behalf who is to receive the funds.
Estate Planning also includes preparing your Powers of Attorney and Enduring Powers of Attorney. This is commonly done at the same time as the Will.
The Powers of Attorney are done to allow someone else that you trust to make decisions for you when you are not able to, or if you are overseas and papers need to be signed on your behalf.
An Enduring Power of Attorney allows a person to make both financial and personal decisions on your behalf where you are not capable of making those decisions yourself in the event of illness. They are able to make decisions for you and for your Estate.
Do I need to prepare anything before I come to see you for my Will?
You need to have the following information ready:
Family Dispute Resolution (FDR) is a type of Mediation that assists separating families come to their own agreements.
FDR involves a conference with all the parties to a dispute and a neutral third party, known as the Family Dispute Resolution practitioner (or a Mediator). The conference aims to avoid the dispute from going to court, as this can be a long, expensive and stressful process and encourages discussion about the issues in the matter and different options that can be taken whilst focusing on the needs of the children.
FDR is compulsory under Australian family law legislation and requires families or separated parents to attend FDR before applying for parenting orders in Court, as it is a practical and low cost way to creating a parenting plan.
There are some exceptions to this requirement, such as:
- urgent matters;
- where family violence or child abuse is a factor;
- when formalising an agreement through 'consent orders'; and
- if a person is unable to participate effectively.
If FDR is successful, the agreement can be recorded as a parenting plan which is in writing, dated and signed by both parents. The agreement can be enforced through 'Consent Orders' via the Court.
If FDR is unsuccessful, the Mediator can issue a 'Section 60I certificate', to allow an application to be made to the Court.
The certificate can only be made by an accredited Family Dispute Resolution practitioner and will state one of the following reasons as to why FDR was innapropriate or unsuccessful:
- The individual did not attend;
- You and the other individual attended and made a genuine effort to
resolve the dispute;
- You and the other individual attended but did not made a genuine
effort to resolve the dispute;
- The practitioner decided that FDR was not appropriate to continue
part way through; or
- The practitioner decided the matter was not appropriate for FDR in
Call us on (03) 9654 8397 to arrange a phone conference or Skype call to discuss your family matter and how FDR can assist.