Binding Financial Agreements

The Family Law Act 1975 authorises parties who are married or in a de facto relationship to create a legally binding agreement in relation to property, finances, superannuation and spousal maintenance to be applied if their relationship should end.

 What do Binding Financial Agreements Do?

A BFA allows parties to make an agreement in relation to their finances. Ultimately, a Binding Financial Agreement is intended to ensure parties do not have to enter court proceedings to work out property and financial matters. A BFA created by the two parties alone will not be legally binding. This is because a requirement for Binding Financial Agreements to come under the scope of the Family Law Act is that both parties must have signed the agreement after receiving independent advice about the nature and scope of the BFA. This must include independent legal and financial advice. For this reason, it is vital you speak to a family lawyer before creating a BFA. In addition, your lawyer can assist in the creation of the BFA to remove any possible loop-holes and ensure the BFA is contractually sound and fair to both parties.

 When can a Binding Financial Agreement be set aside?

A court can set aside a BFA for several reasons authorised by section 90K of the Family Law Act. These can include:

Courts are still reasonably strict when it comes to the legislative requirements for creating a BFA. This means that it is still imperative that you seek legal advice before entering into a BFA in order to ensure that it is binding should the unfortunate situation of a relationship breakdown ever arise.

If you are thinking of entering into a Binding Financial Agreement, need independent legal advice before signing one, or are considering separation or divorce, contact our family law team on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.

 

Krste Kovacevski, has brought a whole new meaning to re-kindling the fire in a relationship. Kovacevski's divorce resulted in his ex-wife receiving the marital home. He was ordered to vacate his home within 40 hours, as dictated by a judgment handed down in the Federal Circuit Court. Prior to this, Kovacevski’s lawyer lodged the signed transfer documents of the home,that would transfer legal ownership of the property to his ex-wife. However, instead of handing over the property, Kovacevski instead decided to light the house on fire so that his ex-wife would not get the property.

Kovacevski was found in his granny flat in the early hours of 4 August 2016, calmly watching the home go up in flames.  The fire caused the roof to cave in, and the nearby houses had to be evacuated.

When questioned by firefighters how the blaze happened, the 75-year-old simply pointed to a folder filled with divorce papers and said “that’s where it started”.

Kovacevski is now defending himself against criminal charges for damaging properyt by fire.  However, his legal team told the court that the case relied on the question of who owned the property at the time of the blaze.  If Kovacevski owned the property a the time of the fire, then he could do what he wanted with it.

The prosecution argued that that the home was joint-owned, and as such, he was not entitled to burn the property.

Kovacevski had lived in the property, his only property, since 1991 but had not insured the home or contents.

The matter has been adjourned until next month in which Magistrate Douglass will hand down a judgment after considering documents from the Family Court and property law.

For more updates on this case, check back again next month once the judgment has been handed down.

If you are currently in a dispute with your partner or ex-partner as to the assets of your relationship or wish to come to a more amicable resolution than that of Mr Kovacevski, contact Freedman & Gopalan Solicitors today on 02 8917 8700 or fill out the enquiry box and we will respond to you ASAP. 

 

This week, the world woke up to news that one of Hollywood's biggest power couples - Brangelina - had split, with Angelina filing for divorce from Brad.

When a couple separates, they are both swept up into a whirlwind of issues ranging from new living arrangements to questions of who gets custody of the children. No matter how amicable the situation may seem, divorce is hard on all parties involved. Brad and Angelina are about to discover just how difficult it can be whilst deflecting speculative questions and prying eyes.

Here are five pointers that might ensure the Brangelina split doesn’t get out of hand:

  1. Speak to an attorney

Ideally, it is best to consult legal advice before filing for a divorce as there are steps that can be taken to avoid drastic action. These steps include marriage counselling and family mediation but if divorce is imminent, speaking to a lawyer is advised. As a result, actions taken subsequent to filing for divorce will be legal and should assist to keep both parties well informed of the process.

  1. Consider the children

Try to remember that you and your partner are divorcing, not the children. Both Brad and Angelina were often quoted to say that their children are the best thing that has happened to them, but what will happen to them once the divorce proceedings commence? If this is a difficult time for you, imagine the toll it will take on the children. It is important to note that reforms to the Family Law Act have attempted to emphasise shared parenting responsibilities so it would be ill-advised to encourage the children not to speak to the other parent or deliberately sour the relationship between you and your partner.

  1. Take note of Furniture and Furnishings and Copy Documents

Brad and Angelina will certainly have a hard task of determining their asset pool, but for most of us, this pool will include bank accounts, debts, shares in a business, the matrimonial home, cars and even household furniture. It is important to determine these assets when the time comes to split up the property or when the Court becomes involved. Subsequently, any documents that can prove these assets such as bank statements, wills, car registration titles will be useful when dividing the property.

  1. Consider your own earning potential

If your divorce goes to the Family Court, it is necessary to be aware of your own earning potential as splitting up the property can be affected by you or your partner’s potential to earn money. In some cases, it is best to keep the matter out of court so that you and your partner can determine on your own who should keep what depending on individual circumstances.

  1. Consider alternatives to Court

In famous cases like that of Pitt and Jolie, going to court is expected. However, in ordinary circumstances, taking a divorce to court can be a significant financial and emotional burden on all parties involved. In most situations, both sides are at the mercy of the uncertainty of how a judge will rule. Therefore, alternative solutions should be considered. Rather than falling back on the belief that if all else fails, court is an option, the process of ‘collaborative divorce’ involves working with lawyers and additional experts to resolve the problem without going to trial. If both parties decide to go to court, they must acquire new lawyers. The greatest benefit of these processes is the autonomy it allows both you and your partner, as well as structuring a plan that will also suit the children.

 

If you are currently thinking about filing for divorce or wish to know more about the legalities surrounding the Brangelina split, do not hesitate to contact our offices on 02 8917 8700.

As the 2016 political year commenced, we have seen controversial debate sparked by the banning of the burkini, the introduction of a new iPhone and the arrival of Senator Pauline Hanson. As one of her party’s core policies, the One Nation Senator Pauline Hanson has made it very clear that the Family Court has to go.

This week, those feelings have been exacerbated in Hanson’s first speech in the upper house of Parliament as the words ‘unworkable’ and ‘discriminatory’ have been used to describe the Family Law system. She has proposed that a tribunal of ‘mainstream Australians’ replace the court to ensure there is a body which can sustain the unbearable workload.

Amongst her claims, Hanson condemns the system on the basis that men are unfavourably looked upon and victims of family violence are disadvantaged in court proceedings by common practices. This includes the allowance for self-represented litigants (often the accused) to cross-examine their alleged victim.

Moving past Hanson’s unfounded comment regarding female favouritism, there are grounds for annoyance concerning the court’s workload and current lack of support. Justice Bryant has publicly asked for an increase in government funding to ensure there are better risk assessment tools for family consultants and expanded domestic awareness training.

Justice Bryant has publicly disagreed with Hanson’s views in stating that the abolition of the Family Law Courts would not only be unconstitutional but a brash response for an issue that deserves more expertise as opposed to less.

Realistically, it is inappropriate that the wait time for trial is approximately two years and cross-examination by an alleged abuser is allowed to occur. However, abolishing the system is not the answer. Family law has already seen significant reform and will continue to improve with greater funding as a result of increased research on key areas of focus such as family violence.

If you have a family law matter that you want to discuss, or are currently going through the Family Court, contact us on 02 8917 8700 to discuss your matter further.

 

Marriage has often been jokingly referred to as ‘the old ball and chain’. However what happens when the marriage you enter into is inflicted on you without your consent?

Everyday around the world millions of girls are being forced into marriages against their will. They are threatened, coerced and deceived into situations that may be likened to a form of modern day slavery. Forced marriage occurs when an individual is entered into a marriage without their full and free consent. The consequences of forced marriages are devastating; with physical abuse, sexual assault and family violence a horrifying everyday reality. Victims often find it difficult to leave abusive situations due to immense familial pressure and social stigma associated with divorce or separation.  In addition, in communities where there is a higher incidence of forced marriage, there is often a lack of education or access to protective agencies which results in the creation of a vicious cycle.

So what is being done about it?

Forced marriage is a crime under Australian law. Under s.270-7B of the Commonwealth Criminal Code, forced marriage is a criminal offence which carries a four year jail term. This is upgraded to 7 years if aggravated. These amendments were introduced to combat the rising incidences of forced marriage and human trafficking in Australia. However, in reality the success has been limited. This is because the victim is often unwilling to partake in the prosecution of their own family members.

In responding to this sensitive situation, it may be worthwhile examining the UK’s Forced Marriage Unit (FMU) in order to formulate a more effective way to assist the situation in Australia. The FMU provides a telephone helpline that provides advice and assistance to victims. This encompasses the entire scope of the situation, including:

The importance of a helpline service, as opposed to criminal prosecution through police intervention is in providing a service to monitor the situation.

A Forced Marriage Order can be granted if there is a risk of forced marriage. There is a criminal penalty of 5 years imprisonment if the orders are not complied with. The benefit of this order is that it is preventative as opposed to the punitive measure as enacted by Australian legislation, and this better reflects an understanding of the delicate family situation faced by victims of forced marriage. The adoption of a similar service in Australia may be a right step in the direction of preventing forced marriages.

In the event that you are already in a forced marriage, Australian law has measures that can help you restore your freedom. Under Section 23(1) of the Marriage Act 1961 (Cth), a marriage will be annulled or declared void by the Family Court if it was found that the marriage occurred as a result of:

This means that if you were forced into a marriage against your will, then you can seek to have your marriage declared invalid under Australian Law.

Although Australia has made progress in addressing the issue of forced marriage, there is still a long way to go.

If you are in a forced marriage or have concerns about the welfare and safety of a friend or family member, please do not hesitate to contact Freedman & Gopalan Solicitors on 02 8917 8700.

 

‘Why did you buy that for?’ A seemingly innocent enough question, but once you look behind the surface an entire world of control and coercion emerges. Financial abuse is tactic by which abusers seek to gain control over a relationship by controlling a partners finances in order to regulate their behaviour and prevent them from leaving. In an article released by the National Network to End Domestic Violence it has been articulated that financial abuse occurs in 98% of abusive relationships and surveys of domestic abuse survivors indicate that the fear of an inability to provide for themselves and their families was one of the top reasons for staying in an abusive relationship (link). All over the country millions of women are being financially abused, yet it remains one of the least recognised and understood forms of abuse.

So how do you know if you’re being financially abused?

Financial abuse has very real consequences and may result in feelings of helplessness, a complete loss of autonomy and leave you feeling forced to stay in a situation you know is bad for you. It also has significant monetary implications and victims of financial abuse are often left in situations where they have no means to support themselves and this may result in bad credit scores, an inability to seek loans, loss of employment opportunities and homelessness. If these signs signal a red flag in your relationship, it may be time for you to recognise that this is not okay and you can find the help you need to escape this vicious cycle of abuse.

If you are in a similar situation or wish to know more about financial abuse, please do not hesitate to contact our offices on 02 8917 8700.

Mittu_IT47806-copy.jpg

Every year, the India Australia Business & Community Awards (IABCA) celebrate Indian entrepreneurship within Australia and commemorate the extraordinary efforts of Indians who are making a real difference to the community in their professional capacities.

For almost two decades, Mittu Gopalan has demonstrated exceptional and progressive leadership in the business sector. Acting as the sole principal of Freedman & Gopalan Solicitors, Mittu works consistently to attain justice for those who find themselves in unjust situations and deliver pragmatic, tailored solutions for her clients. After Harry Freedman’s death in 2015, Mittu has tackled each problem she has faced with perceptiveness and determination, rising above adversity to reach the goals they both had envisioned for their business. An embodiment of the firm’s motto of “People over Profits”, Mittu personally ensures that each of her clients are given the highest standard of professional service at minimal cost. Mittu’s compassion for her clients, drive to instigate meaningful change and innovation have seen her achieve great success in both Australian and international contexts. As such, Mittu is one of the leading businesswoman and solicitor in Australia, inspiring young women who are striving for success in the legal profession.  She balances her professional life and family commitments with equal compassion and effort.

Mittu’s incredible achievements as an entrepreneur make her highly deserving of the honour to be short-listed as a Finalist for the IABCA’s ‘Businesswoman of the Year’ Award 2016.

Results will be announced on Friday 28 October 2016.

 

After a long ordeal of almost two long years, a Sydney mother has been reunited with her 7 year old son.

The father who was estranged from the mother had allegedly kidnapped and taken the son to India on the basis that he wanted to attend his brother’s wedding in mid-2014.  However after the wedding, the father announced to the mother that he did not wish to return to Australia nor did he wish to return their son to her. He indicated that mother and son could only be reunited if she was willing to resign her work in Australia and be prepared to join him and his parents in India along with their daughter.

Our client realised that she was in a terrible marriage and that her husband had in fact tricked her and left for India under false pretences taking their 4 year old son with the intention of never returning.  To make matters worse, our client also discovered that he had depleted their bank account. Our client experienced significant challenges in maintaining a harmonious relationship with her husband’s in-laws and as a result she did not feel it was safe to return to India with her 2 year old daughter.

In light of the ongoing marital issues and the fact that the father had taken the son in a deceitful manner and had refused to allow her son to travel back to Australia, the mother commenced proceedings.

Proceedings in Sydney

Proceedings were commenced in Family Court of Australia in early 2015 and Orders were obtained whereby the father was required to return the child to the mother to Australia immediately.  However as India is not part of the Hague Convention, the Orders obtained from Australia were unable to be enforced.

In light of this impediment, we assisted our client and facilitated the commencement of proceedings in India against the father in order achieve the outcomes of the Family Law court order, namely the return of the child to the mother.

Proceedings in India

After a year of protracted legal proceedings in India the Family Court in India handed down a Judgment in favour of the mother confirming that the son should in fact be handed over by the father to the mother.

The Strength of a Mother

Though the above case appears straightforward and uncomplicated, our client had had to deal with a number of significant challenges simultaneously. Our client had to deal with:

However this determined and amazing mother rose to challenge and hurdles that was generated through each of these situations and demonstrated remarkable tenacity and resilience to achieve a just outcome both here in Australia and India.

This is a remarkable story of a mother who faced numerous ordeals and demonstrated a woman’s determination, commitment, belief, and most importantly faith in the system to show that no forces or evils can in fact keep her doting children away from her.

To the world she might be an common, middle class mother but to her children and to all who know her, she is the unsung hero.

A Wonderful Result

Freedman & Gopalan has been honoured to have had the privilege of being the mother’s legal representatives in Australia and a close partner and advisor through the protracted proceedings in India, that were managed through our associate entity in Kerala, India.  It is pleasing to that our year long relationship resulted in justice being delivered, and at the end of the day, a long lost son was in fact reunited with his mother.

We at Freedman & Gopalan take pride in helping people with the challenges that life throws at them, and delivering hope and justice when all seems lost.

We take a caring and compassionate approach to helping those in need, providing: pragmatic counsel; cost effective solutions; and working with an ethos of “people before profit”.  As demonstrated in this recent case, we are there for our clients.

She has waited it out for months but the day has come. She has finally escaped. But what now? She is turned away from several places of refuge on account of the long list of women waiting before her. It doesn’t matter. Days later she is stabbed to death with a pair of scissors.

This is the story of a real woman, and it is not as uncommon as we would like to think.

The urgency and horror that lurks behind these stories is coming to light and it appears that the NSW Government is finally seeing it.

Women and children who are victims of domestic violence in NSW will soon be able to leave their homes faster and seek refuge without a penalty for abandoning a rental property. The change is among reforms to residential tenancy laws set to take place in early 2017. The effect of these laws should improve and increase the options for victims of domestic violence.

As it currently stands, a victim of domestic violence in a fixed lease situation must provide 14 days’ notice to their landlord, in addition to a final apprehended violence order (AVO), which can take approximately 12 months to obtain. This doesn’t include the potential liabilities that the victim may incur, such as being blacklisted on tenancy databases.

Innovation and Better Regulation Minister, Victor Dominello, has stated that “this is an unacceptable and often burdensome process for people living in dangerous situations”.

These reforms will have the power to prohibit agents and landlords from listing a victim of domestic violence on a database where a debt or property damage arose because of a violent partner. Further, they should move towards changing the list of reasonable excuses to change locks in order to prevent a tenant from domestic violence.

These proposed changes will also recommend that NCAT be given the right to ensure that the perpetrator is liable for damage to a property arising from domestic violence, regardless of whether they are listed on the lease agreement.

In bring this serious issue to light, movements towards raising awareness and ending domestic violence such as the Counting Dead Women Project, have highlighted the need for legal action. It is evident from the statistics that the current tenancy laws are not operating to protect these victims.

These reforms send a clear message: women should be allowed to feel safe in their homes or given the right to leave without punishment.

If you are in a similar situation or wish to know more about the proposed reforms to tenancy laws, please do not hesitate to contact Freedman & Gopalan on 02 8917 8700.

envelopephonemap-marker