Separation is often a ‘catastrophic loss’ to either one or both parties. Adjusting to separation presents complications on many levels, such as self-esteem issues, financial security, friendships, loss of a family unit and the transition to living alone.
One party may be ‘blindsided’ by the separation when they find their partner/Wife/Husband has left a note on the kitchen bench stating that they have had enough of the marriage/relationship, left the family home to their parents and have also taken the kids.
Even parties who agree to amicably separate find it difficult to adjust to their new surroundings/environment, and emotions are fuelled when a party changes their position regarding the division of property despite both having agreed for ‘one to keep the house and pay the other out’.
Whilst many cases are settled outside of Court, stress and anxiety increases exponentially when parties are required to go to Court, especially matters involving children.
Emotions may fluctuate on a day-to-day basis or week-to-week basis. The thought of the family law proceedings weighing on one’s mind whilst they attempt to work or attend social outings affects the atmosphere and attitude of a person.
In the event that you do find yourself in this ‘pressure cooker’ environment, avoid substance abuse and reverting to alcohol to ‘ease’ the tension. Remember to focus on your psychological, emotional and physical well-being by seeking professional help with mental health professionals and doing physical exercise.
Whilst family lawyers make every attempt to make the separation process as smooth as a transition as possible and provide support in times of need, they are not trained counsellors/psychiatrists.
It is important to remember that stress is normal, but if you feel stressed and anxious all of the time, this may lead to depression and other mental health issues if not addressed.
Should this be the case, there a number of organisations that offer support and advice, including but not limited to:
Family Relationship Advice Line
If you have any queries in relation to the issues raised in this article, please do not hesitate to contact us on (02) 8999 9837, or fill out the enquiry box and we will get back to you ASAP.
If you are over the age of 18 and do not have a Will, please consider attending to preparing one as soon as possible. As you are aware, it must be a written document outlining your wishes in relation to how your assets should be distributed subsequent to your debt. The document should be witnessed by two independent witnesses and should also outline who your Executor/ Executors would be.
Of course, dealing with debt and managing the Estate of the people who we love are two things most of us hate to think about. However, it is imperative that you think about your options as to how it should be distributed after your debt so that all your hard-earned money and assets can in fact be left for your loved ones rather being taken by your Trustee or distributed according to the eligible persons applying for any interest in the Estate.
What more can a Will include apart from money and assets?
In this day in age, a Will should also include digital assets, frozen eggs and sperms, social media and pets.
The things to consider should also include your assets that you may have forgotten to include otherwise. For example, when it comes to Facebook, would you want your account closed or become memorandum after your passing? Do you have a Facebook business page that would need to be managed? Accordingly, the Legacy Contact is the person you can appoint in your Will and who can access your account and carry out your wishes in the event your death occurs.
Do you have a Paypal account, a Bitcoin balance, investments in Acorns or an Ebay store?
If any of these accounts are of value or holds money in them, then you need to stipulate what happens to those accounts including who will manage them and have access to them after your death.
If you are a photographer or a blogger, your writing or images can be part of intellectual property and as such, you will need to incorporate these properties into your Will.
Do you have pets?
If so, those fury mischief makers should be dealt with in your Will. Otherwise, pets of deceased persons may end up in rescue centers where they rely on the goodwill of strangers to provide them with a foster home.
Do you anticipate having children in the future?
If you are young and anticipate having children in the future, it would also be wise to have your eggs or sperms frozen so that in the unfortunate instance of your spouse or partner passing away, he or she then provides you access to that property in order for you to have children subsequent to that person passing away.
It is imperative that you consider your options before finalizing your Will. If you wish to amend your Will or reconsider your Will being redrafted, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box, and we will get back to you ASAP.
We recently hosted a free legal workshop covering the areas of the law that affect us all in our daily lives. Topics included wills, family provision claims, family separation, cyber-bullying, domestic violence, children and welfare.
Dates:
- 15 March 2019: 12pm-4pm
- 16 March 2019: 9am-1pm
Location:
- The Connection, 30 Shoreline Drive, Rhodes (only 600 metres from Rhodes Station)
Share our Flyer with your family, friends and community.
Our Speakers
Sanjay Deshwal
Sanjay Deshwal heads up the Australian Visa & Migration Consultancy Services, which specialises in temporary and permanent residency visa applications onshore and offshore for Australia, New Zealand and Canada.
Since 1996, Sanjay has successfully assisted thousands of individuals and families to obtain permanent resident or temporary visas in Australia, New Zealand and Canada. Sanjay is an experienced professional who is always up to speed with the ever-changing immigration laws in Australia.
Dr Kiran Jassal
Dr Kiran Jassal is passionate about women’s health and family wellness. She has been working as a family GP for over 25 years after graduating from Sydney University.
In her practice, she has seen the need for women to look after their mental, emotional and physical well-being so as they are able to thrive in their intense daily lives.
In her career, she has had the opportunity to work with women and families from a range of different cultural backgrounds and is acutely aware of the challenges they face.
Kiran is a member of Lean In Inc, a not for profit association that is dedicated to the empowerment of new migrant women.
Deep Mitra
Deep is a Chartered Accountant from the Institute of Chartered Accountants in Australia & New Zealand. He is also a fellow Chartered Accountant (CA) and Cost & Management Accountant (ICWA) from India. He holds a practicing CISA designation from ISACA, USA.
Deep started his career with AF Ferguson in Mumbai before moving into financial consulting in Dubai specialising in market entry structuring. He spent his next 10 years in Sydney with the ING Group and with the National Australia Bank in SOX and in Financial Governance. In between, he did a 2 year secondment at ING Asia Pacific regional office in Hong Kong. Deep has extensive experience in structuring market entry into Australia, taxation, regulatory compliance and auditing.
Linda Lemon
Linda is a caseworker at the Lisa Harnum Foundation supporting and empowering families affected by domestic abuse. Lisa is also the Secretary of the Hills Domestic Violence Prevention Network.
Lisa was born in New Zealand and has lived in Australia for 37 years.
Linda has 17 years of working within non-government organisations (NGO’s), ranging from Special Homelessness Service, and in a non-government protection role in Western Sydney. It is through the differing roles within these services, Linda believes has contributed toward her becoming skilled, informed and has grown her as an individual and as a worker.
From this experience Linda has been able to gain significant insights into the coal face issues that are facing individuals accessing services. In addition, the challenges workers face as they seek to deliver services to their clients.
Linda is currently working with women and families experiencing and escaping domestic violence, through her role as The Lisa Harnum Foundation Caseworker. The Foundation focuses on walking the journey of love, hope and freedom, placing value, worth and purpose on the women and children impacted by the trauma and devastation of domestic violence.
Linda is passionate about building and linking other services within the Hills District as she holds a strong belief that services working together, in a holistic approach, can only benefit those who are seeking help.
The Hindu Council of Australia this weekend has announced that Mittu Gopalan is the Winner of Gargi Women Award 2019 - Performing Arts.
Mittu Gopalan finds time for her passions and pursues them, despite being a successful lawyer and managing a business.
Mittu also conducted a painting exhibition in November 2017, and has donated paintings to charity (see our blog post on that subject here).
Congratulations Mittu! We are extremely proud!
New legislation has been passed that prohibits foreigners who have been convicted of domestic violence from entering Australia. The Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 has amended the Migration Act 1958 to focus on perpetrators of violence against women and children. Immigration Minister David Coleman said;
“Wherever the offence occurred, whatever the sentence, Australia will have no tolerance for domestic violence perpetrators.”
This legislation was passed as the previously existing laws only allowed the Government to revoke Visas of foreigners who failed a character test or who had spent 12 months in jail.
Though previously in 2015, singer Chris Brown was refused an Australian Visa for his planned concerts due to his 2009 conviction of assault and threatening to kill his then-girlfriend Rihanna, it was not common practice for the every-day person to be refused a Visa for Domestic Violence convictions.
However, we are pleased to note that this has now been written into the Migration Act to protect Australians and focus on reducing the number of Domestic Violence incidents in Australia.
If you have been affected by domestic violence, or have any queries in relation to the issues raised in this article, please do not hesitate to contact us on (02) 8917 8700, or fill out the enquiry box and we will get back to you ASAP.
Our free legal workshop on 15-16 March will cover domestic violence issues. Please consider coming along, and registering here - you can remain anonymous.
A well drafted ‘Will’ can also be contested if one feels that they have been left out of the ‘Will’ or if they have not been adequately provided for their proper maintenance, education and advancement of life. The claim that they have on the estate is called the Family Provision Claim and these claims are very common in the current age of longer life expectancy, divorce, multiple partners, step children and blended families.
The time limit for an individual to apply for the claim is very crucial and is ‘12 months’ within the death of the deceased person, unless the Court orders otherwise.
A family provision claim can only be made by an eligible person as defined in section 57 of the Succession Act 2006 (NSW).
The following are few factors that the Supreme Court considers while accessing a family provision claim;
- If you are an eligible person as defined in section 57 of the Succession Act;
- The size of the estate of the deceased ;
- The applicant's financial circumstances and needs;
- Financial circumstances and needs of the other beneficiaries;
- Any other provision made for the applicant during the deceased’s lifetime.
- Any other factors that the Court deems fit.
The Court dives deep into the actual “need” for the applicant’s claim in the deceased’s estate in order to lead a comfortable life and that the applicant is not able to meet their financial requirements from the applicant's own resources.
If you think that you have been left out of a 'Will', and would like some advice about contesting an estate ('Will'), please do not hesitate to contact us on 02 8999 9837 or fill out the enquiry box and we will get back to you ASAP.
The general public usually assumes that the division of assets should be a 50/50 split between the parties who are separated and intend to finalise their financial relationship.
This is not always the case. The Federal Circuit Court and Family Court take into consideration various factors when determining a division of the matrimonial asset pool, which are as follows:-
1. The initial step would be to determine the net value of the matrimonial asset pool.
Whilst real estate is generally the most significant asset of the matrimonial asset pool, it is not the only asset. Other assets also include bank accounts, motor vehicles, real estate etc. Even personal items such as luxury handbags and jewellery, depending on the value, can be included, or a person’s share in a company, for example, a construction company.
Assets owned solely by a party, jointly with each other or even jointly with a third party are to be included.
The net value of the asset pool is to be determined. Therefore, liabilities, such as credit cards and finances secured over motor vehicles, are also taken into consideration. The total assets minus the total liabilities would equate to the net value.
Also, superannuation is also taken into consideration by the Courts. However, it is best that you seek legal advice from an experienced family lawyer in relation to the Superannuation Split.
2. Contributions made by each party throughout a marriage or de facto relationship are also taken into consideration.
These include financial contributions, such as one partner earning an income, and the non-financial contributions (or equitable contributions) made by a party in their capacity of a homemaker, such as caring for the children and carrying out the household chores.
3. Future Considerations.
The Court will also take into account future considerations, i.e. relevant future factors, including but not limited to:-
- Age and health of the parties;
- Income earning capacity of the parties; and
- Whether one party is to be the primary carer of the children.
4. Last of all, the Court has to determine whether the division is 'just and equitable'.
This decision is at the discretion of the Court and simply put, should the Court think that making a division, even if it is agreed upon between the parties, is unfair and inequitable, it may make an adjustment to the ‘disadvantaged party’ which it determines to be fair.
Once the Court takes into consideration of all of the above (and more) and essentially ‘balances out’ all of the relevant factors, it can make orders that it deems to be within the parameters each party is entitled to. The purpose of the division of the matrimonial asset pool is to finalise and sever once and for all the financial relationship of the parties so that they can move on their own separate ways without any further connection between them in relation to property.
This article is general advice and does not take into account your personal circumstances. It would be prudent to obtain legal advice in relation to your particular circumstances.
Our Firm is holding a legal workshop on 15 and 16 March 2019 and we will be discussing various issues including this topic and the best thing – it’s for free! Hence register your interest now by clicking here.
The High Court has recently decided that the debt of one spouse may be transferred to the other during a divorce property settlement. In the case of Commissioner of Taxation v Tomaras, it was decided that the Family Court can give orders to the Australian Tax Office (ATO) as part of the determination of a divorce-related property dispute.
In this case, Mr and Mrs Tomaras were married from 1992–2009, during which time Mrs Tomaras accrued debts of $250,000 owing to the ATO. After the breakdown of their marriage, Mr Tomaras became bankrupt. In December 2014, Ms Tomaras commenced proceedings in family law, and when the Taxation Commissioner intervened, seeking the $250,000. Ms Tomaras sought orders to substitute her ex-husband for herself as the debtor.
This recent High Court case then decided that the Family Court could indeed make the order Ms Tomaras sought. This was due to s90AE(1) of the Family Law Act 1975 which allows the Court to make an order binding a third party – in this case, the ATO. The order bound the ATO to substitute the husband for the wife in relation to the debt. Here, it did not make a difference that the husband was bankrupt, and that the Taxation Commissioner is now potentially $250,000 out of pocket.
Cases like this are unlikely to be common, as they will only occur when one spouse has been unwilling to share the burden of taxation during the relationship, and in cases where it would be ‘just and equitable’ to make this order. This will only occur when the person who originally owed the debt is unable to pay it. Nevertheless, spouses should be aware that they may be responsible for their partner’s taxation penalties and/or liabilities, even after separation.
If you have any queries relating to divorce property settlements, or any of the issues featured in this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.
From the 12 December 2018, all employees are entitled to take unpaid leave as a result of domestic violence.
WHAT IS FAMILY AND DOMESTIC VIOLENCE?
Family and domestic violence refers to violence, abuse and intimidation between family members as well as people who are or have been in an intimate relationship.
Historically, family and domestic violence has been considered a taboo subject. An issue not to be discussed and its existence was to be hidden behind closed doors. Fast forward to the present, public perceptions surrounding family and domestic violence has slowly, but surely, developed. With increased social awareness of its effects, family and domestic violence is now considered a major health and welfare issue.
WHAT IS THE NEW ENTITLEMENT?
Under the Fair Work Amendment (Family and Domestic Violence Leave) Act 2018, all employees are entitled to take 5 days of unpaid family and domestic violence leave per year.
WHO IS ENTITLED TO UNPAID LEAVE?
As of 12 December 2018, the entitlement has been extended to all employees. This includes part-time and casual employees.
WHEN CAN YOU TAKE THE LEAVE?
Employees are entitled to take 5 days leave from work, allowing them time to deal with the effects of family and domestic violence. This will enable victims of family and domestic violence to access medical, counselling and police services, as well as time to relocate and attend court hearings during work hours.
NEXT STEPS FOR AUSTRALIA?
The new entitlement is reflective of Australia placing an increased focus on domestic violence and the effects it has on its victims. However, the grim reality is that family and domestic violence is still a major issue throughout Australia today. According to the Australian Institute of Criminology, one woman a week is murdered by her current or former partner. Advocacy group, White Ribbon Australia, encourages the creation of a national homicide review panel so that we, as a country, may work toward preventing future instances of domestic homicide.
If you are a victim of family or domestic violence, or have any queries relating to the issues featured in this article, please do not hesitate to contact us at any time on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.