How to Divorce, What happens to inheritances?

Separation and divorce is unique in every family. However, if you are separating there are often common issues that arise.

In my busy family law practice people often express disappointment to me about the lack of effort or work their former spouse undertook during their relationship.

This complaint does not seem to be particularly made by husbands or by wives and does not seem to only be an issue for parties that separate after a long marriage. It features as prominently after short-term relationships breakdown.

Occasionally certain types of endeavours attract a greater criticism. Business assets are one example of this. “She did nothing on the farm!” or “He never helped me with my bookkeeping…and he was an accountant!” are words I have heard on at least a handful of occasions.

How does the Family Court really assess contributions in a marriage? Is there a presumption that parties contributed equally to the growth and maintenance of their net marital wealth?

There is no presumption of equality of contribution in marriage when the Court considers how to divide assets upon a separation. This has been the law since Mallet v Mallet [1984] 156 CLR 605. Each case however must be examined on its own individual circumstances. In long marriages it is often difficult to persuade the Court that the contributions by the separating parties to the net matrimonial assets pool should be regarded as anything but equal. It is also often challenging to persuade the Court to include an inheritance, particularly a recent or a substantial one, into the pool without having particular regard to it.

When is a finding of parties contributing equally to a marriage made? The recent case of Talbot & Talbot [2013] FamCA 671 was such an example. In that case, the parties married in 1973 and had remained married for thirty one years. At the time of the hearing the husband was in his mid-sixties and the wife was approaching fifty nine years of age. They had both worked in agricultural enterprises and various real properties that they had accumulated during their long marriage.

At the hearing their net assets amounted to $1.5M, including superannuation entitlements. Some of these assets were held by the husband in a partnership with the adult son of the relationship. At trial the wife asserted that she had made contributions to the farming and real property businesses of the parties undertaking some administration, cooking and cleaning, filing and other like chores and devoting time and manual labour to each pursuit. The Trial Judge held that these contributions were both substantial direct and indirect contributions to the partnership assets.

In this case, each of the parties had received significant inheritances. The wife had inherited the sum of $148,000 and the husband had inherited the sum of $60,000. The Court chose not to quarantine these contributions but found that neither party had directly contributed to the other’s inheritance and in all of the circumstances awarded the wife 52.5% of the net matrimonial pool of assets and the husband 48.5% of the net matrimonial pool of assets. A relatively small adjustment of 1.5% was then made in favour of the husband because his future needs outweighed those of the wife including the Court taking into account the wife’s prospect of receiving a further significant inheritance down the track.

We have Accredited Family Law Specialists and registered Family Dispute Resolution Practitioners who can help you through the separation and divorce process. If you would like to talk about your particular matter and the very difficult and distressing issues you are facing then call me, Lisa Wagner of Doolan Wagner Family Lawyers on 9437 0010 or email me on enquiries@familylawyersdw.com.au

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

A Successful Family Law Mediation, Ten Top Tips

Are you separating? If you are then you may be considering family law mediation as a good option to help you sort through all the issues that you are facing. If you are considering family law mediation then keep reading as this article contains some valuable information about how to get the most out of any family law mediation process.

There are many sayings used in the building trade…one of them I am comfortable sharing with you today, it’s “measure twice and cut once” – it goes to the heart of the message that I am wanting to convey to you today, that is the importance of preparation. Preparation ensures the success of any event. You don’t win a gold medal at the Olympics by simply turning up on the day. It requires years of training, commitment and sacrifice (built on a huge amount of natural talent no doubt!)

The benefits of preparation are equally as valuable in family law mediation as they are in the building trade or in the elite sports arena so, to help you on your way to a more successful family law mediation here are my ten top preparation tips:

  1. Know your best and your worst outcome to a negotiated settlement. Get expert family law advice early on.
  2. Ask yourself beforehand “why has this family law matter not settled yet?”. Reflect on the timing of the mediation. Sometimes people are at different stages in the grieving process after separation and not yet ready to tackle all the hard issues.
  3. Get comfortable with the subject matter. If you are embarking on a family law property settlement discussion understand what you are talking about. Consider securing some accounting coaching before your joint meeting if you feel unsure.
  4. Understand your emotional triggers and where possible consider some personal counselling to help you work through those issues and develop sustainable and constructive strategies so that you can stay in control.
  5. Practice being empathetic and making the other person feel heard. You are more likely to achieve a “win/win” solution this way.
  6. Take care of practical issues. If you have the care of children on that day organise someone else to pick them up and look after them for you so that you are not distracted by outside issues.
  7. Have realistic expectations. If long term agreements are unlikely at the outset brainstorm a list of short-term goals….and prioritise them.
  8. Have an exit plan worked out early on and definitely before you arrive on the day. Taking greater care of the process can increase your confidence.
  9. Identify whether there are any issues for you that are non-negotiable. If so, don’t lose sight of these priorities. Keep going back to them in your mind before the mediation begins. In the throes of discussion you can sometimes lose sight of what was most important to you.
  10. Focus on the problem, not the people. Gather a list of possible third party experts you can call on if you reach an impasse. That way any roadblock may be navigated without ending up at loggerheads with your ex-spouse over an issue which neither of you know very much about.

Taking stock of these strategies before embarking upon a family law mediation will ensure that you are in the best position possible to reach a sustainable resolution of your family law matter.

At Doolan Wagner Family Lawyers we offer registered Family Dispute Resolution Practitioners  and we are also Accredited Family Law Specialists. If you would like to talk about your separation or how family law mediation may work for you and your family then call me, Lisa Wagner, on 9437 0010 or email me on enquiries@familylawyersdw.com.au.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

Separation, A 2014 report into Australian Family Law

If you have separated or are thinking about separating and are wanting to know what is going to happen next and how long the process is going to take then keep reading as this article contains some very useful information.

The Attorney General’s Department has recently released an extensive report “Post- Separation Parenting, Property and Relationship Dynamics After Five Years” to enquire into the long-term impact of the 2006 Family Law Reforms.

In summary, the 2006 Family Law Reforms were designed with the main objectives of:

  • Strengthening family relationships;
  • Preventing parental separation, where possible;
  • Encouraging both parents to remain involved in children’s lives after separation;
  • Protecting children from violence and abuse; and
  • Supporting families to avoid court proceedings when making parenting arrangements after separation.

Encouragingly, the report found that:

  1. Most mothers and fathers describe their post-separation relationship with their former spouse in positive terms, i.e. either friendly or cooperative. Less positive relationships were more commonly described as distant rather than conflictual or fearful.
  2. The frequency of communication between the parents after separation tended to reduce over time however in the majority of families taking part in the survey, separated parents were talking to their ex-spouses about their children on average each week.
  3. The majority of parents reporting emotional abuse by the other parent had reduced significantly over the five year period however many still describe being the subject of humiliating insults, circulation of defamatory comments and to a lesser extent knowing of the other party’s whereabouts.
  4. There was a reduction over time in the safety concerns about the children when in the care of the other parent. The large majority of those who continued to hold safety concerns at the end of the five year period had reported their concerns to authorities (e.g. police) or other services. The presence of mental health issues or alcohol and/or substance abuse was considerable among the group where safety concerns remained an issue.
  5. The majority of parents who used services for information and advice believed that such services and advice had helped them settle their family dispute after separation. The proportion who considered the service they received as the most helpful and of the greatest benefit were those parents who used a family lawyer.
  6. The majority of parents had sorted out their parenting arrangements during this period with the two most common parenting arrangements being either the children living with their mother for the majority of nights or in a shared care arrangement. Shared care arrangements were more common in primary and early secondary school aged children. In 6 out of 10 families those care arrangements had changed during the five year period that the survey focussed on.
  7. About 45% of parents had resolved their property dispute within twelve (12) months of separation and another 25% within two (2) years of their separation. The remaining 30% who took longer than two (2) years to resolve their property dispute tended to have a higher level of assets and required additional time to work through all the issues.
  8. Payments of child support were, in the majority of cases, paid in full and on time. However a significant proportion of paying fathers reported some resentment because they had no say in how the child support money was being spent.
  9. Parents reported favourably about their children’s wellbeing after separating including their progress in learning, peer relationships and overall development.

Further, there did not seem to be a strong link between the type of post separation “care time” parenting arrangements and a child’s wellbeing.

However, it is to be noted that a minority of parents continued to report significant difficulties. These included experiencing ongoing family violence and abuse, maintaining safety concerns about children and/or continuing to experience a conflictual and fearful post-separation relationship with their former spouse. In concluding the report noted that professionals in the family law system overall play a constructive and coordinated role in untangling the serious predicament that separating families can face. People experiencing a separation are significantly benefited by engaging family law experts to assist them right from the start.

At Doolan Wagner Family Lawyers we strive to assist our clients through the separation and divorce process each and every day. If you are separating and want professional help and guidance at each critical stage then call me, Lisa Wagner of Doolan Wagner Family Lawyers on 9437 0010 or email me on enquiries@familylawyersdw.com.au. We have Accredited Family Law Specialists who are experts in all areas of family law and are here to help you at this stressful time.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.