Can my property lawyer act on my divorce?

Conflicts between you and your former solicitor can arise in family law matters.  Your lawyer or law firm may have acted for you and your partner over a period of years, perhaps when you bought a property together, or sold a business. Your lawyer may have even drafted your wills.

Following a breakdown of marriage and the commencement of a property application under the Family Law Act 1975, you may ask whether it is proper for your previously shared lawyer to act for you against your partner.  Generally a strict approach is adopted in this regard as family law matters can be highly sensitive.

In the case, In the Marriage of Thevenaz (1986) 84 FLR 10, the husband sought orders restraining the wife’s lawyer from acting.  The wife’s lawyer had been a partner in a firm that had acted for both parties on the purchase of their house almost 10 years earlier, the subsequent sale of that house and the purchase of the matrimonial home.  Even though the wife’s lawyer had not personally acted on the property matters,  had no knowledge of the files and had never actually met the husband, it was found that the wife’s lawyer could still not act.  The reason was that the property files disclosed information that was different from the instructions given by the husband to his current solicitors and that he could be embarrassed by the disclosure of the information.  The wife had to find another  lawyer.

One way around the conflict issue is for your lawyer to create an information barrier.  However, this will only be effective if it eliminates any real and sensible possibility of misuse of your confidential information.

To establish an effective information barrier, a law firm needs to comply with the ten guidelines laid down by the Law Society of NSW in its publication ‘Information Barrier Guidelines, Council 16.3.06‘.  In summary, the firm should:

  1. Have documented protocols for the information barrier;
  2. Nominate a compliance officer to oversee the information barrier;
  3. Ensure that each client affected by the ‘conflict of interest’ acknowledges in writing that the Firm’s duty of disclosure to these clients does not extend to any confidential information which may be  held within the Firm as a result of the earlier matters and consents to the Firm acting on that basis;
  4. Ensure that any solicitors who have worked on your previous matter are identified and recorded as ‘screened persons’ (as defined in the Barrier Guidelines);
  5. Ensure each screened person provides an undertaking to the Firm that:
    a. they will not have any involvement with the client(s) or personnel involved with the current matter;
    b. they have not disclosed and will not disclose any confidential information about the earlier matters to any person other than a screened person or the compliance officer;
    c. they will immediately report any breach or possible breach of this undertaking to the compliance officer;
  6. Ensure personnel involved with your current matter should not discuss the earlier matters with, or seek any relevant confidential information about the earlier matters from, any screened person.  Such personnel should provide undertakings confirming that:
    a. no confidential information about the earlier matters has been disclosed to them;
    b. they will not have any involvement with a screened person for the purposes of the current matter;
    c. they will not seek or receive any confidential information about the earlier matters from a screened person or in any other way; and
    d. they will immediately report any breach or possible breach of this undertaking to the compliance officer.
  7. Ensure there are strict and carefully defined procedures for dealing with any contact between personnel involved or any other crossing of the barrier; and ensure there is a physical segregation of the personnel involved;
  8. Effectively protect the confidentiality of all correspondence/documents related to any earlier matters, including storing files in a secure place and using technology to protect access to electronic files, so the same can only be accessed by the screened persons and/or the compliance officer;
  9. Ensure there is an ongoing information barrier education program in place; and
  10. Ensure the compliance officer monitors the effectiveness of the barrier and that there are disciplinary sanctions for any breach of the above.

An easy and effective way of ensuring that conflicts don’t arise in your matter is to seek the services of a specialist in the area of family law that you are in need of.  At Doolan Wagner Family Lawyers we specialise in family law matters.  If you perceive a conflict arising, call us to discuss your options on 02 9437 0010 or email us at enquiries@familylawyersdw.com.au to arrange a confidential discussion.

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.

Divorce, Nullity and Annulment

Divorce, nullity and annulment are words that are often used interchangeably by people seeking to end their marriages. In Australia divorce, nullity and annulment have very different legal meanings and each of these avenues must be approached in very different ways.

Do you know the difference?

Divorce

Divorce marks the legal end to your marriage. It dissolves a valid marriage according to civil law. Since the Family Law Act 1975 established the principle of a no fault divorce the only ground for a divorce in Australia is the irretrievable breakdown of the marriage. Long gone are the days of private investigators peering over backyard fences to prove infidelity. Now, you simply need to establish that you have been living separately and apart (even if under the one roof) for at least a period of twelve months prior to filing an Application for Divorce.

Parties are regarded as living separately and apart under one roof when they separate if they continue to physically live in the same home. This may occur because financially they cannot afford to separate and maintain two separate homes or because there are children of the marriage who would be to disadvantaged at that time by having their parents live separately.

When parties live separately and apart under one roof and make an Application to the Court for a Divorce they are required to provide extra information. This information is contained in an Affidavit. The information in the Affidavit satisfies the Court that there has been a change in the marriage and the parties have separated. It is also sometimes necessary that an independent third party provides a supporting Affidavit which sets out what they knew about the parties separation. Some of the information required in the Applicant’s Affidavit includes:

  1. What changes have taken place in respect of sleeping arrangements, such as no longer sharing a marital bed and now sleeping in separate bedrooms or in separate beds.
  2. How there has been a reduction in shared activities or family outings, such as not attending “family lunches” with each party’s extended families or parents taking turns to take the children on outings but not going on those outings together as a family.
  3. How the parties have reduced undertaking household responsibilities for each other, such as cooking and washing laundry only for themselves.
  4. Whether there has been some division of finances, such as each party opening and operating their own separate bank account and using this money to meet their personal costs.
  5. Whether you have told family and friends of your separation.
  6. Why you have continued to live in the same home after separating and whether you have any intentions of changing those living arrangements.
  7. Any government departments you have advised of your separation such as Centrelink or the Child Support Agency.
  8. The arrangements made for any minor children whilst you have been living under the one roof.

The Court is interested to know what care arrangements have been put in place for children following separation and whether the parties are contemplating any changes to those arrangements after obtaining their Divorce. A child of the marriage includes:

  1. any child of you and your spouse, including children born before the marriage or after separation; or
  2. any child who was treated as a member of your family prior to separation such as an adopted child, step-child or foster child.

Some of the issues surrounding care arrangements for each child that are considered relevant by the Court include:

  1. Where the child lives and who the child lives with, such as new partners, grandparents, other children or an independent third party like a housemate. If a child lives with both parents in a “shared care” arrangement then information should be provided in respect of both homes.
  2. Whether one party spends time with and/or communicates with the child but they do not actually live with that person.
  3. Who financially supports the child and in what way.
  4. Whether the child is healthy or suffers from a health condition and what treatments (if any) the child is receiving.
  5. How the child is being educated and how they are progressing with their education.
  6. Any other matter which the Applicant believes the Court ought to know about the child.

Nullity

Asking the Court for a decree of nullity is asking the Court to find that there never was a valid marriage. The Court can only make a finding that there never was a valid marriage in very limited circumstances. These circumstances are:

  1. That the couple were too closely related to be allowed to marry. Details of what relationships are regarded as “too close” are contained in the Marriage Act 1961. In recent years these rules have been relaxed so now aunts, uncles and cousins are free to marry each other.
  2. That the actually marriage ceremony was a fake. This may happen if:
    2.1.  A completed Notice of Intended Marriage form, which is required by law, is not given to a marriage celebrant at least one month before the wedding or is given more than eighteen months before the wedding.
    2.2.  An unauthorised celebrant performs the marriage. Only an authorised celebrant can legally perform a marriage. There are three kinds of authorised celebrants being Commonwealth-registered marriage celebrants, Ministers of religion of a recognised denomination who perform religious ceremonies and State officials who perform civil ceremonies.
    2.3.  The marriage took place overseas and was not recognised as valid under the law of the country in which it took place at the time it took place and/or the marriage would not have been recognised as valid under Australian law if the marriage had in fact taken place in Australia.
  3. That at least one of the parties did not provide a real consent. The types of things that enable a party to prove their consent was not forthcoming include:
    3.1.   Where there was a mistake as to the identity of the other person or a total lack of understanding as to what the ceremony actually was; or
    3.2.  One of the parties did not have the mental capacity to understand the nature and effect of the ceremony; or
    3.3.  The marriage was obtained by duress or fraud.
  4. That one of the parties was not of marriageable age, which is defined in the Marriage Act 1961as being eighteen (18) years of age. Permission to marry after the age of sixteen (16) years may be obtained from the Court.
  5. That the marriage was bigamous i.e. because one of the parties was already married to someone else at the same time.

Annulment

An annulment is most widely understood as being a religious declaration. Broadly speaking an annulment recognises that even though a marriage was valid (and even if children are borne to that marriage) the union or bond of the marriage did not come into being. This can be the case even if there is a great deal of love, commitment and genuineness in the marriage.

An annulment does not have any effect in civil law i.e. it is not a divorce.

An annulment is a request made to a religious body asking that religious body to find that at least one of the parties to the marriage lacked the capacity to enter into the sacred bond or union of marriage. In this process the Church, Synagogue or other religious body focuses on somewhat different considerations including the level of the parties’ maturity at the time of the marriage, their ability to act responsibly and independently, their level of freedom and their ability to resist outside influences.

In some religions it is also necessary to apply for a “religious” divorce which is recognised by the religion in addition to applying for a Divorce through the Court. In Islam this is known as talaq and in Judaism as a get. These religious divorces are granted by a religious body upon request but do not have any effect in civil law i.e. it is not a recognised legal divorce.

If you would like to know more about divorce or want to talk about the possibility of being successful in securing a declaration of nullity from the Family Court, then get in touch with us at Doolan Wagner Family Lawyers by calling 02 9437 0010 or emailing enquiries@familylawyersdw.com.au to arrange a confidential discussion. We guarantee that we can help you.

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.

Divorce Costs Rise After 2015 Budget

Family law costs are understandably a big consideration for a couple when they separate.

Putting aside for a moment the costs of your family lawyer, court fees in the Federal Circuit Court and the Family Court place a significant financial burden on families facing separation.

If you are looking to file an Application for Divorce in the Federal Circuit Court a filing fee of $845 is presently payable. Unless you qualify for the limited fee relief that is available these court costs are payable whether you file the Divorce Application solely or jointly with your former spouse.

Fees are also payable to the Court at various stages of all family law proceedings. Currently these fees include:

  1. A fee of $320 if you wish to file an Initiating Application in the Federal Circuit Court for parenting orders;
  2. A fee of $155 if you wish to file Consent Orders in the Family Court;
  3. A fee of $55 if you wish to issue a Subpoena in the Federal Circuit Court; and
  4. A fee of $805 per day if you are the Applicant in Family Court proceedings and your matter is listed for final hearing.

It is easy to believe that these court costs quickly add up and over time, if your family law matter does not resolve, these fees can amount to thousands of dollars.

The 2015 Federal Budget Papers reveal that from 1 July 2015 the Government is looking to raise these fees even higher.

What will this mean?

It is yet to be seen what impact these anticipated fee hikes will have on separating families.

Most likely huge jumps in family court fees will further impair access to justice for many already marginalised families.

This may spur separating couples to explore alternate dispute resolution and other “out of court” options to resolve their family law disputes. Increasingly we are seeing family mediation and collaborative practice as popular avenues for separating couples looking to keep their family law costs down. Our divorce lawyers are highly experienced in “out of court” family law settlement negotiations.

The increase in fees may also act as a greater deterrent to some families making them less likely to properly document their negotiated agreements in Consent Orders. As a consequence many families may miss out on the necessary protection and certainty that Consent Orders can provide.

Choosing not to document a family law settlement properly can have long lasting, serious and unintended consequences. It may mean that your former spouse comes back down the track and tries to make a claim against you or even your Estate when you thought that “that part of your life” was behind you. Without a property settlement being formally documented you will not have available to you many stamp duty and other tax concessions that may otherwise apply.

It can only be hoped that some of this revenue raising will be returned to the Court itself and provide crucial additional funding necessary to adequately resource the Court’s administration. In turn an increase in court resources may have the benefit of reducing the current waiting times that parties face when they separate and are required to approach the Court for relief.

Presently these delays in the Sydney Registry of the Family Court and Federal Circuit Court extend beyond a year. Many separating couples hope to resolve their matter quickly so that they can move forward with their lives. All court delays add to frustrate and undermine this desire to achieve an early closure after separation.

Even though we have very little control over the Federal Budget there are some steps you can take to manage these creeping court costs. If you would like specialist family law advice about your separation and divorce so that you can contain your overall legal costs then contact us at Doolan Wagner Family Lawyers on enquiries@familylawyersdw.com.au or call 9437 0010. We have Accredited Family Law Specialists and Registered Family Dispute Resolution Practitioners here to help you.

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.