Separating Again? Know how

If you have recently separated for the second time or are thinking about leaving a long term relationship or second marriage (having already been separated and divorced before) there is important additional information that you should know about.

Firstly, you are not alone. Statistics indicate that second time marriages and long term relationships unfortunately have a greater chance of failing than first time marriages. It is hardly surprising given the additional pressure of a blended family that many second marriages face. There is no need to hide away and feel embarrassed in these circumstances because chances are that the person standing next to you is experiencing a similar thing.

Secondly, things have changed and one of the most significant things that have changed is you. If you are separating for a second time you are likely to be a fair bit older than what you were years ago when you went through your first marriage breakdown. You are probably less likely to have dependent children and probably more likely to have a shorter working life ahead of you. You may also be facing health challenges that did not play a part in the equation when your relationship or marriage fell apart the first time. All of these factors impact on your entitlements to a property settlement and also on any entitlement you might have to spouse maintenance so it is important to get it right.

Thirdly, there are often more options available to you the second time around. One of the more obvious ones (because you are likely to be older) is the ability you have to drawn on accumulated superannuation funds. This may take the form of a transition to retirement pension or alternatively seeking a superannuation splitting Order from your former spouse or a combination of both. Knowing how to maximise your superannuation entitlements and end up with the most money in your pocket is a specialised area and expert advice is essential.

Fourthly, a second divorce or separation can be an even greater balancing act than your first separation. This especially so if children are involved. Often couples separating for a second time have a more complicated family tree. They are probably going to be dealing with children from a previous marriage or relationship along with possibly one or more younger children from the marriage or long term relationship that they are in the process of leaving. Trying to be fair to everyone can leave you in the end being fair to no one… especially yourself. It is therefore critical to put yourself first and have a clear legal strategy in place to maximise your property settlement entitlements. This will help you provide for any other people you feel obliged to support or look after.

Fifthly, if you are leaving a second marriage or thinking about separating for a second time there is a good chance that you have played a significant part in raising your soon-to-be ex’s children from his or her first marriage. This may take the form of playing a “homemaker” or step-parent roll or perhaps you have contributed financially to the household bills and other costs that are incurred by your former ex’s children including access to a motor vehicle and tertiary education fees. If these scenarios come close to describing what your second marriage has been about then it is critical to set all of this out in your divorce. It counts. Contributions to children in a marriage, when you are not the natural or birth parent, count on your side of the equation. You will get extra credit for it and it shouldn’t be overlooked.

So, if you are separating for a second time or going through a second divorce it might seem as though the road ahead is strangely familiar and you feel a deep sense of déjà vu. But don’t make the mistake of thinking that it is going to be exactly the same as before because it probably won’t be. If you take note of these points you will probably find that your second separation and divorce will most probably result in a much stronger outcome for you.

If you would like to talk more about your particular situation or if you are thinking about separating for the second time or have recently separated and are contemplating your second divorce call me, Lisa Wagner of Doolan Wagner Family Lawyers on 9437 0010 or email me on enquiries@familylawyersdw.com.au to discuss your matter. We offer Accredited Family Law Specialists and are experts in this area.

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 and lottery wins, Do I have to share?

If you are going through a separation and want to reach a property settlement with your ex after you have received an inheritance or been lucky enough to win lotto you may be wondering how that money will be shared.

Separations involving dividing assets, and occasionally liabilities, between two parties are often referred to as property settlements. Sometimes the assets that are considered in a family law property settlement include lottery wins or even inheritances.

In a separation it is not unusual that particular assets are regarded by at least one of the parties as holding some special significance. Assets that are the result of an inheritance often fall into this category. Sometimes lottery wins are also similarly regarded. So how does the Court divide lottery wins when couples separate and they want to settle their property matter?

In the case of Elford & Elford [2014] FCCA 2531 the Federal Circuit Court was asked to consider what was a just and equitable division of property of the parties which included a significant lottery prize that had been won by the husband shortly after the first year of their 10 year relationship.

By way of background the parties started living together in 2003 when the wife (then aged 35 years) moved with her three young children from New South Wales to Tasmania. At the commencement of the relationship the wife had modest assets, including superannuation entitlements of approximately $130,000 net. At the commencement of the relationship the husband was 57 years of age and in fulltime employment. He was financially secure with significantly more net assets including superannuation entitlements of approximately $110,000 and the home in which the parties then lived. The wife quickly found work and applied her income towards the food for the family and the costs of her children. The husband continued to meet the costs relating to the home and further costs including holidays and the like for the parties.

About eight years prior to the relationship the husband was sorting through some of his late mother’s possessions when he discovered an old Tatts Lotto ticket which had belonged to his late father. Since that time the husband had used the series of eight numbers from that ticket for his own Tatts Lotto tickets which he purchased every week. In 2004 the husband, using those numbers, won the first division Tatts Lotto prize of $622,842. The husband deposited his lottery winnings into a term deposit account in his own name which he “topped up” to $650,000 from his savings. At the time of hearing those funds remained invested in a term deposit account in the husband’s sole name.

At the commencement of the relationship the husband’s assets were more than four times that of the wife’s assets. Throughout the relationship the parties kept both their assets and finances quite separate. They maintained separate bank accounts and did not open any joint account. They had a clear understanding about who would pay for what during their relationship.

The husband claimed that his Tatts Lotto win was his contribution alone. In cross-examination the wife agreed that she did not contribute financially towards the purchase of the ticket, she also agreed that she did not pick the winning numbers, that her husband had been buying weekly tickets with those numbers since long before their relationship commenced, that she had been in a relationship with the husband for less than a year when his ticket won, and that the winnings had been invested by the husband in his name alone.

The facts of this case could be distinguished from a number of other cases involving lottery wins where the Court had found that there had been a common economic objective of the parties. The purchase of the Tatts Lotto ticket in this case was not driven by a common economic purpose nor were the winning funds then managed by the parties together in furtherance of their joint and common objectives. As a consequence the Court in this case regarded that the lottery winnings were a contribution made by the husband alone. This contribution when added to the other contributions of the parties, most significantly their initial financial contributions, meant that the husband’s contributions were worth about 94% of the combined total value of the net matrimonial pool of assets at the time of the trial.

The parties were in general agreement that they should each retain the assets and superannuation entitlements (and liabilities) that were in their sole name. The parties also agreed that there should be an adjustment by the husband to the wife. The point of difference in this case was the amount of money that the parties said should be paid by the husband to the wife as a settlement. In particular the husband sought an Order that he pay to the wife the sum of $50,000 and the wife sought an Order that she receive from the husband the sum of $360,000.

In all of the circumstances the Court ultimately determined that it would be appropriate for the husband to make a payment to the wife to bring her proportion of entitlements in the overall asset pool up to 10%. In view of the net asset pool and the net value of the assets the wife was to retain an additional sum of $50,400 (or rounded up to $51,000) was determined to be a just and equitable in all of the circumstances. Given the parties respective ages, states of health, incomes and earning capacity and different financial assets and resources the Court formed the view that there should be no further adjustment because of the “future needs” considerations required to be considered under s.75(2) of the Family Law Act.

In summary, the particular circumstances of this case ensured that the husband did not have to share his lottery win with the wife notwithstanding that the parties had enjoyed a 10 year relationship.

If you are separated or are thinking about separating and would like to know where you would stand financially in a family law property settlement, especially if an inheritance or other “windfall” sum of money is involved then call me, Lisa Wagner of Doolan Wagner Family Lawyers on 9437 0010 to talk about your case or email me on  enquiries@familylawyersdw.com.au. We have Accredited Family Law Specialists and registered Family Dispute Resolution Practitioners here to help you with any family law matter.

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 good divorce?

A good divorce, is there such a thing?

If you are thinking about separating or have recently separated you are probably trying to work out what to do next so that you don’t make your situation any worse than you feel it already is.

We often hear about the guy who “got taken to the cleaners by his ex-wife” or the former husband who declared himself bankrupt so that he wouldn’t have to pay half his salary in child support. However, for every bad story there are countless other stories of parties separating amicably and remaining civil to one another throughout the process. Occasionally we see separating couples ending up as friends after it is all done and dusted.

If you are wanting your separation to go as smoothly as possible and come out the other side financially and emotionally strong there are sensible guidelines you can follow to protect your financial security and your children’s wellbeing.

There are many lessons that can be learned from those couples who manage to separate well.

Four of the best lessons to survive your separation and have a good divorce are:

Lesson 1 – Compromise

… and then think about compromising some more! This may be a really hard lesson for many of you reading this to believe but, trust me, if you cannot get the hang of compromising, at least a bit, then you are probably going to have a very long and drawn out family law matter. Put simply no one is a true “winner” in family law matters. There is only one pool of matrimonial assets to divide and so each of you are going to end up with less of it than you had before. If children are involved it is unlikely that they are going to be with you every minute of every day. However before compromising you must get specialist advice. Don’t compromise on anything that is a must to stay strong about, understand what you are giving away and “trading off” before any negotiations begin. Adjusting to a new reality can be extremely painful and feel really unfair but it is critical to do your best with the situation you are now facing so that you don’t end up losing even more money to the lawyer and more time (your life!) to the process.

Lesson 2 – Reflect

All significant life changes provide us with an opportunity to rethink our priorities, and if we are brave enough, reinvent ourselves. Separation can be the start of a better life. We often see people steering in a completely different direction as a result of their separation. Stay at home mums sometimes undertake study, return to the work force and truly enjoy the new sense of freedom and independence that it brings. Fathers that have been working tirelessly in the office can now “lean out” a bit and enjoy collecting their children from school one or two afternoons each week. Being able to have some insight into your current circumstances can help you work out where you want to go from here. However this transition, like any other, takes a lot of time and a great deal of support and guidance. Don’t make any decisions on the hop. Undertake a thorough analysis and stay strong to what you truly want to achieve. It is understandable that many people talk about “broken promises” and “failed dreams” however separation can also be the start of creating new dreams for both you and your family.

Lesson 3 – Ask Questions

We live in an age of information – it is everywhere… you can Google anything… at anytime however it is important not to mistake all of this information for knowledge, experience and expertise.

How many DIY jobs do you hear of going wrong? Ask any hospital registrar what fills up the emergency department of their hospital on the weekend and the resounding answer is “failed DIY jobs” … people falling off unsecured ladders, slicing through their fingers and suffering injury at the hands of an out of control nail gun are regularly seen. It is one thing to make a mistake with a home paint job or back step renovation but a very different story with your own children or your financial security. With issues as important as your children and your financial future you should leave it to the experts or at least heavily lean on them along the way.

Lesson 4 – Brainstorm

We are all taught to do it at school and some of us continue to be good at it in our adult lives, even finessing the art. Many of you might write copious “pros and cons” lists or Venn diagrams or mind maps. Whatever strategy you use just make sure it works for you and by this I mean make sure it helps you identify what you want to achieve. You need to have goals in your separation so that you can have a good divorce. You may decide that keeping the house is essential to your stability and wellbeing. If that is the case insist that your legal team devise their strategy around your goals. Think about your goals like a lighthouse on the coastline that steers the ships away from the treacherous shore and navigates the safest path.

These 4 lessons to a good divorce are by no means an exhaustive list. Many other lessons spring to mind. I have written elsewhere about flexible thinking in family law matters for example and also about the importance of being realistic.

Don’t think for a moment that your separation will be easy or pain-free or even quick. It is likely to be tough, confusing and at times you will feel downright wretched. However it will get better and you will secure an outcome and eventually it will become part of your story. Believe it or not many of you will go on to re-partner and a number of you will remarry – don’t scoff at this suggestion. This is what the statistics show and statistics (I am told) don’t lie!

If you would like to talk more about your separation and ensure that you have a good divorce we are only a phone call away. Call me, Lisa Wagner, on 9437 0010 to discuss your family law matter, or email me on enquiries@familylawyersdw.com.au. Doolan Wagner Family Lawyers offer Accredited Family Law Specialists and registered Family Dispute Resolution Practitioners who can help you achieve a good divorce.

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.

Investing Wisely In Your Separation

Are you separated and trying to reach an agreement with your ex?

If you are then this article may help you keep your legal costs down in that process.

Anyone who has ever renovated a house in Sydney will be able to tell you whether they overcapitalised or not in the process. For those who have spent too much money on their renovation they will often explain it away by saying “we’re there for the long haul” or “it’s our forever home”.

You often hear of house renovation budgets “blowing out” and contingency allowances quickly disappearing. This is in circumstances where there appears to be many rules of thumb about what you should spend on almost any part of your house…”no more than 3% of the total value of your house on a bathroom…and I think 5% on the kitchen”. Painting and landscaping are other parts of the makeover process where investment guidance is readily available and almost always free of charge.

So, if people regularly get the “cost benefit” analysis of renovating a Sydney home so wrong when there is so much information and guidance available, what chance does that couple have to retain a sense of proportion if their relationship fails and they separate?

When couples are faced with a very different and much less exciting type of makeover, aka a separation, how can they maintain a “cost benefit” analysis and ensure that the “end product” has been worth the investment?

As a start it is critical to identify your goals. While not intending to be an exhaustive list, here is a list of what we commonly see people value highly in a separation:

  • Keeping the former matrimonial home.
  • Being able to continue to parent their children in a meaningful way.
  • Ensuring the children stay at their current schools or attend the high schools that were originally chosen for them.
  • Retaining their superannuation entitlements.
  • Preserving a respectful relationship with their former partner.
  • Securing their financial future.
  • Maintaining their current standard of living.
  • Staying connected to their social/support network and the children’s local community.

Next, you should prioritise these goals. Choices and trade-offs may need to be made as you begin to separate and set-up two separate households.

For a large number of separating families their principal place of residence represents a large proportion of their net matrimonial wealth. If you want to stay living in your current home and it represents a significant part of the pool of your matrimonial assets then you may need to forego a superannuation split in your favour as well. If this is not an outcome that sits comfortably with you then now may be the time to consider “downsizing” your home.

If sending your children to a private secondary school remains high on your list of priorities then you may need to rethink your current standard of living. Alternatively, you could look at ways of boosting your income and earning capacity so that you can better contribute financially to what will be an increase in expenses due to a duplication of running two households.

It is unrealistic to expect that you will be able to achieve all of your goals in your separation and very important that you decide which ones to prioritise and what financial and emotional investment you will make to secure those goals.

You need to make smart investments in your separation.

Thirdly, don’t get side-tracked spending hundreds of dollars on legal fees arguing about the return of a $20 camp mattress when you can buy a replacement one at next to no cost. That is not smart. Setting up a new house with furniture can be really expensive as can replacing items of furniture that you have agreed can be taken from the home by your former spouse. However keeping a sense of proportion about these issues will free up your reserves, both financial and emotional, to invest in the big issues that matter most to you.

Two final points:

  1. Stay committed. Separation can be a time consuming process. Don’t lose sight of the end game. Grab all the support you can. Renovating a house requires scaffolding and you will need to surround yourself with your own type of emotional scaffolding to complete the process.
  2. Remain flexible in your thinking. If the investment in achieving what you thought was a highly prioritised goal appears too great, be smart enough to explore other alternatives. There is usually more than one path to travel following a separation.

So, if you are having difficulty working out what you really want to achieve in your separation and can’t decide which are the best options for you then get in touch with me, Lisa Wagner from Doolan Wagner Family Lawyers on (02) 9437 0010 or enquiries@familylawyersdw.com.au. We offer qualified Family Dispute Resolution Practitioners and accredited family law specialists to help you achieve cost effective and workable family law settlements.

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.

What to do when children don’t want to go home

What do you do if your children don’t want to go home after contact? Have you ever been faced with this dilemma at contact changeover times?

We are frequently asked questions like “Do I have to return the children?”

These sorts of questions often arises in the context of returning the children to the parent with whom they normally live after they have been away on holidays with the other parent.

Of course, the right answer to that question is only able to be given when all of the circumstances of the particular family situation are known. However the paramount consideration in all parenting cases is the best interests of the children. So how does this overriding principle help answer the question?

Essentially, it is necessary to weigh up all the necessary factors and then balance the two primary considerations namely:

  1. The benefit to the child of having a meaningful relationship with both of his or her parents; and
  2. The need to protect the child from physical and/or psychological harm from being subject to or exposed to abuse, neglect or family violence.

These primary considerations must be considered in every parenting case.

In circumstances where there are no parenting orders in place the Court must consider all relevant matters including the age and wishes of the child, his or her relationship with both parents, the attitudes each parent takes to promoting the child’s relationship with the other parent and the current circumstances of the child and how those circumstances have arisen in order to help it balance what is best for the child.

So, if a child of tender years who has enjoyed a wonderful “Disneyland-esque” type holiday with the parent with whom they do not normally live, throws a tantrum at the prospect of returning to the routine of home then it is unlikely that those facts will support the “holidaying” parent retaining the child. This is even more so in circumstances where that parent may have coaxed or influenced the child to behave in that way.

The Court would expect such a parent at the end of the holiday to behave responsibly and in the best interests of the child and return him or her to their primary home notwithstanding that they might have been having a meltdown.

On the other hand, if two teenage children, over the course of an extended period of time (be it holidays or not), at the end of a holiday disclose certain concerning matters relating to the home of the other parent and indicate strongly that they wish to stay with the “holidaying” parent then such circumstances may warrant a change in the living arrangements for those children. However it is only in very limited situations that any change can be enforced simply by retaining the child and not taking steps to formalise this arrangement. The expression “possession is nine tenths of the law” certainly does not apply when it comes to children, nor should it.

The appropriate course in all cases, including where there is an unacceptable risk to the child, is to file an urgent Application setting out the Orders you seek, namely for the child or children to live with you and providing an Affidavit in support of that Application setting out the reasons for the Orders sought. These reasons may include:

  1. The children are refusing to go to school if they are returned to their “resident” parent;
  2. Or, as is commonly the case, the children are threatening or actually running away; or
  3. In more difficult cases a child or children may threaten harm to themselves or to others.

If Court Orders are already in place which require a parent to return children to the other parent at a certain time and those Orders are disobeyed then the breach can result in a parent being found in contravention of the Orders and facing penalties including fines and/or imprisonment (however this rarely occurs). It is important to understand though that a parent who has been able to show a “reasonable excuse” to explain why they have breached a parenting Order can successfully defend contravention proceedings.

At all times it is crucial to place the child’s best interests as your priority. Taking a step back and reflecting on the overall situation can sometimes help a parent to make the best decision in what can be understandably an otherwise extremely harrowing dilemma.

If you are experiencing these dilemmas and really don’t know what step to take next or how to handle the situation and do what is best for your kids get in touch with me, Lisa Wagner from Doolan Wagner Family Lawyers on (02) 9437 0010 or enquiries@familylawyersdw.com.au. We offer accredited family law specialists to help you with parenting and all family law matters.

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.

Family Dispute? Don’t go to Court

Are you going through a family dispute or thinking about a separation?

If you are, then you should continue reading this article as it contains valuable information.

Family dispute and separation are widely understood to be one of the most stressful experiences that you can live through. Doing what you can to keep your emotions in check and to continue functioning in the middle of a family crisis is really hard.

Family disputes rip at the core of who we are, lead us to question ourselves, and have the potential (if not handled well) to undermine our children’s wellbeing.

If you are separating and involved in a family dispute it really helps that you do all you can to manage the “fall out”. It is like adopting a “damage control” approach. No one is going to end up a winner through the experience but with the right strategies you can emerge from your separation and divorce with your integrity intact and your respect for your former spouse or partner preserved (mostly).

Staying out of Court is probably the most desirable and highly valued “damage control” strategy for anyone in the middle of a family dispute.

Presently the delays in both Sydney Family Court and the Sydney Federal Circuit Court are such that you are likely to be waiting at least two years before a Judge can hear your case if you can’t reach an agreement with your former partner. This is significant in at least three ways:

Firstly, in the meantime you are left in limbo and simply cannot get on with your life.

Secondly, you are likely to spend tens of thousands of dollars on your lawyer who will be required to assist you prepare and present a lot of paperwork and attend to day to day matters that arise while you are waiting; and

Thirdly, things change. The pool of assets that was available to divide at separation may no longer be there or on the flip side, the available pool of marital assets may have increased significantly in value (making it more difficult for you to refinance and retain a property that you were perhaps wanting to try and keep).

Going to Court to resolve a family law dispute (at least without exhausting other avenues first) is nearly always never ever the best option.

So what other “damage control” strategies can be employed?

Collaborative law, negotiated settlements, mediation, arbitration and family therapy are all good options. It is usually not a case of “one size fits all” and you should discuss your particular situation with your own family lawyer who is hopefully an accredited specialist and therefore usually more adept at discerning the right “fit” for you.

Family dispute resolution has a high success rate for most separating couples. Family dispute resolution provides a mutual and impartial environment to discuss all of the issues and challenges that arise at separation. It is a flexible process that supports your communication with your ex by adopting broad rules of engagement.

The likely success of any family dispute resolution is a result of a variety of factors. In my experience three of the most critical ingredients are:

  1. Competence;
  2. Confidence; and
  3. Connectedness.

In short this means that if you are feeling like all reasonable out of Court options have failed and you are no longer able to even talk, text or email your former partner and you want to stay out of the Family Court you can consider a successful resolution of your family law matter with family dispute resolution if:

  1. You engage the services of a qualified family dispute resolution practitioner (they must be registered with the Attorney-General’s department) and also retain an accredited specialist family lawyer to advise you of your options, responsibilities and your likely outcomes – the “competence” factor.
  2. You feel confident in both the process and the people. This factor requires you to rely on your gut instincts to hire the right people – the “confidence” factor.
  3. You look for that special “x factor” – some practitioners are highly qualified and/or highly personable but if they cannot connect with each of you and pull it all together it will not work out well and you will be back in “damage control” mode – the “connectedness” or “x factor”.

This “Triple C” plan can save you thousands of dollars on legal fees and limit the months of your life that would be otherwise lost if your family dispute ends up in the Family Court.

In my experience, adopting a “Triple C” family dispute resolution plan if you separate can prove very successful. It is one of the best insurance policies you can get to stay out of the Family Court.

So, if you are living through one of the most stressful experiences that you can ever go through, are exacerbated by your options and feel that you are pulling your hair out trying to secure a resolution with your ex then seriously consider getting in touch with me, Lisa Wagner from Doolan Wagner Family Lawyers on (02) 9437 0010 or enquiries@familylawyersdw.com.au. We offer qualified family dispute resolution practitioners and accredited family law specialists to help you sort out your family dispute without going to Court.

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, Is Delaying A Settlement Wise?

Have you recently separated or have been separated for a long time but haven’t yet done anything to legally formalise that separation? If you are in this situation then you should really keep reading this article to find out how wise it is to delay resolving your matter once you decide that your marriage or de facto relationship is over.

Increasingly we have been asked to represent spouses faced with a claim for property settlement by their former spouse some time after separation. In one instance the delay was in excess of a decade. Often these matters are in circumstances where the spouse making the claim originally represented to their former spouse that they wished to forego any interest that they may have had in the matrimonial property.

What does the Family Court do in cases like this? Can a party who has separated years ago but never made a financial claim change their mind down the track and claim a share of what the party who was left behind believed belonged entirely to them?

This was the very question that the Family Court was asked to determine in the case of Bevan & Bevan (2013) FLC 93-545.

In that case the parties had largely lived apart for eighteen years. After separation the husband, who was a doctor, returned to the United Kingdom to work. He gave his wife a Power of Attorney and told her that she could keep all the property in Australia for herself and the children saying that his life would be built elsewhere.

The parties divorced in 2010 however within days of the twelve month limitation period expiring the husband filed an Application for settlement of property claiming a share of the Australian assets which he led the wife to believe at separation were hers alone.

The Court considered both arguments. The wife asserting that:

  1. given the husband’s initial representations and his continued conduct consistent with what he had originally said he should be prevented from receiving any property; and
  2. the husband’s significant delay should be taken into account preventing him from now coming to Court and claiming a share of property that he had originally promised would belong to his ex-wife.

The husband, wishing to trigger the power of the Court to make a financial adjustment in his favour, simply relied upon the contributions he had made to the marriage and the fact that he had made an Application to the Court within the twelve month period of the Divorce Order being made which is the prevailing legal requirement.

Ultimately the Family Court held that it would not be just and equitable to interfere with the existing property interests of the wife. The husband, in essence, was held to the promise he had made to his wife at separation of foregoing any financial settlement entitlements.

It should be remembered that the decision in this case, like any other in the Family Court, turns on its particular set of facts.

If you would like to talk about your particular family situation, especially if you have been separated for a long time, then please do not hesitate in calling 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 and registered Family Dispute Resolution Practitioners who are experts in all areas of family law and can help you to take the next step.

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.

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.