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In this online space, we share our expert knowledge and help support you through legal matters with useful information.

FAMILY LAW

In Australia, these documents are formally known as a Binding Financial Agreement, but are often referred to as a ‘pre-nup’ or ‘pre-nuptial agreement’. Binding Financial Agreements set out what is to happen in the event that the relationship breaks down in the future, and can sometimes also contain provisions about what is to happen during the relationship. This agreement does not require going to Court or submitting any documents to the Court.

Binding Financial Agreements require both parties to have (separate) lawyers to give them advice and sign the document.

Parties can elect to document an agreement one of two ways – through Consent Orders, or through a Binding Financial Agreement.

Consent Orders

Consent Orders can be filed in the Court after a relationship has ended. These documents set out the circumstances and agreement about property matters and/or children’s matters. It does not matter if the parties were in a de facto relationship or married (and for parenting matters, it doesn’t matter if the parents were in a relationship). The parties are not required to go to Court, and the judicial officers will consider the matter just based upon the documents filed.

The Court requires that parties file at least two documents – an Application for Consent Orders and a document setting out the terms of the agreement (the Orders that are proposed to be made by the Court). Depending on the circumstances other documents may be necessary. The Court has quite a lot of useful information about Consent Orders on its website.

We always recommend that you at least get some initial advice and, whenever an agreement is reached, that you get legal assistance in drafting these important documents.

Binding Financial Agreement

A Binding Financial Agreement can also be entered into after a relationship has ended to document an agreement about property matters. Similar to the information above, Binding Financial Agreements require both parties to have separate lawyers, but does not involve going to Court or submitting documents to the Court.

We can assist you before, during and after entering into a Binding Financial Agreement. Make an appointment to talk with our Family Law Solicitor today.

Property settlement refers to finalising who receives what assets, liabilities and superannuation after a relationship has broken down. Nowadays, the Family Law Act provides for property settlement between both married couples and parties to a de facto relationship (including either married or de facto same-sex couples). Most commonly this involves adjusting parties’ interests in houses, cars, debts and superannuation. But property settlements also include dealing with more complex matters involving corporate entities, Trusts and self-managed superannuation funds.

Maintenance of a former partner, or for an adult child, is where one person is considered to need additional assistance to meet their personal or living expenses, or the expenses relating to an adult child (but this only applies in special and limited circumstances). If it is considered that their former partner has capacity to pay, then the former partner will make a periodical or lump-sum payment towards the expenses of the other person.

Maintenance of a former partner, or an adult child, is separate from a person’s obligation to maintain their child – which is known as child support in Australia.

Family law parenting matters involve formalising the parenting arrangements for the children after separation. This can be done with various levels of formality from an ad hoc agreement, to a Parenting Plan or more formal Court Orders (either by consent or after litigation).

However, matters involving children can also include issues like time with grandparents or other family members, as well as issues such as interstate or international relocation, surrogacy, IVF or other issues.

Alternate dispute resolution is a compulsory step (with exceptions) for all parenting matters, and is very highly recommended in property and other family law matters. It is an opportunity for parties to participate in a facilitated discussion (oftentimes from separate rooms) to try to get them to narrow the issues and, hopefully, to reach an agreement.

Some alternate dispute resolution process are done without solicitors (such as through Relationships Australia or other government funded programs), but if you are intending to commence alternate dispute resolution or have been invited to attend by the other party, we recommend you get some legal advice by talking to us today.

Where parties can’t reach an agreement, or there are circumstances that mean that it is inappropriate to engage in alternate dispute resolution, Court action may be required. If this is the case for you, we can help you navigate the legal system and will advocate on your behalf. Starting Court proceedings may be necessary in some circumstances, and usually involves a judicial officer making a decision and thus making Orders about interim issues and then about final issues.

If you need to start or respond to Court action, talk to us today.

Divorce is the process to formally end to a marriage and thus allow parties to remarry. However, divorce does not finalise any of the other aspects of a relationship breakdown (property, parenting or maintenance issues).

Whilst the Family Law Act doesn’t encompass the below things, these issues still often arise in family law matters and our family lawyer can help you with the following:

  • Adoption matters for all couples
  • Domestic violence matters for all couples
  • Child protection matters.

WILLS AND ESTATE

The simple answer is “Yes”.

If you die intestate (that is, without a will) you are not able to decide who will:

  • look after your estate
  • receive your assets
  • look after your children
  • look after your pets

Your family will need to apply to the Supreme Court for a grant to enable them to access your assets. The law will decide who receives your assets, and it may not be the people that you are closest to in life. The process will be longer, more costly, and more stressful than needed for your loved one.

Drafting a will is a simple process that does not take very much time at all. We’ll make it painless – we promise.

Our aim is to ensure that making your will is a simple and stress-free process. Generally, you will come into our office to discuss what you want to achieve, we will then prepare your will, and provide you with a draft for your review. We will discuss the terms with you and answer any questions that you may have. Once you are satisfied with your will, you will attend our office and sign the document.

There is a wide range of matters that can be covered by a valid will aside from dealing with how particular assets are distributed.

Estate administration is the process of dealing with the assets and liabilities (the Estate) of a person who has passed away. A person who administers an estate is known as either an executor or an administration. An executor is appointed in a Will, if there is no will then the administration needs to be appointed by the Court. When a loved one has passed away and has appointed you to be the executor of their will, the last thing you want to do is deal with the legalities of administering the estate. We are here to assist you regardless of the situation to ensure that estate administration is completed in a timely and efficient way.

It is important that you obtain professional advice to understand if a Grant of Probate or a Grant of Letters of Administration is required to be obtained from the Court. Estate administration can be complicated, there can be problematic interested parties and/or beneficiaries, numerous assets or liabilities involved, or there may be informal testamentary documents.

Challenging a will is means calling into question the validity of a will. This may be because the person who made the will lacked mental capacity or knowledge of the impact of the will, or they were unduly influenced when making the will.

If you doubt the validity of the Will, then you should make this known to the executor as soon as possible after the deceased’s death and preferably prior to a Grant being obtained from the Court. You may wish to lodge a caveat against the estate to prevent the Grant being obtained without prior notification to you.

The court will consider all available evidence regarding the mental capacity of the deceased when the will was executed, and the conduct of family members or friends, as well evidence from lawyers, doctors and forensic specialists.

If you have any concerns about the validity of a loved ones will, please do not hesitate to contact our office to discuss further.

Contesting a will occurs when an eligible person is unhappy with the bequest left for them under the will (or if they were excluded entirely) and wishes to seek more from the Estate. This is commonly called a family provision application.

The Succession Act 1981 (Qld) instructs that only “eligible” people can make such a claim. The following people can apply for further provision from the Estate:

  1. spouse of the deceased (including de facto spouses);
  2. child or children (including a stepchild, adopted child or a child born outside of a marriage); and
  3. dependants (a person supported by the Deceased at the time of their death).

The Court can order any provision it thinks appropriate, taking into account factors such as the financial position of the applicant, the size of the estate, and the nature of the relationship of the deceased and the applicant.

There are strict time limits that apply to making a family provision claim. Please contact Denise Maxwell Solicitors to discuss your situation as soon as possible.

Estate planning is an important part of protecting your family’s future. Careful estate planning will reduce stress and hardship for your loved ones when you pass away.

For example, at Denise Maxwell Solicitors we can advise you on the making of binding death benefit nomination that determines how your superannuation is to be paid.  This often requires careful consideration, as there are risks of claims being made on your estate. This is a particularly difficult area if you have a self-managed superannuation fund.

An enduring power of attorney is a document that appoints another person (or people) to act as your attorney for financial and/or health and personal matters. Your attorney is able to act on your behalf should you become incapable of acting for yourself in the event of illness or an accident

With personal and health matters, the attorney can only act if you become incapable (whether temporarily or permanently) of acting for yourself. With financial matters, you can specify when the power of attorney comes into effect. You attorney can do anything in relation to finance matters you yourself can do subject to limitations you set in the Power of Attorney. For example, your attorney can make decisions about payment of rent or mortgage, payment of bills, investment of money, sale of property.

Having an attorney for health and personal matters allows them to make decisions for you in relation to your daily care, where you live and consent or refusal of consent for medical treatment. It does not allow an attorney to decide on any of the following:

  • whether to terminate life support systems
  • whether to withhold life-sustaining treatment
  • experimental health care
  • donation of body tissues
  • making a will
  • appointing another attorney.

An advanced health directive is a document in which you give directions about health matters, special health matters, and/or your future health care. The kinds of matters which you can address in an advanced health directive include:

  • consent to future health treatment
  • setting out the circumstances in which you want life-sustaining treatment to be withheld or withdrawn
  • donation of organs while you are still alive
  • participation in experimental health care
  • psychiatric health care

A direction contained in an advanced health directive only comes into effect when you do not have the capacity to communicate a decision already outlined in an advanced health directive. For example, if you are in an irreversible coma, a directive to donate organs or withdraw life sustaining treatment comes into effect.

The purpose of an advanced health directive is to decide in advance about health treatment to ensure that the right decision for you is made. It is often a document of great support to your loved ones, as they can be sure that this is what you wanted to happen when you are unable to communicate this yourself.