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Considering separation? What is your share?

Thu, 27 Oct 2022 05:52:44 GMT

By Karina Hanson

If you are considering separating from your partner or spouse you will be wondering what the property settlement might look like. Having that information is vital to planning your future.

Newcastle Legal & Conveyancing has a new electronic tool available on its website that provides you with a personally tailored roadmap of what your property settlement might look like by answering a few easy questions.

Experienced family lawyers are generally able to estimate within about 5% of what a Court would likely find to be a “just and equitable” settlement if the matter proceeded to a trial. It is critical to have this information because if a settlement can be agreed between the parties, the legal costs of separation will be minimised.

A Court will take into account 4 primary factors in making its determination. First, it will require full disclosure of all assets and liabilities to establish what the asset pool actually is.

Second, it will consider the financial contributions of the parties to the asset pool. The length of the relationship matters. For example, if a relationship has been shorter than 5 years and there are no children or other special considerations, a Court will lean towards the parties being placed in the position they were in when they entered into the relationship. If it is a long-term relationship of more than 12 years and there are children, a Court will discount the importance of contributions of the parties at the time the relationship commenced.

Third, a Court will consider non-financial contributions of each party. Fourth, any special circumstances (such as health issues and anticipated future earnings) will be considered along with whether the proposed split is “fair and equitable” overall.

Use our online roadmap tool to determine what you can expect.

Second marriage or de-facto relationship?

Mon, 05 Sep 2022 10:43:28 GMT

Do you have assets you wish to protect if your second relationship breaks down? This is common and particularly important when you want to protect the financial interests in your estate of the children of your first relationship.

If so, you should consider making a Binding Financial Agreement (BFA) to deal with the division of your assets. This agreement may be entered into before or after you marry or start living together or even after you separate.

Without a BFA, in the event of a second separation your assets will simply form part of the asset pool to be divided with your partner.

In the event of your death, a BFA may help your children avoid an expensive and time-consuming estate dispute, which are increasingly common in the blended family context. If the children of a first relationship are adults, they can also be parties to the BFA.

A BFA can also ease any concerns your children have about your second partner having one eye on your estate and improve their relationship.

To ensure that it is enforceable, each party to the BFA must receive independent legal advice. The negotiation of the BFA should be fair and all assets must be disclosed. Those assets include any property, shares, life insurance and superannuation.

The BFA may deal with any expected inheritances. It should also address how any assets acquired during the relationship will be split.

A BFA can save you or your estate a great deal of heartache and money. It is like an insurance policy except you only pay fo

Related Tags: Family Lawyers Newcastle

Can my ex be required to move from our house?

Mon, 22 Aug 2022 04:53:09 GMT

Separations are times of upheaval where the financial resources of each party are often strained. Sometimes a client asks whether they can require their ex to leave the family home to live elsewhere.

The starting point is that both parties have the right to remain in the home regardless of whose name is on title or on the rental agreement. Where possible your best option is to try and come to an agreement.

If that is not possible you can apply to the court for a sole occupancy order permitting one person to live in the house and the other to leave. You should seek advice on the factors the court will consider, the strength of your case and the length of time it may take to be heard.

Usually but not always the party that moves from a property will be held by a family court not to be liable to their ex for rent, mortgage and other usual household related costs incurred after they vacate. The rationale is that the person moving will have their own housing costs to pay.

The person who moved will still be liable to their landlord or mortgagee bank for rent and mortgage payments if their ex does not pay.

If you fear for your safety or your children’s safety it is important that you take steps to be safe. You may need to go to a safe house or reach out to support services . This will not affect your right to apply for a sole occupancy order.

If there is family violence the NSW Government’s Staying Home Leaving Violence program may be able to assist.

Property settlement following separation

Thu, 18 Aug 2022 04:40:39 GMT

The holiday period traditionally sees an increase in family conflict and some partners leaving relationships. An often thorny issue is how the property should be divided. There are 4 ways to achieve this:

1: Informal Agreement: Couples may reach an informal agreement on division of property. This however provides you with very little protection if your ex later decides he or she wants more.

2: Consent Orders: A lawyer can help you negotiate with your partner (or their lawyer) and agree on the proper division of property. Orders reflecting the agreement reached can then be drafted and provided to the Family Court. A Judge or Registrar will review the proposed division of property, usually “on the papers” without anyone having to attend Court, to ensure the terms of settlement are reasonable before making the orders agreed by the parties.

3: Binding Financial Agreement (“BFA”): A BFA is a contract between you and your ex on the division of property. You and your ex are both required to have your own lawyer advise you on the fairness of the proposed division of property . The Court is not involved.

4: Going to Court: If you are unable to agree on a fair division of property you can have a contested trial where each party gives its own evidence and ask the Court to make the decision. A Court trial is by far the most expensive process and routinely takes 18 months or longer. It should be avoided wherever reasonably possible.

Why Enter a Binding Financial Agreement with Your Partner

Mon, 14 Mar 2022 00:32:57 GMT

Why enter into a binding financial agreement with your partner?

If you are considering moving in with or marrying your partner, or even if you have been together for a period, it may be wise to think about protecting your assets in the event of a separation.

This may be particularly important where:

You have acquired assets prior to the relationship that you wish to keep, possibly for children of a prior relationship;
You have an interest in a business, family trust or company;
You expect to receive a substantial inheritance in the future; or
You have received a large sum of money as a gift, for example from your parents for a house deposit.

You can protect these interests by entering into a binding financial agreement (BFA) with your partner. A BFA can prevent uncertainty and litigation by specifying how property will be divided.

It is not too late if you have already moved in together or are married. A BFA may be entered into before, during or even after a marriage or relationship has ended. Note that a BFA entered into whilst in a de facto relationship ends automatically upon marriage.

For a BFA to be enforceable it must comply with strict requirements in the Family Law Act. Each party must receive their own independent legal advice and enter the BFA of their own free will. Also, each party must fully disclose all assets and liabilities including property, savings, shares, insurance policies and superannuation.

If you think a BFA might suit your circumstances, discuss this with your partner and seek legal advice. It may not be a pleasant issue to raise but, like an insurance policy, a BFA may save both of you a lot of cost and heartache in the future.

Related Tag:- Estate Dispute Lawyers Newcastle

Will disputes

Mon, 14 Mar 2022 00:30:20 GMT

Will disputes

Will disputes are increasingly common. Principles that the law applies in determining a will dispute include:

The person making a will has a general right to determine to whom they will gift their property on their death. This principle is called ‘testamentary freedom’.
That principle is subject to the moral obligation that a person has to their partners, former partners, children, and others who have been dependent on them at some point to ensure they are resourced sufficiently.

The test is whether a claimant needs further provision for their “proper maintenance, education or advancement in life” such that the court should interfere with the will-maker’s wishes.

Factors taken into account include the nature and length of relationship the claimant had with the will-maker, size of the estate, competing claims by other persons on the estate, each claimant’s own financial resources, illness or disability and age.

If a claimant has engaged in ‘disentitling behaviour’, a court may find that they have no right to any provision from an estate. What constitutes disentitling behaviour will depend on all the facts however the behaviour generally needs to be more than simple estrangement.

Any property given away in the last 3 years of a person’s life can be considered by a court to be “notional property” of the estate that should be taken into account in determining claims.

The skill with which your will is drafted and the advice you receive can be critical in protecting your wishes regarding who shares in your estate. Similarly if you need to challenge a will where your needs have not been considered properly, you need the advice of a good lawyer knowledgeable in this area of law.

Related Tag:- Probate Lawyers Newcastle

Is it time to update your Will?

Mon, 14 Mar 2022 00:27:00 GMT

Is it time to update your Will?

Since COVID-19 appeared we have seen a marked increase in clients updating or making their first Will.

In your Will you specify: (a) who should administer your estate after your death (your “executor”); (b) who should be the guardian of any minor children; (c) who should inherit your property and other assets; and (d) arrangements for your funeral and remains.

If you do not have a Will then the law determines who inherits your property and who administers your estate. These may not be the people you would choose.

A general rule of thumb is that a Will should be reviewed every 3 years or whenever a significant change occurs. Significant events include: (a) a beneficiary or executor dying; (b) a new beneficiary being born (e.g. child or grandchild); (c) the gift of a specific object such as a house being sold; or (d) you marry, newly cohabitate or separate.

Many of our clients making or updating their Wills do not realise their superannuation entitlements do not form a part of their estate automatically and therefore may not be distributed in accordance with their Will. There are important tax considerations in deciding whether to make a ‘binding death nomination’ in your superannuation fund either in favour of particular family members or in favour of your estate.

It is also wise to ensure that your Will is as protected as possible from a successful claim for further provision by family members who may challenge your Will seeking more than you choose to gift them (called a ‘family provision claim’).

Excellent, economical advice from a lawyer who specialises in wills and estates has never been more important.

Related Tag:- Parenting Arrangement Lawyer Newcastle

Buying, selling or leasing property? Use an experienced conveyancer

Mon, 14 Mar 2022 00:22:55 GMT

Buying, selling or leasing property? Use an experienced conveyancer

For the majority of people the property they own or lease is their biggest asset. It is worth ensuring that the person you engage to act on a sale, purchase or lease is not only economical and efficient but is also someone who knows the applicable law intimately, has an eye for detail and can pick tricky contract clauses that may cause you grief down the track.

Not all conveyancers are equal in their knowledge, experience and ready access to legal advice when needed. Best results are achieved for you when your conveyancer communicates effectively with you and provides appropriate advice as needed.

Increasingly we are finding that contract terms need to be negotiated with the other party. It is also becoming more common for a bank or building society to not be ready to complete the sale and purchase on the day specified in the contract because of Covid related delays, which can have expensive consequences.

Questions and disputes can arise regarding pest and building inspections, stormwater and services connected, easements and covenants registered on title, fences and boundaries, town planning and consent for improvements to the property, home warranty insurance, trees, valuation, state of repair or disrepair, inclusions and exclusions, land tax liability, interest for late completion, possession including potentially before completion and adjustments on the purchase price.

All these considerations are capable of becoming thorny issues that require experienced, skilful handling.

Quality conveyancing starts with your conveyancer ensuring that you understand the key points of the contract and can make informed choices. If the other side acts in a manner contrary to their contractual obligations, you will benefit if your conveyancer has easy access to legal advice on the steps then available and that are most appropriate in your particular circumstances.

Why choose Newcastle Legal and Conveyancing?

Specialist licensed conveyancer
Fixed fee conveyancing for standard residential transactions
Written advice provided on purchases
Ready access to a property lawyer when necessary
Friendly, efficient service

Related Tag:- Newcastle Will Lawyer