I am divorced – now what?

Upon your divorce becoming final you need to be aware that if you have not already resolved your outstanding property matters with your ex-spouse either by way of agreement or by commencing court proceedings that you have 12 months to make an Application to the Court for property adjustment or maintenance. The family law team at McLaughlins Lawyers are experienced in drafting the necessary court documents to enable you to make an Application to the Court and to represent you at Court when your matter is heard.

The Family Law Act specifically provides that parties have 12 months from the date their divorce becomes final to:-

  1.  Make an Application to the Court for property adjustment; and
  2. Make an Application to the Court for spousal maintenance.

This means if you apply out of time the Court can refuse to hear your Application. There are times when the Court will hear your Application but you must prove to the Court that if your Application was not heard then hardship would be caused to you or a child, or in the case of an Application for maintenance that your circumstances were at the end of the 12 month period such that you would have been unable to support yourself without an income tested pension, allowance or benefit.

In the matter of Kent and Brook [2012] FMCAfam 413 the husband filed an Application with the Court for property settlement 24 months after the divorce became final. The major asset of the parties was the former matrimonial home which was valued at approximately $102,850.00. Since the time the parties separated the wife had re-married and asserted that her new husband had renovated the property and spent some $80,000 in the renovations. The wife argued that even if the husband was successful in his Application  then he would be unlikely to recover more than what he would spend running his Application, which was estimated at $30,000. The Husband argued that he would suffer hardship if the Court did not hear his Application. The Court did not accept the husband’s argument that he would suffer hardship if his Application was not heard and it was therefore dismissed.

The Court hard regard to the following factors in dismissing the Application:-

  •  The length of delay – the Court noted that it was a significant delay, some 12 months after the time limit expired
  • The reasons for the delay – The husband argued that he had psychological problems which interfered with his ability to function. The Court did not accept there was evidence to support this argument.
  • Prejudice as a result of the Respondent’s delay – The Court found that the wife’s new husband had contributed $80,000 towards the current value of the home that if the wife was to then loose the home then she would suffer unfair prejudice.
  • Hardship the husband would suffer if leave not granted – The Court was not satisfied the husband would suffer hardship if leave was not granted.

If you would like advice about any family law matter whether you are in a relationship, separated or divorced please call the family law team at McLaughlins Lawyers today on (07) 5591 5099.

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How do I apply for a divorce?

Statistics from the Australian Bureau of Statistics provide that in Australia in 2012 there were 123,244 marriages registered and 49,917 divorces granted. With such high rates of divorce, we are being increasingly asked by our clients how do I apply for a divorce?

The process of applying for a divorce is relatively straightforward. The application relates to legally ending the marriage and does not to the adjustment of property and formalising parenting arrangements. You can apply for a divorce solely, or with your ex-partner jointly.

For the Court to be able to grant the divorce, they will need to be satisfied of the following:-

  1. You and your ex-partner were validly married (which you can prove by providing a copy of your Marriage Certificate).
  2. The Court has the jurisdiction to hear your Application. You will need to satisfy the Court that you or your partners are Australia citizens, regard Australia as your permanent home or normally live in Australia.
  3. The marriage has irretrievably broken down. Which is evidenced by 12 months of separation.
  4. That where you are applying solely for a divorce that your spouse has been served with a copy of the application for divorce in sufficient time and had the opportunity to respond.
  5. That where you have children together that appropriate arrangements have been made for the care of the children.

Whether or not you will need to attend to hearing of the application depends on your circumstances. Where the application is made jointly there is no need to attend. Where the application is made solely and there are no children under the age of 18 there is also no need to attend. If you make a sole application and there are children under the age of 18 then you will be required to attend the hearing. You would also be required to attend where you ex-partner is seeking to contest the divorce.

If you would like assistance in applying for a divorce, or need a family law solicitor to represent you at the hearing of the divorce, please contact the family law team at McLaughlins lawyers today.

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For Better or For Worse… For Richer or Poorer?

Financial or “Pre-Nuptial” Agreements are not something that should be entered into hastily or by simply using a precedent. Careful consideration must be given to all aspects of a couple’s relationship, both financially and emotionally. It is also a requirement that both parties to the agreement receive independent legal advice and that their solicitors sign a statement to the effect that the necessary advice has been provided to the client.

Just because a solicitor has signed off on the agreement and statement, does that mean it will be valid and binding? Not necessarily.

A couple had been in a relationship for 6 years and engaged for 11 months before the soon to be bride signed the agreement two days prior to her wedding.

The Federal Circuit Court Judge heard the woman was “driven to a lawyer’s office where she was forced to sign the (financial) agreement” two days before her wedding in 2008. Although vehemently denied by the husband, Justice Phipps acknowledged that the husband knew that if his future wife was presented with the agreement two days prior to the wedding she would believe she had no choice but to sign the agreement. Justice Phipps recognised that at the time the bride was given the agreement, already signed by the husband, all arrangements for the $40,000 wedding had been finalised and rather than face the humiliation of cancelling the wedding, the bride agreed to sign the agreement.

At the time of signing the agreement the bride’s assets amounted to only $10,000, including superannuation. This amount paled in comparison to the groom’s assets and financial resources, who had amassed investment properties, term deposits, superannuation and substantial savings, all of which had the potential to increase further over time.

The terms of the agreement provided for the bride to retain her assets listed in the agreement but quarantined the groom’s assets, despite the financial burden this would place on the bride in the event of marriage breakdown.

In his judgement Justice Phipps considered the husband’s current financial position which comprised of $330,000 of investment properties, the former matrimonial home worth $725,000 and a business valued at $238,722. The wife remained the primary carer of the couple’s two children and dependent upon government assistance benefits and child support.

Justice Phipps found in favour of the wife, setting aside the agreement on the grounds that the wife would face unfathomable hardship if it was not set aside. This enabled the wife to seek a property settlement in line with the Family Law Act (“the Act”).

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Am I in a de facto relationship? Are there family law consequences?

We are asked by our clients whether the relationship they have with their partner is a de facto relationship. Sometimes a party to a relationship may think that they are only dating or may think of themselves in a casual relationship. It is important to be aware of the factors the Court considers when determining whether a de facto relationship exists and the consequences of the Court making such determination.

The Family Law Act defines a de facto relationship as one which involves two people, who are not married, not related to each other, and having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. This includes same sex couples.

The Court will consider the following circumstances when determining if two people are in a de facto relationship:-

  • duration of the relationship;
  • the nature and extent of their common residence;
  • whether a sexual relationship exists;
  • the degree of financial dependence or interdependence, and any arrangement for financial support, between them;
  • the ownership, use and acquisition of property;
  • the degree of mutual commitment to a shared life;
  • whether the relationship was registered;
  • the care and support of any children; and
  • the reputation and public aspects of the relationship.

The Court does not need to be satisfied of all of the above criteria to make a finding that a de facto relationship exists.

The Court has the power to make Orders relating to property and the payment of maintenance in de facto matters where the Court is satisfied that:-

The total period of the relationship is at least 2 years; or

  • There is a child of the de facto relationship; or
  • Where at least one of the parties to the de facto relationship has made significant financial or non financial contributions during the relationship and the failure of the Court to make an order would result in a serious injustice to the party applying to the court; or
  • Where the relationship is or was registered under a prescribed law of a State or Territory.

The implication of finding yourself being in a de facto relationship can be wide ranging and can be particularly important to a party who may be in a financially superior position than their partner.

If you would like advice as to whether you are in a de facto relationship and/or the ways you may be able to protect your financial interests please contact our office to make an appointment to see one of our experienced family lawyers.

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Family Court rejects argument by husband…

Family Court rejects argument by husband that his success in the stock market is a ‘special skill’ and overturns decision where he was awarded 63.55% of the property pool.

On 18 December 2013 the Family Court decision of Kane and Kane [2013] FacCAFC 205 was handed down.

The parties in this matter had been married for some 28 years, had four children together and when they reached Trial had net assets just over 4.2 million.

The parties had superannuation of just over 3.4 million which was held in a superannuation fund established by the parties. During the course of the marriage the husband invested $539,500 into shares in a particular company. The wife did not agree to or approve the husband’s investment. At the time of Trial this particular investment was worth $1,850,000 and increase of some $1,310,500.

At Trial the husband argued that he should be awarded a significantly higher portion of the property pool, as it was his ‘special skill’, that is his decision to invest in the particular shares which had increased the property pool. The Trial Judge accepted the husband’s argument and made Orders which effectively gave the husband 63.55% of the property pool, with the wife retaining 36.45%. The decision had the effect of the husband retaining more than 1 million dollars more than the wife.

The wife appealed the decision and the Family Court found that the Trial Judge had placed unacceptable weight on the husband’s ‘special skill’ with respect to the investment of shares, and ordered the matter be remitted for re-hearing.

In his reasons for Judgement, the Family Court Deputy Chief Justice, Justice John Faulks found that the Trial Judge’s reliance on the ‘special skills’ doctrine, and making an Order on this basis was mistaken. Justice Faulks went further and said that the Family Law Act “does not require and in my opinion the authorities do not mandate, any such doctrine and if judgments to the Full Court of this Court might be thought to have espoused such a principle in my opinion, they should no longer be binding.

This decision and in particular Justice Faulks findings that a ‘special skills’ doctrine should no longer apply, has a significant impact on property matters. It appears it will now be more difficult for parties to argue that they made a significantly higher contribution as a result of their ‘special skill’ and thus are entitled to a higher portion of the property pool.

Whilst we continue to await the re-hearing of the case, if the Court finds that the husband investment in shares was not a ‘special skill’ then it could ultimately result in the property of the parties being distributed on a more equal basis and him being awarded half a million dollars less.

If you would like advice on your particular circumstances, then please contact our office.

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Is Collaborative Law the solution for your family law matter?

Prime Minister Tony Abbott announced he would cut $30m of funds from the Family Law Courts in his costings document released days before the September 2013 election. The Senate committee heard on Monday, 18 November 2013, that the Family Court of Australia and the Federal Circuit Court of Australia have stated that the cuts would mean that the courts may not be in a position to maintain their services if such a large funding cut is made.

Our clients are already faced with many delays in the Family and Federal Circuit Court process. Judges regularly have in excess of 25 matters before them on any one day that range from complex property matters including trusts and companies through to emotional applications for parenting Orders. It has become “the norm” to spend hours waiting for a matter to be mentioned while the costs time clock ticks away. In some cases, the Court simply does not have time to hear the application on the listed date and has to adjourn the matter to a later date, proving very costly to both parties.

The Courts make decisions and Orders where parties cannot agree, but in an already over-burdened system, what will be the impact of funding cuts to the Family Law Courts?

Do not let the lack of Court funding and ultimately the uncertainty and delay of the litigation process dictate the timing and outcome of your property settlement or parenting dispute.

Collaborative Law is the alternative.


Click the following link to access our brochure on Collaborative Law.

Collaborative Law Brochure

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“Scenes from an Italian Restaurant” – by Billy Joel

Sitting in a local restaurant last night, I was overwhelmed by the conversations taking place around me that were related to families going through separation. It was a little like the Billy Joel song “Scenes from an Italian Restaurant” when he sings about Brenda and Eddie “starting to fight when the money got tight and they just didn’t count on the tears” leading to “it’s always the same in the end, they got a divorce as a matter of course”.

The restaurant I was at had wonderful food, and great drinks, but was a cosy little place where you were almost sitting directly next to your fellow diners which meant that overhearing conversations was inevitable. A group of women sitting behind me were strategising how one of them could leave her marriage given her limited financial independence. A group of friends to my right were having an intense conversation about a friend of theirs that should leave her husband, and they discussed at length the isolating behaviours displayed by the husband and they couldn’t come up with a plan for their friend to get her out of what they considered to be a difficult situation. The questions both groups were asking were the same – What can she do? What help can she access? What happens to the kids? How does she get some money to get by?

As a family lawyer, perhaps my ears prick up at the mention of particular words or phrases – but I would say that most of us know someone going through a separation or have been through a separation. For our friends or family, we worry about them and we talk about how we can help them in tough times. I wanted to step away from the delicious plate in front of me, and talk to these groups of people as a family lawyer – but of course I didn’t as it wasn’t the time, nor the place for those conversations.

The questions being asked over drinks at a restaurant can often be answered by a family lawyer. If you know someone going through a separation, perhaps suggest to them that they see a family lawyer for an initial consultation – and get some answers. Both Sophie Pearson and our Rebecca Durkin are available for initial consultations in both our Southport and Burleigh Heads office.

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Suffer in silence? Family (domestic) violence doesn’t recognise status or wealth….

Family violence is not only being physically abused or assaulted. Often, the worst type of family violence is the sort that doesn’t leave bruises. Family violence does not recognise people as wealthy or poor, or recognise cultural differences. People in every sort of relationship or situation, can find themselves victims of family violence.

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Collaborative Law Training

Congratulations to Scott Pearson and Rebecca Durkin who have successfully completed the Collaborative Law Training.

At McLaughlins, we now have three Collaboratively trained professionals available to consult with you in our Gold Coast offices in Southport and Burleigh.

Rebecca Durkin has been practising in the area of family, de facto and relationship law since 2007.

Scott Pearson has been admitted as a lawyer in Queensland for in excess of 25 years and is a Nationally Accredited Mediator with over 5000 hours of mediation experience in Family Law and Will and Estate Dispute matters.

Sophie Pearson, Partner of our Family Law division says “Rebecca and Scott will be wonderful additions to our Gold Coast Collaborative Law practice group. Rebecca is a very senior experienced lawyer with many years of experience in negotiating successful outcomes for her clients. Scott is very well respected within the Gold Coast legal community and will be able to bring creative and out of the box solutions to help families through the Collaborative process.”

Sophie Pearson completed the Collaborative training in 2006 when the respectful divorce process was first introduced to Australia. Since that time, Sophie has undertaken further Collaborative training and has worked with clients and independent professionals in Collaborative Law matters to assist separating couples.

With McLaughlins Lawyers’ commitment to Collaborative Law, our clients receive not only the benefit of lawyers practising exclusively in Family and De Facto law, but our expert Business Law , Commercial Law, Property Law and Estate Law Divisions ensure our clients are provided with expert advice on all matters relevant to help rebuild their lives professionally and person

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