A Penny For Your Thoughts - FAQ's in Family Law

everything and everything family law related.

Welcome to another episode of Split Happens, the Divorce Down Under podcast with me, Alex, and my fellow family lawyer, Liza. Liza, today I thought we could just talk about some of the questions that we often get asked when we're working on family law cases. Sometimes they're straightforward and sometimes they're a little bit pointy, but they tend to be the same ones that crop up um and maybe a few unusual ones too. So in no particular order, frequently asked questions, I'll start with this one.

The answer is yes, you can. And in fact I recommend it. that you do finalise your property um before you get an actual divorce.

Okay. Why would you say to do that first then?

Well there's time limits. Once you get divorced, then you only have twelve months. to bring an application if you don't agree um with your former spouse about how your property is to be divided. If you don't agree on what's to happen there and you're going to need to alter some interest You know, it might be that um the you have to you're you're looking to receive an extra couple of hundred thousand dollars.

To get By leave you mean permission. Permission. But the boot might be on the other foot. If you're the person that's got the property then you probably would say, Actually I know I can do my property settlement now, but I'm just gonna apply for divorce. now and watch the clock tick down and hope that my ex doesn't go and see a family law solicitor to say, Hey, quick, you better get your

I did that I recommended that option the other day and it all depends though on on what your what your circumstances are. So Um, this fellow the other day, he's already divided all the property up and he's got a bit more in terms of cash and super and all those things that's already all in his name. And he doesn't want to give her anything else. So I said, Well, there's no point, um, you know, drafting anything up because all that's going to happen is that she's going to go get her advice.

We've talked about divorce there a little bit. Yep. What actually is a divorce in Australia?

That's just where the actual marriage your your marriage is. It comes to an end legally.

It's the legal end to the marriage. Yeah. It's not anything beyond that though, is it? Because these the the the word divorce obviously gets mixed up quite a lot with what happens at separation and everything else connected.

Yeah. So it's only just the ending of the marriage so that you you're then free to go and marry someone else.

If you want to. And if you do that, probably go and see a family law solicitor and maybe get a financial agreement drafted first. Okay, all right. So on the question of divorce, then a question that we often get asked is right, I've separated. Can I apply for divorce?

Not unless you've been separated for twelve months and one day.

And so if I get married today and I separate tomorrow, when can I apply for a divorce?

Well you've still got a little bit of a little bit of a Extra hurdles because you've because you weren't married for two years.

Right, so I've got to be married for two years before I

Chances are you might get it across the line, but There's a few extra hurdles like affidavits and counselling and things like that. You need to show that it's not like a

Yeah. Or crumbs in the in the butter dish, they're even worse than that. So But y you have to basically the easiest thing to do is once you have been married for two years, if you've been separated for a year, then you can apply. Okay, and What are the grounds for? Do I I mean d we've talked about the bus edition and other silly things?

Just need to make sure that we're going to be able to do It's more about the fact that the marriage is that you consider that the marriage is completely over and you need to communicate that to someone to show that you've actually separated. There's no you don't actually have to It's not like um you need a reason for the divorce. You can just not like that person anymore or you don't need to it it's a no fault system, so you don't need to actually set out any basis for applying for the divorce.

Just one these days, isn't there, which is the irretrievable breakdown of the marriage and there's nobody's gonna be pointing fingers at somebody. Well that they all do. Um now uh that's that brings me on to another question that I sometimes get asked because of course ma marriages and relationships when they come apart, one of the reasons sometimes is infidelity. And a question that gets put to me is, well they cheated on me. Shouldn't I get more out of the settlement?

Probably not. But it look again that's a that's a it depends. It depends on on what What has actually led to all of this? Like is it a case of um you know, has have they cheated on you with someone and they've been having an extra relationship with them and are their financial circumstances going to be taken into account? Are they You know, is it a proper affair? Is it just a one off or Mm.

Somebody commits adultery or or is unfaithful to their partner and it's discovered and it's unpleasant. But there's no financial connections on to the case. That it's not going to make an awful lot of difference in terms of monetary

No, God no. No, you just that's where you just go and have a divorce party and you and you go and you know get your wedding rings and stuff like that.

Get your dartboard, p and your wedding feature pictures of it.

All your jewelry and all the nice stuff that he ever bought you and melt it down and have something else that you prefer to wear or or sell it or you know, do whatever you like to turn it in turn that negativity into a into something positive.

That'll go along with your...

Divorce register, that's exactly right. And then you can get yourself your new air fryer and

Hopefully somebody from Meyer or David Jones is listening to this and they'll be they'll be in touch with the other.

That'll be a sponsor for the divorce.

Yeah.

I think it's great idea.

And marvelous at it. All right. Well so that's a little bit about divorces. Now some of the other questions that we sometimes get asked are, well hang on. The property is in his name or her name. And they're telling me that they don't have to give me anything because of that. So does that matter whose name something's registered in?

For the divorce or the property settlement?

Property. Divorce is done in the sense that it's it's discrete, isn't it? It's completely separate to the property. The only connection is the timeline.

Okay, so if you have if you've got a property, as in you're married to someone who owns a property. and you're now applying for a property s well, you're trying to get a property settlement out of them. then it doesn't matter whose name, um, that asset is

In So even if it's on the title that the house is in his name, say, it doesn't make any difference.

So that's what you call a a legal And in family law we talk about not just legal interests but also what we call equitable or you call'em equitable. English. Uh interests.

Project.

Anyway, um so for those listeners, sorry to interrupt that. Um so the equitable interest is um usually arises because you Although it's not on title, you're not recognised at law as having an interest, but you have done things That would um Well you'd you'd hope so.

Not so not so much of late.

Maybe you haven't done things and that's why the relationship's breaking down. But the point is that

The text messages from a client that I was reading the other day.

Yeah, they're probably uh I look I I actually um I said to my husband the other day that in terms of I said, I'm so glad that what we talk about from time to time is never in writing I said because you know A D V court or a family court would have an absolute field day, the sum of the stuff that he says. Um you know, uh it's anyway, it's all said in jest. True, true. Yeah.

I most of my messages between me and my considerably better half are are usually revolving around which football fixtures we've got to attend tonight, tomorrow, who's driving where there and the other and

Yeah.

Do we have a cupboard full of wine for ready for the evening?

Ha ha ha. Well yeah, so getting back to these interests. So as long as

Legal interests are different to equitable interest.

They are. They are. And so for example, say a a very common s scenario is um House that you've been living in for the last ten years is in the name of the husband. Wife has worked, um and you know, she might have worked part time, raised a couple of kids. And so she's made what you call financial and non financial contributions to that relationship.

Right. So if you haven't worked, if you're say you're this is sort of brings me on to another similar sort of question. that if you're the person who's stayed at home to look after the kids and and take care of the house, but you haven't actually been out to work during that relationship,

It's a non financial contract. Because you're still what you're doing there is you're um taking care of one aspect of your husband's life, one of one of his obligations, i. e. to help raise children. Um, you've taken that burden away from him and allowed him to be able to go out and earn the money.

Right. So your contributions in that non financial sense have facilitated him being able

Yeah, I know that.

Yeah, it couldn't have done it without.

Yeah, that's right. And so that's why those contributions are recognized and that's why it's not you know, you may have an interest um that is not legal but you would definitely in most cases have an equitable As long as you've done something.

Usually a good idea to talk to your solicitor as soon as you can about that. Yeah. Because if in in some cases, of course, a house is owned by one person as far as the law's concerned, as far as the title registry You will have an equitable interest, of course, under the Family Law Act. To protect your interest you might have to lodge a caveat on that property. See what I did there? I I used the Australian pronunciation for the word which is actually caveat, but never mind.

Oh goodness, here we go. We should have an episode of all the different words the

I'm caught between two play I mean, I've been here a very long time now, but you know, all of my children regret regrettably use the word yogurt and I don't understand what they're talking

Well when everyone some someone s talks about yogurt, I think of Gordon Ramsay because he says it in a real have you ever heard the way he says? It's like it's

It's an aggressive.

It's like you it's like you're gonna throw the yoga. Yogurt.

There you go. Okay, now let's assume that we've got s some interest in the property. Yeah. And it might be more. Is it just a fifty fifty division then? Nope. So that's a question that I get asked a lot because it's a custom Or a client that comes to see you and say, We've been together a number of years, so it's just fifty fifty, is it? Presumably? And that seems to be where a lot of people start their kitchen table conferences with

No. That will depend on every single case will be different. And also you've also got to think about the fact that every family lawyer is going to have a different opinion on what you're entitled to. Every judge that hears an application is also going to have a

I do see that with clients and you're talking about ranges and then they'll go, so the middle figure is sixty two point five and they'll write it on their pad and go, just hold on.

No no no no that's not what it's going to be.

It could be It might be that. It could be five percent either side of that. Yeah. It depends upon how

Sometimes the range can be a lot broader. It could be somewhere between forty to six So it it it all it will depend on the contributions that have been And your spouse's future needs. And the we've gone through this in another in one of our other podcasts.

Yeah, but we were talking a moment ago about so somebody who's a housewife who'd been at home for twenty years. They then come out of a relationship, they're not gonna have the ability to be able to carry on earning the same amount that their husband say does because it

They've got to then they've got to go and apply for a job and if they ha still have the care of the kids. They've got to either try and get them into after school care or find a job and

All things that make it harder for you to earn the same amount of money.

So I I was having a chat to someone the other day and they said, That's all right, she can just get a job. School's like nine to three. That's a six that's a six hour day. That that should be okay. I said well

Oh after after school pickups.

It's like I'd get to work at nine, nine thirty and I'd have to leave at two thirty. So what really can I get done in that time? Not much. And so you you you're going to ask going out on that open market with all the other people, competing for a job, saying, Oh, sorry, but I I do have to leave early and I have to come in late and then I have to be it flexible because of course

becomes increasingly difficult to try and find that position. I mean working from home is Great in some ways, but it's not the it's not the panacea for.

We've just had school holidays and oh my goodness, like you know, I was trying to do work from a pool side for his swimming his holiday swim programme and then you've got you know Try and keep them entertained, right? Oh, okay, well off you go, go and play around at a skate park and go and do this, go and do that and

Whilst under careful supervision, of course.

Yes, of course. Yeah, definitely. But you know, so it it it's tough out there and so we recognise and the courts recognise that It is difficult for that housewife to then go and say, Okay, right, well she doesn't have that money coming in anymore, um, that support. She's gotta go and find her own job and and be able to support herself. and the family and because of course child support often doesn't it just doesn't cover it.

No and

way in the world. I see some of the child support assessments and I think, Well, what's that going to get you? That doesn't even get you a bag of groceries at Woolies.

So some of them are r remarkable for how low they are. Yeah. Because Sometimes people of course, particularly in self employed environments, their income will be lower for tax purposes and that's perfectly legal. They've structured things that way. But it means that their taxable income's pretty low when you come to do an assessment over that. The amount of child support could be almost notional. Yeah.

So it's it's really and that's why they um the courts take that into account when

And that's why there can be loadings on the side of the person who hasn't worked for a number of years. So that you know, that fifty fifty kitchen table conference by the time you've each had a bit of legal advice might be more closer to sort of sixty forty, sixty five, thirty five e.

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About the houses then that we've talked about, there's usually, you know, in in a typical situation, there's one piece of real estate which has been the former family home. And I often get asked that question by somebody, Well, can I keep the home and and he moves out and then he keeps his sleep or I keep the house or something? Is that generally possible?

Those things are they're all options. It's what's going to work for you and

It depends if you end up having to pay them some money.

If you can afford it. If you can afford it. Um sometimes.

Brokers quite a lot, putting people in touch with brokers to find out their options about borrowing. Yep.'Cause there's no point getting into a negotiation about who's going to keep what if you can't afford to pay them out.

That's right. So um often I'll say to a client, make sure that you've gone and saw and seen a broker first so that then you can work out what your borrowing capacity is. Um and also whether or not how much more you can add on to that mortgage to be able to pay them out.

I I uh it's probably worthwhile mentioning, do this through a solicitor. If you're going to transfer your partner's share of their property into your name, make sure you go through your own family law solicitor because there will be or that usually um breaks for you as far as stamp duty goes. There's an exemption under the Family Law Act. So if you transfer real estate to a person that would normally get state stamp duty on it.

So let's say let's go this is all at the end of the relationship, it's all doom and gloom then. But we often get um clients come to see us when they are getting together with a new partner. Then they might be young and don't have very much but they apprehend they're going to. Or it might be a repartnering. Yeah. Later in life where they kind of want to keep each other's assets separate. What would you recommend to those people?

Clean up.

Right up, right up.

Which is um you know, that's the colloquial term for another find financial agreement before marriage or before the relationship. So

But we sometimes call them binding functions.

Yeah.

Yeah, I eat some law as well.

Hear the those sorts of terms thrown about, but I like to call them prenups, even if you're not going to get married and it's just the start of a relationship because everyone understands what a prenup is and you know, it makes sense.

Well tell me what a pray nut is.

Oh. Sorry. It's basically just an agreement between you so that y and it sets out the the important things of of a prenup is you both gotta be fully frank with each other of what you've actually got now.

You'll look at me with a particularly pointed sort of look there because of a conversation we're having about a some recalcitrant clients who of course will always remain nameless.

Exactly right. Don't provide don't like to tell you what they've got.

I want to do a deal with the other side but I don't want to tell them what I've got. No.

So you've got to be fully frank and fully open about what you have, where your accounts are, what you know what trust funds you're a beneficiary of or anything like that. The whole lot you need to be completely open and you both have a little schedule and you both have, you know, party A has their assets and liabilities, party B has this and and so what you do is you work out a a way that you're going to um divide your assets.

No, pretty rare that situation.

If you have a be a a a prenate in place, then you can in fact, as long as the b both parties agree to it, Or it might be something else, it might be a house, it might might be a unit, provided that unit is still there when you separate. There might be, you can...

You can build provisions into a prenup that say, All right, and if I sell the unit that I've got in this town but by with those funds I best buy something separately and always keep it separate. Yep. So it's the maintenance of that separate property. that we can write up in these agreements that should they could they can they can withstand the test of time. I often advise my clients that if they ha they're going through any sort of major financial changes, decisions or big um upheavals in life.

The biggest one the the the biggest or it's not even really an asset. It's a financial resource at the end of the day. But the one of the things that I see a lot of is when you have parties that are Say you've you know, anyone who's about forty and above is going to start to have start getting a a decent amount of soup. So th people that are entering into a relationship might be their second marriage, the second relationship or

If you go down the courtroom.

If you go down that courtroad. Whereas you could, you know, section it out. With a with a prenup um earlier on.

Both of both of you say I'm gonna keep what I brought into the relationship if we if we ever go our separate ways and anything that we buy together will divide up in accordance with what a Proportion we we've paid for it. Those things are really straightforward, I suppose.

I say no.

Ja, me too.

What we have to do lawyers um Well, yeah, that's more of the point. But lawyers have to um give advice on that agreement and the only way that we can give advice is to actually understand what your circumstances are all about.

Who you are, what's this intended up to? Is this the right deal for you?

That's right. So it's not as simple as going, Okay, yeah, I look I had one guy um who wanted who thought it could all be done Half an hour for me to read over the agreement and ha and give him his advice and then half an hour for me just to sign him up on a few. It's not like that.

Or millions of dollars in offsh offshore trust accounts as I've had that experience in the past. Okay. All right. So make sure that somebody is comfortable, they und they understand properly the advice you're giving them. So we're not going to

We see those ones where, um, you know, they want to s get it done before they get married, you know, the the the prenup ones in particular. And you s you see them and you go, When were you married? Like, you know, when you're trying to set aside this agreement in years to come and you look at and you go, Oh, what day were you married? Oh. Oh, that's the same day as you know, that's sorry, the day that's the day after that you sign the binding financial agreement. That is just red flags.

Very Fawn and Kennedy.

Yeah.

Where it got set aside because

just gotta take your time with them.

Okay, so those are those are prenups. Be careful with those. And just just to round things up, this is just a question that pops up and if my client doesn't ask me I will generally talk to them about this anyway. So You've separated, you've talked about the divorce if th if they're married and you've worked around what the property settlement might be. We're not talking about children today, but

I would normally wait until the divorce has been finalized. Um but that's it's a preference thing. It depends on what assets you've got. Um what I would sometimes If you've got jointly owned property. I might sever the tenancies so that my half share is a little bit more.

Just yeah, for for the non lawyers out there, severing a tenancy means that there are a couple of different ways that you can own real estate or or property together. One is a sort of combined joint owners, which is the joint tenancy. It doesn't mean you're a tenant or or renting anything. And the other is tenants in common. So that you own in particular shares. So what you're talking about is moving from a joint ownership to a proportional share ownership.

Yeah, because if you die and you have and your arrangement was a joint tenant Yeah. The survivor will take a hundred percent. So it's not gonna go to

Won't ever form part of your estate, no. It it it's all very nuanced and it depends upon what the client circumstances say, of course. But I often would recommend that people do a divor uh sorry, prepare a will made in contemplation of the divorce.

Oh yeah you could do that.

And then But it doesn't work for everybody. And then do a further one later on after the divorce has become final to avoid any ambiguity. Yep. Um but again, you should get very specific advice around your circumstances because it's not a one will fits all situation at all.

No. You know, I the other day I had a client uh wanted to know when's the best time to get a will and I said, Well, anytime.

Well you're above ground generally.

Yeah. So that would be preferable. Um but in terms of um yeah, it it just depends. Yeah. If you're if you're almost if the divorce is almost finalised

Give those instructions, get it all done. But if you're you know, if if you're only at property settlement stage and you're having not even looking at getting divorced any time soon or you're not even thinking about getting divorced.

Some people don't. It might not be necessarily a contemplation of divorce. You could have, you know, cultural or religious reasons that say you don't want to get divorced. In which case you draft your will on that basis. So it's a permanent separation. But again, that this is the nuance that goes on with all of what we do. But if you're going through that separation process.

Give us a shout too. If you if there's anything that you really would like us to talk about in terms of some of your frequently asked questions, the questions that you've got on your mind, then um, you know, drop us a line and um you know the the links will be in Somewhere on some technology um platform. But yeah, just please drop us a line and and um let us know what what sort of

We'll add in those uh those questions and see if we can answer some of your queries that are out there. Thanks very much for listening. We've been Alex and Liza and this is Split Happens, the Divorce Down Under podcast.