Father Successful in Defending Recovery Application
Our client, the father of three children between the ages of three and 15, faced…
Read MoreTaylor & Scott has the experience and resources to provide strong, effective support to our clients in Family Law, in Sydney and NSW. A complex area of law that contains many potential pitfalls and requires expertise to navigate well.
We work as a team and appreciate the stresses the breakdown of a marriage or de facto relationship often entails, whether financially or emotionally. We treat our clients with sensitivity whilst also providing them robust advice telling them what they need to hear, rather than what they want to hear.
Where possible, all efforts are made to achieve resolution by way of negotiation from parents, spouses to grandparents. However, no two matters are the same, and where litigation is required, we never shy away from a fight. We encourage clients to be realistic, educate them about the law and put their best interests ahead of our own. We take our duties to our clients and the court seriously.
At our initial consultations, we really listen to clients, strategize and tell them what their options are, advise them which road is the best to take and provide them with a genuine estimate of legal fees, which we confirm in writing. We do not ask to be retained on-the-spot because, just as we provide well-considered advice to clients, we want our clients to also make an informed decision about their legal representation.
Stop worrying about your situation including divorce and separation issues. Our lawyers handle matters ranging from the smallest and most amicable, to the most complex and protracted. We value our clients and provide them with respect and transparency.
There are legislative provisions under the Family Law Act which gives legal standing to grandparents who wish to make an application in Court to spend time with their grandchildren.
Section 60B of the Family Law Act aims to ensure that children receive adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
The involvement of a grandparent in a child’s life can be considered to fall within this parental responsibility. This can include the responsibility to ensure children have a right of contact, on a regular basis, with “other people significant to their care, welfare and development.” The Family Law Act makes explicit reference to grandparents as persons who can fall within this category.
Grandparents are not invested with a special right or position over and above other people who might be significant to a child’s care, welfare and development. The only people in such a special category are parents. However, grandparents are included as an example of the class of people who may be able to establish that they are significant to a child’s care, welfare and development, and if that is the case and it is in the best interest of the child then the child has a right to see that grandparent.
The Family Law Act reflects the social recognition that sometimes grandparents are the sole stable feature in the lives of some children. The legislation therefore specifically empowers a grandparent to apply for a parenting order.
The Family Law Act also supports the generally regarded view in the Australian community that children should be entitled to have a relationship with their grandparents, provided it is in the child’s best interests. However, any determination of the best interests of a child should be informed by the family dynamics between the children’s parent/s and grandparent/s. In that regard, the views of the parents are significant but not necessarily determinative.
At Taylor & Scott, We Care For You.
When a marriage or de facto relationship ends, the division of assets begins. An increasingly situation Family Lawyers are now being faced with is clients involved in so-called ‘pet custody disputes’, that is, being asked advice as to “who gets to keep the dog?” or “does the cat form part of our ‘property’?” Despite the initial puzzled reaction, if we really think about this, we can see why those ‘pet custody disputes’ are becoming more common.
Some separating couples we see can agree on dividing the “ours” into “yours” and “mine” when it comes to real estate, superannuation, and shares. But for some separating couples, the family pet is a much more emotional ‘asset’. That is particularly so in cases involving often affluent, usually childless couples, who fight for ownership of their pet as they would for a child. We find those clients arguing over “custody” and “time” whether that time be shared equally or split less evenly. It is an emotional and painful battle, especially for those couples who see their animals as substitutes for children.
It is an issue most would never imagine they would find themselves so embroiled in, maybe because they assume they’d be the one keeping the cat or dog, with attitudes like ‘I paid for him, so he’s mine” or “the dog will just stay with the kids and because they live with me then so does the dog”. When there are children involved, the parties often agree the pets should stay or move with the children. Judging what is in the pet’s best interests might also depend on which party has the biggest backyard or more time to care for the animal.
Or maybe it’s because of the very common misconception that many believe the Family Court will make ‘custody arrangements’ for their pets. Unfortunately this is not the case. The Family Law Courts treat pets, regardless of whether or not we believe to be correct, as property. Further, because pets are unlikely to be worth very much (unless they are breeding or racing animals), Judges are unlikely to look favourably on parties who take up Court time arguing about their pets. Indeed, parties must be aware that one of the options open to the Court in property matters is to order that property be sold. A worst case scenario would be that if the parties couldn’t agree on what to do with their pet, the Court ordered it to be sold.
Courts in the US are slowly accepting that pets mean more to some than their price tag. The Family Court of Australia has, so far however, refused to make any “pet parenting” orders, maintaining the position that animals are ‘goods’ or ‘chattels’ thereby making them property.
Many argue this approach is incorrect or insensitive and accuse the Family Law Courts of being inflexible and old fashioned. It is possibly why we are also seeing separating couples now entering into informal “pet parenting” agreements. Under the terms of those informal custody agreements, parties can specify with whom the dog or cat is to live with, how much time they spend with the other party, who does the ‘changeover’, what vet the dog or cat attends all the way to what food is to be provided and which ‘doggie parlour’ they are to attend.
Jean-Marcel Malliat, principal mediator at InterMEDIATE has been quoted as saying “Sometimes they express stronger emotions than they do for their children,” providing an example of a couple that agreed their dogs would remain in the family home with the wife and the husband was allowed to take them for a walk every other weekend.
Unfortunately, pets can be used like bargaining chips in these disputes, just as children sometimes are. For advice in relation to disputes involving your pet, contact the Family Law Team here at Taylor and Scott for timely, efficient and practical advice.
If you would like advice, guidance or assistance in relation to your property arrangements following the breakdown of your marriage or relationship, contact our Family Law Team here at Taylor & Scott Lawyers.
At Taylor & Scott “ We Care For You.”
If any one of the following criteria applies to you, then your application for Final Orders ordinarily should be filed and/or heard in the Family Court of Australia:
1. International child abduction.
2. International relocation.
3. Disputes as to whether a case should be heard in Australia.
4. Special medical procedures (of the type such as gender reassignment or sterilisation).
5. Contravention and related applications in parenting cases relating to orders which have been made in Family Court of Australia proceedings; which have reached final stage of hearing or a judicial determination and which have been made within 12 months prior to filing.
6. Serious allegations of sexual abuse of a child serious allegations of physical abuse of a child or serious controlling family violence warranting the attention of a superior court.
7. Complex questions of jurisdiction or law.
8. If the matter proceeds to a final hearing, it is likely it would take in excess of four days of hearing time.
NOTE: The Family Court of Australia has exclusive jurisdiction in relation to adoption and the validity of marriages and divorces.
Otherwise, your matter, generally speaking, should be filed and/or heard in the Federal Circuit Court.
If your case falls outside the above criteria, and is filed in the Family Law Court, it may be that it is transferred to the Federal Circuit Court. The Registrars of the Family Court of Australia have power to transfer such cases to the Federal Circuit Court.
You must ensure that your Application is filed in the correct Court, as a transfer may cause undue delay and unnecessarily increase your costs at what is already an extremely stressful time for you.
We encourage you to contact the Family Law Team here at Taylor & Scott if you wish to discuss your Parenting matter or any other parenting issue that you may have prior to filing an Application for Final Orders in the Family Law Courts.
At Taylor & Scott “ We Care For You.”
When parents separate / divorce…
Unfortunately, divorce (and separation of de facto couples) happens frequently in our society. It is a major source of stress for everyone involved – especially for those separating families with children.
After parents separate, their children’s needs remain the same: secure, loving, supportive and emotional ties with parents they can trust and be comforted by.
After parents separate, they need to find a new way of parenting that works for them and their children. Some divorced/separated couples continue to share parenting, while others choose to continue their roles as parents separately. That decision often depends on levels of conflict involved, and other factors such as distance, work commitments, financial pressures, and the family’s individual parenting history.
We understand that no two families are the same and so it follows, every parenting arrangement / agreement made following separation needs to be considered on its own facts and in light of each family’s own circumstances.
Living arrangements for children after their parents separate
When parents make the decision to separate, they need to make some usually very difficult parenting decisions. For example, they need to decide where their children will live and how much time they will spend with each parent. Deciding on those living arrangements can be complex and stressful, especially if parents have strong and different views about parenting, the relationship was characterised by family violence and/or unresolved conflict.
It is usually at that stage that we see parents come to us seeking advice in relation to parenting matters with questions as to their options and their obligations in relation to their children.
Living equally with each parent
As part of our advice, we tell our clients there is a range of parenting options available to them following the breakdown of a relationship. One of these options is shared parenting, or shared care. Shared parenting is sometimes considered the best option for children of separated parents, as it demonstrates to children that both parents want to care for them and be involved in their everyday lives.
What are the benefits of shared care?
Shared care arrangements can benefit both children and parents. For example:
• Children get to have a close and meaningful relationship with each parent;
• Children get to spend quality time with each parent, without the need to rush them back into the care of the parent that same day or soon after; and
• Both parents have the opportunity to be substantially involved in their children’s lives
When is it not appropriate to enter into shared care?
In our experience, it is important that shared care arrangements occur in a positive and cooperative environment. Ideally, we find those arrangements work well when parents are able to work constructively together, and protect their children from being exposed to hostile or negative behaviour. In our experience, shared care arrangements do not work and are not appropriate in a negative or high conflict atmosphere, including when:
• there are high levels of inter-parental conflict
• there are ongoing and significant psychological bitterness between parents
• one or both parents see the children as being at risk when in the care of the other
• there is a history of family violence is apparent and relatively recent
• there is a history of child abuse or neglect
In these circumstances, a shared care arrangement is likely to adversely impact on the children and do more harm than good.
What factors should you consider in deciding about shared care arrangements?
A shared parenting decision needs to be made in light of the best interests of the children and, to a lesser extent, those of the parents themselves. It is important to consider children’s safety, needs, rights, interests and their expressed wishes and views. Other relevant factors that need to be considered include the child’s age, gender, stages of development, cultural background, primary attachment needs and relationship with each parent.
Those considerations need to be taken into account together with the level of parental conflict, parental competence, the level of commitment shown by each parent to the care and nurturing of their child, where each parent lives and, importantly, how practical it is to share care. The quality and ability of communication between parents is also of great importance.
We have found that considering those factors can help families make informed decisions that are positive for their children, and hopefully allow both parents opportunities for involvement in their children’s lives.
If you would like advice, guidance or assistance in relation to your parenting arrangements following the breakdown of your marriage or relationship, contact our Family Law Team here at Taylor & Scott Lawyers.
At Taylor & Scott “ We Care For You.”
There is no definitive ‘yes’ or ‘no’ answer to that one without first engaging in closer examination of the nature and dynamics of your relationship.
When married couples come to court, they produce a copy of their marriage certificate to prove they fall under the jurisdiction of the Family Law Act 1975 and, as such, can apply to the court for property orders.
For de facto couples, however, to fall under the Family Law Courts’ jurisdiction (where they must have separated after 1 March 2009), the process of establishing their relationship existed – at law – is not always so clear cut. Section 4AA, as a threshold issue to establishing the existence of a de facto relationship, requires the couple in question:
– not be married to each other;
– not be related to each other by family; and
– having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a “genuine domestic basis”.
The section then provides a list of what the court may look at when deciding whether the circumstances of a relationship will tip the scales to say the parties were ‘really’ a de facto couple (as opposed to just boyfriend/girlfriend):
– length 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 arrangements for
financial support, between them;
– the ownership, use and acquisition of their property;
– the degree of mutual commitment to a shared life;
– whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
– the care and support of children; and
– the reputation and public aspects of the relationship.
Generally speaking, the more ‘applicable’ or the greater the extent of each one of those factors having existed between a couple, the more likely a de facto relationship may be declared to have been bona fide (‘genuine’).
Once you are declared as having been in a de facto relationship, thanks to section 90SB, as a precursor to the court being able to make property or maintenance orders between you, the court must also be satisfied of one or more of the following:
– that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
– that there is a child of the de facto relationship; or
– that:
– the party to the de facto relationship who applies for the order or declaration made “substantial” financial, non-financial or homemaking/parenting contributions; and
– a failure to make the order or declaration would result in serious injustice to the applicant; or
– that the relationship is or was registered under a prescribed law of a State or Territory.
And then, this time thanks to section 90SD (maintenance) or section 90SK (property), the court must also be satisfied:
– that either party was ordinarily resident in a participating jurisdiction when the application was made; and
– that either:
– both parties were ordinarily resident during at least a third of the relationship; or
– you (as the applicant) made substantial contributions in a participating jurisdiction(s) when the application was made; or
– that the parties were ordinarily resident in a participating jurisdiction when the relationship broke down.
See, we were not kidding when we said the answer to the question is never really clear cut. And just in case you are wondering; yes, you can still be found to have been in a de facto relationship even if you were at the time legally married to someone else.
At Taylor & Scott “ We Care For You.”
The answer is yes, of course you can, but it is highly inadvisable.
You should be aware that you (and your spouse) take a very serious risk by not formalising your agreement with the aid of at least one expert family lawyer between you. Most couples formalise their agreement by way of ‘Consent Orders’ which, as the name suggests, are orders made by the court with the consent of the parties.
What Consent Orders do is pronounce the full and final settlement between the parties, at law, so as to effect a ‘clean break’ (financially speaking). This means, that unless it can be proven at a later date that the Consent Orders should be set aside or varied because of such things as a miscarriage of justice by reason of fraud, duress, suppression of evidence (including non-disclosure of assets or relevant information), the orders made should stand the test of time. In other words, if one party wins the lottery or receives an inheritance after orders are made, the other party will not be able to come back for ‘another bite of the cherry’.
What Consent Orders also do is provide an exemption from stamp duty and/or capital gains tax (CGT) rollover relief where there is a transfer of property between the parties.
And if you think the expiration of 12 months from the date of your divorce order affords you protection to stop your former spouse from still coming to court and seeking property orders, think again. There is a provision in the law that allows a party to apply to the court out of time and, just to emphasise the importance of formalising an agreement between the parties as soon as possible, the case law is littered with examples of parties having been granted leave (permission) of the court to proceed out of time ranging from a few days to a few months, and sometimes decades. Indeed, in the matter of Ordway [2012] FMCAfam 624 (13 July 2012) the husband probably had the shock of his life when wife was granted leave to proceed 26 years after the parties’ divorce order was made.
Formalising your property settlement now for a few thousand dollars in legal fees, may very well save you tens and, in some cases, hundreds of thousands of dollars in legal fees and, potentially, payments or transfer of property to your ex-spouse later on when you may be forced to have the fight in court.
At Taylor & Scott “ We Care For You.”
The answer is maybe, but most likely, no. We promise we are not being difficult or pessimistic, so let us explain why…from the beginning.
Marriage in Australia is defined in the Marriage Act 1961, where section 5 lists four factors that constitute a valid marriage, adopting the definition in the old English case of Hyde v Hyde and Woodmansee (1866), namely, that marriage is:
1. The union of a man and a woman
2. To the exclusion of all others
3. Voluntarily entered into
4. For life.
Prior to the Family Law Act 1975 coming into effect, parties (or at least one of them) would often engage in a mad race to bring evidence to court in support of their application for divorce based on the ‘fault’ of their spouse, such as infidelity, abandonment and other such things. Then, thanks to section 48(1) of the Family Law Act, ‘no fault’ divorce was born. The section establishes there is only one ground for divorce in Australia, which is that the marriage has broken down irretrievably, proven by a minimum of 12 months separation immediately prior to the filing of an application for divorce.
Annulment is a completely separate legal creature and is far rarer than divorce. Whereas divorce gives effect to the dissolution of a marriage (i.e., it is a decree that a once valid marriage is no longer in existence because it has legally come to an end), annulment, on the other hand, is a legal declaration the marriage was void from the start, meaning it was never legally in existence in the first place (section 51).
When considering whether your marriage could be declared void, family lawyers like ourselves, just like the Family Court of Australia, have to refer back to the Marriage Act 1961, in particular, section 23B, which lists the following five circumstances in which an annulment may be granted, namely:
1. At the time of the marriage, either you or your spouse was lawfully married to another person, also known as bigamy (and which, by the way, carries a penalty of five years imprisonment under Commonwealth law); or
2. You and your spouse are within a prohibited relationship, for example, you are siblings (whole or half-blood); or
3. There was a procedural irregularity at the time of your marriage, for example, the marriage celebrant was not licensed and registered by the Commonwealth to marry you; or
4. There was a lack of consent of either you or your spouse due to duress, fraud, mistaken identity or being mentally incapable of understanding the nature and effect of the marriage; or
5. Either you or your spouse was not of marriageable age, i.e., at least 18 years old unless the court has previously reduced that age by up to two years under exceptional circumstances and where the other party is of marriageable age.
Section 23B then says something at the end that is a little unusual in family law legislation: “and not otherwise”. Simply put, if you do not fit into one of the above five categories, the court will not be able to consider your application for an annulment, let alone grant you a decree. For the purposes of parenting matters under the Family Law Act or child support, whether your child is “legitimate” or “illegitimate” will make no difference.
Under circumstances where you and your (purported) spouse have had a child born of a void marriage, he or she is considered ‘illegitimate’. However, pursuant to section 91 of the Marriage Act, if that child was conceived at a time when the parties reasonably believed their marriage was valid, the child will be legitimate.
Importantly, the effect of a decree of nullity is that both parties can validly claim to have never been married previously. It is an interesting concept, but one you should bear in mind if you do, in fact, fall under one of the above criteria.
At Taylor & Scott “ We Care For You.”
The answer is yes, but you must first jump through a few hoops to have the Family Court of Australia make an order for spousal maintenance in your favour.
In a nutshell, section 72(1) of the Family Law Act 1975 says that a party to a marriage (or party to a de facto relationship if the relationship broke down after 1 March 2009: section 90SF(1)) is liable to maintain the other party where that party cannot do so themselves. That could be by reason of having children of the relationship less than 18 years of age living with them, difficulty in gaining employment because of age or physical or mental incapacity, or for “any other adequate reason”.
Essentially, it is a three-pronged test (or a ‘threshold test’), namely:
1. Can you, as the applicant, show that there is a shortfall between your income and expenditure to fund your reasonable living expenses (emphasis on the ‘reasonable’)?
2. Can you, as the applicant, show that you are doing everything in your power and capability to meet that shortfall, but just cannot do so?
3. Can the respondent (your spouse) be proven to still have a surplus of funds, whether by way of income, earning capacity, property and/or financial resources, to be able to meet your shortfall after they meet their own reasonable living expenses and commitments?
If each one of the above questions is answered ‘Yes’, you could be well on your way to a spousal maintenance order (or alternatively, on the paying end of that same order).
Having said that, there are some additional points you should keep in mind:
– There is no fettering principle that the pre-separation standard of living must automatically be awarded where the respondent’s means permit. In other words, just because you may have been used to buying $200 worth of lottery tickets each week when you and your spouse were together, that does not mean the court will make an order to ensure you can still buy those $200 worth of lottery tickets per week, notwithstanding your spouse can still afford to pay for it. Remember the test: ‘reasonable’ living expenses.
– The court has the discretion to exercise its judgment on a case-by-case basis whether the guiding principle is “reasonableness in the circumstances” (as per section 74 of the Family Law Act). In other words, the assessment made by the court is not administrative (e.g., the court will not just tick a few boxes and make an order in accordance with how much is being sought by you), but judicial (i.e., an examination of the parties’ competing claims based on the evidence before it must first take place).
– It is not necessary for an applicant to use up all of their assets and capital in order to satisfy the requirement they are unable to support themselves adequately. In other words, an applicant does not have to be on the verge of being penniless and/or destitute in order to qualify for a spousal maintenance order.
– If you simply refuse to work or to make attempts to find work that is reasonably available to you (under circumstances where you can do those things), it is almost a certainty you will be unsuccessful in your application. In other words, the court must be satisfied the threshold test abovementioned has been met.
– Where both property orders and spousal maintenance is being sought, spousal maintenance will ordinarily be dealt with after the determination of property settlement, unless there is a case for urgent or interim spousal maintenance that will typically only last for a relatively short period such as a few months or until the Final Hearing in a matter.
– Lump sum spousal maintenance (e.g., one payment of $20,000) can be ordered by the court, but it will invariably first consider periodic payments (e.g., $300 per week) as well as the duration of any order it makes.
– There is a time limit for making an application: 12 months from the date of your divorce, or 24 months from the date of the breakdown of your de facto relationship.
An application for spousal maintenance, just like an application resisting one, can be both tricky and technical.
At Taylor & Scott “ We Care For You.”
The answer is yes, there a many different time limits imposed by the legislation in respect of various applications and proceedings. Here are some examples:
a. You (as the applicant) must serve your divorce court documents on your spouse not less than 28 days before your divorce hearing; 42 days if your spouse is overseas.
b. You (as the respondent) must file and serve your response documents on your spouse where you are opposing the divorce or contesting jurisdiction not less than 28 days before the divorce hearing; 42 days if you were served overseas.
c. You have 12 months from the date of your divorce order to make an application to the court seeking property orders; 24 months from the date of separation in de facto relationship matters.
d. You have 28 days from the publication of ‘Statement of Reasons’ from the Social Security Appeals Tribunal to file an appeal in court, on a question of law, in regards to a child support decision.
e. You have 7 days prior to your first court event in parenting or property matters to file and serve your response and any necessary affidavit with it in proceedings commenced by your spouse.
f. You have 7 days to amend your application for parenting and/or property orders after such order permitting you to do so is made.
g. You have a maximum of 28 days before your first day before a judge to file the mandatory notice as to full and frank disclosure.
h. You have 14 days to file an application for review after you receive a registrar’s reasons in a costs assessment hearing for a disputed itemised costs account.
i. You have 28 days to file a Notice of Appeal after the date of the order you are appealing.
j. You have 21 days to ask written questions of an appointed single expert (such as a property or business valuer) to clarify their report after you receive it; 7 days if you have had a conference with the expert within 21 days of your receipt of their report.
k. You have 7 days before a hearing, or 28 days before a trial, to issue a ‘Notice to Produce’ on another party in the proceedings for them to produce documents at court.
l. You and your spouse have 30 days from the date of a successful divorce hearing to apply to rescind the order made that day, before it becomes absolute and dissolves your marriage.
Having said that, there is a provision in the legislation that allows you to apply to the court to shorten or extend a time abovementioned. However, there is no guarantee the court will grant you leave (permission) to do so and, as such, adhering to the time limits above is the rule, not the exception.
At Taylor & Scott “ We Care For You.”
Clients sometimes ask us…
“I don’t know where my ex-partner is, so can I still get court orders?”
Yes, you can. There is no requirement that both parties participate in matters before the court, including matters relating to divorce, property/financial settlement and even parenting. Matters that are pursued by only one party, with no involvement by the other party, are known as “undefended” matters.
Divorce
Given in Australia we have had a “no-fault” system for over 40 years now, there is no requirement that both parties consent to a divorce. Although parties can apply jointly for a divorce, it is not uncommon for one party to apply on their own. In most cases, the other party still needs to be notified of the divorce application but if you are unable to locate your spouse (you will need evidence of your attempts) and provided the court is satisfied as to the other criteria for divorce, an order will be made.
Property/Financial Settlement
Although some parties may find their ex-partner wants to delay property settlement, it is unusual to find someone who wants to stick their head in the sand and avoid it altogether.
However, it isn’t completely unheard of.
Again, you will need to show your attempts to locate the other party and notify them of the proceedings. In that regard, social media is often a useful tool to attempt to locate spouses who are missing in action. Provided the court is satisfied the other party is aware of the proceedings and has chosen not to file documents in response and/or make an appearance, the court may then proceed to make orders for property settlement in accordance with the usual principles. It is important to remember, however, that just because the matter is undefended, you will not automatically receive 100% of the property pool.
Parenting
For whatever reason, some parents are not involved in the lives of their children. If your ex-partner has no contact with you or the children, it is still possible to obtain parenting orders from the court.
You may wonder: why would that be necessary if your child lives with you and the other parent does not interfere?
On a day-to-day basis, it is unlikely to cause any problems. However, if you want the child to obtain a passport, travel overseas, undergo certain medical procedures or to enrol them in a new school, you may encounter problems. The issue stems from the fact organisations and agencies sometimes require the consent of both parents. If your ex-partner is an absentee parent, you may consider applying to the court for sole parental responsibility, enabling you to unilaterally make all long-term (and day-to-day) decisions relating to your child.
It is also possible to apply for orders that specifically permit you to obtain a passport without the consent or signature of the other parent to ensure you and the child can travel overseas without any hassle.
If you or someone you know needs expert advice from our specialist team of family lawyers, phone us on 1800 600 664 or complete the contact form on this page.
At Taylor & Scott “We Care For You”.
Clients sometimes ask us…
“Is my spouse entitled to half our assets?”
In our experience, possibly from what they hear in the media about Hollywood divorces, people often mistakenly believe all separating couples must split their property 50:50. There is nothing in Australian family law which says each party will receive 50% in a property settlement by way of right. There is no presumption at law nor is there a mathematical formula applied. Instead, each case will be determined (or negotiated) on a case-by-case basis.
The recent case of Elford & Elford [2016] FamCAFC 45 shows how wrong a party can be to assume they are entitled to a share of their spouse’s property, just because they were married.
In that particular case, the parties had been married for about 10 years. During the marriage, the husband won approximately $600,000 in the lottery. The wife claimed she was entitled to a share of the lottery on the basis the winning ticket was bought during the marriage and it was therefore a “joint contribution”. The husband claimed he purchased the ticket from his own personal money and had kept the winnings in his personal account. Therefore, he claimed the lottery win was not a joint contribution but one made solely by him. The judge agreed with the husband and gave the wife approximately 10% of the total property pool (not the 32% she was seeking).
Another recent case of Chancellor & McCoy [2016] FCCA 53 also shows how important it is to look at the specific circumstances of each relationship and reminded parties there is no automatic entitlement to an alteration of property interests even in very long relationships. In that case the judge considered a de facto relationship of 27 years. The applicant wife sought orders for property settlement that would see a transfer or payment of money to her of an unspecified amount. However, the judge found that because the parties had kept their finances separate throughout their relationship and there had been no “intermingling” of finances (indeed, they had not bought any property together or shared bank accounts), the wife was not entitled to a property settlement and each party ultimately kept whatever was in their sole name.
It goes to show just how important it is to look at the contributions made by each party and how they conducted their finances during the relationship. The specific circumstances of each relationship can be very important and as the above cases show, can make a significant difference to each party’s entitlements at law.
For a newspaper article about the lottery case abovementioned, click on the following link: https://www.9news.com.au/national/2016/04/05/11/28/divorced-man-to-keep-entire-lotto-win-despite-decade-long-marriage
If you or someone you know needs expert advice from our specialist team of family lawyers, phone us on 1800 600 664 or complete the contact form on this page.
At Taylor & Scott “We Care For You”.
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