Frequently Asked Questions
What is a de-facto relationship?
In the past, what constitutes a De Facto Relationship, and the legal implications which arise as a result of being involved in a de facto relationship, have been widely defined and have varied from state to state within Australia. However, most definitions include that a De Facto relationship is a relationship between:
two adults (over the age of 18 years);
who are not legally married to each other; and
are not related 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.
How have recent changes to the Family Law Act affect de facto relationships?
Changes to the law in 2009 mean that past inconsistencies in the law have largely been rectified. Under the new law, certain persons leaving an unsuccessful De Facto Relationship can pursue property settlements in much the same way as married couples who have separated, relying on the same law and using the same court systems
How do I apply for a divorce?
Applications for Divorce are brought in the Federal Magistrates Court of Australia. There is a filing fee payable to the Court when filing an Application for Divorce. In most cases, it usually takes about three months for a Divorce to be finalised from the time of filing
When can I apply for a divorce?
Either party to a marriage (or both together) can make a Divorce application once they have been separated from their spouse for a period of not less than 12 months. The basis of seeking a Divorce is that the marriage has broken down irretrievably
After a divorce what happens to the children?
Under current parenting law, it’s presumed that both parents will have equal shared parental responsibility for their child or children. That means they are required to consult each other and make joint decisions about major issues affecting the child such as education, health, housing, and religion. In some situations equal shared parental responsibility may not be in the child’s best interests, and you will need to discuss other aspects of parental responsibility with one of our solicitors.
What role does the court take in making decisions about the children?
The Court can make Orders which it considers to be in the best interests of the children, despite the apparent conflict with the wishes or the interests of either of the parents or children. Such an order literally deals only with when a child lives with a parent, or spends time with a parent. It does not affect other responsibilities that parents have in making decisions about children including medical, dental and educational matters.
What happens if one party tries to take the children away?
If there is a fear that one party may remove the child from the other, or if the child has actually been removed, an urgent Order can be obtained from the Court to prevent the child from being taken away, to have the child returned or to locate the child. This is important if there is a possibility that the child may be taken overseas
What is child support?
By law both parents are required to support their child financially. In some cases this may involve one parent paying a child support payment to the other, to help with the costs of raising a child.
What is spousal maintenance?
Spouse maintenance is a form of financial support and maintenance of one spouse by the other spouse – quite separate from property settlement. It is usually paid by agreement between two people following marriage breakdown, or can be ordered by the Court if agreement cannot be reached.
Upon marriage breakdown, spouse maintenance usually takes the form of periodic monetary payments from one spouse to the other, lump sum cash payments, or payment of expenses for a spouse’s daily living costs such as mortgage installments, payments of rates, utilities, health care costs, and other household expenses.Who is entitled to Spouse Maintenance & who must pay?
A person to a marriage is liable to maintain the other person by way of spouse maintenance payments to the extent that the paying person has the capacity to do so AND the person receiving the financial support is unable to support himself or herself adequately by reason of:
having the care and control of a child of the marriage under the age of 18 years;
their age or physical or mental incapacity for gainful employment; or
for any other adequate reason, including such things as family income and resources, commitments to support oneself and children, and the
standard of living that is reasonable within the context of the family.
What is a Binding Financial Agreement?
A BFA or pre-nuptial agreement is a legally binding agreement made between two people setting out the division of property in the event of marriage breakdown, and other financial issues which might apply either during the marriage, or separation.
How do I know if I need a Binding Financial Agreement?
That decision is entirely up to you. Some situations where it might be considered include one party bringing significantly more assets into the marriage than the other party or a mutual decision by both parties to avoid courtroom proceedings, should a divorce occur.
Who should I appoint as the executor of my will?
The executor is the person responsible for your estate and for carrying out the wishes expressed in your Will.The Executor can be: -
One or more persons including your spouse, relatives, friends or persons who have helped you in the past such as your accountant or your solicitor;
Someone who will receive a gift under your Will.
Your Executor must be:-
Someone that you trust completely to carry out your wishes and to act in your beneficiaries best interests.
Someone who has the ability to do the work required, including:
Arranging your funeral;
locating and sorting through your documents;
sorting through and disposing of your personal items;
instructing a solicitor to carry out the legal work associated with obtaining a grant of probate and calling in and distributing your assets.
Selling items such as real estate, motor vehicles and the like;
dealing with personal issues that might arise with beneficiaries relatives or other persons.
The Executor should not be someone who may have a special reason not to act totally in the beneficiaries’ interests. Examples of this might be:-
a business partner who may wish to continue on the business in a manner that does not protect the interests of your beneficiaries, and
someone who owes you money.
We usually suggest the appointment of two or more executors in case one predeceases you or is unwilling or unable to act.Executors should be resident within New South Wales as this will make it easier for them to carry out their duties.Executors can be appointed to act together or you may appoint one executor to act on his/her own, with a second or subsequent executor to be available to act if the first executor dies or is unable or unwilling to act.
If money or other assets are to be held for a period of time before distribution, for example if a beneficiary is under 18, the executor will need to invest and manage those assets, including filing income tax returns.
What is an Enduring Guardian?
Appointment of an Enduring Guardian is a legal document in which you appoint a person to make personal lifestyle decisions on your behalf when you are not capable of doing this yourself
What happens if I do not appoint an enduring guardian?
If you do not appoint a Guardian then if the circumstances arise where one is needed it could be necessary for someone to make an application under the Guardianship Act to be appointed your Guardian. The Guardianship Tribunal might agree to this appointment or alternatively, might appoint the Protective Commissioner (a Government Official) to act as your Guardian. The application to the Guardianship Tribunal is more complicated and potentially more costly for you than making your own appointment now. The Protective Commission will charge a fee for administering your affairs.
What is a power of attorney?
A power of attorney is a legal document which appoints one person (the attorney) to act on behalf of another (the donor) in areas of property and financial management.
An attorney in this sense does not necessarily mean a lawyer or solicitor. The attorney is usually a family member or close friend.
A power of attorney does not enable a person to make medical or lifestyle decisions on behalf of another. The person to make these decisions is an Enduring Guardian appointed in a separate document.
What is an enduring power of attorney?
You can make either an ordinary power of attorney or an enduring power of attorney. The difference is that an ordinary power of attorney ceases to have effect when a person loses mental capacity but an enduring power of attorney continues in force after that time.
What are the typical steps in buying a property in NSW
You decide the price you can afford to pay. You may want to discuss this with your bank or other lender.
You find a property that you like and agree to a certain price. By law a draft "Contract for Sale of Land" must be immediately available for prospective purchasers to inspect.
You and the seller (called the ‘vendor’) may be asked by the agent to sign a sale contract with a ‘cooling-off’ period. If you agree, you only pay a part deposit of .25% of the purchase price and will then have 5 business days after the agent exchanges contracts to ‘cool off’ and cancel your purchase (on condition that you lose the part deposit paid) . During the ‘cooling-off’ period the vendor cannot sell the property to someone else and is the time in which you have property inspections done, have the contract reviewed (and if necessary amendments to it negotiated by your solicitor) and wait for unconditional written finance approval from your lender.
If the vendor wants you to waive the ‘cooling-off’ period then you should not sign anything until you obtain legal advice on the sale contract. Any changes to the contract are now negotiated by your solicitor and at this stage it is also important to obtain any necessary searches such as a survey, a pest & building report (if the property you wish to buy is a house) and a strata inspection report (if the property you wish to buy is a unit).
When the terms of the contract are finally agreed upon, any searches and enquiries are satisfactory and your loan is approved and you have already exchanged contracts with a ‘cooling-off’ period you can allow the ‘cooling-off ‘ period to expire and pay the balance of the deposit (usually 10% of the purchase price) to the agent. If the ‘cooling-off’ period is to be waived then your solicitor will provide the necessary certificate to do this and attach it the contract signed by you. Contracts are then unconditionally exchanged and, at the same time, you pay the deposit for the purchase by way a cash or cheque or is not available to you then a deposit bond (an alternative to a cash deposit) is usually agreed to. The sale then becomes binding on both parties.
After exchange of contracts, further searches and enquiries are made by your solicitor to ensure that you will be getting good title to the property free of fraud or unknown title defects. If you are borrowing money for the purchase your solicitor will also correspond with your bank and satisfy the its mortgage requirements for settlement.
Your solicitor will report to you about exchange of contracts, ask you for stamp duty money and estimate the date of settlement (also known as ‘completion’).
You arrange household insurance (buildings) in the exact names of yourself and the lending body. The insurance risks pass to you from the date you are entitled to occupy the property however it is recommended that you start your insurance cover from the date contracts are exchanged (but only if you are purchasing a house). Your bank will normally expect to have possession of the insurance policy before it settles the loan.
About 2-3 weeks after exchange of contracts you sign your mortgage documents.
About 4-5 weeks after exchange of contracts:
You will be advised of the estimated date for "settlement" more accurately and advised of the final amount (usually BANK CHEQUES) to complete the purchase, less the amount being provided by your lender;
You should apply for connection of the electricity, telephone and gas and book a removalist, if required.
On the completion date (usually 6 weeks after exchange of contracts) your solicitor meets the vendor's solicitors and your lender for the "settlement" to complete the transaction. There is no need for you to attend. Usually this settlement entitles you to take possession of the property and your solicitor ensures that the keys are made available to you as soon as possible - usually through the real estate agent - within an hour of settlement.
Shortly before the settlement you should arrange an inspection of the property to ensure that the agreed inclusions are there, no rubbish has been left on the site and the property has not been damaged since your last inspection. If there are any major issues you should immediately consult your solicitor.
After settlement the Land Titles Office, local council, Water Board and Valuer General (and the strata manager if the property is a unit) are notified that you are the new owner of the property and all future rate notices will be issued to you in your name.
What sort of agreements can we make about arrangements for the children?
You don’t have to get formal court orders made about the arrangements for the children - you can organise informal agreements. Many separated parents have informal agreements in place about the parenting of their children.
Agreement is usually reached through negotiation between the parents with or without the help of mediation or counselling services. Neither parent can make the other stick to an informal agreement.
It will often be important to get some legal advice because the agreements you make about where children live and where they spend their time can also affect your property matters and child support.
Parenting Plans – Parents are able to enter into agreements about the arrangements for their children, known as parenting plans. A lawyer, family counsellor, family dispute resolution practitioner or family consultant (“an adviser”) can help you and your ex make a parenting plan.
A parenting plan must be in writing, signed and dated. It can be changed by another signed written agreement.
Parenting plans create no legal obligations on either parent. However, the Court can consider what has been agreed in a parenting plan if you have later court proceedings dealing with parenting issues.
Consent Orders – This is an agreement which can bemade after negotiating with the other parent, usually with the help of a lawyer or dispute resolution service. Aconsent order is filed at, and approved by the Courts and is binding because the Courts can be asked to enforce it.
Do I have to attend family dispute resolution before I go to court about my children?
Family dispute resolution (also known as mediation) is required before you can start court proceedings about children, unless your case is urgent or involves some exceptional factors such as family violence. The Court usually requires a certificate from a family dispute resolution practitioner before a case about children can go ahead.
We have just separated and disagree about arrangements for the children. What should we do?
Try dispute resolution.
Before you go to court about your children, you must:
• make a genuine effort to resolve the dispute through counselling or mediation; and
• make reasonable efforts to communicate with the other party.
There are many services that help with counselling and family dispute
resolution including Legal Aid NSW, the Family Relationship
Advice Line and the Family Relationship Centres.