When a relationship breaks up there are obviously a number of issues that must be confronted, usually when the parties are in an extremely emotional state. This volatile environment is even more difficult when there are children involved. One of the issues that cause the most conflict is potential distribution of the shared finances, and couples frequently turn to the legal system to help them reach agreement when they are unable to do it themselves. One way to prevent this situation for people in Australia who have substantial assets is to enter into binding financial agreements prior to their marriage, or as they are commonly known in celebrity circles overseas, prenuptial agreements.
Valid binding financial agreements can oust the jurisdiction of the courts, but they have their limitations. Family law Brisbane advice is that while they can deal with the division of property and finances, and cover maintenance issues, they cannot do the same regarding parenting issues.
There are a number of provisions that must be met for an agreement to be recognised by the Australian legal system. The first requirement is that the agreement must be in writing and signed by all parties. Before signing, all parties must have independent legal advice from a legal practitioner, explaining how the agreement will affect their rights, and the advantages and disadvantages of entering into the agreement.
A statement from the legal practitioner who provided the advice must be attached to the signed agreement. Once made, the agreement must not be terminated or set aside, and all parties must have a copy of the agreement. This does not mean that the agreement as set is irrevocable, since circumstances can change. However, if changes are made, all the original conditions must be adhered to for the amended agreement.
Parties considering signing binding financial agreements should also be aware that they can be set aside by an order under certain circumstances. Most of those circumstances relate to fraudulent or unfair treatment of a creditor, or unconscionable conduct by one of the parties to the agreement. However, they can also be set aside if changing circumstances makes the agreement impractical, if the change would cause hardship to a child or other party, or if superannuation is involved. If the court sets aside an agreement, it can order the transfer of property in a manner which it considers fair.
Binding financial agreements cover many aspects that come out of a relationship which are subject to family and property law. Because of the complexity of these laws, a visit to family lawyers Brisbane is essential before considering such an agreement.
No-one who enters a romantic relationship expects it to end in bitterness and regret. Unfortunately the future is not there for us to see, so in cases where the worst happens, the legal system is there to protect all parties.
Changes to the laws surrounding de facto relationships are bringing in a welcome change for couples who have not formalised their relationships through marriage. The new defacto family law applies to couples whose de facto relationship has a geographical connection with New South Wales, Victoria, Queensland, Tasmania, the ACT, the Northern Territory or Norfolk Island, and whose relationship broke down on or after 1 March 2009. This decision provides some certainty for couples in this situation, and creates a climate of uniformity in those locations mentioned which may not have existed previously when different states may have had different laws.
The new laws bring separating couples under the federal family law regime with regard to the division of property and the payment of spouse maintenance. As with any legal matter, nothing should be assumed and although at first glance the requirements of the law may seem easily understood, it is always wise to get professional advice from Lawyers Brisbane.
There are a number of benefits that come with the new arrangements. One is that the Family Law Courts can order that property owned by the couple, either separately or together with each other, can be divided. This also applies to superannuation accumulated by each partner which was previously only available to married couples and for them, only since 2002. The court can also order spouse maintenance, which was not previously possible in Queensland and Victoria, although that did change in Victoria prior to these new laws taking effect.
However, the Family Law Courts need to be satisfied that the relationship has lasted for at least 2 years, or there is a child conceived out of the relationship, or one of the partners made substantial financial or non-financial contributions within the relationship, and serious financial hardship would result to that partner if the order was not made, or in states or territories where defacto relationships can be registered, that such a registration was made.
The new defacto family law provides for definitions as to what constitutes a de facto relationship, and states that it exists between two people who are not married or related by family live together as a couple on a genuine domestic basis. The couple can be two people of the opposite sex, or two people of the same sex.
The law looks at all the circumstances of the relationship to determine if it is a genuine de facto arrangement. There are a number of these, including the duration of the relationship, if there is a common residence, the presence of a sexual relationship, financial arrangements and dependence, ownership as well as use and acquisition of their property and the care and support of children. These are not the only circumstances, and any issues around these circumstances should be first discussed with Solicitors Brisbane.
There are many other provisions of the new defacto family law and separating couples, particularly if the circumstances are acrimonious, should not rely on their own knowledge, or information from uninformed sources. Legal matters should always be taken to the experts, especially when substantial assets and precious children are involved.
No one consciously begins a new romantic relationship believing that one day they will be standing before strangers trying to get a judgment about the personal minutiae of their lives. Unfortunately, in many cases, that is exactly what happens, and for people who have never been in the court system before, it can be quite stressful and traumatic. This is particularly so if there are children from the relationship. The emotional pain of the breakup, coupled with the angst and uncertainty of the outcome of legal proceedings, is often more than some people can cope with, and questioning the value of family law litigation is common.
It is a fact of modern life now that almost half of serious, long-term relationships break up and up to forty percent of marriages end in divorce. These statistics have been building since the late 1960’s and one of the fall-out effects has been the demand for assistance from family law Brisbane experts.
Everyone’s circumstances in this situation are different, and in many cases there is no alternative other than family law litigation. Often, the results are positive, with the parties getting resolution and moving onto the next phase of their lives. These results are often achieved painlessly, especially when the parties aren’t seeking blame or revelations of perceived wrongs.
Sadly for many people, however, the process is slow, costly, and leaves them in limbo for much longer than they had anticipated. Unable to plan for the future, they can become angry and experience a sense of disempowerment, as they effectively hand over control of their lives, albeit temporarily, to others. Sometimes, these incidents end in tragedy.
It’s good to know, then, that there is another option. Everyone knows that lawyers represent people in court proceedings, but most don’t know that some lawyers specialise in out of court proceedings through a collaborative process. This involves all parties signing a contract that they will not seek redress through family law litigation, but will negotiate their way to settlement.
The role of family lawyers Brisbane in this process is to support the client during the negotiations and encourage them to make their own decisions. This process hands the power back to the individual as opposed to the court process, where the decisions are made in accordance with the law and what the judge believes is in the best interests of both parties. This may not necessarily be what is in the mind of the client.
Family law litigation can be successful for many people, but if the parties believe they can reach agreement outside of the Court system, the collaborative process is a viable alternative. The end result should be that both sides can leave the relationship feeling that they have been treated fairly and with dignity.
