Following the breakdown of your marriage or de facto relationship, your primary focus is likely to be putting in place some arrangements for children, re-housing, dividing up your assets/finances and seeking advice from a family lawyer to assist navigate those issues. In what is already an emotional and stressful period in your life, you may overlook how a separation impacts your estate planning and what might occur in the event of your death or incapacity, particularly before a financial settlement has been finalised. 

Does separation revoke a Will?

The separation of parties to a marriage will not automatically revoke a Will, Enduring Power of Attorney or superannuation/insurance beneficiary nominations. This means if you made a Will or other appointment/nomination in favour of your spouse in the early years of your marriage, it will remain valid and in effect until formally revoked by a subsequent testamentary document, or until you are divorced (to the extent it appoints or makes a disposition to a spouse). You must be separated for at least 12 months before applying to the Court for a divorce. Failing to update your estate planning could result in a situation where on your death, your estranged husband/wife could control and/or inherit all of your assets (including superannuation) and those assets may not pass to your children or other family members. Likewise, in the event of your incapacity, your spouse could still be authorised to make financial and personal/health decisions on your behalf. 

For de facto couples, the law specifically provides the ending of a de facto relationship that will revoke an appointment or disposition to your former de facto partner under a Will. However, a separation will not revoke the appointment of your de facto spouse under an Enduring Power of Attorney. 

It is important to note the revocation of a Will as a result of divorce or the separation of a de facto couple does not revoke the appointment of your former spouse as trustee of property left by the Will on trust for beneficiaries which include your spouse’s children or any grant of power of appointment which can be exercised by your spouse in favour of children of both of you. Therefore, if your Will also makes provision for the children of your relationship (which is likely) it should be promptly reviewed and updated.

What happens if you do not have a Will?

If you do not have a Will the laws of intestacy apply. Currently in Queensland, if a deceased is survived by one spouse and no children, then the surviving spouse is entitled to the whole of the deceased’s residuary estate. If the deceased has children, then there is provision for each of the spouses and any children and the amounts/percentages are dictated by the legislation. Pursuant to the Succession Act 1981 (Qld) a person is a “spouse” if they are a person’s husband/wife, de facto partner (and had still been living with the deceased for a continuous period of at least 2 years ending on the deceased’s death) or civil partner. As such, pending divorce, your husband/wife would still inherit from your estate. 

Effect of death on jointly owned property

Following a separation, you should also review how any real property is owned with your spouse, for example as joint tenants or tenants-in-common. If property is owned as joint tenants, then upon the death of one of you, ownership will revert to the surviving owner/spouse and will not pass to the deceased spouse’s estate. Pending the finalisation of a property/financial settlement, consideration should be given to severing any joint tenancy so real property is owned as tenants in common in equal shares.

Can a settlement still be pursued in the Family Court?

You should also be aware that in the event of your death following a separation, your legal personal representative can only pursue a property/financial settlement under the Family Law Act 1975 (Cth) on behalf of your estate if Family Court proceedings were commenced prior to your death. 

What next? 

It is important for you to regularly review your estate planning to ensure your testamentary documents reflect your wishes and intentions and cater for any change in your personal and financial circumstances. In addition to seeking legal advice, as a part of any estate plan review, you should also consult with your accountant and/or financial planner.

If you or any of your clients have separated or are thinking of separating, then contact us for confidential family law and estate planning advice. 

To disclose, or not to disclose – that is the question (or whatever Shakespeare said)

A financial settlement with a former partner can be one of the most emotional financial decisions you will make in your lifetime. The decision to resolve the matter however cannot be made fairly, without both parties being truthful about their financial circumstances and the property they hold. 

What is the duty of disclosure?

The duty of disclosure requires all parties to a family law settlement to provide to each other all information relevant to their financial circumstances. This is known as “full and frank disclosure” and is set out in the Family Court’s pre-action procedures and the Family Law Rules. Full and frank disclosure requires each party to disclose all sources of earnings, interest, income, property and other financial resources and applies to all paper and electronic documentation or information in their possession or control.

When does it apply? 

Parties to a property matter have a duty to make full and frank disclosure at the beginning of their matter and the duty continues until the matter is finalised. Parties are required to provide timely and updated disclosure as additional documents come to hand. 

What needs to be provided?

The information that will need to be provided depends on the specific facts of each individual case, however, the court will presume that each party is able to contact their bank to obtain bank statements or their accountant to obtain tax information as it relates to them. 

To assist you or your client collate the relevant information, full and frank disclosure may consist of the following: 

1. Bank statements for all accounts that are held either jointly or solely;

2. Income Tax Returns and Notices of Assessment;

3. Any interest in a corporation, company, trust or partnership – tax returns, financial statements, constitutions, trust deeds and partnership agreements as well as any amendments; Valuations or appraisal for any asset owned; 

4. Records or statements of any stocks or shares owned; 

5. Any records of a financial resources which may include an interest in a deceased estate, trust, personal injury or other general claim; 

6. Earnings or income such as payslips, Centrelink statements and group certificates;

7. Statements for any superannuation funds and, in the event of a self-managed super fund, the trust deed and financial statements; 

8. Any property purchased or disposed of that was made in the year prior to separation or following separation; and

9. Any financial contributions made at the commencement of the relationship, inheritances, gifts or compensation received during cohabitation, and any documents in relation to your current state of health, illness, condition or injury. 

What happens if disclosure is not provided?

If a party fails to disclose information or documents that are relevant to the matter, it may have an adverse effect on their case. 

The other party may be able to issue a subpoena to obtain information they believe is not being provided and if the information is unearthed, it could affect a parties credibility in court. In addition, lawyers have a duty to the court above their clients and may take appropriate action if their client refuses to make disclosure of a fact or document relevant to their case which may include ceasing to act for their client. 

Judges take the position that if a party does not make full and frank disclosure, then they are likely hiding assets. If this is found to be the case, the Court may:

1. Stay or dismiss all or part of the case;
2. Order costs against you; 
3. Set aside any final Order or agreement reached; or 
4. Fine you or imprison you. 

We recommend that all efforts are made to collate these documents early on to avoid any additional delays, acrimony or unnecessary legal costs in a property settlement.

If you require family law advice, please contact us on (07) 3009 8444 or [email protected] to arrange an initial consultation.

If you’re thinking of walking down the aisle or moving in with your partner, then it may be time to think about a Financial Agreement, commonly referred to a pre-nuptial agreement or ‘pre-nup’.

What is a Financial Agreement?

A Financial Agreement is a written contract entered into between married or de facto couples setting out how their assets are to be divided in the event of separation.  

By entering into a Financial Agreement, parties are prevented from ever applying to the Family Court seeking a property adjustment order.

To be binding on the parties, the couple must each consult a lawyer who will give them advice as to the advantages and disadvantages of entering into the Agreement.  Both parties and their respective lawyers will sign off on the Agreement, with one person to then retain the original copy and the other person to retain a copy of the Agreement.  The Agreement is not registered in court, but becomes binding once signed by all parties.

What can and can’t be covered in a Financial Agreement 

Financial Agreements cover how property, including superannuation, can be divided in the event of a separation.  It is not uncommon for a wealthier party to want to protect or quarantine the assets they have acquired prior to the relationship from being divided in a property settlement at in the event of a separation and for the parties to agree that any joint assets or assets acquired during the relationship, are to be divided equally or in proportion to their respective contributions to that asset.

Spousal maintenance or ongoing, periodic financial support can also be included in a Financial Agreement. Spousal maintenance arises if there is an income disparity between separated parties, then the party with nil or low income can pursue spouse maintenance from the higher income earner.   A Financial Agreement can set out what, if any, amount must be paid to the low income party and for what period.

Parenting arrangements and financial arrangements for children in the event of a separation cannot be dealt with in a Financial Agreement.  Unlike some jurisdictions, penalty clauses for certain behaviours, for example, adultery cannot be included in the Financial Agreement

The Pros and Cons of Financial Agreements

An advantage of entering into a Financial Agreement is the certainty and control over your future financial position and the prevention of costly litigation in court in the event of a separation.  Financial agreements can be helpful in promoting an amicable and reasonably fast division of assets and liabilities following a relationship breakdown. 

As Financial Agreements are not subject to the scrutiny of a court prior to being signed, parties are free to negotiate as they wish, including agreeing to a bad deal.  Further, they are typically entered into by parties at a time when the relationship is at its best and therefore the parties may agree to a level of financial support and transfer of property they think is reasonable at the time, but later realise that what they agreed to 10 or 20 years ago is no longer appropriate given the lifestyle they have lived in since signing the Agreement.

Top five reasons for entering into a Financial Agreement 

1. Are you remarrying or have children from a prior relationship – In the event of your passing, a Financial Agreement can be used to ensure that your assets are distributed according to your wishes to ensure that your first family, or your second family are not financially cut off.   

2. You earn more than your partner – A Financial Agreement can be used to limit or prevent the amount of spousal maintenance you may have to pay in the event of a separation and for what period of time you are liable to pay.

3. One of you is much wealthier than the other –You may want to protect your assets if you have a higher financial worth than your new partner.

4. One of you has a lot more debt than the other – If your partner has a high debt level, you probably don’t want to be responsible for some of that debt in the event of a separation.

5. You own a business – Protecting your investments can be important if you own a closely held family business or a business with other people.  Your business interest would be included as an asset of your relationship and potentially open to the court ordering the sale or transfer of your business interest to your ex-spouse in the event of a separation.  A Financial Agreement can prevent this and secure your business interest.

If you are uncertain as to whether you need a Financial Agreement or not, or whether your relationship is a de facto relationship that may require the need for a Financial Agreement to protect your assets, then contact us for a confidential discussion. 

Having the support of family and friends can be crucial when going through a relationship breakdown, but getting specialist advice from a family lawyer early on can be invaluable.  

During these uncertain times, we understand people still wish to move on and finalise their family law matter as soon as possible.  The number one priority at separation should be your living arrangements.  

A common misconception is that you must stay in the family home in order to preserve your entitlement in a property settlement.  Not only is this wrong, but can sometimes be the worst thing to do if it will cause unnecessary friction, making it harder to negotiate a property deal in the long term.  Or if there are children involved, impact on your ability to co-parent in the future or worse, lead to family abuse of any kind which can be used against you in court.

Try to have an open and respectful conversation with your partner about why it’s best he or she moves out and what the short-term financial arrangements may be in relation to meeting the mortgage repayments or paying the rent.  If you elect to move out of the family home, your entitlement is preserved because until you have a final separation of your assets, all assets are considered joint at law.

Next, prepare a list of all known assets, liabilities and superannuation entitlements of you and your partner.  Getting this information early on from your ex-partner, can prevent a lot of frustration and minimise legal costs in the future. 

If there is a redraw facility on your mortgage or joint account with any significant savings, contact your bank and put a joint authority or “two to sign” on the account so your partner can’t withdraw all of the funds without your knowledge.  Remember, once it’s gone, it’s difficult to persuade the court to add back spent funds.

At Rostron Carlyle Rojas Lawyers, we offer fixed fee initial consultations with our accredited specialist family lawyers to help you understand your rights, discuss outcomes and help you focus on reaching a timely resolution.  Our expert family lawyers can provide you with advice on the following:

• Divorce;
• Property Settlements;
• Parenting Arrangements, including adoption and surrogacy;
• Pre-Nuptial or Binding Financial Agreements;
• Child Support;
• Mediation and consent orders

If you require family law advice, please contact us on (07) 3009 8444 or [email protected] to arrange an initial consultation.

It’s beginning to look a lot like Christmas but for some, after a stressful 2020, Christmas can be a time of sadness and frustration. So, what can separated families do to make Christmas a little easier on themselves and their children?

After a relationship breakdown, parenting children across separate households can seem daunting at first.  There is no doubt that the optimal outcome, both for parents and children, is co-parenting, unless there are safety concerns to consider.

What is co-parenting?

Co-parenting is an arrangement where parents can communicate effectively and reach joint decisions in their children’s best interests.

While this may seem hard or even impossible at first, remaining respectful, staying child-focused and setting boundaries will lead the way to effective co-operation. It is about working as a team across two homes to ensure that children are as happy as possible.

Top five tips for effective co-parenting and communication

1.  Be respectful

It can be difficult to put personal feelings aside and keep emotions at bay, however treating each other with respect (especially in front of the children) is a fundamental first step towards a successful co-parenting relationship.

Wherever possible, try not to criticise or blame the other parent and remember that little things can go a long way. In particular, speaking positively about your ex-partner around your children will make them feel safe and comfortable rather than ‘caught in the middle’.  Be cautious as to what you say on social media too.  Imagine a Judge reading your communication – how would you like to be perceived in that scenario?

2.  Create a plan

Creating a plan is often the best way to work out what the arrangements will be for the children that are deemed acceptable to both parties. If you’re having trouble agreeing about what arrangements are best, attending mediation or getting legal advice can help.

Each family is different and there is no ‘one-size-fits-all’ solution. For example, some parents prefer emails or text messages while others prefer communicating via technology to minimise contact. There are a variety of post-separation communication Apps that have different features suitable for each family (like calendar and document sharing), such as:

• Our Family Wizard
• MyMob
• 2Houses

3.  Be flexible

Being flexible is about accepting that things don’t always go to plan.  There may be times you need to compromise, for example if one parent needs to travel unexpectedly.

Being flexible where possible also makes it easier to accommodate children’s changing needs. Avoid making demands for certain outcomes and instead, offer several options to reach a decision together.

4.  Keep emails and texts clear and brief

After separation, it can take some time to find your feet in a separate household.  To avoid miscommunication or misinterpretation, keep communication clear, brief and specific to ensure what is written is easy to follow.

Consider the medium for communication – if something needs to be dealt with quickly, a text could work better, or a call if it’s an emergency.  Otherwise, stick to an agreed method of communication and give enough time for a response to be considered.

After separation, people are finding their feet in separate households. Whatever you write or say needs to be specific, clear and brief so there is no room for misinterpretation and it remains easy to follow. Think about what you want to say before putting it down. Multiple or long texts can lead to confusion or arguments. If something needs to be dealt with quickly, consider a text or call if it is an emergency. Otherwise, stick to the agreed method of communication and set out what decision needs to be reached and give enough notice for things to be thought over.

5.  Update the other parent

Having a “update” style of communication about how time with the children has been, can be beneficial. You can report on activities or achievements, which allows the other parent to feel involved and have things to talk about with the children when they are back in their care.

Sending photos of particular events is also helpful. Give and ask for information that you expect to get as a parent in a timely manner.

If it goes wrong, get help early on

If you’ve tried all the above tips but have difficulties communicating with the other parent after separation, you may need to consider other options.

We can assist you through the process of separation and to come to an agreeable position on co-parenting.  Contact our friendly family law team today to get started.

Raising children with your ex-partner following separation can be difficult and stressful and many parents find themselves embroiled in Court proceedings to determine ongoing arrangements for their children.

Often, parents will legitimately make various allegations about the other in relation to matters such as family violence, abuse or risk of abuse to the children or the capacity of their ex-partner to properly care for the children. In other cases, false allegations might be made as a parent considers it will help them “win” their case and prevent the other parent from having an ongoing relationship with the children.

There have been many cases determined by a Court where one parent has alleged the children have been abused by the other parent (or their new partner). In some of those, the allegations have been unfounded with no evidence to support the allegations and have resulted in the Court deciding it is in the best interests of the children to live with the parent against whom the allegations were made, due to the risk of or actual psychological harm to the children as a result of the other parent’s misbelief.

More recently, in the case of Huda & Huda (No.2) [2020] FCCA 1804 the Court decided documents should be forwarded to the Commonwealth Director of Public Prosecutions to consider whether the Father should be prosecuted having regard to the adverse findings made against the Father during the course of his family law proceedings. In that case, the Court found the Father had falsely accused the Mother of sexually abusing the children including that the Mother had:

• engaged in sexual intercourse with a man in front of the children;
• masturbated in front of one of the children; and
• engaged in sexual relations with the children since the children were born

Such allegations are extremely serious. Ultimately, after hearing all of the evidence, the Court concluded the Father made the allegations even though they were false (and when he knew them to be false) and there was no proper basis for the allegations. The Court considered the Father may have committed criminal offences, including the giving of false testimony and fabricating evidence. The matter will now be investigated by the Commonwealth Director of Public Prosecutions.

Contact Us
If you require family law advice, please contact Renée Kinman, Senior Associate and Accredited Family Law Specialist on (07) 3009 8444 or [email protected] to arrange an initial consultation.

Family Law Courts have recently had to determine whether parents have contravened parenting orders during the COVID-19 pandemic by not making children available to spend time with the other parent, and if they did, whether there was a reasonable excuse.

Under the Family Law Act 1975 (Cth) a contravention can occur if a person intentionally fails or makes no reasonable attempt to comply with an order. However, if the contravention was necessary to protect the health or safety of a person and the period of the contravention was not longer than was necessary to do that, the person breaching the order may have a reasonable excuse.

In Kardos & Harmon [2020] FamCA 328, the Father lived in Brisbane and the Mother and 3-year-old child lived in Adelaide with the Mother’s parents. The Mother was concerned for the health of the child and her family, the impact of cross-border restrictions and interstate travel.

The Court dismissed the Father’s application as the Father was not able to establish a contravention however still considered whether the Mother had a reasonable excuse for not complying with the order, if there was a contravention. The Court determined Queensland’s cross-border travel restrictions did not prevent the Mother and child from travelling from Adelaide to Brisbane. However, the Mother’s actions were necessary to protect the health of herself and the child as they would not have been able to maintain safe social distancing while flying and there was an unacceptable risk of the child coming into close contact with a person infected by the virus, which could be catastrophic.

The Court clarified a parenting order is to “…operate in the context of the restrictions and sanctions imposed…” and “…despite the existence of the COVID-19 pandemic, it is important that all reasonable efforts are made for children to spend time with both parents consistent with taking a responsible approach in respect to mitigating against risks associated with the presence of the COVID-19 virus in the community and, specifically, the child coming into close contact with a carrier of the virus.”

Whether a parent had a reasonable excuse for contravening a parenting order was also considered by Chief Judge Alstergren in Pandell & Walburg (No.2) [2020] FCCA 1853. In that case there was no dispute the Mother had contravened parenting orders by not making the 4-year-old child available to spend time with his Father since late-March 2020. The Court had to determine whether there was a reasonable excuse for the contravention as the Mother had obtained advice from the child’s treating doctor that due to the child’s medical condition he was at risk and should remain isolated at home with the primary parent (the Mother).

Before the Court decided the matter an updated specialist medical report was ordered. That report essentially set out the child was not at high risk. The Mother continued to withhold the child following the issue of that report.

In this case the Court determined the Mother had a reasonable excuse for the contraventions until the date the specialist report was issued, however from that date she did not. To address the contravention the Court ordered the child spend some make-up time with the Father and varied the existing parenting order by increasing the time the child spends with the Father until the matter returns to the Court for Hearing in August 2020.

Contact Us
It is vital you obtain legal advice from a family lawyer if you are contemplating not complying with a parenting order or parenting plan. Our family law team at Rostron Carlyle Rojas Lawyers are here to help you navigate this unprecedented situation and answer any queries you might have.

Please contact us on (07) 3009 8444 or the following email addresses:

Tuskeen Jacobs, Partner & Accredited Family Law Specialist – [email protected]
Renee Kinman, Senior Associate & Accredited Family Law Specialist – [email protected]
Alana Pointon, Lawyer – [email protected]