June 19, 2014

FAQs

Couple arguing

Family law

What is Family Law?

Family Law is the area of law that deals with family matters such as property, children, divorce, financial agreements and so on.

My marriage or defacto relationship has broken down. What’s my first step?

First and foremost is to ensure you have proper emotional support from family and friends.
You should then discuss your circumstances with your solicitor to ensure you are aware of all your rights and to get a clear idea of the legal process. Making sure you are supported both emotionally and legally will make the whole process a whole lot easier.

Will my matter go to court?

The majority of relationship breakdowns do not end up in court and of the small amount that do, even fewer go to a final hearing. Alternatives to court are mediation, conciliation and counselling. Couples are at all stages encouraged to settle matters amicably and fairly so as to avoid undue emotional and financial hardship.

Married, defacto or same-sex relationships. Any differences when it comes to family law?

At this time, in most cases the different types of relationships are treated the same under the Family Law Act.

What sort of costs are we looking at?

As Family Law cases vary greatly between each other, costs are difficult to estimate. Costs are based on Solicitor time, law clerk time and third party costs such as court fees, mediator fees and barrister costs. The quicker the dispute is resolved and an agreement reached the less the process will cost. Matters that progress all the way to a final hearing can wind up being very expensive. However this cost has to be weighed up against the benefit of further litigation.

So. How can I resolve this matter quickly and with the least expense?

The best way is to try and reach an agreement that is fair and reasonable for both parties and in the best interests of the children of the relationship (if there are any). Try to avoid conflict. Try take a longer view of the matter to avoid petty arguments with your former partner. Be honest and upfront with your solicitor regarding financial and relevant personal matters so as to avoid back and forth correspondences disputing facts

What if my former partner refuses to negotiate?

Then it’s up to your Solicitor to take over negotiations with your former partner’s Solicitor, or you may have to go to court. Negotiations continue throughout the court process.

What if my former partner is violent?

If your former partner acts violently towards yourself, your children, your extended family or friends you need to act immediately. You must contact the police and apply to the court for a Family Violence Intervention Order. Your Solicitor can assist you with the application.

 

Family law – property & financial

We believe we have reached an agreement and wish to formalise the agreement so it is final and binding. What do we do now?

Your will need to have either a Financial Agreement or Consent Orders prepared. Both are written agreements which state all financial settlement details including what happens with all of your property including real estate, vehicles, chattels, superannuation and so forth, as well as spousal maintenance arrangements. Consent Orders are approved by the Court. Financial Agreements do not have to be approved by the Court, but both parties must have legal representation.

We can’t agree. What now?

You will first need try to resolve the matter through your solicitors or mediation. If an agreement still cannot be reached, you will need to apply to the Court for Financial Orders.
To determine its decision, the Court takes into account facts such as current financial position, past contributions to the relationship both financially and in regards to housekeeping, child rearing, assets, the parties health, care for dependents and future earning capacity of each party.

What happens to the family home? Who can live there?

Usually an agreement can be made as to who is to live in the family home (especially when children live there as well) until final orders are made. However if an agreement cannot be reached you may have to make an application to the court.

Family law – children

We believe we have reached an agreement as to care of the children and wish to formalise the agreement. What do we do now?

You will need to have Consent Orders prepared. These are a written agreement which states all arrangements related to the care of the children including who the children live with, visitation, shared living arrangements, religious instructions, health care and so on. Consent Orders are sealed by the Court making them binding on the parties which helps greatly if a dispute later arises.

We can’t agree. What now?

You will first need try to resolve the matter through formal dispute resolution. If an agreement still cannot be reached, you will need to apply to the Court for Parenting Orders.
The Court considers first and foremost the best interests of the child. They take into account many matters including the views of the children, the current care provided, past care provided, extended family support and previous family violence or neglect issues.

My former partner has broken the orders. What do I do?

If a party contravenes the Court orders, you should contact your solicitor. Options are to bring it to your former partner’s solicitor’s attention, attend dispute resolution or apply to the Court for enforcement of the orders, depending on the seriousness of the breach and it’s effect on you and the child or children..

I don’t spend any time with my children. Do I still need to pay child support?

Yes. Even if you no longer have contact with your children you still need to support them financially, if assessed or ordered to do so.

I want to travel overseas with the child. Is this possible?

If your former partner agrees then you can. If they disagree then you will need to apply to the Court.

 

Family law – divorce

When can I apply for a divorce?

You can apply for a divorce after you and your former spouse have been separated for at least 12 months and there is no likelihood of resuming married life. This is even if you both continued living under one roof.

We haven’t been married long. Does that make a difference?

If you have been married less than two years the Court requires you to attend counselling prior to filing for Divorce.

Can I object to a divorce application from my spouse?

You can only object to a divorce if you have not been separated for at least 12 months or if the divorce was filed in the wrong jurisdiction.

I married overseas – can I get a divorce in Australia?

If you were married overseas, you can apply for a divorce in Australia if either you or your spouse are an Australian citizen or live in Australia permanently, or if your children were born in Australia and you usually live in Australia.

What about Fault?

The principle of no-fault divorce was established by the Family Law Act 1975 meaning the court does not consider why the marriage ended. The only grounds for divorce is that the marriage has broken down irretrievably and that you have been separated for at least 12 months.

When is the actual divorce finalised? When can I remarry?

In most cases the divorce is finalised one month and one day after the divorce hearing date.

 

Family law – binding financial agreements

What is a Binding Financial Agreement?

Formerly known as a pre-nuptial agreement or pre-nup, a Binding Financial Agreement is a legal agreement setting out intentions as to division of property and other financial issues in the event of the breakdown of a relationship or marriage.

When can you get one?

You can have an Agreement prepared prior to commencement of, during or after the breakdown of the relationship or marriage.

Are they legally binding?

Yes, If you and your partner enter into a Financial Agreement and later separate, your assets will be divided as set out in your Financial Agreement. However, for the Financial Agreement to be binding, strict legal requirements must be met, including a requirement that each party obtains their own independent legal advice.

Can defacto or same-sex couples enter into a Binding Financial Agreement?

Yes.

Can a Binding Financial Agreement be set aside by the Court?

In some circumstances it can. These include one or both parties not receiving legal advice prior to signing, some assets not being disclosed in the agreement, if the circumstances changed to the point that the agreement is no longer relevant or if there was duress or pressure put on a party to sign the agreement.

Can I prepare my own Financial Agreement?

The law regarding Financial Agreements is complex and people’s individual circumstances are too varied to recommend anyone other than a trained, experienced Family Law Solicitor to prepare the document. As a solicitor has to also give advice for the document to be legally binding, you need to see a solicitor anyway and very few solicitors would be willing to sign off on a homemade agreement as it is unlikely to comply with all requirements to make it binding.



Will

Wills

What is a Will?

A Will is a legal document that sets out who you want to receive your assets after you pass away.

Why do I need a Will?

Making a Will is the only way you can ensure your assets will be distributed according to your wishes when you pass away. The handling of your estate after your death will potentially be more time consuming and costly without a Will.

What happens if I die without a Will?

If you die without a Will your estate will be distributed according to a statutory pre-determined formula with family members receiving an allocated percentage despite what you would have wanted. In some cases some or even all of your estate may pass to the government.

What happens if I’m living in a defacto or same-sex relationship and I die without a Will?

Your partner may be entitled to share in your estate on your death however they would need to prove the relationship existed. Naming your partner as a beneficiary in your Will removes any doubt and eliminates the possible added expense and emotional toll related to having to prove the relationship.

What about jointly held property?

Your will does not cover your property if it is held as “joint proprietors (as opposed to “tenants in common”) as it will automatically pass to the surviving joint owner. So for example if you and your spouse own your house in joint names then your spouse will become the sole owner irrespective of the contents of your Will.

What about Superannuation?

Most superannuation funds allow you to execute a “Binding Nomination” nominating a beneficiary who will be paid directly by the super fund without the need for it to form part of your estate (subject to certain limitations). You will need to contact your superannuation fund directly to organise this.

Can I prepare my own Will?

There is no requirement that a Solicitor draft your Will. However, drafting your Will yourself is not advisable.
There have been many cases where homemade Wills were deemed invalid or unclear and many of these cases ended up in the Court system for years, causing distress and financial hardship to the family of the deceased.
A Solicitor will not only follow your instructions, they will also offer advice on how to structure the document so as to ensure your Will is both legally valid and satisfies your requirements.

When should my Will be updated?

It is advisable to regularly review your will as circumstances change in your life so that it reflects your current wishes. Situations where you may want to, or have to update your will include:
Marriage;
Separation or divorce;
Starting or ending a de facto relationship;
Birth of children or grandchildren;
Your children have married or divorced;
The executor named in the will is seriously ill or has died;
Your spouse or partner or other beneficiary has died.

Can someone challenge my Will?

You are legally entitled to leave your assets to anyone you wish, however friends or relatives who believe they should have been but have not been sufficiently provided for are entitled to contest your Will.
People who can contest your will include your current or former spouse, your children, de-facto partner or ex-partner or any other dependants. That person will need to convince the Court that you failed to make adequate provisions for their maintenance, education or advancement in life, where you should have reasonably done so.
Your solicitor will be able to advise you as to how best to structure your Will to minimise the chances of the Will being contested.

Where should I keep my Will?

It is vitally important to keep your Will in a safe place. Additionally you should advise someone close to you as to where your Will is kept so it can be located when required. Some solicitors can hold your Will in safe storage for you at no charge.

 

Powers of attorneys

What is a Power of Attorney?

A Power of Attorney is a legal document that allows another person or people the power to make decisions on your behalf. The decisions they make have the same effect as if you have made them yourself.

What types of decisions?

Financial Powers of Attorney allow the attorney to make financial decisions for you, for instance if you go overseas they can pay bills for you, manage your finances and investments or even sign financial documents such as Contracts of Sale.
Medical Powers of Attorney specifically cover medical issues such as consent to treatment or whether or not to continue life support.
Enduring Guardianship applies if you become mentally incapacitated and allows the Attorney to make day to day decisions about matters such as where you live, management of your health care and who can visit you.

What is the difference between General and Enduring Powers of Attorney?

General Powers of Attorney are for when you are overseas or in hospital and can’t attend to general matters and they can even have an expiration date. The general Power of Attorney no longer has effect if you become mentally incapacitated.
Enduring Powers of Attorney continue to have effect if you become mentally incapacitated due to injury or illness.

Can I limit what the Attorney can do?

Powers of Attorney can be tailored to suit specific circumstances such as the Attorney only has the authority to sign documents related to a purchase of a property, to attend investment board meetings or to pay your bills. Enduring Guardianships can specify what decisions can and can’t be made regarding management of your care. Some financial institutions accept only enduring financial Powers of Attorney documents.

What happens if I lose capacity and don’t have a guardian?

If you become incapacitated and you don’t have an enduring power of attorney or a guardianship, in some circumstances, the Victorian Civil Administrative Tribunal (VCAT) can appoint a qualified person to take over your affairs. However, the appointed person’s decisions may not be in accordance with your preferred wishes and the Guardian may charge a percentage of your estate and other fees for performing this function.


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Conveyancing

What is Conveyancing?

Conveyancing is the legal process involved in the sale or purchase of a house, unit, commercial premises or vacant land.

What is the difference between using a Solicitor and a Conveyancer?

Conveyancers and Solicitors are both capable of handling a Conveyancing transaction. Conveyancers are trained in the step by step process of the transfer only, whereas Solicitors are trained and knowledgeable in property law in general and so can offer additional services such as Contract advice and can deal with problems arising from the transaction which is something that Conveyancers cannot legally do.
With a purchase or sale of a house being most people’s single largest financial transaction in their lives it pays to have a solicitor onboard to handle any potential problems should they arise.

What are adjustments?

Adjustments are an apportionment of the rates, taxes and outgoings between the Vendor and Purchaser. Adjustments are made to ensure that the Vendor pays their portion as to the date of settlement (or date detailed in the Contract) and then the Purchaser assumes liability for the remaining portion.

What about subdivisions?

A subdivision is when a larger block or apportionment of land is split into two or more individual blocks. They are often vacant land but they can contain established or newly built dwellings. Buying a subdivision property means waiting for the subdivision process to be completed before being able to settle on the property. This can take some time and is often delayed. New estates usually sell land this way.

What is an Off the Plan Purchase?

If a property is being sold Off the Plan it means that, at the time of the Contract being signed, the dwelling on the land is either about to be built or is in the process of being built. There are advantages and disadvantages to this type of purchase. On the plus side you receive a stamp duty reduction based on the stage the building is at at the time of signing the Contract. On the negative side, you cannot inspect the property at signing time and have to rely on plans and lists of inclusions included in the Contract.

What does Clear Title mean?

If a property is said to have Clear Title, it means that there is no mortgage affecting the property and the vendor or vendor’s representative holds the original Title in their possession.

Can I sell my old property and purchase a new one and have settlement on the same day?

This is achievable and happens quite a bit. There is increased risk of settlement not occurring on the chosen date however as there are many more parties involved including banks and so much more potential for someone not to be ready for settlement.

 

Conveyancing – purchases

I’m going to sign a Contract of Sale, what should I do to protect my interests?

It is advisable to see a Solicitor prior to signing to have them go through the Contract and give you advice in detail. The Solicitor will also give you some ideas as to additional Special Conditions to include in the Contract to protect your interests further.
If applying for finance, it is a good idea to put a “subject to finance approval” Special Condition into the Contract as this will allow you to cancel the Contract if you cannot obtain finance. (Be aware that the cooling off period and “subject to finance” are not available when the property is bought at auction).
We highly recommend putting a Special Condition in the Contract stating that all fixtures and fittings be “in working order”. This is so that, for example, if a heater is found not to be working at the final inspection the vendor will need to have it fixed prior to settlement at the vendor’s cost.
You may also wish to put in a Special Condition allowing for building and pest inspections to be conducted to your satisfaction.

When does the cooling off period run out?

The cooling off period runs out three clear business days after the purchaser signs the Contract. So if you sign on a Saturday, you have until the close of business the following Wednesday to pull out of the Contract. It is very important that you advise the vendor’s solicitor or the real estate agent in writing that you are pulling out.
Also be aware that properties bought at auction do not have a cooling off period and the vendor does not get to cool off.

What does “and/or nominees” mean?

You can put “and/or nominees” in the Contract to allow you the option to nominate another person to purchase the property as well as or instead of you. For instance, if you sign the Contract but your partner is not available at that time, you can nominate them to purchase along with you. You will need to notify your Solicitor as to your intention to nominate so they can prepare the necessary forms for settlement.

What do I need to do?

After the Contract has been signed your main priority is to organise your finance, be that through a bank, a broker or if you have clear funds, making sure they will be available at settlement time. You will also need to take out insurance on the property and arrange for electricity, gas and phone connections prior to settlement (where applicable). Also, a final inspection will need to be arranged with the agent.

What can I expect at the final inspection?

The property is expected to be in the same condition as when you first inspected the property allowing for fair wear and tear. If there is a hole in the wall when you signed the Contract, there is no obligation on the vendor to have it fixed and no obligation for them to spruce the place up before settlement, steam cleaning the carpets for example. They are however obligated to keep lawns at a legal height and remove rubbish and belongings prior to settlement.

What does the Solicitor or Conveyancer do?

The Solicitor or Conveyancer peruses the Contract and Section 32, orders property certificates, prepares a statement of adjustments, prepares settlement documents and arranges for signing of them, forwards copies of documents to your bank for their information, forwards cheque details to the mortgagee bank or yourself if you are providing funds, attends settlement on your behalf, confirms correctness and validity of settlement documents and cheques, performs due diligence on the property and notifies council and water authorities of change of ownership.

When can I collect the keys?

Usually straight after settlement. Settlement time is negotiated between the parties involved but ultimately is decided by the vendor’s mortgagee bank or the vendor if they have clear title.
Keys can be collected from the Real Estate agent or, if buying an Off the Plan property, from the builder’s representative.

What about stamp duty, how does that get paid?

If you are obtaining a mortgage, the bank will usually pay the stamp duty and Land Titles
Office lodgement fee from your loan funds. If you are providing all funds you will have to
provide those fees on, or shortly after settlement and your Solicitor will lodge the documents on your behalf.

 

Conveyancing – sales

How do I go about selling my property?

You will need to have a Section 32, also known as a Vendor’s Statement prepared. The S32 is a legal document that accompanies the Contract that outlines details specific to the property and contains legally required certificates and disclosure of encumbrances as required by the Sale of Land Act.

What about the Contract?

Most real estate agents provide a standard Contract of Sale, however if selling without an agent or by Auction you will need to have special Contracts drawn up by a solicitor.

I sold my property. Now what?

The Contracts and S32s will need to be signed by yourself and the purchasers. A copy will be forwarded to your Solicitor and if there is a mortgage on the property they will begin the discharge process to let your mortgagee know that the property has sold and that they are to wind up the mortgage and make the original title available for settlement.

When can I get the deposit money?

Usually the deposit is released at or after settlement. Where the settlement proceeds are
sufficient to discharge a mortgage or where there is no mortgage, a Section 27 Statement may be
prepared by the solicitor which allows for an early release of the deposit. However, the purchaser is under no obligation to sign the Section 27.

Do you need to pay stamp duty or Land Titles Office fees when you sell?

No. These are only payable when you purchase a property, However depending on how many properties you own there may be land tax payable on the property.

 

Conveyancing – settlement

Could anything delay the settlement?

Unfortunately yes. Bank delays, incorrect cheque details or lost/misplaced documents by either party can all cause the settlement to be delayed. Penalty interest may be payable by the purchaser if the fault is on their side.

Do I have to attend settlement?

No. Your Solicitor will attend on your behalf along with the other party’s Solicitor and any mortgagee banks involved in the process.

 

Transfers of land

I want to transfer all or part of my property’s ownership to a relative. How does this work?

This process is commonly called a Transfer of Land and varies depending on who you are transferring the property to and if there is a mortgage on the property.

What about if I transfer to my spouse and there is no mortgage?

This is a straight forward transaction. If transferring to a spouse or de-facto partner then no stamp duty is payable and so transfer documents are prepared and lodged at the Land Titles Office along with the original Title so a new Title can be issued.

What about if I transfer to my brother and there is a mortgage?

This is more complicated. If transferring to a relative other than a spouse or partner then stamp duty is payable and the Transfer will need to be assessed by the State Revenue Office. They will then advise of the amount of stamp duty payable. When there is a mortgage, the bank will need to make the original Title available. The banks all have their own internal processes for doing this. They usually require a re-finance of the existing mortgage and often charge a fee.

How long does it take?

At time of writing, with no bank involved and no stamp duty to be paid it can take around one to two weeks. With a bank involved and stamp duty payable anywhere upwards of four to seven weeks.

 

The content of the FAQs and all other content on this website is intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice. We attempt to ensure that the Content is current but we do not guarantee its currency. You should seek legal advice from Lake Street Lawyers before acting or relying on any of the Content.