When are Prenups most appropriate?

Generally speaking, in those cases where:

• One person has much more property than the other when the relationship begins;
• One person is, or may later become, entitled to an inheritance or gift;
• You are moving into a second or subsequent relationship where children from former relationships might need to be protected financially, or
• You both simply want to make sure the terms of any property division are agreed up front and will not end up the subject of protracted and invariably costly litigation.

Are Prenuptial Agreements Binding?

These agreements are not binding unless the formal requirements under the Australian Family Law Act are met.

The Agreement will only be binding if the following requirements are satisfied:

• The agreement is signed by all parties;
• Before signing the agreement, each party was provided with independent legal advice about the effect of the agreement on the rights of that party and about the advantages and disadvantages to the party making the agreement;
• Before signing the agreement, each party was provided with a signed statement by his or her respective lawyer certifying that the advice referred to above was provided to that party;
• A copy of the statement referred to in 3 above was provided to the other party;
• The agreement has not been terminated and/or has not been set aside by a Court.

Couples may choose to enter into an informal agreement (which can be written or verbal), but any such agreement is not legally binding (enforceable) by a Court.

Such agreements can however be taken into account by a Court if a judicial determination is required to be made.

Can you cancel or change an agreement?

In certain circumstances, either party has the right to challenge a legally binding agreement.
Couples can agree to vary the terms of – or even terminate – an agreement. If your partner does not agree, you must prove:

• There was a fraud (dishonesty) including non-disclosure of a material matter at the time the Agreement was made;
• The agreement is not practical to carry out (not merely inconvenient);
• The other person has acted in an unethical or unfair way. (For example, a party has entered into the agreement for the purposes of attempting to defraud or defeat a creditor or creditors).

What can a Prenuptial Agreement cover?

• How a couple’s assets and money will be divided in the event of a future separation. This also includes assets such as a family business, a trust, investments, an entitlement to an inheritance, superannuation or even a pension entitlement. It also includes debts and liabilities of the relationship such as an obligation under a contract.
• The financial support (maintenance) of either party (during the marriage and/or after divorce), and
• Any other incidental issues particular to you and your relationship.

Legal advice

It is highly recommended that you obtain legal advice from a lawyer who has sufficient experience and expertise to advise about Binding Financial Agreements if you:

• Are considering signing a financial agreement (or consent order); or
• Seek to change or cancel an existing financial agreement or consent order.

The failure of a party to obtain the correct and independent legal advice can (in certain circumstances) give rise to a court setting aside the agreement.

More information

For more information on prenuptial agreements, divorce or other family matters, please contact our senior family lawyer, Mark Orchard, for a free initial consultation.
Phone: 07 4639 0358
Email: morchard@cp484.ezyreg.com

The considerations for deciding a parenting arrangement

Under section 60CC(3)(a) of the Family Law Act, a child’s wishes are one of 16 factors the court must consider when deciding what parenting arrangement is in a child’s best interest.  In and of itself, a child’s wish may not be definitively determinative of the dispute.  Interestingly, a child’s wish is not one of the primary considerations the court must take into account when deciding what is in the child’s best interest.

The two primary considerations are:

• The benefit of a child having a meaningful relationship with both of the child’s parents; and
• The need to protect the child from physical or psychological harm.

Developmentally appropriate concerns like homesickness will not usually cause a Court to terminate overnight time with a non – residential parent of a school aged child.

The court will decide how much weight it places on the child’s view based on an assessment of:

• The child’s maturity;
• His/her level of understanding;
• Whether the wish is well informed; and
• Whether or not the child has been influenced (usually by one or other of the parents).

For example, if a seven-year-old is assessed as exhibiting high levels of maturity and understanding of the conflict between her parents then the court may place considerable weight on her views.  Equally, if a 14-year-old expresses a wish to move overseas to live with his Father because he buys him whatever he wants, but the Mother has previously been the primary carer, a court may assess the child as lacking maturity or as having been influenced by factors not in the child’s best interest, and give little weight to his wishes.

In another example, an older child may be at an age where their resistance to spending overnight time with a parent is given a great deal of weight but the wishes of a younger sibling who is also resistant, will not be so persuasive. The older child would probably be permitted to stay with the preferred parent but the younger child would not.

Who assesses the child’s maturity and level of understanding?

The most common way for a child to express their view is through an interview by a court consultant or a privately-funded family report writer who is usually a trained counsellor, therapist or psychologist.

The family consultant or family report writer interviews and observes the parents, the children and any other people living in the same household as the children, such as step-parents and step-siblings.  During the interview, the family report writer will usually make enquiry as to the child’s wishes and ask questions to assess their maturity and level of understanding.  In some circumstances, due to the children’s ages or other factors, a family report writer may decide not to ask the child for their wishes.  A family report is then prepared for the judge containing recommendations about what future parenting arrangements the judge should consider.  The judge will usually follow the recommendations outlined in the family report.

It is often the case that a child prefers not to give their opinion as they are afraid of hurting the feelings of one or both parents.  Additionally, some children find the family report process intimidating and do not feel comfortable expressing their views to a stranger.

There is no ‘Magic Age’

There is no fixed age when a child can decide on where they should live in a parenting dispute.  Instead their wishes are one of many factors a court will consider in reaching a decision.  There inevitably comes a time when a child is able to ‘vote with their feet’ (so to speak), and place themselves physically where they want to be. That time is not attached to any specific age, but is rather the product of maturity and a level of independence.

The Court will be reluctant to separate siblings who are usually strongly attached to one another, however the Court will rarely seek to force a mature and insightful child to spend time with a parent they refuse to see.

We believe that parenting disputes are best resolved outside of court and to what we can to encourage our clients to only apply to the court when all other options have been exhausted.  If you are unable to resolve your parenting dispute, we encourage you to speak to us about the various out-of-court dispute resolution options available.  A number of these options can involve your children, such as child inclusive mediation and counselling.

Should you require further advice in relation to resolving a parenting dispute or any other family law matter, please contact our Senior Family Lawyer, Mark Orchard.

In more difficult cases, a Court can be asked to rule on who will retain the pets. While many owners treat their pets as if they were their own children, the Family Court’s approach is much less emotive. The Court considers a pet as property of the parties to the marriage (no different from cars or white goods).

The Court does, however, exercise an overriding principle of justice and equity and will do its best to accommodate the needs of both parties when dividing up property, including pets. A Judge will be guided by who initially bought or acquired the pet; who trained the pet or who performed the grooming; who has paid the veterinary fees and met the costs of caring for the pet; along with evidence from others concerning the bond the pet enjoys with one spouse or another.

Where children of the relationship exist and have a bond with the pet, a Judge may think that it is in the best interests of the children for the pet to pass with the children between the households, or that the pet live in the home where the children primarily reside.

If the pets are intended as breeding stock, then a valuation may be needed, and the party seeking to retain the pets may be required to meet a property adjustment in favour of the other party.

There are no hard and fast rules and the likelihood of one outcome over another will vary from case to case depending upon the facts and the exercise of the Court’s overriding discretion.

More information

Our Toowoomba-based family law team has more than 30 years of experience in resolving family law matters and has a strong reputation for a solution-focused approach to all cases involving married and de facto couples.

Whether you are separated, divorced, or thinking about separating, we understand the impact that family disputes can have on your life, and appreciate that the legal process can be overwhelming during these difficult times.  With our expertise in negotiation, mediation, and, where required, litigation and advocacy, we will provide clear and compassionate advice so that you can make fully informed choices.

Contact us for a free initial consultation* (conditions apply) with our senior family lawyer:

Mark Orchard
Phone:  07 4639 0358
Email: morchard@cp484.ezyreg.com