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

In assessing whether you are living together on a genuine domestic basis, the Court may look to

• The duration of the relationship;
• The nature and extent of common residence;
• Whether a sexual relationship exists;
• The degree of financial dependence or interdependence and arrangements for financial support;
• The ownership, use and acquisition of property;
• The degree of mutual commitment to a shared life;
• Whether the relationship is or was registered under a prescribed law of a State/Territory;
• Arrangements for the care and support of children; and
• The reputation and public aspects of the relationship.

No one factor should be considered more important than any other. However, it would be expected that the more factors that can be proved would help to determine that there was a de facto relationship and, conversely, the more factors that can be disproved would help establish that there was not.

Similarly, there are no minimum or maximum amounts that can be attributed to any factor, such as a minimum number of nights per week that might indicate if a ‘common residence’ has been maintained.

In 2009, the Federal Government made amendments to the Family Law Act that gave de facto couples – including same-sex couples – almost the same rights and obligations as married couples.

The Family Law Act recognises that a party could even be in multiple de facto relationships, and that even a person who is married could still be a party to de facto property proceedings.

Unlike marriage, de facto status is not entirely portable. While it is recognised in all states of Australia, Canada and New Zealand, it is not recognised in the USA and many other countries.

More information

Find out more about our Family Law services, or contact our experienced family lawyer, Mark Orchard, for a free initial consultation.

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

There are a number of considerations that will impact both the separating couple’s property settlement and the business:

1. The need to continue running the business while working out the terms of a property settlement can have a major impact on the performance of a business. In some cases, the levels of conflict between the spouses can be so high that this spills over into the workplace, affecting staff and customers.
2. If the couple cannot cooperate and agree on how the business should be run pending property settlement, the business may end up suffering extreme cash flow problems or damage to its reputation. If the parties plan to co-own the business, it may be necessary to delineate very specifically, in writing, each party’s respective duties and responsibilities.
3. One spouse may seek to exclude the other from being involved in the business, leaving them without access to an income or information about the performance of the business. In the most extreme circumstances a forensic accountant may need to be hired to thoroughly analyse the business to ensure it is not being inappropriately run down or to determine that money is not being hidden.
4. If the business is to be retained by one party who “buys out” the other party, then the parties will need to know the value of the business. Both parties should be wary of simply looking at the value on the balance sheet. There are many different ways a business can be valued, and sometimes a forensic accountant or an appraiser might need to help with the valuation process.

To minimise the financial fallout in the event of a breakup it is desirable to have a pre-nuptial agreement. It may seem unromantic at the time, but the best protection is to plan for the possibility of a divorce before the situation arises. If you started and built the business prior to your marriage, a prenuptial agreement can specify how the business will be treated upon divorce.

If you take the proper steps, the end of a marriage does not have to mean the end of a business. Many couples are able to negotiate a fair settlement of their assets, including their business. In these cases, appropriate advice should be taken as to making this settlement final and binding, and taking into account what would be a tax effective outcome.

While owning a business can complicate the division of your assets, an experienced family and divorce lawyer will be able to guide you through this often very complicated process.

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

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

Parenting Plan

The law encourages parents and other people interested in a child’s welfare to agree on arrangements, including where they’ll live, how they’ll be financially supported and what their relationship with family members will be, without going to court. Court proceedings in relation to children should be regarded as the last resort.

If an agreement can be reached on the arrangements you wish to make for your child/ren after you separate, it will cost you less in time, money and emotional distress, and be easier on your child/ren. An agreement can be made in the form of a verbal agreement (nothing in writing) or a written agreement, known as a parenting plan.

Parenting plans are not legally enforceable but a court will consider the terms of a parenting plan if it should become necessary to apply for orders later.

You don’t have to go to court to formalise the parenting plan. However, you can have a court turn your parenting plan into a consent order if you wish (see below).

Consent Orders

Courts make orders about parental responsibilities only if the parents cannot agree between themselves about the arrangements for their child/ren.  Courts can also approve and make consent orders to reflect an agreement reached between parties at any time during the court process.

A parenting order sets out the responsibilities of parents and other carers, and may cover where the children live, who the children spend time and communicate with and any other issues, such as schooling or medical treatment.  If two or more people share parental responsibility for long-term decisions, a parenting order can include how the parents will communicate with each other about decisions to be made in respect of the child.

A court considers many factors when deciding what types of arrangements are in a child’s best interests, such as:

• Protection from physical or psychological harm
• The benefit of having both parents’ meaningful involvement in their life
• Whether the parents should have ‘equal shared parental responsibility’ for long-term decisions about a child (unless child abuse, family violence or other issues are a factor)
• Each parent’s attitude to their parenting responsibilities, such as paying child support or turning up for their time with the child.

Where shared parental responsibility is ordered, the court must then consider whether it is appropriate to make an order for shared time.  An order for shared time does not necessarily mean week on week off time.  The manner in which shared time may be ordered will depend upon the age of the child and the circumstances of each particular case.  In many cases where the child is young, shared time might be ordered in terms of a 3 days on 4 days off, 4 days on 3 days off arrangement.

It is important to note that a court must only consider making a shared time order, but is in no way bound to order shared time.  When determining whether shared time should be ordered the court will consider such factors as:

Nature of relationships between the child and each of the parents and other significant persons in the child’s life (i.e. other siblings, grandparents, step parents etc);

• Capacity of each parent to care for the child;
• Wishes of the child;
• Willingness of each parent to promote the relationship between the child and the other parent;
• The likely effect to the child of any changes to the child’s circumstances;
• The maturity, sex, lifestyle and background of the child or child’s parents
• Attitude to parenting;
• Any cultural issues;
• Whether the order made is least likely to lead to the instigation of further court proceedings.

If the court finds that an order for shared time is not appropriate, the court must then make an order for the child/ren to live with one parent and spend significant and substantial time with the other.  Significant and substantial time has been defined to mean time on the weekend, during the week, holidays and special occasions.

Once sealed the consent order is binding on both parties and can be enforced by the court.  If one parent decides not to comply with the order they are at risk of being punished by the court.

Changing the agreement

Any move towards renegotiating the amount of contact you have with your children should begin with an informal approach to the mother of your children to discuss the issue and request a change to the arrangements. In the event that she refuses your request, you can seek professional mediation.

A mediator is a neutral third party who can sit with you both to try to help you arrive at a mutually acceptable arrangement.

The final option, if mediation fails, is to seek an amendment of your contact/residency arrangements through the Family Court. It is a legal requirement that all parties go through a mediation process before bringing their case to the Family Court.

Breaches of Parenting Orders

Breaching a court order is very serious. If you, or the mother of your child/ren, breach a parenting order without a reasonable excuse, the court can order you, or the mother, to participate in a parenting program run by an approved counselling service.

If the Court finds that a person has breached a parenting order, it will consider whether a reasonable excuse has been made by the contravening party – for example where the person who breached the orders believed that the breach was necessary to protect the health or safety of a person and the period of time of the contravention was not longer than necessary to protect the health or safety of the child or the breaching party.

More information

For custody disputes, it is recommended that you get legal advice from an experienced family lawyer.

If you are concerned about your children’s welfare, or your parenting arrangement post separation, please contact our experienced family lawyer, Mark Orchard, for a free initial consultation.

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

Superannuation Agreement

A superannuation agreement is an agreement about how, in the event of a marriage breakdown, superannuation interests are to be split.  A superannuation agreement is like a financial agreement, but given that superannuation interests are held in trust, there are special rules about what a superannuation agreement has to include.

Provided that a superannuation agreement complies with the legal requirements detailed in the superannuation splitting laws, the agreement is binding. If a superannuation agreement is binding, then:

• The trustee of a superannuation fund is required by law to implement its terms; and
• The court is not able to make an order about the superannuation interest that is dealt with in the superannuation agreement.

If the separating parties are unable to agree, then:

• The court has the power to make an order, as part of a property settlement, about how any superannuation interests are to be split; and
• The court order is binding on the trustee of a superannuation fund, who must comply with it, provided that the legal requirements have been met.

When to make a superannuation agreement?

You are able to enter into a superannuation agreement:

1. Before you marry
2. During marriage or
3. After separation.

More information

For more information on this topic, contact our experienced family lawyer,  Mark Orchard:
Phone:  07 4639 0358
Email: morchard@cp484.ezyreg.com

PDF:  Superannuation – splitting the pot post a separation

What is the process?

If you are having issues spending time with your grandchildren, you should seek legal advice.

Parents who are separating often make plans for the future care of their children through a parenting plan. If you are concerned about your future contact with your grandchildren, you can ask to be included in such plans if they are being drawn up.

If you can’t agree with separating parents about your future contact with your grandchildren, you can apply to the courts for parenting orders yourself. This does not mean though that the courts will necessarily decide in your favour.

The law requires that families first attend family dispute resolution, or mediation, before going to court. You will need a certificate from an accredited dispute resolution practitioner to show you’ve attempted mediation before you can take court action.

If mediation fails, you should seek further legal advice. An experienced family lawyer can advise you on:

• How strong your case is
• What forms and documents you will need to lodge with the court to support your case (affidavits)
• What orders you should ask for
• Which court is best to open the case in
• The costs of taking legal action

Even if you decide to represent yourself in Court, it is recommended to get legal advice about how to prepare your case.

More information

If you are concerned about you grandchildren’s welfare for any reason, or know people who are, please contact our experienced family lawyer, Mark Orchard, for a free 20 minute initial consultation.

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

PDF: Grandparents – your rights post a parent separation