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FAMILY LAW

In Australia, these documents are formally known as a Binding Financial Agreement, but are often referred to as a ‘pre-nup’ or ‘pre-nuptial agreement’. Binding Financial Agreements set out what is to happen in the event that the relationship breaks down in the future, and can sometimes also contain provisions about what is to happen during the relationship. This agreement does not require going to Court or submitting any documents to the Court.

Binding Financial Agreements require both parties to have (separate) lawyers to give them advice and sign the document.

Parties can elect to document an agreement one of two ways – through Consent Orders, or through a Binding Financial Agreement.

Consent Orders

Consent Orders can be filed in the Court after a relationship has ended. These documents set out the circumstances and agreement about property matters and/or children’s matters. It does not matter if the parties were in a de facto relationship or married (and for parenting matters, it doesn’t matter if the parents were in a relationship). The parties are not required to go to Court, and the judicial officers will consider the matter just based upon the documents filed.

The Court requires that parties file at least two documents – an Application for Consent Orders and a document setting out the terms of the agreement (the Orders that are proposed to be made by the Court). Depending on the circumstances other documents may be necessary. The Court has quite a lot of useful information about Consent Orders on its website.

We always recommend that you at least get some initial advice and, whenever an agreement is reached, that you get legal assistance in drafting these important documents.

Binding Financial Agreement

A Binding Financial Agreement can also be entered into after a relationship has ended to document an agreement about property matters. Similar to the information above, Binding Financial Agreements require both parties to have separate lawyers, but does not involve going to Court or submitting documents to the Court.

We can assist you before, during or after entering into an agreement. Make an appointment to talk with our Family Law solicitors today.

Property settlement refers to finalising who receives what assets, liabilities, superannuation and financial resources after a relationship has broken down. Nowadays, the Family Law Act provides for property settlement between both married couples and parties to a de facto relationship (including either married or de facto same-sex couples). Most commonly this involves adjusting parties’ interests in houses, cars, debts and superannuation. But, property settlements also include dealing with more complex matters involving corporate entities, Trusts and self-managed superannuation funds.

Maintenance of a former partner, or for an adult child, is where one person is considered to need additional assistance to meet their personal or living expenses, or the expenses relating to an adult child (but this only applies in special and limited circumstances). If it is considered that their former partner has capacity to pay, then the former partner will make a periodical or lump-sum payment towards the expenses of the other person.

Maintenance of a former partner, or an adult child, is separate from a person’s obligation to maintain their child – which is known as child support in Australia.

Family law parenting matters involve formalising the parenting arrangements for the children after separation. This can be done with various levels of formality from an ad hoc agreement, to a Parenting Plan or more formal Court Orders (either by consent or during/after litigation).

However, matters involving children can also include issues like time with grandparents or other family members, as well as issues such as interstate or international relocation, surrogacy, IVF or other issues.

Alternate dispute resolution is a compulsory step (with exceptions) for all family law matters. It is an opportunity for parties to participate in a facilitated discussion (oftentimes from separate rooms) to try to get them to narrow the issues and, hopefully, to reach an agreement.

Some alternate dispute resolution process are done without solicitors (such as through Relationships Australia or other government funded programs), but if you are intending to commence alternate dispute resolution or have been invited to attend by the other party, we recommend you get some legal advice by talking to us today.

Where parties can’t reach an agreement, or there are circumstances that mean that it is inappropriate to engage in alternate dispute resolution, Court action may be required. If this is the case for you, we can help you navigate the legal system and will advocate on your behalf. Starting Court proceedings may be necessary in some circumstances, and usually involves a judicial officer making a decision and thus making Orders about interim issues and then about final issues.

If you need to start or respond to Court action, talk to us today.

Divorce is the process to formally end to a marriage and thus allow parties to remarry. However, divorce does not finalise any of the other aspects of a relationship breakdown (property, parenting or maintenance issues).

Whilst the Family Law Act doesn’t encompass the below things, these issues still often arise in family law matters and our family lawyer can help you with the following:

  • Adoption matters for all couples
  • Domestic violence matters for all couples
  • Child protection matters.

CONVEYANCING

Selling real estate is usually a more straightforward process than buying. A general outline of the process is:

  • You list your property for sale with a real estate agent. It is a good idea to shop around and find an agent you are comfortable with. Make sure you have discussions with potential agents about things like how they propose to market your property, any advertising you will have to pay, and how much their commission will be.
  • A prospective buyer submits an offer to purchase your property, usually by signing a contract prepared by your agent. If you are happy with the offer, you sign the contract. Once the last party signs (which is normally you as the seller), you have a binding agreement.
  • If you have a mortgage on the property, you should contact your bank immediately to let the bank know that the property has been sold. The bank will prepare a release of the mortgage ready for settlement.
  • Your solicitor will liaise with the bank about settlement, and find out what amount is required to pay out the mortgage (if applicable).
  • Most property sales and purchases are done online, through a platform called PEXA. With PEXA, settlement takes place online, with the details worked out between the solicitors and banks. You sign an authority for your solicitor to settle the matter online – this also authorises your solicitor to digitally sign the transfer documents on your behalf.
  • Your solicitor will arrange settlement on the settlement date and calculate settlement figures.
  • The buyer is generally entitled to vacant possession immediately after settlement has happened. The keys to the property should be delivered to the real estate agent prior to settlement, ready for the buyer to collect.

There are strict time frames that apply under the contract, and if they are not met, then you may find yourself in legal trouble.

Most timeframes apply to the buyer, and if the buyer doesn’t meet them, you may have the right to withdraw from the contract, keep the deposit, and/or take legal action against the buyer.

The buyer has a 5-day cooling off period. If they terminate the contract based on the cooling-off period, you are entitled to claim a penalty of 0.25% of the contract sale price. To secure payment of this amount, you should make sure the deposit is not returned to the buyer until the penalty has been paid.

Strict time frames also apply to the settlement date. If you cannot settle on the date nominated in the contract, consequences may apply. In the standard REIQ Contract the parties have an automatic right to extend settlement by up to 5 days. There are also other rights of extension in limited circumstances.

The government has introduced stricter new requirements for property transactions, which mean that solicitors will be required to verify your identity as part of the transaction.

You should keep copies of the contract and settlement statement for your records.

Have you bought (or decided to buy) property with your spouse, de facto partner, relative or friend? Or are you receiving a property through a deceased Estate? If so, you might want to consider whether how you will own the property.

There are two different ways you can own a property with another person, as joint tenants or as tenants in common.

What are joint tenants? The main factors are:

  • You own the entire property equally;
  • You must own the property in equal shares; and
  • If one joint tenant dies, the property automatically passes to the surviving joint tenant. This means that the property is not included in the deceased’s Estate, even if they have tried to include it in their Will.

What are tenants in common? The main factors are:

  • You own the property in the shares they nominate when they buy the property;
  • You can own the property in unequal shares, including to reflect the share in which they contributed to buying the property; and
  • If one tenant in common dies, their share of the property becomes part of the assets covered by their Will.

Which should I choose?

There is no hard and fast rule about which form of ownership you should choose. It is a matter of deciding which form of ownership is right for your circumstances.

If you are unsure about which way you want to own the property, you should discuss this matter with your solicitor when buying the property.

If you have already bought property and want to change from joint tenants to tenants in common or vice versa, this is quite a simple and inexpensive process.

Buying real estate is both exciting and nerve-racking. It is also, for most people, the most expensive asset they will buy in their life.

When deciding on the solicitor you wish to use, we recommend you consider:

  • Is the cheapest quote necessarily value for money?
  • What legal services are included in the quote?
  • Are there services you will be charged extra for?
  • What quality of service will you get?

You should also:

  • Ask your solicitor what legal fees, stamp duty on the contract, and search costs you will have to pay.
  • Ask your financier or mortgage broker what bank and government fees and charges will apply to your loan.

The negotiation process before signing a contract can be different depending on the agent or the circumstances. But, once you have found a house, unit or land you want to buy and have reached an agreement and/or you are making an offer, the general process is as follows:

  • The real estate agent prepares the contract.
  • You should have the contract checked by your solicitor to make sure that your interests are protected. Usually, the contract will be a standard one, but there are standard conditions and/or special conditions which might need to be included, depending on your circumstances. You also might want to negotiate about the terms – for example, you might request to pay a larger or smaller deposit, if that works better for you financially.
  • Once the contract has been checked by your solicitor and you are happy with the terms, you can. This will constitute your offer to buy the property.
  • If the seller also signs the contract, it becomes binding on you and the seller. But until it has been signed, the seller has no obligation to sell the property to you, even if you have been verbally told your offer has been accepted.
  • The contract will be dated immediately upon the last person signing. Unless the dates are otherwise defined, the contract date is used to calculate the applicable due dates such as finance, building and pest, and settlement.

  • You must arrange your own insurance cover on the property – usually this must be done by no later than 5pm on the first business day after the contract date.
  • You have a 5-day cooling off period in which you may terminate the contract. If you do, the seller is entitled to claim a penalty of 0.25% of the contract sale price which is normally deducted from the deposit before it is returned to you.
  • The real estate agent forwards your copy of the contract to your solicitor.
  • You will liaise with your solicitor about what searches are to be done, and your solicitor will arrange for those searches to be done. The searches regarding the property are to ensure that everything is in order.
  • You are responsible for arranging any building and pest inspection for the property, and for proceeding promptly with your finance application.
  • Once your finance is approved, your financier will prepare mortgage documents for you to sign. These need to be signed with ‘wet ink’ on paper.
  • You will also need to sign a stamp duty form, which your solicitor prepares.
  • Must property sales and purchases are done online, through a platform called PEXA. With PEXA, settlement takes place online, with the details worked out between the solicitors and banks. You sign an authority for your solicitor to settle the matter online – this also authorises your solicitor to digitally sign the transfer documents on your behalf.
  • After settlement you are entitled to collect the keys from the agent.

  • The government has introduced stricter new requirements for property transactions, which mean that solicitors will be required to verify your identity as part of the transaction.

  • There are strict time frames that apply for your building and pest inspections, finance approval and any other conditions in the contract. If these strict time limits are not met, you may find yourself in legal trouble. For example, the seller may have the right to withdraw from the contract, keep your deposit, and/or take legal action against you.
  • Strict time frames also apply to the settlement date. If you cannot settle on the date nominated in the contract, consequences may apply. In the standard REIQ Contract the parties have an automatic right to extend settlement by up to 5 days. There are also other rights of extension in limited circumstances.
  • If you are buying a house or unit to live in, you will need to sign a duty form to obtain your concession. You may be entitled to a further, additional, concession if it is your first home. There are three particular requirements that you must comply with in order to be entitled to the concession:

  • You must move into the property within 12 months of settlement;

  • You must live in the property for at least 12 months;

  • If there are tenants in the property or a lease back to the seller, the tenants or seller must vacate within six months of settlement.

  • If any of the above do not apply, then you are not entitled to claim the concessional rate of stamp duty.
  • You should keep copies of the contract and settlement statements.

WILLS AND ESTATES

Estate planning is an important part of protecting your family’s future. Careful estate planning will reduce stress and hardship for your loved ones when you pass away.

For example, at Hensen Maxwell Solicitors we can advise you on the making of binding death benefit nomination that determines how your superannuation is to be paid. This often requires careful consideration, as there are risks of claims being made on your estate and superannuation funds often have different rules. This is a particularly difficult area if you have a self-managed superannuation fund.

A Will is a legal document that sets out:

  • Who will look after the administration of your estate after you pass away.
  • Any particular funeral arrangements you would like.
  • How your property is distributed after you pass away.
  • If you have children under the age of 18 when you pass away, who will look after them.

If you pass away without a Will:

  • Your Estate may not be distributed according to your wishes. Without a Will, how your Estate is distributed is dictated by legislation.
  • You won’t have appointed an executor. This means a family member or friend may need to apply to the Court to be allowed to administer your estate, or the Public Trustee may step in and charge fees for doing so, leaving less property for your loved ones. It also means that the person looking after your Estate may not be the person you would have wanted to look after it.

Drafting a Will is a simple process that does not take very much time at all. We pride ourselves on helping make the process easy, smooth and still ensuring that you’ve considered all required aspects.

Our aim is to ensure that making your Will is a simple and stress-free process. Generally, you will come into our office to discuss what you want to achieve, we will then prepare your will, and provide you with a draft for your review. We will discuss the terms with you and answer any questions that you may have. Once you are satisfied with your Will, you attend our office and sign the document.

There is a wide range of matters that can be covered by a valid Will aside from dealing with how particular assets are distributed.

Estate administration is the process of dealing with the assets and liabilities (the Estate) of a person who has passed away. A person who administers an estate is known as either an Executor or an Administrator. An Executor is appointed in a Will, if there is no Will then the Administrator needs to be appointed by the Court.

When a loved one has passed away and has appointed you to be the executor of their Will, we understand that it can be difficult to deal with the legalities, process and requirements of administering the Estate. We are here to assist you regardless of the situation to ensure that the Estate administration is completed in a timely and efficient way.

Our biggest pieces of information at the initial stages are:

  • Almost all organisations will need a copy of the Death Certificate, but the Death Certificate sometimes takes a few weeks to arrive. This means that you may not be able to do a lot in the first few weeks, and we recommend you take the time to look after yourself and your friends/family in this difficult time.
  • You should also consider if any direct debits or payments are to be made to/from the deceased person’s bank account as there should be no transactions on their account after they’ve passed away.

It is important that you obtain professional advice to understand if a Grant of Probate or a Grant of Letters of Administration is required to be obtained from the Court. Estate administration can be complicated, there can be problematic interested parties and/or beneficiaries, numerous assets or liabilities involved, or there may be informal testamentary documents.

Challenging a Will is means calling into question the validity of a Will. This may be because the person who made the Will lacked mental capacity or knowledge of the impact of the Will, or they were unduly influenced when making the Will.

If you doubt the validity of the Will, then you should make this known to the executor as soon as possible after the deceased’s death and preferably prior to a Grant of Probate being obtained from the Court. You may wish to lodge a caveat with the court to prevent the Grant being obtained without prior notification to you.

The court will consider all available evidence regarding the mental capacity of the deceased when the Will was executed, and the conduct of family members or friends, as well evidence from lawyers, doctors and forensic specialists.

If you have any concerns about the validity of a loved ones Will, please do not hesitate to contact our office to discuss this further.

Contesting a Will occurs when an eligible person is unhappy with the bequest left for them under the Will (or if they were excluded entirely) and wishes to seek more from the Estate. This is commonly called a family provision application.

The Succession Act 1981 (Qld) instructs that only “eligible” people can make such a claim. The following people can apply for further provision from the Estate:

  1. spouse of the deceased (including de facto spouses);
  2. child or children (including a stepchild, adopted child or a child born outside of a marriage); and
  3. dependants (a person supported by the Deceased at the time of their death).

The court can order any provision it thinks appropriate, taking into account factors such as the financial position of the applicant, the size of the estate, and the nature of the relationship of the deceased and the applicant.

There are strict time limits that apply to making a family provision claim. Please contact Hensen Maxwell Solicitors to discuss your situation as soon as possible.

An EPoA is a document that sets out:

  • Who you appoint to make decisions on your behalf while you are alive.
  • Whether your attorney has power to make financial decisions.
  • Whether your attorney has power to make personal or health decisions
  • Allows you to give views/wishes or instructions to your attorney. However these sections are optional, so you don’t need to include these things unless you have particular views/wishes or instructions.
  • If you want your attorney to notify someone or multiple people when exercising their powers, who they are to notify, about what, and in what circumstances.

An Enduring Power of Attorney ensures that the person you want to be making the decisions has the power to do so, should you become incapable of making those decisions for yourself.

If you do not have an Enduring Power of Attorney, your friends or family may need to make an application to QCAT to get the power to make personal or financial decisions for you.

An Advance Health Directive is a document that:

  • Comes into effect in specific circumstances that can broadly be described as when you are nearing or at the end of your life (e.g. end stages of cancer).
  • Allows you to give legal directions to your doctor about your healthcare in circumstances when you may be unable to give these directions yourself.
  • Most notably, the Advance Health Directive allows you to nominate whether or not you would like to receive life-sustaining treatment in certain circumstances.

You may have heard of a ‘do-not-resuscitate’ or a ‘DNR’ – the Advance Health Directive is the Queensland version of this document.

The purpose of an Advance Health Directive is to decide in advance about health treatment to ensure that the right decision for you is made. It is often a document of great support to your loved ones, as they can be sure about what you wanted to happen when you are unable to communicate this yourself.