Viewing entries tagged
Property dispute

Family Law and the Bank of Mum and Dad

It’s common for modern entrants into the property market to have had some assistance getting there. You might have heard of the term ‘the Bank of Mum and Dad’ to refer to when parents or family members have assisted someone in helping with a deposit on a property. But how does this new type of Bank stack up when it comes to a separation with your partner?

Family law has long adopted a presumption about money coming from family members, called the presumption of advancement. In brief, that presumption says that where there is an intra-family transfer (a payment from your mother to you for example), then that is presumed to be a gift. If there is evidence to the contrary, then the presumption can be rebutted.

What does it take to rebut the presumption of advancement? There are competing schools of thought and arguments about this. One line of reasoning says that if you intended something to be a loan, then you would have all the regular features of a loan – a contract entered into before the money was transferred, terms of repayment, interest payable, the ability for whoever loaned the money to ‘call in’ the debt, and even registering an interest by way of a charge or sometimes a mortgage.

However another line of reasoning, advanced particularly in the Supreme Court of NSW, has said that family members are simply unlikely to adopt such formalities in their intra-family relations, but that this shouldn’t stop a Court taking a view that money transferred was a loan, not a gift. That is, that the level of formality about a loan in a family is going to be lower than if the Commonwealth Bank, for example, loans you some money.

These questions turn on evidence, and your conduct with the money, particularly before you separated. If you separate, and suddenly start treating money as being a loan and paying interest, it certainly looks suspicious if that’s not what was happening before. Patterns of conduct are important, as are formal documents being prepared at the time of the loan, particularly with documents showing that a partner or former partner knew exactly what was going on.

It’s easy to say all this in hindsight, but our lawyers are experts at asking you the right questions to help find the evidence that you might need to argue a loan – and if you cannot, giving you the right advice early to help you avoid going down the wrong path.

Call us now on 03 9614 7111 or email melbourne@nevettford.com.au to find out more.

“Pet-Nups” - who keeps the pet?

Under Australian family law, pets are considered property. But for many people pets are more than property and often considered a member of the family.  One of the hardest problems to solve at the end of a relationship or marriage can be who gets to keep the pet cat, dog, fish, turtle, axylotl or snake.

 This may be able to be avoided at the start of the relationship or marriage with a legally enforceable agreement in place specifying who is to keep the pet.  A “pre-nup” or in this instance a “pet-nup” or “pup-nup” if it is a dog may be advisable.   

 Binding Financial Agreements under the Family Law Act 1975, allow to agree at the start of or during the relationship or marriage on how assets are to be divided if there is a separation.   One of the problems in enforcing a pre-nup after a long term relationship is that you are uncertain what the futures assets will be.   

You could have a “pet-nup” (a binding financial agreement) limited to just one asset which simply specifies who is going to own a specified pet.  Alternatively you could potentially say in the agreement that if a pet is purchased during the relationship/marriage then the person with proof of payment of purchase gets to own the pet.

It is important to remember that the law only specifies who gets to own a pet, the same way they would consider who gets to keep an asset, the law is not able to enforce "visitation" rights for pets.

If you do not enter into a “pet-nup” the Court has the power to make the orders with respect to property. This allows the Family Courts to make orders about who will have ownership and possession of a pet.  In determining which party is to retain the pet the Court may have regard to the following:

-       Which parties’ name the pet is registered in;

-       Which party undertakes the majority of the responsibilities in the care of the pet; and

-       Which party has appropriate housing for the pet.

A referendum was held in Switzerland in 2010 regarding a proposal by animal rights activists to appoint independent lawyers for pets as to time spent with each party representing the “best interests” of the pet. This proposal has not been adopted in Australia to date.  To talk to our animal-friendly family lawyers, call us on 03 9614 7111 or send an email to melbourne@nevettford.com.au