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family law evidence

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.

New App to track family violence

Arc is a free interactive mobile phone app that assists women to collect evidence of family violence. 

Arc assists in keeping records of what happened, when, how it made you feel, and helps identify forms of behaviour with you.  You can upload photos, videos and record audio, record daily entries and create a report with selected entries.   Arc enables you to more easily identify and document patterns of violent behaviour.

Using this tool to collect evidence is a far less cumbersome way of recording what is happening to you and means you can have a dedicated space in your phone to record this, instead of having it mixed with all your other personal information.  This evidence can be particularly useful for court and legal events as often perpetrators will deny your experience or say that victims are exaggerating.  The app allows you to categorise the kinds of violence you may be experiencing such as financial, physical or psychological.

Arc was developed by Domestic Violence Resource Centre Victoria.  It was developed in consultation with women who had survived family violence. Search on the App Store or Google Play to find a copy and see if it is right for you.

At Nevett Ford Lawyers we offer a caring and practical approach to assist clients dealing with difficulties faced during relationship breakdown.  If you are interested to know more, please contact one of family lawyers on (03) 9614 7111.

For 24-hour assistance contact National Sexual Assault Domestic Family Violence Referral Service 1800 737 732 or call 000 if you are in danger.