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melbourne divorce lawyers

Were you in a de facto relationship?

A de facto relationship is defined in Section 4AA of the Family Law Act 1975. The law requires that you and your former partner, who may be of the same or opposite sex, had a relationship as a couple living together on a genuine domestic basis. However, your relationship is not a de facto relationship if you were legally married to one another or if you are related by family.

But what counts as de facto? Does going to all the same events together, does attending family gatherings, does having a hild?

In Crick & Bennett [2018] FamCAFC 68 (13 April 2018) the Full Court (Ainslie-Wallace, Aldridge & Watts JJ) dismissed the De Facto Husband (DF Husband)’s appeal against Tonkin J’s declaration that a de facto relationship existed while he lived in the De Facto Wife (DF Wife)’s home from 2001 to 2014. He argued that despite having a child in 2003 they had lived apart under one roof since 2004, never acquiring any joint property or operating any joint account.

The DF Wife gave evidence that the parties went out to events where they ‘presented as a couple’ but the DF Husband denied this. The DF Husband accepted that the parties attended many family, social and school events with their child but denied that when they were at these events the parties ‘presented as a couple’. The Full Court indicated that the DF Husband “did not set out any facts or circumstances that could illuminate his assertion and it is impossible to attribute any probative weight to that evidence.”

In this case, the Full Court placed highest importance to the determination of whether the parties had ‘a relationship as a couple living together on a genuine domestic basis’ [s4AA(1)(c)) of the Act]. The concept of whether the parties are a ‘couple’ is part of the test. The primary Judge in this case found that between the alleged period the parties attended many social and family events including family Christmases, birthdays, events held at the parties home and at their relatives’ home as well as the child’s school functions. The Full Court continued to state “This was significant evidence of the public aspects of the . . . relationship and supported a finding that there was a de facto relationship. If the appellant wished to contend that the parties’ conduct at those events led to a different conclusion then it was incumbent on him to adduce evidence to support that proposition”.

Other than establishing that you were ‘living together on a genuine domestic basis’ you’re your former partner, you must satisfy the Court of all of the following:

  1. you meet one of the following four gateway criteria

    1. That the period for the de facto relationship is at least 2 years

    2. That there is a child in the de facto relationship

    3. That the relationship is or was registered under a prescribed law of a State or Territory

    4. When assessing property or custodial claims in cases of a breakdown of a relationship, it is recognised that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice

  2. you have a geographical connection to a participating jurisdiction

  3. your relationship broke down after 1 March 2009 (or after 1 July 2010 if you have a geographical connection to South Australia only); although you may be able to apply to the courts if your relationship broke down prior to the date applicable to your state.

In the event of a breakdown of a de facto relationship, you must apply for de facto financial orders within two years of the breakdown of your relationship. After this time you need the Court's permission to apply.

If you are uncertain as to whether your relationship constitutes a de facto relationship, or if you are in one that has unfortunately broken down and you would like to discuss further what your entitlements are, please do not hesitate to contact one of our approachable and experienced family lawyers. The number to dial is 03 9614 7111, or email us out of hours on melbourne@nevettford.com.au.

Divorcing Over 50 – The Grey Divorce

Do you stay in a marriage that is over or risk financial ruin for happiness?  Unless you are a highly evolved Zen master your divorce is likely to “suck” – most do.

Getting divorced at any age is difficult. Everyone wants their marriage to work however divorcing later in life presents unique challenges and being newly single can be terrifying.   It is sometimes thought people “your age” are not supposed to get divorced.

If you are divorcing after 50, chances are your children may be teenagers or older. Their reaction may be unfavourable and even hostile. Be prepared to help older children cope with the divorce.  It’s also important to monitor your children’s feelings. Your kids may be older, but don’t assume it’s easier on them than it would be if they were younger.   You may choose to end your role as husband or wife, but your role as mother or father does not end. Handling your divorce process with your children in mind provides opportunities to share in their lives without the tension.

The financial consequences of a divorce can be significantly more damaging for older divorcing couples.  You may have dedicated your entire life to the family and marriage and have no professional skills of any kind. You have have been hard at work earning good money to support a family that now you feel has disappeared.  You may even already be retired, your assets fairly fixed and your employment opportunities may be limited.  There are now two households to support. 

An amicable divorce process will limit the cost of suffering financially and emotionally.  As difficult as dealing with all of these issues will be, one of the most significant impacts that divorce over 50 will have on your life is the inevitable financial strain.  The equitable division of assets and liabilities is a concern in almost all divorces and generally the older you are the more complicated your finances have likely become.

Given the typical level of assets and complexities it is important that you get legal advice, but doing so doesn’t mean you have to go to battle. No matter what kind of grey divorce you may be facing you have the power to choose how you handle it and we can assist you accomplish a more comprehensive and cost-effective dissolution of your marriage.   Even if your split is amicable it is important to seek your own legal advice early on.

Call or email us now for advice from one of our experienced and knowledgeable lawyers.

Be careful what you pay for – creating a pattern of dependence

People will often consult a family lawyer after a separation and be struggling as a result of now having to pay for two separate households, having become used to having to support one household for many years. Parties’ expenditure may have expanded during a relationship given the savings they were making in only running one household, meaning that post-separation the weekly budget becomes very strained.

It is important then to carefully consider what you do and don’t pay for post-separation, as this will likely become the position you have to keep up until there is a final settlement. If you start paying for the mortgage as well as for your rent in new premises, then you will have to convince a Court carefully and with proper detail of a very significant change in your financial circumstances. You will need to explain why you no longer have capacity to pay this amount in order to avoid having to continue with this arrangement for what is effectively “spousal maintenance” whilst proceedings continue. The recent case of Hogan & Orwell (http://www.austlii.edu.au/au/cases/cth/FamCA/2016/505.html) reviewed the party’s finances from the perspective of a spousal maintenance application and the Husband in that situation was required to continue with mortgage payments. The Husband had increased his credit card liability by about $35,000 but had produced no explanation for why this had increased by such a large amount.

This cost can become overwhelming for people, and if decisions are not made very carefully, you can be locked in to paying for two properties for a considerable period of time, particularly if litigation takes a long time to sort out. This is one of the many factors your sensible family lawyer should advise you about in considering how to run your case. Call us for more information or send us an email if you would like to discuss your situation in a confidential free initial assessment.

Husband’s Business Suddenly Gains Value Post Settlement – What’s a Wife to do?

$93 million dollars! The Age today made headlines with this splashy article about ongoing legal battle that was brought before the Family Court of Australia. The parties have been given the pseudonyms of Mr and Ms Wills, and you can read their case here http://www.austlii.edu.au/au/cases/cth/FamCA/2017/183.html

In this case, the parties were married for 35 years before they split. On 27 April 2015, their property dispute was finalised where the wife received a division of assets worth $15 million. The Wife has then filed an application for this agreement to be disregarded, claiming that the Husband had failed to disclose relevant information relating to an interest in a business which later resulted in him receiving $93 million.

As it appears to have turned out, on 1 May 2015 the Husband was said to have “determined to take the initial steps to the making of an Initial Public Offering (IPO)” for the business. Their property dispute was finalised on 27 April 2015.

Having not seen the full details of the case, it is hard to say exactly who said what, knew what and when, and so we cannot comment definitely on what will happen. But there may be some value in looking at cases where the property ‘pool’ consisted mainly of lottery winnings (bought by the husband), as in the case of Elford v Elford [2016] Fam CAFC.

In Elford the Appeal Judge upheld the trial judge’s decision that the winnings were not a joint endeavour but rather recognised that the husband made the sole contribution to the winnings – therefore dismissing the wife’s appeal to a greater share in the property pool.

The question then is whether the wife receives any entitlement to the $93 million.

Only an experienced lawyer such as one from our family law team would be able to navigate you through complex scenarios such as the above – we are contactable on 03 9614 7111 or otherwise out of office hours on melbourne@nevettford.com.au.