The Nuts and Bolts of Pre Nuptial Agreements - Craddock Murray Nuemann Lawyers Sydney

The Nuts and Bolts of Pre Nuptial Agreements
Article Related Articles Related Services Publish Date: Sep 02, 2010 In Australia it is possible to make Pre-Nuptial Agreements under the Family Law Act 1975 (Cth) ("the Family Law Act"). What are Pre-Nuptial Agreements? Pre-Nuptial Agreements are binding financial agreements concerning how real and personal property is to be dealt with in the event that the marriage breaks down. In Australia Pre-Nuptial Agreements are referred to as "Financial Agreements" in the Family Law Act and can be made before you get married, whilst you are married or after your marriage breaks down. What can be included in a Pre-Nuptial Agreement? A wide range of financial matters can be dealt with in a Financial Agreement including: How, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of the parties at the time the agreement is made, or at a later time prior to divorce, is to be dealt with. The maintenance of either of the parties by the other during the marriage or after divorce. Any other matters. Are Pre-Nuptial Agreements binding? In order to make a binding financial agreement it is necessary to satisfy certain requirements set out in the Family Law Act. These requirements include: The financial agreement is signed by the parties. Before signing the financial agreement each party was provided with independent legal advice from a legal practitioner about the effect of the agreement on their rights and the advantages and disadvantages of making the agreement. Either before or after signing the financial agreement each party was provided with a signed statement by a legal practitioner stating that they had received independent legal advice on the effect of the agreement on their rights and the advantages and disadvantages of making the agreement. A copy of the statement of independent legal advice is provided to the other party. The financial agreement has not been terminated or set aside by the Court. Do I need legal advice before signing a Pre-Nuptial Agreement? Yes. Anyone contemplating signing a financial agreement under the Family Law Act is required to have independent legal advice on the effect of the agreement on their rights and the advantages and disadvantages of entering in the agreement. If you enter into a financial agreement without legal advice then it will not be considered a binding financial agreement and in the event that the marriage breaks down your property will be dealt with in accordance with the property division rules in the Family Law Act. Back Additional protection for de facto couples Craddock Murray Neumann Lawyers The Family Law Act 1975 has now been amended to allow opposite-sex and same-sex de facto couples access to the federal family law courts for property and maintenance matters. Additional protection for de facto couples Craddock Murray Neumann Lawyers A new Bill proposes additional protection to de facto couples under the Family Law Act for property and maintenance matters. Adoption Australia is party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Hague Convention). All in the family: Dispute Resolution Family dispute resolution involves people affected by separation and family breakdown. Dispute resolution is about coming together to talk about differences and trying reach agreements. This can be conducted with all family members present or separately. All Relationships Under the one law Historically, the Commonwealth made laws dealing with marriage relationships, whereas the various States and Territories had the power to make laws dealing with matters arising out of the breakdown of de facto relationships, including parenting and financial issues. Annulment of marriage Craddock Murray Neumann Lawyers Legally, an application for an annulment of a marriage can only be based on the ground that a marriage is void. A marriage is only void if one of the following scenarios applies... ARTIFICIAL CONCEPTION – WHO IS THE PARENT? Assisted Reproductive Technology Basic Questions Relating to Parenting Orders Parenting orders are enforceable arrangements that deal with the welfare of a child. Orders can be made by the courts, however, the desirable outcome is for the parties to reach an agreement without the intervention of the legal system. If the separating parties are unable to resolve their issues, the courts will intervene. Binding Financial Agreements – Handle With Caution Under the Family Law Act, parties to a marriage or de facto relationship may enter into a financial agreement to make provision for their financial arrangements during the course of their relationship, and for financial settlement upon the breakdown of their relationship. Binding financial agreements: How an agreement is created, varied or set aside It’s not unusual to hear of the rich and famous before a marriage, enter into a prenuptial agreement with their spouse. If a person has substantial assets to protect, it’s probably not a bad idea to have a prenuptial agreement in place in the event of a relationship breakdown. In Australia, prenuptial agreements are more commonly referred to as binding financial agreements, and a valid agreement can oust the jurisdiction of the courts. Binding Financial Agreements: when do they cease to be binding? The Full Court decision of Black v Black (2008) 38 Fam LR 503 (“Black v Black”) on financial agreements continues to impact on family law decisions being cited in the recent Federal Magistrates Court decision of Fitzpatrick & Griffin [2008] FMCAFAM 555 (“Fitzpatrick & Griffin”). Black v Black continues to impact on Family Court decisions Craddock Murray Neumann Lawyers The Full Court decision of Black v Black (2008) 38 Fam LR 503 (“Black v Black”) on financial agreements continues to impact on family law decisions being cited in the recent Federal Magistrates Court decision of Fitzpatrick & Griffin [2008] FMCAFAM 555 (“Fitzpatrick & Griffin”). Can a child, rather than a parent, consent to medical treatment? As parents we obviously want what is best for our children and we strive to protect them from harm, therefore, it’s not a surprise that parents go to great lengths to ensure the safety of our children. As parents we try to minimise the risks of which our children will be exposed to, and in some instances, our need to look after our children will extend to matters involving health and medical treatment. Can a Minor Make a Will or Revoke a Will? Dominic Wilson A minor is the legal description of a person under the age of 18 years. As a general rule a minor cannot make a will. CAN A MURDERER BENEFIT FROM THE ESTATE OF THE VICTIM? THE FORFEITURE RULE IN PROBATE CASES Dominic Wilson A person convicted of a crime is not generally prohibited from benefitting under a will. However under the Forfeiture Rule, a murderer cannot benefit under the will or intestacy of the victim nor will the murderer be granted letters of administration. Can child support still be collected when the other party is overseas? In a world where international connectivity and travel has never been easier – or cheaper – the ability for people to move trans-nationally can be as simple as a mouse click away. However, the flipside with the ease in which people are able to traverse across nations can lead to a situation where one party who is subject to a maintenance order or child support, is overseas, which may then cause potential difficulties for anyone who is supposed to receive maintenance. Can children sign mobile phone contracts? Mobile phones have become so ubiquitous that it’s a bit of a shock when we come across a person who doesn’t actually own one, and in fact, ownership of mobiles has become so prevalent that even children are just as likely to be seen sporting the latest smartphones, and playing ‘Angry Birds’ like no tomorrow. Which conveniently leads us to the main point of this piece: can a person under the age of 18 sign a contract for telephone or internet services? Can I use an injunction to stop my ex partner taking the children out of the state If you have reason to believe this will occur you should send a copy of the injunction order to the Federal Police and ask that your child's name be placed on the Airport watch list. Can you trust a Trust? When a family is blessed with some wealth, it is not uncommon to find a family trust involved. A trust is an arrangement where assets are held in the name of a trustee on behalf of named beneficiaries. The trustee is not in fact the `real' or beneficial owner. A family trust is usually what is known as a discretionary trust. Casual employees and paid parental leave laws We often hear about the growing casualisation of the Australian workforce, and as employers increasingly rely on casual employees, mothers or fathers who choose to stay with their newborn child may be particularly affected during the leave period, and wonder if they are entitled to leave, and if they are, are they also entitled to be paid during the period of leave. Changes to De Facto Relationship Law : A Move Towards Equal Treatment Craddock Murray Neumann Lawyers A Paper presented by Craddock Murray Neumann on the Changes to De Facto Relationship Law. Changing a Child’s Name Craddock Murray Neumann Lawyers Sometimes when a mother changes her surname or remarries she wants to change her child’s surname as well. If the child’s father agrees to the change in surname, it can go ahead. However, if the father does not agree to the change in surname the mother would need to make an application in the Family Law Courts for permission to change the surname. Child Inclusive Mediation in Parenting Cases Craddock Murray Neumann Lawyers Upon the breakdown of a relationship where there are children, if the parents are unable to reach agreement between themselves as to the parenting arrangements for the children, then there is a requirement to participate in mediation prior to contemplating any Court proceedings. Child Support Agreements Craddock Murray Neumann Lawyers Overview of Child Support Agreements following the breakdown of marriage. Child support assessement or child support agreement? Parents have a legal obligation to financially support their children. When a child’s parents have separated, or have never lived with one another, they are entitled to pursue arrangements for their child’s financial support. Most often the parent with the primary care of a child will initiate the process to seek child support from the other parent. Child support assessment in preparation for new child support scheme Craddock Murray Neumann Lawyers Assessments of every parent who pays or receives child support, even if private arrangements are in place, are currently underway in preparation for the new Child Support Scheme, which commences on 1 July 2008. The General Manager of the Child Support Agency, Matt Miller, has asked parents to check their details carefully because a new formula will be used to calculate child support payments. Christmas Arrangements For the Children December is not busy just in department stores, it is a hectic time in the Family Law courts. For judges, Federal Magistrates and lawyers, December is the month where much time is spent working out where children will spend their Christmas when their parents cannot work it out. The number of cases with this issue outstanding before the Courts is so high, that the courts usually require Christmas cases to be filed no later than mid November. Commonwealth Family Law System to deal with both Parenting & Financial Matters Craddock Murray Neumann Lawyers For years de facto couples who separated with children faced the nightmare of having to use two different legal systems. Problems about their children were dealt with in the Family Law system, under Commonwealth law, while disputes about financial matters were resolved in State courts. In addition, the entitlements of - usually - females were substantially less than their married counterparts, and superannuation benefits could not be divided. Dad and Partner Pay Claims So, you and your partner are looking at having a baby soon. Or perhaps you’re considering adoption? What you may not know is that both you and your partner may be eligible to claim forms of parental pay under recent changes to the Paid Parental Leave Act 2010 (Cth) (the Act) made by the Paid Parental Leave and Other Legislation Amendment (Dad and Partner Pay and Other Measures) Bill 2012 (Cth) (the Bill), the “non-primary carer” of a child can claim two weeks of “Dad and Partner Pay” (DAPP). Dart v Graham [2008] FamCA 824 Craddock Murray Neumann Lawyers The recent case of Dart v Graham [2008] FamCA 824 dealt with the issue of a father seeking permission to take his children on an overseas holiday to Bali, Indonesia for his wedding. The mother of the children opposed the children travelling to Bali due to advice issued by the Department of Foreign Affairs and Trade (DFAT) warning travellers to Indonesia that the country has risks associated with it and that careful consideration should be given to the need and desirability of such travel. De Facto Relationship Legislation In 2008 legislation was passed to amend the Family Law Act 1975 to allow de facto couples (opposite sex and same sex) to access the federal family law courts for property and maintenance matters. Divorce – How to Apply Craddock Murray Neumann Lawyers FrA divorce in Australia simply ends the marriage formally. To obtain a divorce either spouse, or both jointly, can apply to the Federal Magistrates Court for a divorce order. This will not deal with the parenting arrangements for children, or the division of property, which are dealt with separately and in isolation. Divorce or Annulment Craddock Murray Neumann Lawyers Some clients will say to their Family Lawyer, “I don’t want a divorce, I want my marriage annulled”. Usually this has to do with a religious belief. The law does allow for a court to declare a marriage a nullity, although such applications are not common. This is because the grounds to annul a marriage are quite limited. Divorce or Annulment? Numbers of clients will say to their Family Lawyer, “I don’t want a divorce, I want my marriage annulled”, and usually this is to do with a religious belief. The law does allow for a court to declare a marriage a nullity, although such applications are quite unusual. No doubt this is because the grounds are quite limited. Do I need a pre-nup? In Australia couples who are considering living together, as a de facto couple (whether same sex or heterosexual) or are considering marriage have the option of entering into an agreement to protect their assets in the event they separate. This agreement can protect not only assets in existence now, but also assets the parties purchase throughout the relationship. Domestic Violence in the context of Family Law Unfortunately in Australia many men and women are subjected to violent behaviour from their spouse or their de facto partner. Often victims are reluctant to come forward and report instances of domestic violence for fear of further violence from their spouse or for fear of criticism or judgement from the wider community. In recent times the family Court has obtained a deeper understanding of the types of violence and impact that domestic violence can have. Establishing Parentage in Court Proceedings Craddock Murray Neumann Lawyers In some family law matters the parentage of a child is in issue. The law enables the Court to make an order requiring a parentage test to be carried out to help determine the child’s parentage. Establishing parentage of a child Historically, the common law approach in regards to establishing parenthood was to presume that a child was legitimate if the parents were married either at the time of conception, or at birth, thus, the establishing of the common law presumption of legitimacy. The approach in relation to the presumption of legitimacy was that a married couple were only having sexual intercourse with one another, and that the wife was not having sexual intercourse with any other man. On the other hand, the presumption was not always applicable if the couple was separated, and additionally, the presumption may be rebutted if there was proof of an affair, or in instances of sterility. Evidence of a witness under 18 years of age in a Family Law matter Craddock Murray Neumann Lawyers In the case of Beckett & Horan [2008] FMCAfam 1427 the issue of permitting a witness under 18 years of age to give evidence in family law proceedings was raised. The proceedings in question concerned both parties seeking parenting orders. An application was made by the mother to adduce evidence from Ms. S, a non-relative aged 17 years of age. Counsel for the father objected to the evidence being adduced on the grounds of s 100B of the Family Law Act 1975 (Cth). Evidence of Minors in a Family Law Matter In the 2008 case of Beckett & Horan the issue of permitting a witness under 18 years of age to give evidence in family law proceedings was raised. The proceedings in question concerned both parties seeking parenting orders. An application was made by the mother for a non-relative aged 17 years of age to give evidence. Counsel for the father objected. Family Dispute Resolution If you are in dispute with your partner regarding the care arrangements for your child you are required, by law to engage in what is called Alternative Dispute Resolution. Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth) Craddock Murray Neumann Lawyers Legislation has been introduced into parliament that, if passed, would amend the Family Law Act 1975 to allow de facto couples (heterosexual and same sex) to access the federal family law courts for property and maintenance matters. Family law and spousal maintenance Relationships that have come to an end, whether the parties were part of a marriage or a de facto coupling, are always difficult. Additionally if there are further issues relating to finance, the situation can be even more fraught – especially if one of the parties is in a weaker economic position. The Family Law Act (the Act) allows a party to a marriage or de facto relationship, to financially maintain the other party to the extent that they are reasonably able to do so, if one of the parties cannot support him or herself adequately. The courts then can decide to issue a maintenance order however, the Act mandates that certain requirements must be met before an order can be issued. Family Law: What does that Mean? The Family Law Act is a long and often complicated piece of legislation. Since it first came into force in 1975, it has been amended on many occasions and is now nearly twice as long as it first was. The area of Family Law is also affected by the Child Support laws and by laws regarding domestic violence. Some of the terminology has changed over the years and in this newsletter we shall look at some definitions and words used in this area of the law. Family violence protection orders: Who can apply? And what behaviours may be subject to an order? Instances of family or domestic violence can leave victims feeling powerless, however, all jurisdictions in Australia recognise the unique nature of domestic violence and have instigated a number of laws and orders to protect spouses, children, relatives, and household members from violence at home. Financial contributions: My Spouse made more money than me; does that mean I won’t get anything in a property settlement? Often, especially in long relationship, one party is the traditional ‘breadwinner’ while the other stays home to care for children, or to maintain the home. The primary homemaker may only work part-time, or may not work at all. So what does this mean if the couple separate? What does each party get? Financial Settlements – How is the Split Determined The purpose of a financial settlement is to bring to an end the financial relationship between the parties, by dividing and allocating their net assets, so that nothing is left in joint names. Financial Settlements – How is the Split Determined Financial settlements in both marriage and de facto relationship cases have been dealt with on the same basis since March 2009. Financial Support: Spouse/De Facto maintenance Married couples, and now de facto couples, have a legal obligation under the Family Law Act to provide financial support to one another. If that financial support is not forthcoming, then either party to a marriage or de facto relationship is entitled to apply to a Court for orders that the other party pay maintenance to them. Finding out with Family Law: Parentage Testing Parentage tests determining the parent of the child may be needed for Family Law matters such as child support payments, custody, access, inheritance and adoption. But with these matters, more matters arise including questions about processes and legal requirements. Grandparent rights under the Family Law Act In 2006 a grandparents right to contact with their grandchildren was finally recognised in the Family Law Act. Before this the word “grandparent” was not mentioned in the Act in relation to any rights to maintain a relationship with their grandchildren on the breakdown of a marriage. Grandparents and other family members in Family Law matters Craddock Murray Neumann Lawyers In Australia, many parents make arrangements for their children to spend time with grandparents and other family members on a regular basis without thinking much about it. If everyone lives close to each other this might be weekday dinners, Sunday lunch, picnics, after school care or other child minding. He wants to take the kids overseas Craddock Murray Neumann Lawyers Australia has many residents with family ties overseas, and we are also a nation of travelers. It is not surprising, therefore, that taking children overseas can often become an issue between separated parents. If the parents cannot agree, a court will make the decision, and the decision will be based on what is best for the child. How are financial and property issues resolved after the end of a relationship? Matters involving finance and property always seem to be a significant point of conflict for divorcing or separating de-facto couples – irrespective of whether the relationship is same sex or not. How Can the Law Protect You from Domestic Violence? Domestic violence is commonly thought of as physical abuse. However, it can also include other conduct such as sexual, emotional or psychological abuse. How does a judge assess credibility A small minority of family law cases require a decision from the Court, whether it involves parenting or financial issues. Where there is a different version of facts given by each party, one of the tasks of the Judge hearing the case is to make findings of fact. In other words, which version of events does the Judge believe to be the correct version. How does the family dispute resolution process operate? Some of us upon hearing the terms, ‘divorce’, ‘property’, ‘financial’ and ‘dispute’, will probably conjure up images of emotion charged court proceedings where one party is left desolate, while the other takes off with all of the matrimonial property and assets. However, the truth is rather more benign and most divorces don’t actually end up in court, and the parties more often than not, will reach some sort of agreement. Furthermore, the law encourages that parties whose union has come to an end, engage in the mediation and conciliation process – and in most instances, it is mandatory to do so. How the Family Law Court establishes a contravention of a parenting order If a person contravenes an order by acting illegally or by breaching the order intentionally, or the person has made no reasonable attempt to comply with the order, they can then be found to be in contravention of the order, and in such a circumstance the order can be varied or they can make a contravention application. If one party to a marriage becomes bankrupt: What happens to the property interests? When bankruptcy and family law collide, the results are how shall we say it? Difficult. Under s 58 of the Bankruptcy Act 1966 (Cth), once a person becomes bankrupt, that person’s divisible property vests in the trustee. However, under s 116 of the Bankruptcy Act, certain property such as superannuation, tools of the trade, some furniture, and transport can be exempt, but the fact still remains, that the interaction between bankruptcy and family law is extremely complicated. Inheritances and Gifts in Family Law, how are they treated? Consider this example: John and Jill have been married for 10 years and have recently separated. Around 2 years ago Jill’s father died and Jill received an inheritance of $100,000. These monies were deposited into a joint bank account and have been used by the parties to assist in the purchase of a property. Now that the relationship has broken down what becomes of Jill’s inheritance? Inheritances: What happens when a relationship breaks down? When couples separate, they typically need to sort out how to divide their property. This includes both assets and debts. There are a number of ways this can be done. Parties can agree on how to divide their property without any court involvement. These kinds of agreements can be formalised by the court by applying for a consent order, but they do not have to be. Where parties cannot agree on their own, it is possible to apply to the court for a financial order. Financial orders can relate to the division of property and the payment of spousal maintenance. Intercountry Adoption Agreement between States and Commonwealth A n agreement between the Commonwealth and States and Territories to administer and improve intercountry adoption in Australia exists. LITIGATION - Frequently Asked Questions Dominic Wilson Deciding how to settle a dispute - Choosing a process - Commencing litigation - Pre-trial procedures - Discontinuance or withdrawal - Enforcement of judgments - Costs of Litigation - Time limits - Lawyers Mandatory reporting of domestic violence Craddock Murray Neumann Lawyers The Northern Territory is set to become the first place in Australia where it will be illegal not to report incidents of domestic violence. The new laws to protect women and children from family violence were introduced into state parliament on 26 November 2008, and will be debated in the February sittings. Marriage Equality Amendment Bill 2009 Senate Inquiry In 1961 the Commonwealth Government enacted the Marriage Act, which set out the various requirements before a marriage in Australia, either religious or secular, is valid. It also dealt with other issues including when marriages are void, and Australia’s obligations under the Hague Convention on Celebration and Recognition of the Validity of Marriages. New Child Support Scheme The new child support formula is part of the overhaul of the Child Support Scheme implemented a few years ago. New Intercountry Adoption Agreement between States and Commonwealth Craddock Murray Neumann Lawyers A new agreement between the Commonwealth and States and Territories to administer and improve intercountry adoption in Australia has been signed. New Surrogacy Act 2010 commences: 1 March 2011 As of 1 March 2011, it is an offence in NSW to enter into commercial surrogacy arrangements. The Surrogacy Act 2010 came into effect on the 1st March this year, making it illegal to begin commercial surrogacy arrangements after that date, however, regulations to be made under the Act do make provision for those who entered written agreements before that commencement date. NSW Relationships Register open from 1 July 2010 This month saw the opening of the NSW Relationships Register. As from 1 July 2010, unmarried couples are now able to prove their committed or de-facto status by registering. Paperwork will be simplified and one document ascertaining to the relationship will be issued and can be used across a range of government agencies. The register will allow couples to be recognised on par with de-facto status and relationships will be considered as such. Outside the Nuclear Family: Gay Dads and Surrogacy Overseas Travel With Children The 2008 case of Dart v Graham dealt with the issue of a father wanting to take his children on an overseas holiday to Bali for his wedding. The mother opposed the children travelling to Bali due to advice issued by the Department of Foreign Affairs and Trade (DFAT) warning travellers to Indonesia that the country has risks associated with travelling there. Parenting & Financial Matters in De Facto Relationships For many years de facto couples who separated with children faced having to use two different legal systems. Problems about their children were dealt with in the Family Law system, under Commonwealth law, while disputes about financial matters were resolved in State courts. In addition, the entitlements in financial cases were less generous for a financially disadvantaged party than in marriage cases, and superannuation benefits could not be divided. Parenting orders - Can Grandparents and other extended family members apply? Craddock Murray Neumann Lawyers The law in Australia now enables a Court to make parenting orders in favour of any of the following people: Parents Feel Supported with Child Support Once partners separate, family obligations are always an uncertain matter. But the one constant obligation is parents' duties to support their children. However parents and non-parent carers don't always feel supported by the information available in knowing their rights and obligations under the child support system. Paying for the Kids Australia's Child Support system has been in force for about twenty years now, so most separated parents have experienced it. In summary, it requires one parent (the liable parent) to pay the other an amount of money calculated by a formula. Possibility of Jail for Negligent Parents in Queensland Craddock Murray Neumann Lawyers Parents who abandon their children for an “unreasonable amount of time” could face up to 3 years in jail, under suggested amendments to the Queensland Criminal Code. Property of the Marriage: What Assets are Available Craddock Murray Neumann Lawyers Upon the breakdown of a marriage one of the issues that needs to be addressed is a financial settlement. This involves dividing the assets, liabilities and superannuation of the parties whereby each party is allocated their share of the net assets, with the end result that none of the assets and liabilities are held in joint names. Property settlement issues and de facto relationships Matters involving the breakdown of a relationship can be very complex and property settlement in regards to de facto relationships can be particularly difficult. Although the Commonwealth government did introduce laws in 2008 to provide for greater unity in regards de facto property settlement, some jurisdictions may not be participating jurisdictions, however, Commonwealth laws do supersede any state legislation that deal with the same matter. Although, it should be highlighted that there may be differences in relation to de facto property settlement and this piece is only a very general overview. Property Settlements and bankruptcy If you are involved in family law property proceedings and the other party to the marriage or de facto relationship goes bankrupt it will affect the way in which the Family Court is able to deal with the proceedings. Property Settlements: How are the entitlements determined Craddock Murray Neumann Lawyers In every financial settlement after the breakdown of the marriage, a four step mythology is used to determine the entitlements of each party. When lawyers give advice to clients as to their entitlement or likely settlement, they have an obligation to do so based how they think the Court may apply the four step mythology given the information and instructions provided by the parties. Protection from Domestic Violence Domestic violence is commonly thought of as physical abuse. However, it can also include other conduct such as sexual, emotional or psychological abuse. Review of Equal Shared Parenting Laws In 2006 significant amendments were made to the Family Law Act dealing with children’s issues after the separation of parents. Same Sex Divorce For those people in a same sex relationship who have married one another in a civilised country where same sex marriage is available, and reside in Australia, what happens if your relationship irretrievably breaks down? Can you apply for a divorce in Australia? The simple answer no. Same Sex Parenting Paper The Mainstreaming of Same Sex Relationships – Becoming Parents” – in this paper Paul Boers examines the options available for same sex couples wishing to start a family, including IVF/donor insemination, co-parenting arrangements and surrogacy; of who is a “legal parent” within each arrangement; and of how parental responsibility may be acquired. This paper was originally written for the College of Law, and has been recently updated after a decision in the Family Court of Australia concerning a surrogacy arrangement in the matter of Re Michael: Surrogacy Arrangement. Same Sex Relationships Bill 2008 Craddock Murray Neumann Lawyers The Federal Government has introduced legislation that aims to remove the discrimination against same-sex couples currently present in Acts governing Commonwealth superannuation schemes. Same Sex Relationships Bill 2008 The Federal Government has introduced legislation that aims to remove the discrimination against same-sex couples currently present in Acts governing Commonwealth superannuation schemes. Same Sex, Same Laws The Commonwealth government removed discrimination against same-sex couples in more than 100 pieces of federal legislation in 2008. Same Sex, Same Laws Craddock Murray Neumann Lawyers The Rudd government removed discrimination against same-sex couples in more than 100 pieces of federal legislation, following through on their election promise one year ago. Security for Costs Craddock Murray Neumann Lawyers The general rule is that everyone should be able to enforce their rights in the Courts – poverty should be no bar to justice. Separation: Signs that a marriage has come to an end One of the signs that a marriage has come to an end, is if the parties to the marriage have engaged in the process of separation. Although the term may imply that both parties have agreed to undertake the action of separation, there is however no requirement that the decision to separate must be mutual, as outlined in s 49(1) of the Family Law Act 1975 (Cth) (the Act). Seven important life events for estate planning Dominic Wilson Sharing Time in Relocation Cases When the Family Law Act 1975 (Cth) was amended in 2006, it introduced the concepts of “equal shared parental responsibility”, “equal time” and “substantial and significant time”. Until the High Court of Australia decision in MRR v GR, [2010] HCA 4, the relationship between these concepts was unclear in relocation cases. Should I appoint an enduring guardian? Craddock Murray Neumann Lawyers Spousal Maintenance Spousal maintenance is the responsibility of one party to a marriage to financially support the other person after separation or divorce. Spouse/De Facto Maintenance: What Will I Receive/Have to pay? Craddock Murray Neumann Lawyers When considering what amount of spouse/de facto maintenance a party is entitled to receive, or may be required to pay, the starting point is to complete a Financial Statement document as accurately and as truthfully as possible. Stamp Duty Exemption on a Property Transfer Parties may also be entitled to a stamp duty exemption if the Court makes Orders requiring a transfer of property. Superannuation in Family Law Financial Settlements Most working Australians have some superannuation and for many their superannuation can be quite a substantial part of their financial future. Before 2002, dealing with superannuation entitlements often posed problems in family law financial settlements because there was no ability to divide them. The outcome usually was that the husband (usually the one with the greater super) would get a lesser share of the other property to compensate for his greater share of the super. Superannuation in Financial Settlements Most working Australians have some superannuation and for many their superannuation can be quite a substantial part of their financial future. Before 2002, dealing with superannuation entitlements often posed problems in family law financial settlements because there was no ability to divide them. The outcome usually was that the party with the greater superannuation would get a lesser share of the other property to compensate for the other party not being able to access the greater superannuation fund. Surrogacy – An Alternative To Creating Families Craddock Murray Neumann Lawyers Surrogacy is an arrangement whereby a couple wishing to have a child (“the intending parents”) commission a woman, whether partnered or otherwise (“the surrogate mother”) , to conceive the child and then surrender the child to the intending parents after birth. The intention of this arrangement is that the intending parents will raise their child as their own. Surrogacy Laws in Australia With Queensland introducing new surrogacy laws in 2010, altruistic surrogacy has become legal throughout Australia. However, a lack of uniformity with regard to individual State’s legislation means that intended parents can become confused. This is compounded by the impact of Federal laws, particularly immigration laws, on overseas surrogacy and has caused many parents to be held up in foreign countries awaiting immigration papers for their child. Surrogacy Laws in Australia: an absence of uniformity causes confusion With Queensland introducing new surrogacy laws in 2010, altruistic surrogacy has become legal throughout Australia. However, a lack of uniformity with regard to individual State’s legislation means that intended parents can become confused. This is compounded by the impact of Federal laws, particularly immigration laws, on overseas surrogacy and has caused many parents to be held up in foreign countries awaiting immigration papers for their child. Taffa v Taffa When a divorce is alleged to have occurred in a foreign country Craddock Murray Neumann Lawyers In Taffa v Taffa [2009] FamCA 85, the wife made an application for divorce. The husband disputed the application for divorce on the basis that they were divorced in Lebanon on 24 November 1998 by the Jaafarite Canonical Court. The decision of whether the wife's application for divorce could proceed in the Family Court was dependent upon whether the Court recognised the divorce granted in the Lebanon court. Taking Children From Australia Australia has many residents with family ties overseas. It is not surprising, therefore, that taking children overseas can often become an issue between separated parents. If the parents cannot agree upon whether a child can travel overseas with one of the parents, a court will make the decision, and the decision will be based on what is best for the child. The formal requirements of a parenting plan t’s always difficult when relationships come to an end and trying to sort out post-breakup matters, such as the division of property and assets can be challenging to say the least. However, post-separation becomes more problematic when there are children involved and trying to make the proper arrangements which take into account the needs of the parties and the children can also be quite complicated, but with that being said, engaging in the formal legal process is perhaps the least desirable outcome – so parenting plans are often used instead when dealing with post-separation matters. The Nuts and Bolts of Pre Nuptial Agreements In Australia it is possible to make Pre-Nuptial Agreements under the Family Law Act 1975 (Cth) ("the Family Law Act"). The Shared Parenting Laws: is there a case for reform? The unification of Family Law jurisdictions to deal with all relationships Craddock Murray Neumann Lawyers Under the Commonwealth Constitution, the Federal government has the power to make laws with respect to marriage. As such, the various States and Territories historically were left with the power to make laws dealing with matters arising out of the breakdown of de facto relationships, including parenting and financial issues. Trusts: Can you trust a Family Trust? When a family is blessed with some wealth, it is not uncommon to find a family trust involved. What Court Do We Go To? Craddock Murray Neumann Lawyers There are a number of courts which can deal with matters under the Family Law Act, which covers both parenting and financial or property matters between couples, whether married, de facto or, in some parenting cases -parents who never had any ongoing relationship. Choosing the right court can save time, money or both, and the choice is one which family lawyers have to make all the time for their clients. What does 'the best interests of the child' mean in the Family Law Act? ‘The best interests of the child’ is arguably one of the most familiar principles from the Family Law Act (the Act), and is the paramount consideration for the courts in making parenting arrangements after a relationship has broken down. What is a will? Craddock Murray Neumann Lawyers What is Family Counselling and Family Dispute Resolution? If you are involved in a separation or divorce then you may have heard the terms “family counselling" or “family dispute resolution practitioner”. What is Family Counselling and Family Dispute Resolution? Family counselling is a process where a family counsellor helps people affected by separation and divorce to deal with personal and interpersonal issues in relation to the relationship or issues in relation to the care of children from the relationship. What is Family Law? The Family Law Act is a long and often complicated piece of legislation. The area of Family Law is also affected by the Child Support laws and by laws regarding domestic violence. What is the effect of marriage on a will? There are a number of times in your life when you should review your will to make sure that it will give effect to your intentions in relation to your property and estate. What proof is required for an application of divorce to be granted? Australian law no longer requires a reason to be given for an application for divorce, however, there must still be proof of an ‘irretrievable breakdown of the marriage’ in order for a divorce to be granted by the courts. The question that is worth asking is: how are the courts satisfied that there has been an ‘irretrievable breakdown of the marriage’? What to expect from an initial consultation at Craddock Murray Neumann Craddock Murray Neumann Lawyers We understand that it is often a very big step for people whose relationship has broken down to take that first step and approach a lawyer for advice. We consider the role of a family lawyer to be more than just explaining what the law actually says. Case management and management of the client’s needs, sadly seems to be underrated. However we take it very seriously. What's in a name? For almost all of us, our name is something which says who we are. Apart from being a bit like a personal identifier, it also can describe one's ancestry, one's ethnic background and whether we are married. Less so today, but in the past often immigrants would change their surname to an Anglo-Saxon name, and adopt an Aussie nickname for their forename. This certainly made spelling easier for those who had to deal with "those funny names", but also could signify an acceptance of their new society. When a divorce is alleged to have occurred in a foreign country In the 2009 case of Taffa v Taffa , the wife made an application for divorce. The husband disputed the application for divorce on the basis that they were divorced in Lebanon on 24 November 1998 by the Jaafarite Canonical Court. The decision of whether the wife's application for divorce could proceed in the Family Court was dependent upon whether the Court recognised the divorce granted in the Lebanon court. When can a parenting order be varied or terminated? The court has the ability to make a parenting order, and alternatively, they are also bestowed the power to alter or terminate such orders under the provisions of the Family Law Act 1975 (Cth)(the Act). An order to discharge, vary, suspend or revive some, or all of an earlier parenting order, is itself, a parenting order under ss64B(1)(b), 65D. When can children get married? What is the age of consent? Preventing children from growing older is similar to trying to empty the sea with a teaspoon. It’s impossible. Parents often try their best to protect their children from harm, and the law is no exception, because there is recognition that children can be sometimes vulnerable to exploitation. There are numerous laws that exist to not only look after minors, but also as guidance to their rights and responsibilities in society. The laws in regards to children cover almost every aspect of life, and can range from sexual relationships to schooling. Hopefully this article will illuminate readers with some of the laws that are out there regarding children. When is a relationship a De Facto relationship? In late 2008 various States in Australia surrendered to the Commonwealth Parliament the power to deal with the financial aspects of the breakdown of de facto relationships. When should I make a will? Craddock Murray Neumann Lawyers Where are the children going to go at Christmas? December is not busy just in department stores, it is flat out in the Family Law courts. For judges, magistrates and lawyers, December is the month of working out where children will spend their Christmas when Mum and Dad cannot work it out. Indeed, the workload is so high that the courts usually require Christmas cases to be filed no later than mid November. Which Court Do We Go To? There are a number of courts which can deal with family law matters, whether parenting and/or financial matters between couples, whether marriage or de facto relationships. Choosing the right court can save time, money or both, and the choice is one which family lawyers have to make all the time for their clients. Who Gets What in a Divorce or Separation With well over a third of relationships failing, there will be very few Australians who do not know someone who has been through a separation, most of which will involve a sorting out of finances and property. Unfortunately for lawyers, that often means that someone who has separated will have been given advice by a friend, relative or workmate about what they should get. Who is a Parent? The Family Law Act prescribes that parents of children have parental responsibility, which is defined to mean all the duties, powers, responsibilities and authorities which, by law, parents have in relation to children. Family Law Tweet		Search Book An Appointment Make an Enquiry A member of our legal team will contact you as soon as possible * * * Brief description of enquiry: Type the characters below: * Refresh Image

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