Going through any relationship breakup can be stressful and emotionally draining, especially if you have been married for a long time. In Australia, there is an important distinction that must be made between “divorce” and “separation” that not many people may be aware of. There are also different types of separation that effect the process of obtaining a divorce.
Read on to get an understanding of how and when you may have “legally” or “officially” separated with your former spouse and when you can file for divorce.
Divorce
Divorce is the legal term that refers to the severance of a marriage between two people. As such, divorce does not apply to couples in de facto relationships. Under Australian law, there is no requirement to prove the reason for the breakdown of the marriage. However, the parties do need to demonstrate to the court that the marriage has broken down irretrievably. This ground is established only if the parties have separated and thereafter lived separately and apart for a continuous period of not less than 12 months. The court will not make a divorce order if it considers that there is a reasonable likelihood of cohabitation being resumed between you and your former spouse. It is for this reason that an application for divorce can only be filed with the court once at least 12 months and 1 day have elapsed from the official date of separation.
Separation
In Australia, the legal definition of separation is when one party forms the intention to sever a marriage or de facto relationship and then communicates that intention to the other party. It seems like a simple definition, but many people may get confused about whether they are, in fact, separated for the purposes of Family Law in Australia.
Often, people may find themselves living entirely separate lives but within the same house, especially if there are children involved. Notably, the law does not require physical separation as evidence of a breakdown of a marriage or a de facto relationship. Couples may well be considered separated despite living in the same residence. This is known as “separation under one roof.”
If you continue to reside together with your former spouse, for example, for the sake of your children, this can potentially create some difficulties when it comes to filing for divorce. In these circumstances, a clear distinction needs to exist between you and your former partner living together for the sake of the children as parents, in contrast to living together as spouses. For this, an Affidavit is usually required in support of an application for divorce.
Marriages of less than 2 years’ duration
If you were married to your former spouse for less than two years, you will have an additional requirement of considering reconciliation with the assistance of a specified person when applying for a divorce. This is usually done in the form of marriage counselling. However, if your individual circumstances prevent any form of reconciliation counselling being a viable option, the parties would normally be required to obtain special permission of the court before being allowed to file an application for divorce. An Affidavit in this regard may also be required.
Process for filing for divorce
If you believe you are ready to file an application for divorce, you can commence the process yourself using the court’s online portal. You will first need to select whether you are filing a sole application (that is, by yourself) or if you are filing a joint application with your former spouse.
The requirements differ depending on whether it is a sole or joint application, whether there has been any period of separation under one roof and depending on the duration of the marriage, as outlined above.
Seeking legal advice
We understand that, sometimes, the whole process can be daunting and confusing, as no one marriage or relationship is ever the same. If you find it difficult to navigate through the process, feel free to reach out to one of our friendly lawyers who will be able to guide you in the right direction.
It is important to seek independent legal advice to help you understand your rights and responsibilities, and where possible, avoid going to court. There are also time limits which apply to filing in the Family Law Court for property settlement/and or spousal maintenance once a Divorce Order takes effect. If you are seeking legal advice about your separation, or just need to understand your divorce application options further, Daykin Family Law can help.
Shannon Daykin is an experienced Family and Divorce Lawyer, named as a Leading Family & Divorce Lawyer (Recommended, Brisbane) and Leading Parenting & Children’s Matters Lawyer (Recommended, Queensland) in the prestigious Doyle’s Guide 2018 and 2019. In 2019, Daykin Family Law was named in the Doyle’s Guide as a Leading Family & Divorce Law Firm (Recommended).
Contact us today to make an appointment with Shannon Daykin, an Accredited Family Law Specialist. Shannon was named as one of Brisbane’s Leading Family & Divorce Lawyers (Recommended) and Leading Parenting & Children’s Matters Lawyers (Leading) 2021, Brisbane, in the prestigious Doyle’s Family Law Guide. We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us on (07) 3852 5490 to make an appointment for a fixed fee initial consultation today.
The blog published by Daykin Family Law is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Daykin Family Law on any legal queries concerning a specific situation.
It may come as a surprise to some that when a relationship ends, one party might still be compelled to make a lump sum or ongoing payments to support their former spouse. Even if you do not have children with your former partner, you may still be required to pay a certain amount if the necessary requirements of “Spousal Maintenance” have been met. Spousal Maintenance is completely separate to child support, but the two are often misconstrued and taken to be one and the same.
In this article, we will discuss the differences between child support payments and spousal maintenance payments and briefly explain obligations in respect of these.
What is Spousal Maintenance?
Spousal Maintenance is essentially financial support that is paid by one former partner to the other partner of a marriage or de facto relationship that has broken down in circumstances where the other party is unable to adequately support themselves. It is money which is to be used by the recipient to assist in payment of their reasonable living expenses.
You might be asking yourself, why would does financial support need to be provided to a former partner if there is no longer a relationship? In short, the law in Australia states that a person may have a responsibility to financially assist their former spouse or de facto partner if that person cannot meet their own living expenses. The duty to support and maintain each other works both ways, and this obligation may continue even after separation.
To be successful in an application for Spousal Maintenance, there are essentially two limbs that must be satisfied. Firstly, the applicant must have a need. Secondly, the respondent must have capacity to pay spousal maintenance. There are a range of factors which the Court consider when a party seeks such orders, such as the age of the parties, care of children and the parties’ income and financial resources, to name a few.
For a clearer understanding of the concept and purpose of spousal maintenance, visit our article on What is Spousal Maintenance?
Child Support
Child Support, on the other hand, refers to the financial support by a parent specifically for their child/ren. A private arrangement for the payment of child support can be negotiated between the parties and recorded in a Binding Child Support Agreement or a Limited Child Support Agreement. For the former, both parties need independent legal advice. Such agreements can cover the payment of periodic child support (a regular amount for example) or non-periodic amounts. Non-periodic amounts can include payments towards costs such as education, medical and extra-curricular costs. Lump sum payments are also possible.
Alternatively, or in conjunction with the above, Child Support may be assessed at a particular rate by the Department of Human Services (Child Support Agency). Child Support matters are managed by Services Australia which is the entity that administers the Australian Child Support Scheme. The Family Court or Federal Circuit Court of Australia does not generally deal with Child Support matters, although it may be possible to apply to the Federal Circuit Court of Australia for a departure from a child support assessment carried out by the Child Support Agency in certain circumstances.
Time limitation for Spousal Maintenance
It is important to note that there is a time limitation for a party to make a claim for Spousal Maintenance against the other party. This date is 12 months from the date that a divorce order takes effect if you were married, and 24 months from the breakdown of your relationship if you were a de facto spouse.
Interestingly, the Court still has power to grant permission (“leave”) to a party who is making an application for spousal maintenance (married) or maintenance (de facto) even if that party is out of time. For this, the party making the application will need to demonstrate hardship.
What this means in practical terms, is that in some circumstances, it could be possible to make an application for Spousal Maintenance even after the limitation period has elapsed and/or after property settlement has been finalised.
Seek legal advice
There is no one particular way to approach matters involving Spousal Maintenance and Child Support, as it will really depend on the individual circumstances of every case. This is why it is always best to seek legal advice about your situation, obligations and entitlements, as well as tailoring the best options to your needs and the needs of your family.
Sometimes people do not realise that they may be entitled to receive payments from their former partner by way of spousal maintenance. Likewise, some people might fail to recognise the risk of there being a potential Spousal Maintenance application made against them in the future even after they finalise a property settlement. There are ways to limit potential future liability in this regard, such as entering into a Binding Financial Agreement which effectively extinguishes spousal maintenance rights for one or both parties.
Contact us today and make an appointment with Shannon Daykin, an Accredited Family Law Specialist, to discuss your circumstances and needs. Shannon was recently named as one of Brisbane’s Leading Family & Divorce Lawyers (Recommended) and Leading Parenting & Children’s Matters Lawyers (Leading) 2021, Brisbane, in the prestigious Doyle’s Family Law Guide. We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us on (07) 3852 5490 to make an appointment for a fixed fee initial consultation today.
It’s often said that January is ‘Divorce Month’, a time where there is suddenly an influx of separations and ensuing divorce proceedings, however is this really the case? Today’s blog looks at why January has this reputation and what to do if you find yourself in this situation.
It is true that many family lawyers find themselves busier at the start of the year, with a reported spike in breakups of about 30% in January. This could be due to a myriad of factors, but may be associated with more time spent together over the festive season and the stress that can sometimes cause, for example an extended period of time spent unoccupied with work and the regular mundane distractions.
There has been reported anecdotal evidence of three main factors that contribute to the increase in separations and the onset of divorce proceedings in January, these are:
- The increased time spent together during the holidays: it’s fair to say that holidays are known to be a period of switching off and spending time with loved ones. This increase in quality time can have an adverse effect when a couple is under a period of certain strain, and can often heighten the stresses and existing relationship difficulties. This time of year may exacerbate existing issues and doubts in couples and bring their problems to the surface, becoming more clear and suddenly difficult to ignore.
- New year resolutions: with a new year brings new resolutions. This is often a time for self-reflection and plans for self-improvement. When a person has been dealing with stagnancy or unhappiness in their relationship, the new year can be a time for renewal and growth. This is often a purposeful time where individuals feel they can make the difficult decision to end a relationship in search for a clean break and a more positive future.
- Christmas spent with the family: usually a period of time where family holds the most meaning, and usually the most amount of time. Couples with children may more likely to resist ending their relationship during this time as they do not wish to cause strain on the family dynamic and result in stress to the children. Additionally, this period results in a lack of time and resources available for couples seeking legal advice due to taking care of the children. It is because of this that parents may choose to separate in this time as they are now provided the space to make decisions without the pressure of Christmas.
This was further backed by a 2016 report by the University of Washington who conducted research from hard data on divorce filings over a 14 year period. The evidence showed a clear and consistent rise in divorce proceedings beginning in January more than any other month of the year! The researchers behind this study noted the significant impact that the above points had on this pattern.
What should I do if I’m considering getting a divorce?
When you come to the conclusion that separation is the best option for yourself and your partner, the flood of information available can be overwhelming. It can be difficult to seek out factual information, understand your legal responsibilities, grapple with the division of property and finances on top of parental arrangements. In this time of heightened stress, it is important to have someone reliable you can speak to, someone you can trust and someone who can help to support you emotionally and logistically and who can also assist you in getting the best outcome available for you and your family.
When planning the next steps of separation towards divorce, a helpful list of practical steps supported by useful information is the perfect place to start. We recently wrote a blog on the basics of divorce to assist in this exact situation, this resource can be found here: https://daykinfamilylaw.com.au/the-basics-of-divorce-applications-2/
The main things to consider when beginning the first stages of the divorce process are:
- Financial and Property Settlements: one of the most important and stressful elements when it comes to divorce and the negotiation of assets among divorcees or separating couples. The levels of complexity of each of these settlements lies with each individual couple, sometimes agreements can be straightforward and made easy, other times no agreements can be reached and court action may be required. In the latter instance, it is advisable to work with a specialist family lawyer who is able to assist in the resolution of these differences. It is also important to consider other advice needed, such as financial advice and taxation advice. This is to ensure any agreement reached or orders sought are appropriate for your situation.
- Parenting Arrangements: another complexity when couples begin the separation process is the responsibilities around children and how to navigate the arrangements in the best interests of the children. The principal consideration in any parenting arrangement by law is that the best interests of the child are paramount. Negotiations and agreements often focus on many factors including where the children will live and how much time each parent will spend with the children considering holidays, birthday commitments and special days. Other agreements can be reached around communications, travel and addressing specific issues.
It is important to seek independent legal advice to help you understand your rights and responsibilities, and where possible, avoid going to Court. If you are seeking legal advice about your separation, or just need to understand your options further, Daykin Family Law can help.
Contact us today to make an appointment with Shannon Daykin, an Accredited Family Law Specialist. Shannon was recently named as one of Brisbane’s Leading Family & Divorce Lawyers (Recommended) and Leading Parenting & Children’s Matters Lawyers (Leading) 2021, Brisbane, in the prestigious Doyle’s Family Law Guide. We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us on (07) 3852 5490 to make an appointment for a fixed fee initial consultation today.
The blog published by Daykin Family Law is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Daykin Family Law on any legal queries concerning a specific situation.
Christmas is considered a very special time of the year for many people around the world, but for some it can be a time of sadness and frustration. Following a relationship breakdown, Christmas may seem like a daunting time, particularly when parenting children across separate households.
Where both parents are willing and able and there are no safety concerns to consider, the best outcome of a separation is co-parenting. This is where both parents agree to put their children’s interests first and to communicate in a respectful, child-focused way, setting boundaries and compromising to lead the way to effective co-operation.
Here are some ways in which you can ensure the best chances of ensuring a happy and healthy Christmas this year for your children:
1. The kids come first
When making decisions, always consider what is in the best interests of the children. Younger children may worry about whether Santa will reach them, whilst older children might have a preference for where they spend Christmas. Bringing them into the decision-making process can be beneficial for the whole family and make children feel heard.
2. Communication is key
Each parent should communicate their expectations in advance with each other as it is important that both parents understand the other’s needs. Being prepared, realistic and willing to listen and compromise may make a stressful situation more manageable.
3. Sharing of Christmas presents
In regards to Christmas presents, consider agreeing on a budgetary limit so as to avoid one parent being perceived as giving more than the other. To try and preserve some form of normalcy, both parents can agree to buy one main present for each child signed from both parents. This approach will demonstrate a united front.
4. Sharing of time with the children
You may decide that your children should spend Christmas Eve at one home and Christmas Day at another. Whatever you decide when co-parenting at Christmas, you can find ways to make it special for the children, and extended family too.
5. Travel arrangements
Where traveling will be involved with one of the parents over Christmas, it is advisable to make sure the other parent has agreed to the plans, or that a compromise can be made for time spent together before or after the travel period if a Parenting Plan has not yet been agreed upon.
6. Avoid any fighting
When discussing Christmas plans, ensure the discussion does not end up in a fight, especially in front of the children. Research tells us that this may perpetuate any guilty feelings the children may have over the separation. Try to communicate in a clear and respectful way and ensure the children are not exposed to a dispute.
7. Send updates
Agreeing on an ‘update’ style of communication can be beneficial. You can report on activities, send photos of particular events and help the other parent to feel involved. Give and ask for information that you expect to get as a parent in a timely manner.
8. Accommodate the feelings of the children
Where the children may start to miss the other parent, consider allowing the children to contact the parent so as to alleviate their anxiety, especially where the children are still young. It is important that the children are not made to feel guilty for experiencing such feelings or feeling ‘stuck in the middle’ of a separation.
9. Involve the children in the Christmas planning
When the Christmas arrangements have been planned and agreed between both parents, it can be important to communicate these plans to the children so that they feel involved and that there are no surprises for them.
10. Be flexible and listen to the needs of the children
Where the children feel uncomfortable with any Christmas plans, it is important to take their feelings into consideration and consider whether any plans could or should be amended so that they feel safe and assured. Like the first tip, the children come first, so keep their best interests at heart.
Holidays like Christmas may be a difficult time for children especially young children therefore it is vital that each parent put aside their feelings and ensure there is a smooth transition for the children during this time. Despite all of your efforts, it is possible that difficulties may still arise. You can take responsibility for what you do as a parent, however you cannot be responsible for how the other parent behaves. If you find yourself in this situation where the other parent will not cooperate, remember that help is available.
If you’ve tried all the above tips but have difficulties communicating with the other parent after separation, you may need to consider other options. This may include engaging a lawyer to help negotiate plans on your behalf, or engage the assistance of a mediator to assist in facilitating an agreement.
Our separation and divorce lawyers can assist you through the process to come to an amicable agreement regarding parenting arrangements.
Contact us today to make an appointment with Shannon Daykin, an Accredited Family Law Specialist. Shannon was recently named as one of Brisbane’s Leading parenting lawyers in the prestigious Doyle’s Family Law Guide. We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.
The blog published by Daykin Family Law is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Daykin Family Law on any legal queries concerning a specific situation.
Separation or divorce can be an emotional journey that can have both physical and mental health effects on people. The separation and divorce process, coupled in some situations with the family court process, can become incredibly stressful, taking a toll on the wellbeing of parties, sometimes impairing their judgment and decision-making abilities.
Literature tells us that separated couples going through the process might experience a range of overwhelming psychological symptoms that includes loneliness, sadness, shock, anger, uncertainty, guilt, betrayal, frustration, hopelessness, or a mixture of all. These feelings can last a short-time or have a lasting impact and so it is important to deal with those feelings in a healthy way.
Mental health is a vital aspect of our wellbeing. Many people see mental health issues as only serious disorders or health conditions, however things like stress can have a big impact on mental health. It’s easy to shrug off your own feelings, particularly when juggling work and parental responsibilities, however it’s important to prioritise self-care.
Here are a few ways parties going through a separation or divorce might consider when prioritising their mental health.
Ways to Protect Your Mental Health During Separation or Divorce
1. Talk
It can be important to talk things out. Even when your feelings are particularly strong, you should try to communicate them to a trusted confidant.
Endeavour to build healthy relationships and surround yourself with a support team of people with similar values as you, who understand and who can listen to you.
Your support team can include a family member, friend, colleague or a third party counsellor.
2. Acknowledge the pain
Acknowledging the feeling of loss caused by separation can be crucial. When couples separate due to the death of a partner, there is a defined grieving process of denial, questioning, depression or anger, evaluation, and acceptance.
On the other hand, when a partner is lost due to separation or divorce, many partners find themselves without clear guidance on how to process the loss. Our review of literature in this area tells us that some couples have found it helpful to follow the ‘five stages of grief’ model:
- Denial
This occurs at the beginning of the separation or divorce process. At this stage, couples find it difficult to accept that the relationship is coming to an end. It can be normal to have a feeling of denial when you go through such a major life-changing event as separation or divorce. It is a form of coping mechanism people use. - Questioning
At this stage, you question whether there is a way you could have handled things differently besides going through separation or divorce. At this point, you may wish you could change the past and the events that led to the relationship breakdown. - Depression or Anger
You may experience anger, anxiety, depression as different negative feelings begin to emerge. At this stage, you may benefit from the added support of loved ones or professionals. - Evaluation
At this stage, you might begin to weigh the reasons that your relationship didn’t work and this may include taking responsibility for your part in the breakdown.
The factors that led to the breakdown of your relationship may be difficult to process, but evaluating what went wrong and taking ownership where required can help in moving on. While evaluating, no matter what caused the breakdown of the relationship, it is important to allow yourself to acknowledge the emotions that come with this stage. - Acceptance
This is the stage where you accept what has happened and take steps to move on or look towards the future.
It is important to remember that every individual is unique and process grief differently. It may be totally normal if you don’t fit into a particular grieving model.
3. Maintain physical health
We all know that physical health is closely connected with mental health. Stress that persists for a long time can cause health problems which can have a tremendous impact on mental health.
It therefore becomes paramount that you maintain or improve your physical health when going through the process of separation or divorce. It might be of help to partake in stress-reducing physical activities that fit into to your lifestyle such as swimming, walking, jogging, bike riding, or having a good night’s sleep.
4. Stay positive
It can be daunting to have a positive outlook when dealing with an intense life transition such as separation or divorce.
It is crucial however to try to swap the negative feelings and emotions that come along with positive thoughts. Positive emotions have a way of translating to healthy mental wellbeing. Think of the things that are within your control and then make a plan to improve them, if needed.
Optimistic thinking has been shown to enhance mental and overall health.
5. Take time to review what matters to you
The mental stress of divorce or separation can make you lose yourself. This might be a good time to review what matters to you and a time for reconstructing who you are again.
Find what matters to you – this could be spiritual or religious beliefs, music, art, or other activities or hobbies that bring you joy. Rediscovering purpose and remembering the positives in life promotes good mental health. It can also be a means of coping through separation or divorce.
At a stressful time, it is vital to have a trusted advisor on side to help you through the maze of separation. At Daykin Family Law, we strive to make the separation and divorce process as collaborative and conflict-free as is possible.
Daykin Family Law’s Director, Shannon Daykin, is a Brisbane based family lawyer and an Accredited Family Law Specialist with a wealth of experience and expertise in family law. If you’re considering your options for divorce resolution and would like to keep the matter as stress-free as possible, contact us today for a no obligation consultation to find out if it’s right for you.
If you are concerned about your mental health or wellbeing, we recommend that you contact Beyond Blue on 1300 22 4636.
The blog published by Daykin Family Law is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Daykin Family Law on any legal queries concerning a specific situation.
Discover in what scenarios an ex-spouse or partner may be entitled to your inheritance in Australia after a divorce or separation.
It is quite common that one of the parties to a marriage or de facto relationship receives an inheritance during the relationship. But conflicts can often arise when the relationship comes to an end and the process of property settlement begins. This conflict is exacerbated when the recipient of the inheritance becomes concerned with the prospect of the ex-partner claiming or retaining the inheritance.
An inheritance can be classified as property under the Family Law Act 1975 and for asset division, it is dealt with under property settlement.
Property settlement with an inheritance in the mix can be confusing to separating or divorcing couples. The recipient party might believe that the inheritance is intended solely for their benefit and should not be treated as part of the divisible asset pool to be shared with the ex-partner.
The other party on the other hand, might think that the inheritance was given for the benefit of both partners for family use, or due to other reasons, and therefore should form a part of the divisible asset pool at the end of the relationship.
Can my ex-spouse or ex-partner claim part of my inheritance?
An ex-partner might be able to claim part of an inheritance at the breakdown of the relationship, whether it arises from a marriage or de facto relationship.
The easiest and most practical way to protect an inheritance after separation is by reaching an agreement on how assets including the inheritance would be divided.
The agreement reached can be formalised by applying to the court for a consent order or by entering into a binding financial agreement with lawyers.
Where a separated couple has made attempts to negotiate an agreement and could not finalise one, they can approach the court to decide if the inheritance would form part of the property pool available for distribution, or would be left solely for the benefit of the beneficiary.
If a recipient party of an inheritance took steps to protect what they received, such as by keeping it separate from the pool of family assets, the court may in some cases treat the inheritance as separate from the property pool available for distribution.
There is no formula for how the court treats the division of assets including inheritance during property settlement. The court will consider what is just and equitable and evaluate the facts and merits of each situation. However, the court may consider the following factors to make the decision:
The time the inheritance was received
The court may consider whether the inheritance was received before the relationship began, during the de facto relationship/marriage, or after separation.
Where the inheritance was received before the relationship began, early in the relationship, or before the commencement of cohabitation, the court may more likely consider it as an initial contribution of the recipient party to the relationship and the inheritance may not be separated from the property pool available for distribution.
The treatment of an inheritance received during the relationship will depend on how the inheritance was used and sometimes the intentions of the benefactor can be relevant.
Where the inheritance is monetary, for example, if the money is spent on paying family expenses or used for the benefit of both parties generally, it may be treated as a financial contribution by the recipient party and more likely to be added to the ”property pool”.
This means that the longer the period between when the inheritance was received and the time of separation, the more likely the courts may be to treat it as part of the pool of assets to be divided.
Usually when an inheritance is received after separation, there is a diminished opportunity for intermingling it with the divisible asset pool. The court can either adopt a “two pools” approach, effectively separating the inheritance from the rest of the property pool or treat the inheritance as part of the property pool. In the latter case, when an inheritance is received after separation, a higher percentage contribution may be awarded to the recipient party.
Contributions made by the ex-partner to the inheritance
The court may consider if the ex-partner made contributions to the inheritance. Contributions from a former partner can effectively leave the inheritance unsheltered and open to be treated as part of the divisible asset pool. For example, if the inheritance is an old cottage that needs a new roof, and if the ex-partner fixes the roof, the cottage may no longer be considered an inheritance solely for the benefit of the recipient party and may be added to the divisible asset pool, and certain findings may be made about contributions of both parties to the inheritance instead of just one party.
The court may also consider the intention of the benefactor on how the inheritance should be used.
If the intention of the benefactor shows clearly that the inheritance is meant for the whole family, the inheritance may be added to the property pool to be divided as part of the property settlement.
The size of the inheritance
The size or value of an inheritance can affect whether the inheritance is included in the asset pool or not.
The court may consider the size of the inheritance and compare it to the value of the joint asset pool. Where the joint asset pool is substantially smaller than the inheritance, the courts may include the inheritance to ensure a just and equitable property settlement for both parties.
The court may also consider the contribution of the ex-partner and weigh it against the size of the divisible asset pool. If the divisible asset pool shrinks significantly when the inheritance is excluded and the court believes the exclusion will not allow for a just and equitable division, the inheritance may in that case be treated as a part of the property pool for division.
Relationship of the ex-partner with the Benefactor/Testator
There are situations where the court will consider the relationship between the benefactor and the ex-partner.
The former partner might have had a good relationship with the benefactor. For example, the benefactor might have lived with the partners, and the ex-partner might have assisted in taking care of the benefactor when ill for example.
While taking note of the intentions of the benefactor in the will, the court may also put the ex-partner’s relationship with the benefactor into consideration and add the inheritance to the pool of assets to be divided.
Summary
To sum it all up, in a separation or divorce, an ex-spouse or ex-partner might be able to claim that the inheritance of the other party forms part of the property pool available for distribution as part of property settlement. This depends on several factors as mentioned above.
To avoid a costly legal battle after separation, couples in an intact relationship can consider entering into a binding agreement detailing how their property (including an inheritance) will be treated if the relationship ends.
Every case is different. We recommend that you contact us to discuss your specific situation and how best to approach inheritances and your property settlement.
Daykin Family Law can guide you through the process of property settlement. Contact us today for an overview of your options and how we can help you reach a positive solution.
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us at (07) 3852 5490 to make an appointment for a fixed fee initial consultation today.
The blog published by Daykin Family Law is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Daykin Family Law on any legal queries concerning a specific situation.
Working in family separation
In the daily work we do as family lawyers, we are reminded what an immense honour it is for a client to place their trust in us. This trust is many fold. Trust that we will do what’s best by steering them in the right direction, not making mountains out of mole hills that can destroy relationships and benefit only the lawyers. Trust that we will resolve instead of create conflict. Trust that we won’t lose sight of the bigger picture, even if clients do.
For many of us lawyers, meeting all of these needs comes naturally, we are committed to avoiding the long term damage that messy separations can cause for clients and their children. Simply, because we stake our reputation on our ability to problem solve effectively, some of us have families of our own, and we many of us truly care.
How we help
We care about how your separation impacts on you and your children, and what the future holds for you all. Unearthing what you need is the first step towards achieving a settlement that will ensure you can move forward with certainty, whether it be a need for enough capital to re-establish yourself in a new home, or retain your business. Sometimes when people come to us, they don’t know what they want or how they will move forward at all and that’s ok. Separation is a process and we know the steps needed to reach finality as efficiently as possible.
It is a privilege working with those clients who genuinely want to remain amicable with their children’s other parent, and the person they created a life with. Relationships can be, at best, fragile after separation. At worst, relationships can be decimated beyond repair and often in this case lead to long term damage to children. We see all too often the damaging impact of litigation on families, and it has been highlighted in the news recently about the issues with the system. How lawyers go about their work in a family separation can have a lasting impact on many people in one matter. We are mindful of this responsibility and this guides how we practise.
Steering clear of family law courts
For many, litigation is not a sensible or practical option, particularly when there are so many alternatives. The traditional forms of positional bargaining back and forth through lawyers can be very costly. We work with a number of other family lawyers who think like us and have the skills to short shrift the expensive traditional model, and reach a resolution sooner for both people.
Collaborative law is a process that can assist separating couples to place their goals and interests at the forefront of negotiations. There is also a co-operative process we adopt informally with other colleagues which has excellent outcomes for our clients. Mediation services are also another alternative as the assistance of an independent third party can be enormously advantageous.
Separating property after separation, agreeing on spousal maintenance and negotiating child custody can be painful, but it doesn’t have to be. With so many alternatives available, there is often a path to be chosen away from the court which will save time and money.
Stepping towards your family law settlement
Divorce lawyers, family lawyers, child custody lawyers… whatever you want to call us. We all have responsibilities to our clients and one of those responsibilities is to explore these alternative dispute resolution processes with you. In essence, we are problem solvers. We obtain your instructions in a comprehensive way, advise and guide you and strive to get you from A to B with your dignity in tact and, hopefully, an amicable co-parenting relationship you can be proud of when your children are older.
Talk to Daykin Family Law today about how we can guide you towards a peaceful and amicable separation and divorce. You will be supported by an Accredited Family Law Specialist and a team that are focussed on achieving your goals. Appointments in Fortitude Valley near Brisbane CBD, or by phone or Skype for regional or overseas clients.
