Does divorce always end in court?

When couples separate, the first question they are likely to ask is whether they need to go to Court in order to get a divorce. The simple answer to this is “no”. Whilst a Divorce Application must be filed with the Court to initiate the divorce process, this does not necessarily mean that a person must physically appear before the Court. The only time that an applicant will be required to be present at Court is when there are children below the age of eighteen (18) years.

The rationale behind this is that the Court, in considering whether or not to grant a divorce, must ensure that there are suitable arrangements in place for the children of the marriage. This does not particularly require parents to have a formal parenting plan or parenting orders in place. So long as the Court has sufficient evidence before it detailing the existing care arrangements for the children, it is less likely to question the parties with respect to parenting arrangements. The Court is well aware that circumstances change and the living conditions for children may vary with age, changes in residence, children’s growing needs and schooling commitments. The Court’s primary consideration is to ensure that any existing or proposed parenting arrangements meet the best interests of the children.

Very often, people engaged in parenting or property proceedings are under the misconception that a divorce will not be granted until those proceedings have been resolved. This is not true. Hearings dealing with the dissolution of the marriage (divorce) are separate to parenting or property proceedings. The Court will grant a Divorce Order even if the parties are involved in ongoing litigation.

As far as the law is concerned, the Family Law Act 1975 founded the principle of no-fault divorce in Australian law. This means that a Court is not interested in the marriage ending. The only ground for divorce is that the marriage has broken down irretrievably. That is, there is no reasonable likelihood that the parties will reconcile and get back together. As a pre-requisite, parties must have been separated for at least 12 months and one day in order to satisfy the Court that the marriage has broken down irretrievably.
To apply for a divorce, you are required to complete an Application for Divorce and file it with the Family Court and pay an Application fee which is currently $845. If you wish to obtain more information on the process of applying for a divorce, we invite you to contact our office to speak to one of our experienced practitioners who will be able to assist you with your enquiries and canvass any issues in your personal circumstances.

Wills are the full and final wishes of a deceased – or are they?

Many people assume that if a deceased had a will then there is nothing that can be done to challenge the will or amend who may receive a benefit from the deceased’s estate. However, this isn’t quite true.

There are two main issues that can be explored when assessing whether the deceased’s will is the final word on their estate.

Challenging the will on a technical ground

A will can be challenged on a number of grounds including but not limited to fraud, lack of capacity on behalf of the will maker, undue influence, forgery or lack of the will maker having knowledge and approval of what is contained in the Will.

However, in order to have an ability to challenge the will on such grounds a person must show that they have an “Interest” in the deceased estate. That means you must have either an entitlement in a previous Will or an entitlement on Intestacy (if there is no Will) and you are entitled to a share of the deceased estate by way of your State Legislation.

Being left out of a will or not receiving a full entitlement under a will

If you are an eligible person you have the right to contest the will and make what is called a family provision claim. Eligible persons include:

  • a person who was the wife or husband of the deceased at the time of death,
  • a person with whom the deceased was living in a de facto relationship at the time of the death,
  • a child of the deceased,
  • a former wife or husband of the deceased,
  • a person:
    • who was, at any particular time, wholly or partly dependent on the deceased, and
    • who is a grandchild of the deceased or was, at that particular time or at any other time, a member of the household of which the deceased was a member,
  • person with whom the deceased was living in a close personal relationship at the time of the deceased’s death.

However this does not mean that an eligible person will automatically succeed in their claim. Their rights to family provision will involve the consideration of many factors including:

  • their relationship with the deceased;
  • any obligations or responsibilities owed by the deceased to them;
  • the size and content of the estate;
  • their financial circumstances;
  • their age;
  • any disability that they may have;
  • other beneficiary’s rights; and
  • many other factors.

If you think that the will of a loved one who has passed is not the final word on their estate, please contact your Best Practice Lawyer for expert advice.

Protecting your business interests with clear and concise contracts

Businesses need to issue clearly marked terms and conditions before entering into a contract for services. A recent decision by the Court of Appeal in Western Australia highlights the risks of not providing the terms of your contract to your client before the services have been delivered.

In the case of La Rosa v Nudrill Pty Ltd the Court deliberated over a situation where the parties had a ten (10) year business relationship and one party (Mr La Rosa) attempted to rely on terms and conditions being printed on the back of his invoice’s in order to enact an exclusion clause.

The dispute arose when Mr La Rosa damaged a drill rig he was transporting because he was speeding and driving negligently. Mr La Rosa tried to rely on an exclusion clause (which stated “all goods are handled, lifted or carried at the owner’s risk”) printed on the back of his invoice to avoid any liability for the damage to the drill rig.

The key issue the Court considered was whether Nudrill and Mr La Rosa, by their past conduct, had incorporated the exclusion clause into the contract for services. When determining whether a term is to be incorporated into a contract due to prior dealings in a commercial relationship the Court insisted the test should at the very least rely on the number of prior dealings, how recent those prior dealings were and the consistency between the prior conduct and the dealing in question.

The Court of Appeal unanimously held that the receipt of Mr La Rosa’s invoices by Nudrill was not sufficient enough to justify an inference that Nudrill had accepted, or was willing to be bound by, the terms and conditions printed on the back of the invoices.

The two (2) main points the Court relied on in justifying their position were that there was no evidence that Nudrill had actually read the terms on the back of Mr La Rosa’s invoices and that it was reasonable for a person to regard the invoice as simply a request for payment rather than a document containing contractual terms governing the transaction that had already occurred.

Without having explicitly agreed to terms and conditions businesses run the risk of leaving themselves unsure and uncertain as to the potential dangers and liability they may raise its head in the future. Just because your business has always contracted with another business many times does not mean that a term will always be incorporated into a contract because of the prior dealings. Businesses need to protect their own interests by learning from the La Rosa v Nudrill case and ensuring their contracts explicitly cover their own interests.

If your business needs help reviewing, renewing or drafting clear and concise terms and conditions contact a Best Practice Lawyer.

Positive signs in the property market

There are positive signs that the housing market may be emerging from the depressed to flat state it has existed in over the past few years. The Daily Telegraph announced recently that Mortgage demand highest in three years.

With the RBA lowering interest rates to historically low levels and the Australian dollar dropping against the Greenback, signs that the housing industry is in the early stages of recovery will be welcomed. Weekend auction clearance rates remain high with purchasers actively pursuing available properties. As the economy claws it’s way back, interest rate increases may be back on the agenda.

If you are in the market for a new property, here are some tips to ensure you are ready to strike when the right property comes along:

  1. DO get finance approval from your lending institution before you start negotiating on a property or bid at an auction
  2. DO make sure that you ensure you have sufficient finance to cover additional items required to purchase a property such as stamp duty, legal’s, cost of reports moving costs and so on.
  3. DO your Pest, Building and Strata Inspection reports.
  4. DO make sure your solicitor is available at short notice to discuss any urgent matters especially if it is sold at an auction.
  5. DO get your solicitor to review any contract for any premises you are considering buying BEFORE you attend the auction or BEFORE you sign it (if not sold at auction) or BEFORE cooling off expires (at the very least!).
  6. DO NOT attend any Auction without a full loan approval.
  7. DO NOT bid above your maximum available funds if attending an Auction.
  8. DO NOT rely on word of mouth warranties on a property, from the Agent or the Vendor, make sure you undertake the necessary investigations and inspections.
  9. DO NOT buy on impulse, make sure you do your research and know the property and the surrounding area you are looking at buying BEFORE you start negotiations.

Update on contractor reporting requirements due 21 July

If your business is in the Building and Construction Industry, reporting contractor payments via your annual report to the ATO will be due for the first time on 21 July 2013. Are you ready?

By 21 July 2013 you will need to submit your Contractor Payment Report to the ATO if you hold an Australian business number (ABN), your primary business is in the Building and Construction Industry and you make payments to contractors for their building and construction services.

Ensure you have met your compliance obligations and understand who is and who is not deemed to be a contractor to your business. Should you require advice or clarification of any aspect of your obligations, contact a lawyer to seek assistance.

The importance of due diligence in your conveyance

You may have come across the article in the news lately stating that renowned actress Toni Collette was sued for damages for not completing a purchase of a house in Sydney.The legal action that followed resulted in the actress and her musician husband David Galafassi being ordered by the NSW Supreme Court to pay $815,000 in damages after pulling out of the purchase of a Paddington terrace house. The couple signed contracts to buy the house in September 2011 for $6 million but when it came time to complete the transaction, the couple were unable to complete the transaction, reportedly as they did not have the money at the time.

The house later sold to someone else for $5.5 million but the vendor sued the couple for the loss they suffered including a lower sale price, interest and land tax, and won.

This story outlines the need for true and accurate due diligence being conducted prior to you signing a contract to purchase a property. Click here to read the full news article.

Your lawyer can help to advise you of your rights and responsibilities as a potential purchaser.

Fair Work Commission orders minimum wage increase

On Monday, 3 June 2013, the Fair Work Commission decided to raise the minimum weekly wage of low paid workers $15.80 a week. From 1 July 2013, the new national minimum wage will be $622 a week, up from the current minimum of $606 a week. Employers need to be aware that they now have less than a month to ensure they are compliant with the new minimum wage.

Property ownership choices explained

In today’s real estate and investment world, there are many different groups of people purchasing properties. You may be investing with a spouse, a friend, a relative or a business partner. You may own property with a new spouse following the death of or divorce from a previous spouse or you may be buying your first property as husband and wife. Which form of ownership, should you be looking at to best suit your needs?

The two forms of property ownership to choose from are either a) “joint tenants” or 2) “tenants in common”. Whilst they sound rather similar, there are major differences between the two structures and not choosing the correct structure could have long-term ramifications.

Joint Tenancy

Joint Tenancy refers to ownership of a property by two or more people. Each owner holds an equal share. If one owner should die, his or her share will automatically go to the other owner (s) irrespective of any provisions made in their will. Instructions in a will cannot override joint tenancy. This form of ownership is commonly used for property owned by married couples and if for example, the husband should pass away, the wife then automatically obtains the husband’s share of the property.

Tenants in Common

Tenants in common is the alternative method for holding property. Tenants in common can be in equal or unequal parts. Should one owner pass away, his or her share of the property can be left to whomever they desire, as set out in their will. If there is no will then it forms a part of the deceased land owner’s estate and will be dealt with under the laws of intestacy.

If nothing adverse happens to the owners of a property during the period of ownership, there will be no problems but if the correct structure is not in place if something unforeseen then occurs, your wishes as to that property may not be upheld. Here’s an example. A woman loses her husband after many years of marriage. She and her husband had owned their home and had two children from the marriage. The children from that marriage were to inherit the property or the proceeds from it on their mother’s death. The woman marries again and she sells the original home. Together with her new husband who also has two children, they purchase another home. In this case, if they purchased the home as joint tenants, if the woman died, her new husband would inherit her share of the property and he may make a will which leaves all of his assets to his children when he dies. The woman’s children have now lost their inheritance. Had they purchased the home as Tenants in Common, each partner could have willed their share of the house to their own children, should they choose to do so. There can be agreements entered into that the remaining partner will continue to reside in the house until their passing and then the estate will be divided according to the will of each of the tenants in common.

Buying property with friends or business partners is another area where the correct decision regarding the form or ownership should be understood. Whilst you may be happy to purchase property with a friend, it does not necessarily follow that you would want them to inherit your portion of the property should you pass away.

In any situation where you are entering into the purchase of such a large asset, not only should you have a solicitor look over the purchase contract for you and undertake the correct searches for that property, but you should also ensure you have an appropriate succession and estate plan in place. Along with the correct form of property ownership and properly thought out and well implemented succession & estate plan will ensure your assets are distributed the way you wish and to whom you wish in the event of your death. Your estate plan should include consideration of a Will, Powers of Attorney and Enduring Guardianship.

Having the legal side of your life in order can make it so much easier for your family in the event of your death. Nobody plans it but it’s an inevitability.

Dooley & Associates will be happy to assist you in making the right decisions, that suit your circumstances in relation to any property transactions and or estate matters.

If you have any questions, please contact our office and one of our friendly staff will assist you with your enquiry.