Q. Do I need a will? I don’t own anything? A.YES! Believe it or not, in most cases we are worth more in death than in life. We all have superannuation and, sometimes, there will be a linked life insurance policy, potentially in the $100,000s. This is just one example. Without a will setting out your wishes, the process is complicated and your estate may be distributed in ways you might not wish. Absent a will, the laws of intestacy apply and your estate will be distributed in accordance with the legislation. We all know life is short, so don’t put off making a will. Q. Can my will be challenged? A.In short, yes. But. It’s not as straightforward as you might believe. It is a complicated area of the law and there are rules and criteria which need to be met before someone can challenge your will. This area of law is called Family Provision, or as commonly referred to by the general public “contesting the will”. There are means and methods to reduce the possibility of claims, however, nothing is ironclad. The moral of the story is: your will is an important document. Q. Which is better? Parenting plans or consent orders? A.Once an agreement is reached about those things, how should you formalise it? Is it better to have a parenting plan or parenting orders? What’s the difference? A PARENTING PLAN is an agreement made between parents following separation. It is signed and dated by each of the parties. The parenting plan cannot be enforced by the Family Court, so what that means, if one party breaches the agreement, there is little recourse available to the other party. In these situations, the aggrieved party can only try to renegotiate the parenting plan, enter into a parenting order by consent, or commence proceedings in Court. A parenting plan is only as good as each party’s intention to honour the agreement. On the other side, parenting plans do offer great flexibility between parents. The fact that they are not legally binding means that parents can amend and negotiate more freely and without the need to reapply to the Court to amend any parenting orders. In some cases, parenting plans are a great method for the future care of your children, especially in circumstances where separation has been amicable. CONSENT ORDERS are made by the Family Court in circumstances where the parties have agreed to a set out of parenting orders without filing an application. They are legally binding and can be enforced by the Court if one party breaches them. There are serious penalties imposed by the Court for breach of the consent orders including fines, and terms of imprisonment for more serious offences. Q. Should I update my will following a relationship breakdown? A.If you separate and there is a will, the estate will be distributed according to its terms and if there is not a will, the estate is distributed under the laws of intestacy. The priority of distribution usually follows the order below (with some exceptions): Spouse; Children; Parents; Siblings; Grandparents; and Aunts and Uncles. What does this mean? If you die without a will or without changing your will, your ex-spouse may be entitled to your estate under intestacy. The effect of divorce: If you are a party to a divorce, then any clause that provides a gift to your spouse or appoints your spouse as executor or trustee to be made by a will in existence at the time of the divorce will be revoked. If you have no will, the laws of intestacy will apply, see above. What’s the important message of this all? If you don’t have an up to date or current will, then make an appointment and get it done! Q. What is a divorce? A.A divorce is the annulment of your marriage, whereby each party is free to remarry. Q. What is a property settlement? A.Property settlement is the division of assets and liabilities. Q. How do I buy a house? A. Seek pre-approval from a lender to find out how much you can borrow. Start looking - observe the market and create a wishlist and non-negotiables Once you have found a property, make an offer through the agent (or to vendor if direct sale) If the offer is accepted. Review contract with solicitor and sign Obtain formal approval, pest and building report. Exchange (lock in) Contracts Sign loan documents Settlement Q. Do I have to give my spouse half of everything? A.Here are some key facts according to Section 75(2) of the Family Law Act 1975. The age and state of health of each of the parties; and The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and Commitments of each of the parties that are necessary to enable the party to support: himself or herself; and a child or another person that the party has a duty to maintain; and The responsibilities of either party to support any other person; and Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and The need to protect a party who wishes to continue that party's role as a parent; and If either party is cohabiting with another person--the financial circumstances relating to the cohabitation Q. Do I Have To Have A Property Settlement? A.The short answer is, YES, and here’s why: The limitation period for a family law property settlement is twelve (12) months from the date of divorce or (two (2) years after the date of separation for a de facto relationship). After that time, you would need to apply to the Court for an “out of time” application and there is no guarantee that the Court will consider the application. If a divorce order is made in the future, and your property settlement has not been formalised, the limitation period may lapse and you lose the right for the Court to consider your application. It is always in your best interests to finalise your financial relationship with your partner by way of Binding Financial Agreement or Consent Orders because: a. Without a legal binding order or agreement, either party is entitled to commence proceedings for a financial property settlement in the future. b. In the event that proceedings are commenced in the future, the assets and liabilities will be assessed at the date of the adjustment and not from the date of separation, this may be detrimental to you, particularly if your assets significantly increase in the near future. An example of this may include an increase in a savings account, or an increase in the value of property, inheritance, gifts or other lump sums of money that you receive between separation and the proceedings may also be considered as part of the property pool of assets which is subject to division. c. Similarly, if your partner was to waste or reduce the value of assets after separation, then the adjustment is likely to be decided upon the reduced property pool of assets, not the value of the assets at the time of separation. Q. What's the difference between consent orders and a parenting plan? A. PARENTING PLAN is an agreement made between parents following separation. It is signed and dated by each of the parties. The parenting plan cannot be enforced by the Family Court, so what that means, if one party breaches the agreement, there is little recourse available to the other party. In these situations, the aggrieved party can only try to renegotiate the parenting plan, enter into a parenting order by consent, or commence proceedings in Court. A parenting plan is only as good as each party’s intention to honour the agreement. CONSENT ORDERS are made by the Family Court in circumstances where the parties have agreed to a set out of parenting orders without filing an application. They are legally binding and can be enforced by the Court if one party breaches them. There are serious penalties imposed by the Court for breach of the consent orders including fines, and terms of imprisonment for more serious offences.