At Grace Law, we provide a wide variety of expert legal services. From dealing with divorce cases and matrimonial disputes to handling estates matters and advising on conveyancing issues, we offer impartial and practical legal support every step of the way.
We also participate in community events throughout the year, so keep up to date with all that's happening at Grace Law in Townsville, by reading our blog below.
23 October 2017 - Superannuation and Separation
Since 2002, separating couple whether, married or deface have now been able to split their superannuation interests in the same way as property can be divided in any marriage or defacto breakdown of relationship.
Under the Family Law Act 1975, superannuation interest with a withdrawal value of less than $5,000 cannot be split. There are a number of ways that superannuation can be split. It can be the subject of a Superannuation Agreement or a Court Order, provided that the consent of the Trustee has been obtained in relation to the particular Order being made and the Trustee has been accorded procedural fairness in relation to the making of the Order.
Superannuation can also be split by allocating a set fixed amount or specifying a percentage of the superannuation interest to be split. The superannuation fund itself will only act on either a Superannuation Agreement or a sealed Court Order.
Some separating couples will decide in their particular circumstances that their superannuation will not be split, but rather one party will retain all the property and the other will retain the whole of their superannuation fund. Take for example, a separating couple, where the primary carer is a stay-at-home Dad and there are three small children under the age of eight. Mum is a cardiac specialist with Queensland Health, who has superannuation fund that is worth less that the $800,000 family home which is owned outright. They may decide that it is best for Dad to retain the family home so the children can remain in the family home, while Mum retains her superannuation interest. It must be said, that the most common scenario now days is for the superannuation to be split between the parties, along with the net asset pool.
Where possible, it is always best for separating couples to determine their own outcome taking into account that the requirements of the Family Law Act. Many separating couples are able to reach a sensible solution. Although separating couples should always obtain independent legal advice to make sure they are on the right track in terms of their decision making. Once the parties are satisfied they have reached the best possible outcome, then their Solicitors can draft the requisite documents for signing by the parties and filing in the Court.
If the separating couple cannot agree, then the next step should be Mediation. There are independent Mediators and organisations that can assist with Mediation. Call us, if you need assistance in finding a Mediator to help you.
If the separating couple cannot decide on what should happen to their assets, then the next step, may be Court proceedings where the Court ultimately decides the outcome.
Occasionally, it will be necessary to "flag" a superannuation interest to prevent a spouse from receiving a lump sum payout or rolling over their superannuation interest to another fund from being paid out or rolled over until such time as the property settlement has been finalised.
If you have any concerns that your ex-spouse is attempting to receive a payment or rollover his or her funds to another superannuation fund without your knowledge or consent, you must talk to your Family Law Solicitor immediately.
9 October 2017 - Limiting Tax Liability
We have had a substantial number of our client base request advice in relation to Capital Gains Tax. For one reason or another they are looking to sell a large asset and in many cases this is a real estate transaction and the clients are concerned what Capital Gains Tax liabilities are applicable to real estate transactions.
In this article, we will not go through the specifications of a Capital Gains Tax (CGT) event but will specifically deal with real estate transactions generally. The CGT system taxes receipts of the individual that have accrued from increases in the value of that individual's asset. Individuals that are selling any property they own including their home should turn their attention to CGT implications.
The CGT provisions apply to a dwelling that is an individual's main residence. However, pursuant to section 118 - 110 of the Income Tax Assessment Act 1997
a capital gain or loss will be fully disregarded where a dwelling (as defined in the Act):
Was owned by an individual;
Was the persons main residence throughout their ownership of it; and
The person did not acquire title to it as a beneficiary under a deceased estate or the interest did not pass to the person as trustee of a deceased estate (other exemption may apply in this case).
Should the above be satisfied the Australian Taxation Office (ATO) take the view that the main residence exemption is mandatory.
Moving into a new home while still owning previous home
If the dwelling ceases to be your main residence you may choose to continue to treat it as your main residence, provided that no other dwelling is treated as your main residence. If the previous home is rented out, the maximum period that the dwelling may remain a main residence is 6 years.
Example, Frieda lives in a house for 3 years and then is posted overseas for a period of less than 6 years. On her return she moves back into the house for one year at the end of which she sells the home. As she has not treated any other dwelling as her main residence she may choose to treat this house as her main residence during the absentee. If the dwelling is not rented out it can be treated as a main residence indefinitely. If Freida changes her main residence she may treat both the new and her former dwelling as her main residence for a maximum of months after the change or until an earlier sale or other disposal. Please note that the previous main residence must be your main residence continuously for at least 3 of the previous twelve months before it was disposed of and must not have been rented out in any of the twelve months during which it was not your main residence.
However there may be a partial exemption for CGT if the residence is also used as a rental property. The CGT exemption is reduced by an amount that is reasonable, having regard to the extent that interest will be deductable.
CGT can be a complex area and we would recommend that you consult your solicitor and accountant regarding the best way to dispose of a capital gains taxable asset. We welcome enquiries in relation to this matter and any other legal matters that you may have.
5 October 2017 - Family Law Financial Matters
Lets speak of Bonnie and Clyde, a separated couple with two children who resolved parenting issues between them last month by entering into Parenting Orders that best suited their particular circumstances. Parenting Orders usually provide for where the children live and how much the children spend with the other parent, when the parents can telephone or Skype the children. Also when the children is with one parent, the parent who is living with the children has the day to day care. However, there are some issues which parents must decide jointly and these involve the long term care, welfare and development of the child, such as education, medical, religious upbringing, the name of the children and other significant matters.
and Clyde now decide it's time to settle property matters between them to enable both of them to start again.
They prepare a list of assets, as well as a list of their liabilities, and include in their list of assets, the amount of superannuation both have accumulated up until now. Both consult their respective solicitors again as this is only the start of working through the process of determining how much each of them will receive from the net assets they have accumulated so far. Assets such as superannuation funds, the family home, investment properties, shares, cars, antique furniture, collections of artwork, and even jewellery (in some instances) are generally valued to ascertain market value.
Bonnie and Clyde's respective solicitors will need to take into account a number of factors that the Family Law Act 1975 sets out, such as direct and indirect financial contributions to the marriage made by Bonnie, Clyde or their families, and non-financial contributions to the marriage, such as the role of homemaker and care of the children.
When Bonnie and Clyde started out they had no savings and Bonnie's father gave $80, 000.00 cash to enable Bonnie and Clyde to buy a block of land. Bonnie's father, being a builder, then built the home at cost for them. Both Bonnie and Clyde agree that Bonnie's father's contribution was a significant financial and non-financial contribution to their marriage. Also significant for Bonnie and Clyde, was Clyde's non-financial contribution in caring for the children while Bonnie was in prison and the fact that the children, Millie and Georgie now live with him for 9 days out of 14 each fortnight. Other factors such as Bonnie and Clyde's standard of living during the marriage, the length of the marriage, current income, future needs and likely future resources, child support, and whether Bonnie and Clyde are now living with another person in a de facto relationship, are just some of the other factors to be taken into account.
Ultimately, Bonnie and Clyde agree on a split taking into account, the above factors and agree that Bonnie will receive 45% of the property pool, and Clyde 55%. The important aspect of all this for Bonnie and Clyde, is that the agreement was reached by consensus, without the need to institute court proceedings.
If you have property and have just separated, speak to your family lawyer, about how best to resolve your property matters. If you want a timely and professional family solicitor contact Ms Dianne Grace of our firm on 07 4775 4997 email@example.com
25 September 2017 - Stamp Duty of Matrimonial Property
I received a telephone call not so long ago from a man who had recently separated. The separation between him (Fred!) and his former partner (Wilma!) had been amicable and they thought, rather than involving lawyers, they would handle the matter themselves.
Fred and Wilma owned two properties and the properties were held in joint names. One property located in Bedrock was their primary place of residence and the other an investment property, being a unit, located in Quarry Lane.
They had decided that Fred would buy Wilma's half share of the two properties and embarked down the track of transferring the properties to Fred without any formal written agreement or Court Order. They had also decided that apart from the properties that everything else they owned in their own names, each of them would retain such as their own cars and superannuation.
When Fred phoned our office he wanted to find out whether we would prepare the transfer documents and attend settlement for him. Fred also wanted to know how much stamp duty he would have to pay to transfer the two properties into his name.
He explained the situation that he and Wilma were trying to avoid any angst between themselves and thought it would be cheaper if they just handled matters privately instead of engaging solicitors.
We estimated that if Fred proceeded to transfer the two properties that the combined Stamp Duty alone on transferring the properties to Fred would be approximately $30,000.
What Fred and Wilma didn't realize though, by embarking down this track of doing things for themselves, was that stamp duty alone on the transfer of the properties into Fred's name was significantly higher that the costs of engaging a solicitor, depending on the value of their two properties.
Fred and Wilma like many separating couples had reached an amicable agreement on how their property was to be divided between them. But Fred and Wilma still needed to obtain Legal advice on how to go about best achieving that division of property, without paying further stamp duty. Fred and Wilma had paid stamp duty when they purchased the properties in the first place. What they didn't know was that stamp duty exemptions apply when properties are transferred pursuant to the Family Law Act
There is another reason why settling a family law or defacto matter under the Family Law Act
is so important, and that is once a written agreement is entered into or court orders obtained, it generally means that financial matters have been finalised once and for all.
So for all those who have separated or are considering separation, it is imperative that you speak to your family lawyer and obtain his or her advice regarding not only the transfer of property, but a myriad of other issues that may be relevant to your particular circumstances, such as updating your will and enduring power of attorney that should be done at the same time. You may spend two hours with your lawyer explaining things, but it may save you a lot of time, heartache and money later.
1 August 2017 - Property Ownership
If you are looking at buying property in the near future, chances are you will not be buying it on your own, but rather with a life partner, family member, business colleague or friend.
In effect you will become a co-owner of the property with the other person/s and the type of relationship you hold with that person/s will usually dictate how you and the other co-owner/s will decide how the property should be held.
For example, married or defacto couples, let's call our couple, Frida and Freddy have decided to purchase a property in Love Lane. Having spoken with their lawyer, they decide they should hold their property as joint tenants. This means, in effect they hold in equal shares and if one passes away, her or his share would automatically pass to the one still living.
An easy way of understanding this is to think of the ownership of the Love Lane property as an orange (yes, a piece of fruit!). Frida and Freddy own the whole of the orange together. This means as a general rule that neither Frida nor Freddy can mortgage the property or sell the Love Lane property without the other person's consent. It also means at a future date, that Frida or Freddy could sever the tenancy should they wish to change from a joint tenancy arrangement to a tenants in common arrangement.
If Frida and Freddy decide to purchase the Love Lane property with a third person, say Frida's sister, Francesca. Frida, Freddy and Francesca can elect to hold the Love Lane property as joint tenants or hold it in one-third shares, known as tenants in common (in this case, it would be a one third share each as tenants in common. Or one-third portions or slices, if we continue with the "orange" analogy).
Frida, Freddy and Francesca, however could decide to hold the Love Lane property in unequal portions, such as a 20% share to Francesca and a 40% share each to Frida and Freddy.
In this case, where Freddy owns his share in the Love Lane property as a tenant in common, despite being in a relationship with Frida, does his share automatically pass to Frida if he passes away? The answer is no. Freddy's share doesn't pass automatically to Frida. It will pass to Freddy's beneficiary/ies under his will as a general rule. If there is a will. Frida would then need to seek legal advice as to her rights and remedies under succession law.
These are just some of the issues that Frida, Freddy and Francesca have to consider when buying property with loved ones or a family member. These issues arise when buying property with a business colleague or friend, as well.
You should seriously consider whether the arrangement should be formalized by way of a written agreement prepared by your solicitor. Having your solicitor formalize your arrangement can prevent a lot of angst later if someone decides they wish to end the arrangement. Please contact the friendly staff at Grace Law if you need such assistance, (07) 4775 4997 or firstname.lastname@example.org.
24 July 2017 - The Result of Resolution
Recently, we spoke of Molly and Beau. Molly had been incarcerated for twelve months in the local prison. Beau still wants to separate, and Molly is now aware of his intentions. Molly and Beau have twins, Kate and Emma, aged 13. During the time Molly was in prison, Beau cared for Kate and Emma while continuing to work full-time, as well as being their school rowing coach.
Molly wants to become actively involved in the children's lives again. Both have sought advice from their respective solicitors and are aware that they must attend, what is known now days as, "non-court based family services" such as Family Counselling, Family Dispute Resolution or Arbitration prior to either parent filing an Application to the Court.
In Molly and Beau's situation discussions with their respective solicitors have revealed that there is nothing of an urgent nature to warrant either of them making an Application to the Court. Neither Molly nor Beau has raised allegations of child abuse or family violence. Molly was serving time for theft as a servant, not for committing acts of violence. Nor are Molly and Beau engaged in a "genuinely intractable dispute", which sometimes happens when one parent simply refuses to discuss any issues relating to the children with the other parent whatsoever.
There are a number of excellent services in Townsville providing Family Dispute Resolution (FDR) and Molly and Beau with the help of a mediator, agree that Kate and Emma will live with beau for 9 days a fortnight and with Molly for the remaining 5 days in each fortnight. After carefully considering the children's routine, Molly and Beau agreed that the children will continue to spend more time with Beau as Beau is their rowing coach at Pimlico State High School and this regime will be least disruptive to their schooling and sporting commitments.
Molly instructs her solicitors to draft Consent Orders to be filed in the Family Court as evidence of the agreement that she and Beau have reached. For the most part, Orders that issue from the Court provide the parents with the assurance, that there will be consistency, as well as stability and continuity in the lives of all concerned.
If you have separated and there are children involved, speak to your family lawyer first about how best to resolve parenting issues taking into account your particular circumstances, it is well worth the talk. If you ever need a dedicated Family Law Solicitor, Contact our Family Law team on 07 4775 4997.
17 July 2017 - Is Mediation Effective?
A self-represented person, Georgia contacted the firm sometime ago. I was acting on behalf of Georgia's ex-husband, Seamus. Georgia was back in Australia for only a short time, having separated from Seamus about 6 months ago.
The family home was still in joint names and Seamus and their three children were living in the home. Both Georgia and Seamus knew their financial position. Both had worked during the course of the marriage, and had acquired the usual family assets; the family home, superannuation, cars, furniture, some savings and 3 children (priceless). Liabilities were also easy to ascertain, as the only debt of the marriage was the mortgage debt.
Georgia had 3 weeks to be exact to try and resolve property matters between her and Seamus before returning overseas to work as an engineer in the mines. Georgia had obtained all the necessary forms to initiate court proceedings and wanted to file an application immediately in the Family Court of Australia.
What Georgia didn't realize was that it would take about three to four months from the date she filed her court documents before the matter would reach conciliation conference stage, or in other words, court-ordered mediation. By the time the matter reached conciliation conference stage, however, Georgia was once again deep in the jungles of Papua New Guinea on a mine site.
I suggested Georgia and Seamus that rather they engage an independent mediator to assist them negotiate a property settlement. An experienced mediator can be invaluable in assisting separated couples to focus on the real issues and explore other options that may be available to resolve issues in contention.
A trained mediator will also assist separated couples to stay on track. Sometimes there is an urge to return to old bones of contention that caused the break-ups in the first place, but a trained family law mediator will assist people to stay on track and focus on what is necessary to bring closure to the relationship from a financial or parenting perspective.
An experienced mediator will also assist separated couples to stay on track. Sometimes there is an urge to return to old bones of contention that caused the break-up in the first place, but a trained family law mediator will assist people to stay on track and focus on what is necessary to bring closure to the relationship from a financial or parenting perspective.
An experienced mediator will also be able to provide timely reality checks by reminding separated couples that in the event one or both decide to file an Application in the Court the final decision will be made by a judge, and not by them.
In the end, Georgia and Seamus were able to arrange a mediation while Georgia was in Australia and an agreement was ultimately reached with the assistance of the mediator. It resulted in Court Orders being filed by consent in the Family Court of Australia. In short, the mater resolved relatively quickly and fairly! without the need to file an Application in the Court, which may have also been much more costly for both Georgia and Seamus, financially and time-wise.
We will always have your best interests at heart; Financially and Emotionally. If you would like to discuss your Family Law situation do not hesitate to call 07 4775 4997 and speak with our friendly Family Law Team.
28 June 2017 - The Advent of a New Era
Recently, I had the privilege of listening to an icon of Australian Journalism speak at a Family Law Conference in Melbourne. This doyen of Australian Media who was the founding editor of Cleo and later editor of the Australian Women's Weekly made some profound comments about the advert of a new era in Family Law that took place some 40 years ago.
Prior to 1975, the Matrimonial
Causes Act 1959
(Cth) governed Divorce proceedings in this country. Separating couples could only obtain a divorce if one spouse could prove that the other spouse has caused the breakdown of the marriage. In short, it was based on fault, and the Act set out a number of grounds that had to be established in order to obtain a Divorce Order (14 grounds in all).
Some of the grounds included; adultery, desertion, depriving the other spouse of conjugal rights, habitual cruelty, drunkenness or drug addiction, being of unsound mind to name a few. Proving that the other spouse had caused the breakdown had to be backed up by hard evidence, usually obtained by hiring a private investigator or photographic evidence. If the Court wasn't convinced on the evidence before it, the Divorce was simply not granted.
It was a hard hurdle to overcome, and worse still, not only did the Courts know about the pending Divorce, but the general public as well. The names of spouses obtaining a divorce was a matter of public record, and where one spouse or both were in the public eye, the media often covered the breakdown of the marriage as if it were a boxing match, highlighting the un-pleasantries of extra-marital affairs, habitual drunkenness or cruelty with seeming glee.
For a child of divorcing parents having to endure the public spectacle and humiliation of their parents' divorce, growing up in those years prior to 1975 was tough as the Journalist noted, herself having lived through it. Children were often left scarred, not only by the separation of their parents and the sense of loss experienced, but by the public nature of the breakdown of the marriage, often being privy to private details surrounding their parents' marriage breakdown and the societal condemnation that came with it.
So what did happen 40 odd years ago to change how Divorce proceedings are now obtained in this country? Well, the Matrimonial Causes Act
was ceremonially thrown in the bin and replaced by a new Act, the Family Law Act 1975
Instead of establishing a ground or grounds of fault in order to divorce, the new Act established the concept of "no fault" divorce - where the only ground for dissolving a marriage is being separated for 12 months or more. The blame game no longer exists, at least as far as divorce goes. The ugliness that surrounded the concept of finding "fault" has gone, and divorcing spouses, are only required to show that the relationship has retrievably broken for twelve months or more. Names are no longer published and Children are protected to a far greater degree than what they were.
If you need a solicitor to Act in any areas of Family Law, our Legal Practitioner Director Dianne Grace is happy to address any concerns you may have regarding your particular situation. Contact us on 07 4775 4997 email@example.com for any queries!
6 June 2017 - Is Court Compulsory?
Some people are surprised to hear that their family law dispute can be resolved without going to Court and seeking a judicial decision, despite some angst or a lot of angst still existing between the once happy couple.
Typically, each party will engage a family lawyer to assist her or him to work through the issues in accordance with the Family Law Act 1975 (Cth) and the Family Law Rules. Of particular significance are a set of rules governing how disputes should be resolved, or at the very least, narrowing the areas of contention between parties before one or both agree that they should file an Application in the Court.
These rules are known as the Pre-action procedures and they exist for both property disputes and children's issues. Basically the rules set out procedures for resolving disputes and/or narrowing the legal issues that a Court may have to hear.
Where possible, parties are encouraged to participate in a dispute resolution process. Often for property disputes, this will be a Mediation. The Mediator is usually an experienced Family Law practitioner, either a Barrister, Solicitor, or former Judge who does not provide legal advice to either party, but oversees the process of negotiating a result, that both parties can live with, even though it might not be exactly what he or she wanted.
It is often said, that it is better for disputing parties to ultimately make a decision for themselves regarding their dispute (with the guidance of their legal representatives), than the Court make a decision for them.
Many people also elect to negotiate with their ex-partner through their lawyer rather than negotiate a settlement a face-to-face in a Mediation. Numerous matters are resolved in this manner. The lawyers are then able to prepare Terms of Settlement for filing in the Family Court that will end the matter on a final basis.
If the Mediation is unsuccessful, there are a number of options available. A further mediation may be scheduled for a later date. The process of negotiation may continue through the parties' legal representatives, with a resolution finally being reached or one or both parties may decide to file and seek a judicial decision on the issue or issues still in dispute.
Where the legal issues are complex in property disputes, legal costs may not necessarily be cheaper when couples participate in the Mediation process or negotiate through their lawyers. However the three main benefits of utilizing these processes is avoiding the often lengthy delays experienced in the Court system (simply because of the sheer volume of cases that the Court is required to hear); secondly, the parties make the decisions for themselves rather than a judicial officer making it for them and lastly, for many people, the thought of being in Court evokes feelings of heightened anxiety and panic, unlike any other.
There are certain circumstances, however when utilizing the Pre-action procedures will not be suitable. It is very important to always speak to your family lawyer first to ascertain whether any of these circumstances may apply in your case.
29 May 2017 - Enduring Powers of Attorney; Time to Face Mortality
About six years ago, I had the privilege of meeting a lovely lady, Simone and her partner, Sam (another lovely lady). Simone was very keen to put a Binding Financial Agreement in place, as the couple had just started living together and Simone wanted to sort out in advance what would happen to their finances if things didn't work out between them.
Well six years later, the good news is that Simone and Sam are still going strong. Simone and Sam didn't end up signing the Binding Financial, a decision Simone made, but as Simone said, our discussions regarding the relationship, initial financial contributions, contributions likely to be made by each of them during the relationship, and the best way to resolve their financial affairs if they separated (just to highlight some of the things we discussed) really provided Simone and Sam with far greater insight into how to resolve their financial affairs if they ever did separate.
While we were discussing these various aspects of the Binding Financial Agreement, I recall saying to Simone that it was important that Simone and Sam update their wills, and as neither of them had an Enduring Power of Attorney (EPA) in place, both should prepare an Enduring Power of Attorney naming the other as their Attorney in case one fell ill and the other had to make personal/health or financial decisions on their behalf.
Sam and Simone ended up signing new wills and Enduring Powers of Attorney in favour of each other.
A few years later, Simone had a very serious accident. It resulted in Simone being hospitalised for some months and for some time after the accident, Simone was unconscious. The medical team at the Royal Brisbane Hospital, where Simone was transported informed Sam that she would need immediate medical attention and a series of operations in the future to combat the physical damage Simone had suffered.
As you can imagine, everyone was shattered at the thought of Simone having to go through such an ordeal, including Simone's mum, who voiced her opposition to the medical team's proposal. It was a confusing time, all round, not only for the medical team as to who they should listen to, but for Simone's mum, as well.
In the end, Sam was able to say that Simone had appointed her as her Attorney to make these types of decisions for her in the event Simone couldn't. Sam had become convinced that the medical team were correct in the assessment of her medical needs, and Sam was able to produce a copy of the EPA to the medical team. It clearly stated that Simone had appointed Sam to make such decisions for her, if she couldn't make them for herself at the time. Sam's intervention on Simone's behalf saved her life.
The moral of the story is, even if you are not quite ready to face your own mortality, get your EPA organised. This allows a loved one or very close friend (someone you absolutely trust) to make these type of decisions for you if you can't. It is also important for you to have a conversation with your attorney and tell them what your wishes in the event you become incapacitated.
22 May 2017 - Wills; Avoid Grave Regrets
Whether it is preparing a will for the first time or simply reviewing an old will as children have grown up and now have children of their own, whether divorced, re-partnered or simply never married at all, or an executor or beneficiary has passed away, we seem to be adept at saying to ourselves, "we're too busy at the moment".
Despite this, it is something we should take time to put in place. A will can go a long way to easing the distress, anguish and burden of those around you. It is a legally binding document and sets out what you would like to happen to your estate. Your estate is made up of everything you own and can include assets that we would not usually think of as assets, such as a debt owed or intellectual property and the usual tangible assets such as land, shares and chattels.
In preparing your will, you will need to give thought to who will be the executor or executors of your will and who you wish to name as your beneficiary or beneficiaries. This may not be as simple as it sounds in this day and age where blended families are now the norm and you may be financially supporting children from another relationship or caring for an elderly parent or relative.
There may also be an issue as to who should care for your children if you are no longer around. You may have a preference to be cremated with your ashes scattered at sea, rather than being buried or for a church service to be conducted at the Cathedral or for no service at all and a wake only. You can express your wish for these things to be done the way you would like. Once your will is written, it provides your loved ones with a definitive outline of your wishes.
If you die without a valid will in Queensland, it is deemed that you have passed away "intestate". In effect, your assets are distributed according to the Succession Act 1981 (Qld)
In short the legislature (State Government) sets out how your estate property will be distributed among your family. If an argument arises between potential beneficiaries, the Court may be required to make a decision. By preparing your will, the potential for conflict is minimised and your loved ones spared the angst of having to deal with the trauma of such conflict. It also means you are making the decision for how your assets should be divided, rather than an Act of Parliament or the Court deciding for you.
If you would like to discuss a will with our experienced lawyers, we have a 40-minute consultation that we provide at no charge, to discuss the best possible will for you in your current circumstances. Please contact our office or email firstname.lastname@example.org
to arrange an appointment.
15 May 2017 - New Smoke Alarm Laws in Queensland
Early this year, the Queensland government introduced changes to Queensland's smoke alarm laws. The government's
aim to safeguard Queenslanders by making Queensland homes some of the safest in the country.
Few Queenslanders will forget the horrendous fire that tore through a Brisbane home in the suburb of Slacks Creek in 2011. The fire killed eleven people, including five children from one family. Three other children were lost in the blaze, along with three adults, one adult being the mother of the five children who were lost. It was so intense, that the building was partially destroyed and lives lost within minutes.
To avoid such senseless loss of life, the government has introduced a time frame for the introduction of photoelectric fire alarms to existing dwellings and new dwellings from 1 January 2017.
For existing dwellings, whenever a smoke alarm has to be replaced, the new alarm must comply with Australian Standard (AS) 3786. In short, the alarm must be a photoelectric alarm. According to Choice, these alarms are much faster at detecting smoke than the old ionisation alarms of the past (www.choice.com.au).
If the smoke alarm does not work when tested, it must be replaced immediately with a photoelectric fire alarm and if it is hardwired, then the alarm must be replaced with a hardwired smoke alarm.
By 2022 all smoke alarms in a dwelling being sold, leased or where an existing lease is being renewed, must be photoelectric, be less than 10 years old, operate when tested and be interconnected with every other smoke alarm in the dwelling.
By 1 January 2027 smoke alarms in all dwellings must comply with the Australian Standard.
In addition, smoke alarms must be installed on each storey of a dwelling. They must be installed in each bedroom and in hallways which connect the bedrooms to the rest of the dwelling. There are rules which govern where alarms are to be placed if there are no hallways.
Alarms must be hardwired in or powered by a non-removable 10 year battery.
There are also prescribed locations on the ceiling for installing smoke alarms, as well as special requirements for areas such as stairways and sloping ceiling. In short, the requirements are technical and it is best to speak to your electrician, builder or certifier as to specific requirements for your home or rental property.
16 June 2016 - Family Law and Property Splits - Superannuation
Once a marriage or defacto relationship breaks down, one of the assets that can be split between the parties, is superannuation. For defacto relationships, certain rules apply, so it is important to speak with a family lawyer about whether or not your superannuation interest/s can be split. Generally, you must have lived together for a certain period of time and the relationship broke down on or after 1 March 2009.
Superannuation can be split in the accumulation phase or the payment phase of a person’s life. In short, the accumulation phase means that stage in life from the time a person starts work to the time she or he retires and is “accumulating” savings for retirement; the payment phase generally refers to the retirement phase of a person’s life, where the person has opted to take an income stream or pension.
Superannuation held in the accumulation stage means there is a lump sum available for distribution between the parties. Alternatively, if one or both of the parties have elected to take an income stream after retirement, the other party may be entitled to a portion of the income stream that will be paid to him or her periodically. This can be weekly, fortnightly, monthly and so on.
Information can be obtained from the Superannuation Fund seeking information about the amount held in the fund and the date/s that a fund is to be valued. It can be valued at the commencement of a relationship, the end of the relationship or post-separation. There is usually a fee attached to a request for information from the Superannuation Fund ranging from $50 to $250 depending on the Super fund involved.
When a family lawyer deals with superannuation as an asset in the marriage or relationship, the same principles apply to superannuation as they do to property of the marriage or relationship. A family lawyer looks at a number of factors, including superannuation acquired before, during and after a marriage or relationship in assessing the whole of superannuation available for distribution between the parties.
A variety of other factors will also ultimately influence the amount of superannuation a party may receive, such as the length of the marriage/relationship, non-financial contributions, gifts, bonuses and inheritances, earning capacity of one or both parties, the future needs of the parties, and the financial circumstances surrounding new relationships.
Once all these factors have been taken into account, a decision must then be made on whether the split is “just and equitable”. If parties are unable to decide for themselves, it may be necessary for the Court to decide for them. Most parties, with the help of their legal advisors decide for themselves what a just and equitable split is.
Once this is decided, the parties can opt for either a Financial Agreement or enter into Consent Orders for filing in the Court. It is important to finalise any property settlement by way of written Agreement, Consent Order or Court Order. Speak to your family lawyer about any queries you may have.
Superannuation comprises a large percentage of the marital asset pool. To find out how best to handlke your situation contact Dianne Grace on 4775 4997.
7 December 2015 – Family Law Generally - History of Divorce / "No-fault divorce"
Australian Family Law is governed by a number of principles which permeate the Family Law system. Those who practice in the area of family law are familiar with these principles. These principles govern how the Family Court of Australia will approach certain matters that arise in the Family Court. An outline of these principles can be found on the Federal Government’s webpage at
www.familylawcourts.gov.au and provide not only a “guiding light” to judges, but also valuable assistance to legal practitioners and other court experts such as social workers, psychologists and psychiatrists in giving advice to those contemplating separation, in the process of separating or those who have already separated.
The four principles highlighted on the webpage focus on four areas of family law, namely no-fault divorce; financial matters, parenting cases and dispute resolution processes.
Today, we will look at no fault divorce
It wasn’t always so, that the concept of no-fault divorce existed. For those who married and separated prior to 1975 had to prove one of 14 grounds for divorce. For the most part, a husband or wife had to prove that it was the fault of the other person. Some of the grounds for divorce included having an extra-marital relationship/s, unsoundness of mind, cruelty (the equivalent of domestic violence in today’s world), one party deserting the other and running away, or a party being imprisoned.
Proving fault was not always easy, as it was often a fact finding exercise, if a spouse was having an affair for example, it meant literally having the spouse following, obtaining photographs and statements from independent witnesses, and gathering documentation such as hotel receipts where the spouse had stayed. It was not only costly trying to gather all this evidence, but also highly embarrassing having to hang out all your dirty laundry to air, so to speak if you were a celebrity!
According to Morag Donaldson, in her article, “A Question of Fault: A Short History of Australian Divorce Law Since 1959” published on the Parliamentary Australia webpage (
www.aph.gov.au ), “the media reported the salacious and intimate details of some cases (e.g., those involving celebrities) thereby adding an element of public humiliation to the system.”
Contact our family law team on 4775 4997 if you wish to discuss family law.
www.familylawcourts.gov.au webpage 2. Morag Donaldson, “A Question of Fault: A Short History of Australian Divorce Law Since 1959”
, Parliament of Australia, Parliamentary Library.
30 November 2015 – Family Law – Defacto Couples
In March 2009 The Family Law Act was finally amended to allow defacto couples (opposite sex and same sex couples) access to the Family Court to finalize their financial matters.
Generally only defacto couples that have lived together for more than 2 years will qualify and the legislation will apply to those relationships which have broken down after 1 March 2009.
The amendments have provided defacto couples with the same rights that married couples are afforded when finalizing their financial matters, namely property division which includes the right to split superannuation and the payment of spousal maintenance in certain circumstances.
In short, defacto couples will now be able to access the Family Court with respect to both children and financial matters, whereas previously defacto couples could only access the Family Court regarding issues concerning children with financial matters being left to the State courts to determine.
Generally, only defacto couples living in a state (known as a “participating jurisdiction”) which has referred power to the Commonwealth Government will be able to take advantage of the laws. Queensland is of course a participating jurisdiction.
A “defacto relationship” is now defined as persons who are not legally married to each other; and persons who are not related by family; and having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
A number of factors will be taken into account in determining whether a couple’s relationship constitutes a defacto relationship such as the duration of the relationship, the nature and extent of their common residence, the ownership use and acquisition of property, and the care and support of children, to name just a few of the factors.
Once a defacto couple has separated, any application to finalise financial matters must be bought within 2 years of having separated. There are only limited circumstances in which a person may bring an application out of time.
Those changes are only the tip of the iceberg in terms of how the law has changed and any person who has separated or considering separation should consult with our family law team as soon as possible as to how these changes will affect them.
Contact our Ms Dianne Grace on 4775 4997 to discuss the matter further.
23 November 2015 - Enduring Powers of Attorney or EPAs
Lately, our office has received a number of requests asking us to explain the types of powers that a Principal can give to an Attorney under an Enduring Power of Attorney.
What can an attorney do?
There are three succinct types of powers covered by the Powers of
(1998) Qld that enable an Attorney to make decisions on behalf of the principal. The three areas covered by the Act are financial matters, personal matters and health matters. An Attorney/s can be authorized to make decisions in only one area, or all three depending on the needs and wishes of the Principal.
Let’s take our couple, Sarah and Justin. Justin is about to leave for a six month course and wants to appoint Sarah to act as his Attorney while he is away, but he only wants Sarah to make decisions regarding his financial affairs. What sort of decisions can Sarah make on Justin’s behalf?
Sarah can make wide-ranging decisions on Justin’s behalf, including the buying and selling of property in Justin’s name, as well as handling any transactions or dealings with Justin’s bank or financial institution. Sarah can also deal with any legal issues that might arise in respect of these transactions.
If Justin is running a business, Sarah could continue to carry on Justin’s trade or business as well as ensuring that any contracts entered into by Justin was honored. If Justin owns any property including investment properties, Sarah is able to preserve or improve Justin’s property/s, as well as invest any funds received in authorized investments.
If Justin owns shares, Sarah can continue to manage these investments, including taking up rights to any issue of new shares, or options for new shares offered to Justin on his existing share portfolio.
Justin can, should he chose to, also limit the types of financial decisions that Sarah makes on his behalf. It’s imperative that any person wishing to give a loved one or friend such a power speak with their solicitor first, about what is best for him or her in their particular circumstances.
Sarah can do all these things provided Sarah acts honestly and with reasonable diligence. There are some other duties which we will discuss in further blogs, along with what sort of decisions Sarah could make for Justin in respect of his health and personal matters.
Our Ms Dianne Grace is willing to see new clients to assist with drating Enduring Powers of Attorney.
Contact our Ms Dianne Grace on 4775 4997 to discuss the matter further.
16 November 2015 – The Perils of Conveyancing
When buying a property in Queensland, a number of issues arise that require not only great legal advice but sometimes a dash of good luck (in not buying a “lemon”) and a pinch of life experience, particularly for those buying a home for the very first time (with the life experience generally coming from those a little older and wiser than the first home buyer).
First home buyers often find the process draining as they deal with multiple issues such as who they should instruct to act as their solicitor in the purchase, bank requirements, inspections of the property, special conditions….and many other concepts surrounding the contract. The whole process can be exhausting and lead to many anxious moments between the time the contract is signed until the day the contract settles.
Should you engage a solicitor?
One way of alleviating much of the anxiety is to consult a solicitor prior to signing the contract. The Contract of Sale is an important legal document and it may be necessary to draft a number of special conditions as well as ensure that the contract includes or excludes all of the items/agreements that you have assumed that it would contain.
One issue that is often overlooked are “included chattels”. For instance, you may go and look at a property and see that there are items such as a dishwasher, curtains or blinds, pool pumps or even a shipping container on the property and assume that because they are situated on or in the property and you have signed the contract, that you have bought these items.
You make think that discussing the inclusion of these items with the owner or the agent is sufficient. However, unless the contract you have signed actually lists these items as “inclusions”, the owner of the property will most likely remove the same prior to settlement and there will be nothing that you can do about retaining those items. This can be most upsetting for any purchaser whether it’s your first home or tenth home.
Buying a property is usually the most important financial decision most people will ever make, particularly those buying their first home. Therefore, sound legal advice is a small price to pay.
Our Ms Dianne Grace is willing to see new or old clients to assist with conveyancing enquiries.
Contact our Ms Dianne Grace on 07 4775 4997 to discuss the matter further.
9 November 2015 – Wills
A will is a document to convey your last wishes regarding the distribution of your estate. It is in short, a set of instructions on how your assets are to be distributed at death. It is one of those documents that many of us tend to put on hold for whatever reason, rationalizing to ourselves that we will get around to doing it one day!
Don’t have a will?
For all those, young or old who have simply never done a will now is as good a time as any to get your affairs in order. Provided you are of sound mind and over the age of 18 you can make a will, although it should be noted, that a young person under the age of 18 can make a will if she or he is married.
If you don’t make a will, then in Queensland your estate will be distributed in accordance with the Succession Act
. These rules are known as the “intestacy rules” and they govern how the estate will be divided and which family member/s will receive your estate or a portion of your estate. This may mean the person or charity that you wish to benefit, may miss out altogether.
If you have a will
If you already have a will, assets in your old will may have been given away, sold or lost. An executor may have passed away, or there may be new family members to consider in terms of naming a beneficiary. My suggestion to all those out there who have done a will but have not reviewed it in a long time, is that you ask your lawyer for a copy of your will. Then review your situation to see if it needs to be updated or amended or to take into account any changes in your circumstances.
It may also be the case that your asset base may have grown and it may be necessary to consult with your accountant or financial advisor as well as your lawyer about taxation/financial issues relating to your assets and how they should pass to your beneficiaries. You may have married, remarried or divorced as the case may be. These are just a few of the issues you may need to address with your legal or accounting/ financial advisors.
For the sake of family and loved ones, now is the time to review your old will or to make a new one. Consult your lawyer to ensure your affairs are in order.
Our Ms Dianne Grace are willing to see new or old clients to draft new wills or to even re-draft old wills.
Contact our friendly receptionist on 4775 4997 to make an appointment.