As a result of changes to the Family Law Act, the Family Court and the Federal Circuit Court can make Orders in relation to financial matters following the breakdown of a de-facto relationship.
According to the Family Law Act, a person is in a de-facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family; and
(c) having regard to all the circumstances of the relationship, they have a relationship as a couple living together in a genuine domestic relationship.
In determining whether you are living in a genuine domestic relationship, the Court may look at any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship existed;
(d) the degree of financial dependence or interdependence and arrangements and financial support between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is, or was, registered under a prescribed law of a state or territory as a prescribed kind of relationship;
(h) the care and support of children; and/or
(i) the reputation and public aspects of the relationship.
Generally, it is accepted that you need to demonstrate that you have lived together for at least two years to establish a de-facto relationship, or if it is less than that, whether there is a child of the relationship or some other exceptional circumstance.
If you are in a de-facto relationship, the legal rights and responsibilities are similar to those of a married couple.
You are able to enter into a financial agreement (commonly known as a pre-nuptial agreement) which would outline the division of property in the event of a future separation, or you may reach an agreement in relation to a property settlement after separation, by way of a financial agreement, Consent Orders or by proceeding to the Court for property Orders.
Reaching a property settlement can be complex and stressful. Our team at Schetzer Constantinou can provide you with expert legal advice and guide you through how to protect yourself prior to entering or leaving a de facto relationship.
Please do not hesitate to contact Shikha Luddu, Senior Associate at Schetzer Constantinou on 8602 2000
Our Associate, Bridget O'Kane provides the following advice on what to do if you are thinking of leaving your home after separation
WHAT TO DO WHEN YOU VACATE THE HOME AFTER SEPARATION
Separation is difficult time and often involves one party leaving the home. After separation, some couples are able to maintain a good relationship, for others the relationship can deteriorate quickly and it can be the last time that they will enter the home and see some of their most prized possessions.
If you are the party that decides to leave the home we recommend the following:
- Ensure that when you leave the home you take your driver’s licence, passport and birth certificate. These documents are important to identity yourself and should be taken with you when you leave.
- Take your jewellery and any sentimental items in the home when you first vacate whilst you and your ex may seem amicable when you leave the home, it is very easy for this to escalate and jewellery and other sentimental or valuable items could go missing. If the item is valuable or meaningful to you, ensure you take it with you.
- Gather your financial documents. You are required under the Family Law Act to provide full and frank disclosure of your financial situation including assets, liabilities and income. Having easy access to your financial documents to allow you to disclose them quickly will assist you in future negotiations.
Secure your online privacy
- Change your log in details and passwords to your emails, social networking sights, financial institutions and phones. Many couples share these details while they are in the relationship, however after separation it is likely that this is no longer appropriate.
- Manage the cloud that your devices are uploading your personal data to. It may be that you have changed all your passwords but your ex still has access to your personal data, as it is still being uploaded to the family cloud.
Have a plan for the children
- Discuss with your partner what will happen to the children once you vacate the home. Have an agreement in place as to the time you will spend with the children. Whilst this agreement is not binding, it will set the framework of the time you spend with the children going forward.
Your rights to the home after separation
- Remember, if you leave the house, you do not lose your claim to it. Under Family Law, property owned by a party to a relationship can be dealt with in a financial settlement even if they no longer live in the property and moving out does not change this.
- If you do vacate the home it will likely mean that you no longer have the right to enter the home as you did when you resided there. Be prepared for the locks to be changed and your ex to refuse access to collect your personal belongings.
Obtain family law advice
- It is important to obtain Family Lawyers in the early stages of separation to ensure that you are making the best decisions for you and your children.
If you would like further advice, please contact Bridget at email@example.com or 03 8602 2000
Hot wallets, cold wallets, paper wallets, exchange wallets and onramps
These are terms that may not be known to you at this time but will become as familiar as the likes of MasterCard, text messaging and drawdown facilities.
Welcome to the world of cryptocurrencies.
Divorces have always been messy and the development of cryptocurrencies such as Bitcoin and Ethereum are helping to make matters even messier.
We are starting to confront cases with cryptocurrencies, the currency that can be difficult to trace and harder to value.
The Courts impose stringent duties on parties to make full and frank financial disclosure. Regrettably, this does not always happen and it is feared that the anonymous nature of cryptocurrencies may be seen by some as a safe haven to hide money from their former partner.
Failure to disclose the existence of such an account may result in the other party being put to the time consuming and expensive process of seeking to trace the existence of a hidden account.
The inherent nature of cryptocurrencies that are unregulated and are capable of being traded anonymously on a decentralised network can make it extremely difficult to discover its existence. It is feared that where a cryptocurrency is purchased directly and moved offline or transferred between various online wallets, it may be almost impossible to trace.
Discovery may now involve the seizure of a party's smartphone and/or computer and the engagement of IT experts.
It may be as difficult to trace as cash.
Assuming the existence of cryptocurrency is discovered, there is then the problem as to how to value it. Its extreme volatility makes it difficult to determine its value at any point in time. The most prudent course to adopt may be to split the Bitcoin itself with each party then assuming the risks associated with the volatility of its price.
Finally, the question of taxation will have to be considered as the Australian Taxation Office has recently declared that Bitcoin and other like cryptocurrencies are neither money nor Australian or foreign currency. It has declared that it is property and, therefore, an asset for capital gains tax purposes.
With the popularity and value of the tech world’s cryptocurrencies such as bitcoin increasing every day it is becoming important for practitioners to be aware of how these “virtual assets” are disclosed and treated in the division of assets in family law matters.
Unlike traditional assets, cryptocurrencies are online digital assets with real monetary value which can be used to pay for goods and services. The difficulty of them being virtual is that they are extremely difficult to trace and can easily be concealed and transferred to third parties thus being a mechanism that could be used to hide assets and avoid disclosure.
Given this, is it important for practitioners to seek full and frank disclosure not only of tangible assets and physical currency but also request full disclosure of any online currency or assets in the form of crypto currency.
Ultimately, while bitcoins are adding to ways spouses may seek to hide assets, it does not change the obligations on parties to make full and frank disclosure. Further while it may add a level of complexity to matters it is not impossible to trace and raise the suspicion of hidden assets especially in matters where you may be able to trace back to where traditional assets may have been sold or transferred without explanation.
No doubt bitcoins and similar cryptocurrencies and online assets are going to be part of legal discussion in to the future and the team at Schetzer Constantinou are here to provide you with expert legal advice. Please call us on (03)8602-2000 to make an appointment to see us today.
DIVIDE NOW OR PAY LATER
In a decision that has taken many lawyers by surprise, the Full Court of the Family Court has recently dismissed an appeal from a decision that questioned whether property acquired post-separation could form part of the asset pool available for division.
The parties married in February 2002 and separated during 2010. They were divorced the following year.
There was one child of the marriage who was cared equally by the parties.
Somewhat surprisingly, it was not until 2015, some 5 years after separation that the wife commenced proceedings for a property settlement. She was successful in obtaining leave to file her application out of time.
At the time of their marriage, the wife had nominal assets. The husband owned two properties: a motor vehicle, a share portfolio and enjoyed superannuation entitlements.
At the time of separation, the asset pool consisted of the two properties: shares and superannuation.
What is relevant is that 3 years after the parties separated, the husband received an inheritance from his father's estate. At the time the proceedings were issued, the remaining portion of the inheritance represented 32% of the value of the assets.
The Judge in the first instance held that the remaining monies of the inheritance were to be included in the asset pool available for division.
In determining what would be a "just and equitable" division, the Trial Judge divided the assets on a 65:35 basis in favour of the husband.
The husband appealed the decision. He was unsuccessful.
It is important to note that being divorced (marriage) or being separated (domestic relationship) does not, in itself, dissolve your financial relationship. You may be subject to a subsequent claim for a property settlement.
This case serves as a reminder to everyone going through a separation: DIVIDE NOW OR PAY LATER.
The case also serves as a reminder as to why people entering into a relationship or marriage should consider a Binding Financial Agreement.
For information on how to finalise your financial relationship, please contact one of our experienced family lawyers on (03) 8602 2000.
We are pleased to again be recognised as one of Melbourne's top rated Family Law firms.
The announcement was made by Doyle's Guide. It is an independent ranking based on extensive research and interviews with clients, practitioners and industry bodies.
We are proud of our achievement and look upon it as evidence of our commitment to meet the needs of our clients and to find solutions to their problems in a timely and cost effective manner.
After graduating from Melbourne University in 1974 and completing his articles, David became a Partner at a well established Law firm. After 30 years David went on to establish Pearsons Schetzer and Associates. In 1990 David achieved Specialist accreditation in Family Law.
David talks to Dollars With Sense TV explaining What Family Law Is.
David Schetzer - do you need a lawyer when divorcing? - Dollars with Sense TV
The Federal Government has announced legislation that will have sweeping effect on parties acquiring property as and from 1 July 2016.
The Tax and Superannuation Laws Amendment (2015 Measures No. 6) Act 2016 presumes that a Vendor of real estate is a non-resident UNLESS a clearance, proving Australian residency (or some other valid exemption), has been obtained prior to settlement and provided to the Purchaser.
This provision will equally apply to transfers to parties in Family Court proceedings.
In the event a Clearance Certificate (or a valid exemption) is not obtained prior to settlement and the value of the property exceeds $2million, the Purchaser will be obliged to:
(a) withhold 10% of the proceeds;
(b) register for withholding tax; and
(c) pay the withholding tax to the Australian Taxation Office.
The changes in the law will have a direct affect on all real property (residential and commercial) transactions that are valued over $2million. The changes do not apply where:
(a) the value of the property is less than $2million;
(b) the transaction is listed on an approved stock exchange; or
(c) the transferor is under external administration or in bankruptcy.
The value of the property is to be determined by the sale price or by an expert valuation.
The new legislation will have a significant impact on many transactions. It is therefore important that legal advice is obtained as soon as practicable. We are able to assist in providing the necessary advice.
We are very pleased to announce the appointment of Andrew Papaleo and Shikha Luddu to Senior Associates.
Both Andrew and Shikha have made significant contributions to the firm and have worked tirelessly for our clients towards accomplishing positive outcomes. Andrew and Shikha have proven themselves to be efficient, hardworking and dedicated lawyers.
We congratulate them on their achievement.