Where to start - advice for your friends

Hello everyone

When most people separate their first call is not usually to a family lawyer.  Usually the first call will be to a close family member or friend who will be confronted with a distressed person looking for not only compassion but basic advice.

The best advice you can give them is to send them to see a lawyer who specialises in family law, but if they are not ready to deal with lawyers here is some helpful things you can suggest:-

1.         Start to keep a diary.  In the diary write down conversations about money but more importantly track the time you each spend with your kids.  A diary will be a great tool if you ever have to go to court.

2.         Contact your bank and make sure that liabilities cannot be increased by your ex-spouse without your consent.  Change the accounts so they require signatures rather than one or the other to make large withdrawals.  Reduce limits on credit cards and cancel supplementary cards.  Tell your local bank manager about the separation so they know to contact you rather than their legal department if mortgage payments are not being made.

3.         Change the locks.  Separating is stressful enough without having your ex walk in and out as they please.

4.         Contact the Child Support Agency to ensure both parents are contributing to the costs of raising children.

5.         Photocopy all of the financial records, both yours and your spouse's and put the copies in a place where your ex-spouse cannot get them.

6.         If the house is in the name of your ex-spouse then put a caveat on it so it cannot be sold without your consent.

7.         If there has been domestic violence go to the local Magistrates court and get an intervention order and to the police to report any assault or harassment.

8.         Send them to an experienced family lawyer to get advice that is specific to their needs, their children and their relationship.

As always please feel free to comment on this or any other of my blogs.  I would also be happy to respond to any questions you may have on this topic.

If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on (03) 9613 6555

Everything is vulnerable to a claim by your spouse - even sporting awards

Hello everyone

I have recently had the immense pleasure of speaking to a number of elite athletes from several different sports about asset protection.

My presentations have been focusing on how to protect the money they are earning whilst playing elite sport from third parties, by establishing companies, trusts and self-managed super funds.

Obviously as a family lawyer I also explain to them that holding assets in corporate entities and the like does not protect them from claims by their spouse.

The Family Law Act allows the court to look behind companies and trusts to establish all the assets of the husband and wife or de facto partners.

Sporting awards and memorabilia can be worth a significant amount of money - medals from the Olympics and Commonwealth games or a premiership medallion or guernsey can all be valued and sold by the court, even if the person who earnt such prizes has no intention of ever selling them.

Such things are part of the assets that have been created by the parties during the relationship and a vulnerable to a claim.

The only way to fully protect them is to sign a Binding Financial Agreement with your spouse removing them from the assets to be divided at the end of the relationship.

Many of the athletes I have spoken to felt protected telling me their spouse has said they "will never touch the memorabilia". Unfortunately such promises or comments are not binding on a court and at the end of a relationship if you have awards worth thousands of dollars those accolades will be added to the list of assets for division, in the same way that your house, car and furniture are.

As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic.

If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on (03) 9613 6555

10 Common Questions when contemplating separation (Part 2)

Hello everyone

Last month I started going through a list of the 10 most common questions I am asked by clients who have decided they want to end their relationship. Here is the second part of the list:

5. Can I change the locks?

As I said last month there is no rule as to who should move out of the house. But once one person does leave, I often hear complaints about that person “dropping in” uninvited and unannounced. Despite the fact the house may be jointly, owned the person who stays has a right to quiet enjoyment of the house and thus has every right to change the locks, so that the person who has moved out can not some back in uninvited. I often compare the situation to landlord and tenant.

If the person who has left breaks in the police are unlikely to charge them with trespass, but it is an invasion of privacy and you are likely to be able to get an intervention order or an order for exclusive occupancy of the property if that occurs.

6. Can I take the kids?

Each case it different and it will depend on the needs of your children as to where they will ultimately reside. But in most cases, if you have been the primary carer of the children during the marriage, and you move out, then you are likely to take the children with you.

If you do, you absolutely must tell the other parent where you are going to be, how they can contact the children and you should try and put some arrangements in place for the other parent see the children as soon as practicable.

Children have a right to see and spend time with both parents.

If you disappear with your children, without letting the other parent know where their children are living, then it is likely the other parent will be able to get a recovery order so that the Federal and State police will be ordered to locate you and return the children to the other parent.


7. What can I expect them to pay?


When you separate you should immediately apply for child support through the child support agency, if you are the person who has the children for the majority of the time. The amount you will receive will depend on the incomes of both of you and the care arrangements for the children.

If the other person is the primary bread winner it is possible that you might also receive some spousal maintenance. In most cases spousal maintenance orders are for a limited time only and most (but not all) end when you have a property settlement.

Many people continue to jointly pay debts and children’s costs after they separate without the need for an order, but if you are unable to pay your bills and living expenses because the other party has limited your access to joint funds, then you should immediately apply to the court.

8. Should I get a caveat?


If your name is not on the title of any property that is a marital asset, then yes you should get a caveat to ensure the property is not sold without your knowledge. If property is in joint names, you do not need to go to the expense of obtaining a caveat as the property cannot be sold without your consent.

9. How do I get an intervention order?

If you are or if have been the victim of domestic violence. If you are or you have been threatened, verbally or physically. If you are being harassed or stalked you should immediately attend the closest State’s Magistrate’s Court and apply for an Intervention Order.

You do not need to a lawyer to apply for an intervention order.

Intervention orders are commonly used in Family law proceedings, and in my view over used. But if you are the victim of domestic violence or harassment you should have no hesitation is applying for an order. Police are, unfortunately, reluctant to attend “domestic” disputes. If they are aware there is an intervention order in place they will react quickly.

Breach of intervention order is a criminal offence. Serious breach can result in a term of imprisonment.

10. When can I file for divorce?

One year and one day after you separate, and not a moment before.

You can apply for divorce any time after you separate. Many people think you have to sort out your finances at the same time. This is incorrect. A divorce is a simple and discrete application.

As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic.

If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on (03) 9613 6555

10 Common Questions when contemplating separation (Part 1)

Hello everyone

I often see clients who have decided they want to end their relationship, but they don’t know what they have to do, who they have to tell and how to manage the actual physical separation. So here are some answers to some of the most common questions:

1. Who moves out?

There is no rule that sets out who should move out of the house. It is possible for couples to be separated under the one roof, but this means more than just not sleeping in the same bed. It means a change of relationship, you do not go to places as couples, you do not “help each other out” and you live separate lives much like flat mates.

One person can not be forced to move out because they have “done the wrong thing”.

Your rights are not adversely affected if you are the person who leaves, but in general the person who stays in the house is less likely to want to rush a property settlement as they won’t have accommodation issues.

Also bear in mind that if you are the one to leave, it is unlikely you will ever be allowed back.

2. What money can I take?

Money in joint accounts is just that – joint funds. Money in your name, but which has been accumulated during the relationship is also a relationship asset.

There no rule about what you can take. In simple terms you can take all the money, but this will cause a great deal of animosity and will not help in negotiations.

You can take half of some other “reasonable” sum should you choose.

Any money you take is likely to be deemed as a part of your property settlement so if you spend it unwisely the other party will not have to compensate you for your bad spending.

You can leave bank accounts as they are and both continue to use the accounts as normal, until matters are resolved. If you leave things as they are make sure you are diligent in making sure the other person is not exploiting the situation by keeping an eye on the accounts.

3. Can I take the furniture?

Yes. You can take whatever you want from the house. I have had matters where one party has removed everything, when the other party has been at work, leaving only one cup plate and set of cutlery.

Furniture is a relationship asset. It is best to divide it by agreement as you can spend a lot of time and money arguing about furniture and chattels.

Furniture is not given its insurance value but its secondhand value. A house full or furniture (without antiques or significant artwork) is unlikely to be worth more than $10,000 to $15,000 on a second hand basis so it is far better to divide it by agreement than argue about it.

4. Who pays the mortgage and bills?

The court will usually expect the person in the house to pay the mortgage as the person who has moved out has to pay rent. That said if the person in the house can not pay the mortgage the other person will have to contribute.

The bank will not care who is living in the house and if the mortgage is not paid you will default and each of you will get a bad credit rating.

It is a very good idea to go and see your bank manager and explain that you have separated. If they know the house it likely to be refinanced or sold they may give you some relief. To this end I suggest you go to the bank and see the manager rather than speak to someone at a call centre to ensure your mortgage file is clearly marked.

Next month, in Part 2 I will answer the following:-

5. Can I change the locks?
6. Can I take the kids?
7. What can I expect them to pay?
8. Should I get a caveat?
9. How do I get an intervention order?
10. When can I file for divorce?

As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic.

If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on (03) 9613 6555

“My assets are not in joint names so they are safe”

Hello everyone,

It is a common misconception that at the end of a marriage or a relationship that one spouse can not claim against assets that are in the sole name of the other spouse.

I am often told by clients ‘I made a mistake and let him put it all in his name” or “I don’t know what we have, she would never let me see any of the accounts and everything was controlled be her”.

In simple terms it does not matter if an asset in one name, joint names or in the name of a private company or trust. If the asset is in the control of one of the parties and is in existence at the end of the relationship then it is one of the assets available for distribution.

Even if the asset was in the control of the party shortly prior to separation and has been sold or given away since separation it will be taken into account.

The Family Court has wide ranging powers to set aside transactions which have been undertaken with the intention of defeating the claim of the other spouse. So if the money and property in the name of wife is now all of a sudden in the name of her father, the court will be able to set aside the transfer of land and order the return of funds.

The same goes for shares in private companies such that if a spouse has control of a company but then suddenly, at about the time of separation, gives control or transfers his or her shares to a relative, friend or business associate, then once again the court can overturn the transaction.

The court will not set aside legitimate transactions to independent third parties, such that if a boat that is valued at $100,000.00 is sold to a stranger through e-bay for $25,000.00 the court is unlikely to set aside the transaction and the stranger will just benefit from a good deal. But the spouse who sold the boat for the reduced rate will probably be deemed to have received a $100,000.00 and not $25,000.00 when everything else is being divided. That spouse will also have questionable credit if a Judge has to decide who is telling the truth and who is lying in relation to other transactions that have occurred during the relationship.

People spend a lot of time and money trying to hide assets from their spouses, but in most cases these assets are able to be found by issuing a subpoena for bank accounts, telephone records or accountant’s notes.

If you are in a relationship your spouse might not know where all your assets are, but it is likely they will know where to start to look, because of conversations you have had directly with them, conversations they have overheard or as a result of mail or documents they have seen whilst you have been living together.

There are very few transactions which are not discovered, and thus there is little point in trying to hide things. That said if there is money in an account overseas or an interest in a new venture that has not been disclosed during family law proceedings and is only discovered years later, the person who was lied to has the right to go back to court and ask that any agreement that was reached be set aside and that new orders be made to take into account the undisclosed asset.

The obligation to make full and frank financial disclosure is absolute and if you have control of an asset even if it is not in your name then it needs to be taken into account.


As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic. If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on +61 3 9613 6555

Asset Protection- protecting your business and assets from claims by your spouse

Hello everyone,

At the end of a relationship if you can not agree The Family Court will divide all of the property and superannuation that you and your partner have, irrespective of whether it is in your name or in joint names. Even if your assets are held in a company or trust, if you control that company or trust then those assets are also usually available for division.

Thus all the property, investments and superannuation you have, including your business, even if your spouse has never walked through the door of that business, are at risk.

Fortunately it is fairly simple to protect yourself and your assets from relationship breakdown. Binding Financial Agreements (“BFA”) have been law in Australia for a number of years and if executed properly will protect your assets and business if your relationship breaks down.

The purpose of a BFA is to allow parties to determine when things are going well, what will happen to their assets and financial resources when things go bad. The parties are able to make commercial decisions about their future in much the same way as they make decisions about employment and how they run their business.

With one in three marriages ending in divorce, couples commencing relationships later in life and with de facto and same sex couples now having the same rights as married couples more and more people should consider contracting out of the Family Law Act and signing a BFA.

A BFA is a contract between two people, irrespective of gender, who are living together in a genuine domestic relationship and who want financial certainty.

By signing a BFA the couple knows from the start of the relationship the implications of the financial decisions they make during their relationship. They are taking control rather than taking a risk and ultimately giving the control of what should happen to their assets to a court.

Ideally an agreement should be signed from the moment you start living together. However, if you have been living together or have been married for a while it is still possible and advisable to enter into such an agreement.

These agreements protect your assets and dictate what will happen in the unfortunate even of relationship breakdown. Agreements can be as limited or as detailed as you like. They can last for the entirely of your relationship or for a limited period.

You can agree to exclude just the income and assets you had before you started living together and divide what you earn whilst you are together. Alternatively you can agree that everything you have now or will earn during the relationship is excluded.

You may elect to exclude certain things, like your business but not others, for example you can agree that your partner can have half the house that you live in, but that he or she has no claim to any investments or other property that you acquire. Any inheritance or gift from your family can also be excluded.

There is a perception that signing such an agreement is not romantic. At the beginning of your relationship you might believe that your spouse will do the right thing by you and that you can trust him or her.

At the end of the relationship it is likely that the trust you had has disappeared and been replaced by anger and greed so that your spouse wants you to “pay”. He or she will look to you for money and assets so they can look after themselves in the future.

In simple terms everyone who is considering living together should immediately get advice from a Family Lawyer on the advantages and disadvantages of signing a BFA. There is no time limit as to when an agreement can be signed; it can be signed before to after you start living together or in anticipation of or even after your marriage.

You should seriously consider signing such agreements if:-

• you have significant assets or significantly more than your partner;
• you wish to preserve the your business, company or family trust;
• you wish to preserve assets for your children of previous relationships:or
• you expect a significant inheritances that you wish to preserve.

If your partner is not willing to sign such an agreement then maybe you should question what they expect from you financially. Of course if the relationship stands the test of time then such an agreement will be unnecessary, but why take the risk?

You do not question it when it is suggested you get investment or tax advice. You should also consider getting Family Law advice and controlling your assets in the event your relationship breaks down. Otherwise you are giving away control of your assets and financial resources to a court to decide for you.

As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic. If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on +61 3 9613 6555

The Collaborative Law Movement

Hello everyone,

This month I want to let you know about Collaborative Law.

I did the training to become a Collaborative Lawyer when it was first being introduced into Australia in 2006.

At the time of the first training I was not convinced that we needed Collaborative Law – 6 years later the movement is growing momentum and I have just completed the training again, and now I am firmly of the view that collaboration will be used in more and more family law matters.

Collaborative law has been practiced in the USA and Canada for over 15 years and has grown in popularity both there and in Australia.

Collaborative law is a non-adversarial approach to resolving matters, whereby the parties and their lawyers (and often other professionals such as accountants and psychologists) enter into a formal agreement to focus on settlement rather than litigation.

In fact the parties and the lawyers agree not to go to court at all. What is unusual about this is that you can not get halfway through the negotiation and “throw in the towel” and go to court. If the process breaks down the contract means that you have to start all over again as the lawyer you have used, as well as the other professionals must withdraw.

Other than to talk about the process (or mechanics) the lawyers will not speak to each other in the absence of the parties. Any advice that a party is given is known by the other party, there is no room for tactics and brinkmanship. Each party knows exactly what both their lawyer and their spouses lawyer has said and indeed how much they cost.

The parties resolve matters in a serious of open meetings with their lawyers and the other professionals. When a resolution is reached consent orders or a Binding Financial Agreement is signed.

Collaboration is not for everyone – but if people are honest and willing to negotiate and operate in an open forum it will probably mean the relationship they will have with each other moving forward will be far better than the relationship they will have it they have to “fight” in court.

As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic. If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on +61 3 9613 6555