Money from the family

Hello everyone

At the end of a relationship the Family Law Act sets out the factors that the Family Court needs to  take into account when dividing property and financial resources, as well as providing for maintenance of the parties to a relationship after separation.

Broadly speaking, after the assets, liabilities and financial resources of the relationship have been identified the Court will then assess the respective contributions, financial and otherwise that each party has made to those assets, liabilities and financial resources. The Court will thereafter examine the parties' current and future needs in determining how the assets, liabilities and financial resources are to be apportioned.

In most cases one of the parties has received some "help" from their family either by way of inheritance, gift or loan.

An inheritance is usually easy to identify as it will be recorded in the estate records. How it is dealt with will usually depend on when it was received, how it was applied and its quantum.

A loan that has been documented is usually the easiest to deal with, thus if the parents have lent money to one or both of the parties and have made it clear in writing they expect to be paid back, with interest, that loan will usually be taken into account like all other liabilities to third parties and paid back in full.

Problems often arise when one or both sets of parents give their child and their child's partner some money by way of gift, but when the relationship is over they want the money back.  Gifts will be taken into account as a contribution but unless documented as repayable they are unlikely to be paid back in full if at all.

A gift is just that, and the fact that you now do not like the spouse of your child does not mean that you can recall the gift. 

If you want money from your family to be exempt from the assets and liabilities available for division the best way to ensure that this will happen is to enter into a loan agreement or if the money is a gift or inheritance sign a Binding Financial Agreement to exclude money from family from the matrimonial pool.

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

Private school fees after seperation

Hello everyone

I seem to have had a lot of matters recently where the biggest issue in dispute is the payment of private school fees.

Most parents choose to send their children to private schools if at all possible, but the financial pressure put on families if they do so is enormous. Unfortunately that financial strain can often lead to other arguments and sometimes to the breakdown of the relationship.

When parties separate they have to divide all they have between them.  Their combined income that had been used to fund one household and one mortgage now has to run two households and two mortgages.

Parents who had been struggling to pay private school fees when together generally find it almost impossible to pay those fees after they separate.

It is not that the parents don't want to pay and don't want the children to stay at the private school but sometimes it is simply impossible to sustain what could be regarded by some as a luxury.

It is important not to commit to paying ongoing school fees if you can’t afford to do so. It is equally important not to agree to divide property on the basis that each parent will pay half of the education costs when you suspect that it is likely that a year down the track the other party will renege and you will either have to pay everything or spend more money going back to argue about it.

Some people agree to put part of the money they are entitled to into a trust to cover school fees.  This can save arguments down the track and ensure a private education for the children, but a parent shouldn't agree to set up a trust fund if that means that they will not have enough money to rehouse themselves and the children.  In my experience it is unlikely a court would force a person to give up their property settlement entitlements to contribute to an education fund.

I have seen a few cases this year when the children have had to be pulled out of private school.  Although no doubt somewhat traumatic at the time, the child will be more likely to handle the change in schools if it is a joint decision of both of their parents based on financial reality and not as a result of one parent having unrealistic expectations about the payment of fees and losing the argument in an expensive court hearing.

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

Child Support Obligations

Hello everyone

I have had a number of clients lately who have been struggling to pay all the costs associated with their children, but who are not receiving any child support.

There is a lot of incorrect "information" about the obligations of both parents to pay child support.  Some people seem to think it is "unfair" to claim money from their former spouse, even though they are covering most of the children's costs. 

Often people mistakenly link the concept of who should "pay" for the children with who is "guilty" or who decided to leave and end the relationship.

There is also a false believe among many that if the children have the same amount of time with both parents then no child support is payable by either parent.

And finally another common misconception is that the person who was the primary income earner during the relationship should pay for everything, despite how often the children are in their care, or the income of the other party.

None of these scenarios are correct.

Child support is assessed by the Child Support Agency, based on the income of both parties, the number of nights the children spend in each parent's care and the age of the children.

Everyone should obtain a child support assessment so they know the obligation of each spouse even if they agree to pay more or less than what the assessment states.

Parents are able to agree with respect to the amount they receive, or if school fees for example are paid instead of cash. 

But whatever the situation that each family finds itself in, both parents must contribute to the costs of children after they separate.  The payments are for the benefit of the children not the  former spouse and a failure to pay child support can never be in the best interests of the children.

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

What is parental responsibility?

Hello everyone

When a marriage ends and parents are making arrangements for children everyone knows or thinks they know what "custody" is.

In Australia we have not used the word "custody" for many years when making orders or agreements about children.  These days we use "reside with" or "live with" but the effect is the same.  The parent with whom a child lives is the parent with whom they spend most of their time.

Children's orders usually have an order for "parental responsibility" and I am often asked what this means.

Section 61B of the Family Law Act defines "parental responsibility" as all the duties, powers, responsibilities and authority which by law parents have in relation to children.  I usually explain that "parental responsibility" means decisions about the big things in a child's life such as education, health and religion.

The parent with whom the child lives or spends time with has the right to make decisions about what the child does during that time for example what they eat, who they see, what they do etc etc.

Parental responsibility is bigger than those day to day decisions.  Both parents should be involved in deciding where their child goes to school and if and when non-emergency medical treatment is required. 

Often parents want "sole parental responsibility" that is they want an order which means they get to make all the decisions about the child without any input from the other parent.  In most cases this is not fair or in the child's best interests, and it is for this reason that the Family Law Act has a presumption of equal shared parental responsibility, a presumption that is only set aside if one party has engaged in family violence, has abused the child or is completely absent from the life of the child.

All too often parents agree to an order for "sole parental responsibility" because they do not know what it means or what they are giving up.  In my opinion it is important that the presumption of equal shared parental responsibility is maintained and that there is input from both parents in the major decisions affecting the lives of their children.

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

What's in a name?

Hello everyone

Often I am asked by people "do I have to change my name".  The question is asked both before couples get married and when they separate and divorce.

The answer is simple.  Women who marry have the choice.  They can use their maiden name.  They can use their married name.  They can use both names (for example one professionally and one socially) or they can combine/hyphen the two.

When women separate, they do not have to go back to their maiden name.  Once again they can choose.  If women remarry they can continue to use the name of their first husband rather than their second husband, and many women do this if they have children to their first marriage.

I have been asked by male clients if they can insist that their former wives change their names at the end of the marriage.  Unfortunately they cannot.  It remains the choice of the wife.

For a married woman to change her name she simply needs a copy of her marriage certificate.  She does not have to formally register her new name.

If you do not marry you cannot just assume the name of your de facto.  If you want to use your de facto's surname you will have to make an application to Births Deaths and Marriages to change your name.

It is far more difficult to change the surname of a child.  If both parents' names are on a child's birth certificate then both must agree to the name change. A child's name cannot be change unilaterally.  It can't be hyphenated after it is registered unless both parents agree.  If both parents do not agree, notwithstanding that one parent has no role in the life of the child in question, then to change the name you will need to obtain an order of the 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 (03) 9613 6555

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