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What is a Parenting Agreement and why do I Need One?

Separations are always tough times for those involved. However, if children are involved, then the process can feel even tougher. If you’re a parent undergoing separation, then the law encourages you to reach an agreement with your partner amicably.

Although courts are an option for an agreement, they should be viewed as a last resort due to the emotional strain and the financial expense involved. In this post, we’ll look at parenting plans as a non-legally enforceable alternative to consent orders, showing how agreements can be reached without court involvement.

What Are Parenting Plans?

A parenting plan documents your parenting agreement with your partner. It isn’t legally enforceable, but it is a good option if you and your partner are willing to co-operate with each other and do not need a legally enforceable agreement.

Although parenting plans are not legally enforceable, if a dispute does arise, then a court may look at the parenting plan in order to decide what is in the best interests of the child. If you need to register your agreement with the court, then you should consider a consent order instead.

A parenting plan provides an overview of your agreement with your spouse, including:

  • Where your child or children will live
  • How they will split their time between each parent
  • How you will execute parental responsibility
  • How any disagreements will be resolved
  • Any other arrangements that relate to the parenting of your child or children

What Is Required to Create a Parenting Plan?

Before drafting a parenting plan, you should seek legal advice. Each family situation is different, and an experienced family lawyer will be able to advise you on your situation.

In order to be valid, a parenting plan needs to be signed and dated by both parents, and both parents should have their own copy to keep. Crucially, a parenting plan cannot be signed if either party is under duress or is threatened by the other party.

Although parenting plans are usually formed between two parents who have recently separated, they can also be formed by other people, such as grandparents or step-parents.

What If I Need Something Legally Enforceable?

If you need a legally enforceable agreement, then you should consider a consent order. These are similar to parenting plans, as they require an agreement from both parties. However, the main differences are that they’re made by the Family Law Courts, they’re legally enforceable and penalties can be incurred if one party contravenes the order.

A consent order is usually drafted by a lawyer before it is signed by both parties and filed in the court. Once approved by the court, it then becomes binding. In making their decision on whether to approve the order, the court will look at whether they believe that the consent order is in the best interests of the child.

Although you do not need to engage in the family dispute resolution process to file an Application for Consent Orders with the court, you should still consider the emotional strain that applying to the courts can have on you and your child, as well as the cost of the legal fees required.

For this reason, you should endeavour to form a parenting plan first of all, allowing you to avoid going to court, which can be a lengthy, emotional and costly solution. At Life Law Solutions, we can help you formulate a parenting agreement that suits your specific circumstances. Contact us to learn more about how we can help you.

Do I Need to Pay Spousal Maintenance?

Grass

If your relationship breaks down, then you may find that your income is reduced. In some circumstances, this may also mean that you’re unable to support yourself. When one party in a relationship is unable to support themselves financially, then there may be a need for one party to pay spouse maintenance.

In this blog post, we will cover what spouse maintenance is, the circumstances where spousal maintenance may be granted and how it is determined whether someone has the capacity to pay spousal maintenance.

What is Spouse Maintenance?

Spouse maintenance means that one party from a relationship is responsible for topping up any income or providing income for the other party after the relationship ends. Spouse maintenance is generally a short-term solution paid over 2-3 years.

The aim of spouse maintenance is for the party receiving the maintenance to be able to re-establish themselves financially following the breakdown of the relationship.

Under What Circumstances is Spouse Maintenance Granted?

The law relating to spouse maintenance is found in section 72 of the Family Law Act. Section 75 (2) of the Family Law Act specifically looks at the division of property. Whether spouse maintenance is granted depends on two main factors:

  • Whether the spouse requiring support can provide evidence that they are unable to support themselves adequately, including if they have a child from the relationship they need to care for or they cannot work
  • Whether the spouse providing the maintenance has the capacity to do so

When judging whether spouse maintenance should be granted, the Family Law Act says the following factors should be considered:

  • The age of the parties involved
  • The income and financial resources of both parties
  • The physical and mental capacity of the parties to work
  • Whether either party has child support payments or needs to look after the child
  • Whether the duration of the relationship affected the earning capacity of one of the parties
  • Whether either party is receiving other financial support or is living with someone else who is now providing financial support

As you can see, decisions around the granting of spouse maintenance are complex. As a result, you should seek legal advice before taking your matter to the courts.

Do I Have the Capacity to Pay Spouse Maintenance?

Unless there is a significant disparity in the incomes of you and your partner, then it is rare that a maintenance agreement will be granted. However, it is possible, particularly if one spouse gave up work in order to provide child care. In order to claim spouse maintenance, your spouse must be able to provide significant evidence that they are unable to support themselves adequately. To work out whether you or your spouse may need to support the other following separation, you should consider:

  • What income both of you have from various sources, such as work and pensions
  • What you’re currently paying for and what you’ll soon be paying for individually, such as rent
  • Any expenses you have for children, such as child care costs

If you find that one spouse has a level of income that is less than their outgoings, then you should seek legal advice about your particular circumstances. At Life Law Solutions, we’re experts in family law. We understand that a lot of information can be overwhelming without advice and guidance, which is why we tailor our advice to your dispute. Contact us today to see how we can help with your dispute.

Can I Dispute a Will?

Will

The death of a loved one is an incredibly traumatic occasion for the whole family. However, this occasion can become even more traumatic if the estate is disputed. In this post, we will discuss some of the common reasons why wills are disputed and how these disputes can be resolved.

Common Reasons Estates are Disputed

There are a number of reasons why estates can be disputed; especially in large families at a time when emotions are running high. Common reasons for estate conflict include:

  • No will was ever created
  • The will created by the deceased is invalid
  • A member of the family is disputing what the will says

If you believe that a will is invalid or the information it contains is incorrect, then you should seek specialist legal advice immediately. Not only will your lawyer be able to advise you on ways to resolve the dispute, but they will also be able to advise you on your likelihood of success.

When Can I Contest a Will?

If you would like to dispute a will, then you need to inform the executor of your intention to bring a claim in writing within six months of the death. This is because, after six months, they are free to distribute the estate.

In Queensland, you have nine months from the date of the death to file an application in court. If the estate has not yet been distributed and there is good reason for the delay in starting proceedings, the court does have the discretion to extend this period.

What Does the Court Consider when a Will is Disputed?

Each matter that comes before the court is different. As a direct result of this, before you dispute a will, you should speak to your lawyer first. However, generally speaking, if you dispute a will in the court, they will consider:

  • The length and nature of your relationship with the deceased
  • Contributions you made to their estate and support you provided the deceased
  • Promises the deceased made to you
  • The deceased’s contribution to your current lifestyle
  • Your current financial circumstances
  • Your ability to maintain yourself
  • The validity of any competing claims

Although these are many of the factors that courts take into consideration, there may also be other factors that they deem to be relevant and each matter is unique.

Making Family Provision Applications

If you can show that the will of the deceased has left you without the ability to support yourself, then you can make a Family Provision Application. However, you can only apply if you are:

  • The spouse, de facto partner, or registered partner of the deceased
  • The former spouse or registered partner of the deceased
  • Their child, adopted child or step-child
  • A dependant who was wholly or substantially maintained by the deceased at the time of their death

Do I Need to Go to Court?

The good news is that many disputes surrounding wills are resolved before they reach the courts. Your lawyer will help you negotiate a settlement and can provide you with advice on how to proceed at each stage.

As a result, before launching legal proceedings, you should instead try mediation first in order to settle the dispute with other beneficiaries.

If you are considering challenging a will, are currently disputing a will’s legality or would like to dispute what a will says, then please contact our office on (07) 3343 9522.

What property and assets [Marital Property] are considered in divorce?

Australian Beach

The Family Law Act contains a number of provisions to help with the division of assets during divorce proceedings. Asset and property division is a complex issue, and courts must consider a number of variables when making their decision. In this post, we will discuss some of these variables and look at what is considered to be marital property.

What is Considered Marital Property in a Divorce?

Whilst at law there is no such thing as “marital property”, it is a popular term to describe all earnings during the marriage and everything acquired with those earnings. For example, if you and your spouse bought a house together and continually paid a joint mortgage, the house would be considered to be marital property. Likewise, any debts accrued together are considered joint property debts.

What is Considered Separate Property?

Separate property is essentially any asset or property where it can be proven that one spouse either completely controls that asset or purchased the asset using their own funds. This is often easier to consider when marriages have only lasted a short period of time.

If one spouse ran a business before the marriage, then it may remain their property during the marriage. However, by virtue of one party providing support so that the spouse can continue to work in the business, or if the other party worked in the business, then the business becomes relevant property.

Are Trusts Considered Marital Property in Australia?

Generally speaking, any asset held in a family trust can be claimed as an asset of the marriage by your spouse if your relationship breaks down. However, a court can consider the matter with discretion. This discretion could be applied in cases where one party has an increased level of control over the trust or total control of the trust and its assets.

If you can prove that you have the right to distribute all of the trust’s income then you may be found to have control of the trust, as you would if you were a legal owner. To assess this, a court will look at:

  • Whether you or your partner have benefited from the trust in the form of a loan, salary or expenses
  • Any historical transactions made by the trust
  • How parties have previously treated the trust, including the authority to borrow trust funds

These factors can help a court decide whether either party has effective control over a trust and whether a trust needs to be included in any settlement. If you own a family trust and are considering getting a divorce, then you should seek legal guidance immediately.

Are Inheritances Considered Marital Property?

Whether an inheritance is considered to be marital property is usually down to the timing of the inheritance.

For example, if an inheritance is received by a party while still married, the inheritance may be treated as a financial contribution made by the party who received the inheritance. For this reason, if the inheritance money is spent on things like holidays or home renovations, many courts will class it as a contribution to the marriage.

However, this interpretation may be dependent on when the contribution was received. For example, if an inheritance was received early in a long marriage, the significance may be eroded by other contributions over the period. Any inheritance money that has been spent is not available for division. However, it may still be taken into account as a financial contribution depending on the circumstances.

Any inheritance received late in the marriage or after separation is generally not included in the assets of the parties. However, in instances where the matrimonial property pool is too small to provide a fair settlement, part or some of the inheritance pool may be included.

If an inheritance comes to light after the separation but hasn’t yet been received, then it is considered to be a financial resource and is not available for division. However, this may still be taken into account in the settlement, as the beneficiary spouse has a resource they may draw upon to meet any future needs, while the non-beneficiary spouse does not.

If you receive an inheritance but take steps to quarantine it from the rest of the family assets, then a court will be more likely to recognise this and not consider the inheritance to be marital property.

In summary, although inheritances are not universally considered to be marital property, there are some instances where inheritance contributions are. Whether the inheritance is considered to be marital property will likely come down to timing. For this reason, you should consult a family lawyer to help you if this situation applies to you.

What about Windfalls?

If you and your partner come into money by the way of a windfall, such as a lottery win, then this will likely be considered joint income as part of the marriage.

 

The division of property during a divorce in accordance with the Family Law Act is extremely complicated. As a result, you should seek legal guidance. Through negotiation, arbitration and mediation, a family law practitioner can help to ensure you receive what you are entitled to. If you need assistance in relation to property issues after a divorce, please contact us.

What are the Rights in De Facto Relationships?

Forrest

Married couples, those in a civil partnership and people living together in what’s known as a ‘de facto’ relationship have certain legal rights.

People in de facto relationships (including same sex couples) share many of the same legal rights as married couples. In this post, we’ll look closely at de facto relationship law. In particular, we will focus on your rights in a de facto relationship, including de facto relationship property rights and what happens to assets after a de facto relationship ends.

What is a De Facto Relationship?

A de facto relationship describes a relationship between two people who aren’t married but live together as a couple. In Queensland, de facto couples can register their relationship.

A de facto relationship is defined in the Family Law Act 1975. It requires that you and your partner (who can be of the same or opposite sex) have a relationship where you live as a couple together on a genuine domestic basis.

Your relationship is not defined as a de facto relationship if you are legally married to one another or if you are related by family.

If you’re unsure whether you’re in a de facto relationship, or require legal advice about your rights, then contact us.

What Rights Do I Have in a De Facto Relationship?

Under laws introduced in 2009, separating de facto couples have the same rights as married couples with regard to property settlement. In addition, these laws also provide the same rights for spousal maintenance and superannuation splits. For disputes about children, the same family law applies to married couples and people in de facto relationships.

De Facto Relationship Property Rights

When a de facto couple separates, they can obtain property settlements on the same principles that apply to separating married couples. According to Australian law, there is a time limit of two years for you to make a property claim against your de facto partner. This is from the date that your relationship ceased.

If you’re in a de facto relationship and you separate, then the Family Law Act can help to decide the settlement. According to the Family Law Act, anyone who wants to make a claim must be able to prove that the separation took place after 1st March 2009, and that the de facto relationship lasted for two years or longer.

However, there are some instances where a claimant may not be required to prove that the relationship lasted for two years, including:

  • Where the couple have a child together;
  • Where one party has made a substantial contribution to the relationship, either financial or personal;
  • Where the couple have registered their relationship with the relevant state. This is deemed conclusive proof of the existence of the relationship.

What Happens to Assets After a De Facto Relationship Ends?

Before you make a claim against your partner, you and your partner should try to reach an amicable agreement between yourselves and your lawyers. If this cannot be done, then a court will consider the division of property, including your home, land, vehicles and potentially businesses. All property will be considered regardless of when it was obtained and who obtained it.

Once this asset pool is established, the court will consider contributions made by each partner. These contributions may be financial (such as wages and savings) and non-financial (carrying out home maintenance or childcare).

Finally, the future needs of each person will be taken into account in order to create a fair division of property. This includes factors such as each partner’s ability to work and whether they will be responsible for childcare.

De Facto Relationship Law: Financial Agreements (often referred to as Binding Financial Agreements)

If you and your partner are entering into a de facto relationship, are currently in a de facto relationship or are ending your de facto relationship, you can enter into a Financial Agreement (colloquially known as a Binding Financial Agreement). Having a Financial Agreement can provide financial security for you and your partner and ensure that you know what will happen to your property if you separate.

A Financial Agreement is similar to a pre-nuptial agreement. Within this, you can agree how property and other assets can be divided if your relationship breaks down. You can also set out rules for spousal maintenance, either exempting claims or specifying maintenance terms. In order for the Financial Agreement to be binding, it must cover certain things and both you and your partner must seek separate independent legal advice.

If you’re unsure whether you are currently in a de facto relationship, would like further information about what happens to assets after a de facto relationship ends or would like further information about what rights you have in a de facto relationship, then we can provide you with legal guidance.  We can provide professional and independent advice tailored to your unique circumstances. This way, should your relationship break down, you’ll know that your property and assets are protected. Contact us to learn more.

Are Verbal Abuse and Emotional Abuse Domestic Violence?

Chalk Brick Wall

In Australia, domestic violence is defined by the Family Law Act (1975) as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful”. This means that verbal and emotional abuse are both forms of domestic violence.

Although they may not leave physical scars, verbal and emotional abuse can have a large impact on health and wellbeing, leaving people feeling anxious, depressed and even suicidal. In this post, we’ll talk about what emotional and verbal abuse are, as well as how to tell whether you are being abused, who to speak to about domestic violence and how to get legal support for domestic abuse.

What is Emotional Abuse?

Emotional abuse is also known as mental abuse. It is non-physical, which means that others can sometimes find it difficult to identify. Within the context of a relationship, emotional abuse can include but isn’t necessarily limited to:

  • Blaming one person for all the relationship’s problems
  • Undermining self-worth through unfavourable comparisons
  • Intentionally embarrassing a partner in public
  • Swearing at a partner, insulting them or yelling at them
  • Preventing a partner from seeing their friends or family
  • Online humiliation and intimidation

What is Verbal Abuse?

Verbal abuse is the most common form of emotional abuse. It can have a long-lasting effect, which makes it just as serious as physical abuse. If someone is trying to scare you, intimidate you, isolate you or control you, then you may be a victim of verbal abuse. Verbal abuse includes:

  • Threats
  • Judging
  • Criticising
  • Lying
  • Blaming
  • Name calling

You may find that some forms of verbal abuse are said in a loving voice, or may even be indirect. They could even be concealed as a joke.

Am I Being Abused?

You may struggle to recognise if you’re being emotionally abused. The abuse may not be regular, and the abuser may also be fun-loving and caring in between episodes. Likewise, you may have experienced similar behaviour in a past relationship.

The abuse can also start out innocuously. However, as the abuser gains confidence that you won’t leave the relationship, their abuse may escalate and they may become more controlling or jealous.

If you, or anyone else in your family or friendship group feel as though you have to modify your behaviour around the abuser, then this may be a sign that you are a victim of abuse.

This may also ultimately lead to physical manifestations of the situation, including stress, anxiety, depression, chronic pain and even post-traumatic stress disorder.

Who to Speak with about Domestic Violence

If you’re wondering who to speak with about domestic violence, then it’s important that you understand that help is at hand.

If you’re experiencing emotional abuse, mental abuse or verbal abuse, you can seek domestic violence support from your local doctor, a relationship counsellor or a counselling service. There are also 24-hour helplines you can call for emotional abuse support, such as the 1800 Respect hotline on 1800 737 732. For male victims, the One in Three Campaign is also helping to raise awareness and provides a number of resources.

If you believe that you are in immediate danger and require domestic violence support, you should ring the police on 000.

Are Mental and Emotional Abuse a Crime?

Domestic violence, including mental and emotional abuse is a crime, but it also has strong connections with family law, particularly as it relates to the Family Law Act (1975). Several legal mechanisms are available to address abusive conduct, particularly if you need to be removed from a situation.

Each state’s legislation differs on domestic violence. In Queensland, you can apply for a protection order, colloquially known as a domestic violence order (DVO). This is made by a magistrate in court to protect you. Conditions can be added to the order. For example, a person can be restrained from coming within a certain distance of you.

You can ask the police to apply for a DVO, apply directly to the court yourself or ask a lawyer, friend or family member to apply for you. However, a DVO is a legal document, so you should seek legal advice from domestic violence lawyers to ensure it’s right for your safety needs.

Legal support for domestic abuse is widely available but involving domestic violence lawyers can be a scary step to take.

However, legal support for domestic abuse victims is an important tool and can help you feel safe and secure. If violence is a possible issue, then you should consult a lawyer who can not only assist you in obtaining emotional abuse support, but can also make you feel comfortable and advise you of the next steps in your situation.

How are Assets Divided in a Divorce?

Road Dividing Trees

The divorce rate in Australia is at its lowest level since 1976, when the Family Law Act was introduced. However, with a current divorce rate of 1.9, divorce is sadly still an outcome for many marriages across Australia.

Deciding ‘who gets what property’ can be complex and stressful. In this post, we will discuss how assets are divided in a divorce and outline the process of asset division during separation.

How to Divide Assets in a Divorce

If you are currently separated and considering a divorce, then it’s important you understand that there’s no mathematical formula to decide who gets what. This is because each relationship is unique. This means that there’s no ‘off the shelf solution’ and engaging a lawyer and attending mediation may be required to decide the division of assets.

The Family Law Act states that the division of assets in a divorce must be ‘just’ and ‘equitable’. Due to this, you should not assume that your assets will be split 50/50. This is because there is a lot to consider when it comes to dividing assets, including starting assets, current and past incomes, health and age. As a direct result of all this, your case will always be dealt with on an individual basis.

Another factor that can influence how assets are split in the divorce process is the knowledge of your lawyer, their process and experience. You should always seek advice from a family lawyer to help you receive what you’re entitled to from a divorce. Lawyers who specialise in family law will know the correct interpretation of the Family Law Act, as well as the circumstances and precedents set by cases that have passed through courts.

How Are Assets Defined?

As part of the divorce process, you will have to define, declare and value all of your current assets. This includes any assets you have held in partnerships, trusts or companies. The final asset pool is formed of all assets, liabilities and superannuation interests from both parties.

All parties involved must provide a full and frank disclosure of all assets, which usually involves an exchange of financial paperwork. Again, if you use a lawyer who specialises in family law, they will be able to help you put a value on any assets you hold.

Gifts and inheritances are not excluded in family law. However, significant ‘credit’ may be given to the party responsible for bringing the asset into the marriage. In some instances, the other party in the divorce may be persuaded to exclude these from the asset pool entirely.

What’s the Process for Dividing Assets in a Divorce?

Once the asset pool has been compiled and all parties agree that everything has been declared, the process involves measuring the contribution that each party made to the assets. This isn’t necessarily just financial contributions, but also includes any parental contributions (if applicable) and any contributions as a homemaker, parent or home renovator. It can also involve any indirect contributions, such as a contribution made by one party’s family or a family member. From these calculations, each party’s contributions will be assessed either as a singular percentage or range of percentages. However, this is not the final calculation in deciding who gets what.

Once current assets are listed and contributions are measured, future financial circumstances are taken into account. Here, a range of factors are considered, including the age and health of each party, which party will take primary care of any children (if applicable), whether one party has a higher earning capacity than the other, whether the relationship impacted on either party’s earning capacity (such as a career break for child care) and the length of the relationship. Once these factors have been taken into consideration, the original percentages may be adjusted.

A court can then decide whether this percentage or division is ‘just’ and ‘equitable’ under the Family Law Act.

Do I Have to Go to Court to Split Assets?

No. Only a small number of cases actually go to court. Most cases are resolved through mediation and solicitor to solicitor negotiations. Where the parties agree to split their assets in a certain way, an Application for Consent Orders can be made. Although the court must review and approve these orders, the vast majority of cases do not require anyone to attend a court date.

Although the division of assets may seem complicated, using a family lawyer can help simplify the process for you. Your lawyer can carry out any mediation required to ensure a ‘just’ and ‘equitable’ division of assets, as well as helping you with the emotional strain of the process.

Although there may not be a 50/50 split of assets or a set formula for deciding who gets what, a family lawyer can help you work out what you should receive. If you’re looking for a property settlement or asset settlement as part of a separation, then call us to see how we can help you.

Can You be a Surrogate in Australia?

Surrogacy

Surrogacy laws vary across Australian states. In this post, we’ll look at surrogacy laws in Queensland, assessing the legalities surrounding the issue. We aim to provide you with the help and advice you need to make an informed decision, covering what surrogacy is, how the process works and whether you get maternity leave as a surrogate.

What is Surrogacy?

Surrogacy in Brisbane and Queensland is an arrangement between a birth mother and their partner (if applicable) and a person or couple who are the intended parents of a baby. In a surrogacy arrangement, the birth mother becomes pregnant with a child, giving the baby to the intended parents after the birth.

Is it Illegal to be a Surrogate Mother?

Surrogacy became legal in Queensland in 2010 through the Surrogacy Act. The law was changed to allow something known as ‘altruistic surrogacy’, which is where the birth mother does not receive any form of benefit or payment for acting as a surrogate. As part of altruistic surrogacy in Australia, you can pay or reimburse any reasonable surrogacy costs.

It is only illegal to enter into a commercial surrogacy arrangement. Commercial surrogacies involve a reward, payment or material benefit for agreeing to become a surrogate. If you’re unsure whether your agreement would constitute commercial surrogacy, then consult surrogacy lawyers in Brisbane or the surrounding area who can advise you of local laws.

As part of surrogacy laws in QLD, it is also illegal for you to advertise for someone to act as a birth mother and for someone to advertise that they are willing to act as a birth mother.

What is an Altruistic Surrogate?

Altruistic surrogacy in Australia is sometimes known as non-commercial surrogacy. Anyone can enter a non-commercial surrogacy arrangement, regardless of their relationship status.

For an altruistic surrogacy in Australia, intended parents:

  • May be married, single or a de-facto couple (including same sex couples)
  • Do not need to have a genetic connection to either the baby or the birth mother
  • Can use any form of conception
  • Must be at least 25 years old
  • Must be a resident or residents of Queensland

How to Enter into a Surrogacy Arrangement

Arrangements for altruistic surrogacies in Australia can only be made before the birth mother becomes pregnant.

In addition, all parties in the arrangement (including the surrogate’s partner if applicable) must seek legal advice. If there are two intended parents, or you’re a surrogate with a partner, then both you and your spouse can receive legal advice at the same time. However, the birth mother and the intended parent(s) cannot share a lawyer.

The birth parents and the intended parents must also receive counselling from a qualified counsellor. Birth parents and intended parents can share a counsellor.

From here, you can agree terms on a surrogacy arrangement, which must be placed in writing and should cover who is responsible for legal expenses and other surrogacy costs.

How Surrogacy Works

During the pregnancy, the birth mother maintains control over the pregnancy, including the method of conception and the genetic material used.

Following the birth of the child, the birth must be registered immediately and the birth parent (and their partner if applicable) will appear on the child’s birth certificate. Both the birth parents and the intended parents must then get a surrogacy guidance report. This must come from a qualified and independent counsellor and cannot be the same person you spoke to before entering into the agreement.

Following this, the child must live with the intended parents for 28 days. After this, the intended parents can apply for a court order to transfer the parentage. This must be done before the child is six months old.

Once the court grants the parentage order, the birth parents no longer have a legal parental relationship with the child, meaning the intended parents have become the baby’s legal parents. For the parentage to be transferred, you must meet certain requirements.

Are Surrogacy Arrangements Legally Enforceable?

Surrogacy arrangements are not enforceable, meaning either the birth parents or the intended parents can change their mind at any time before the court makes a parentage order. However, a court may enforce the costs in some circumstances.

Do you still get Maternity Leave if you are a Surrogate?

In accordance with the Paid Parental Leave Guide and the Family Law Act (1975), a birth mother who relinquishes her child in surrogacy may be eligible to receive parental leave pay for up to 18 weeks from the date of birth for the purpose of maternal recovery. The partner of the birth mother may also receive Dad and Partner Pay for up to two weeks.

 

If you’re considering surrogacy in Brisbane or Queensland, we suggest you get legal advice from surrogacy lawyers before you make your decision. As well as helping you make an informed choice, surrogacy lawyers in Brisbane can also ensure that you follow the correct processes and surrogacy laws in QLD.

How Can I Protect My Assets Before Marriage?

Beach Wedding

No matter how a relationship breaks down, the end of a relationship can be an emotional and difficult experience. However, the strain placed on both parties and their families isn’t purely emotional, as there can also be significant financial implications. There are steps you can take to set out what will happen in the event of separation which can give you clarity and certainty in the event you decide to divorce. Read on to find out more about these options.

How Do I Protect My Money Before Marriage?

Before a marriage, you can enter into a legal document called a financial document.  A financial agreement is sometimes colloquially called a ‘binding financial agreement’ or a ‘prenuptial agreement’. You can also have a discussion with your spouse about what might happen and simply agree between you about that in a verbal agreement however it is important you understand that verbal agreements are not legally binding.

If this is a step that you want to take, it is best to speak to a family lawyer who can provide you with advice based on your own personal circumstances about how best to document any agreement you reach with your spouse in a way that is legally binding.

How Do I Protect My Assets Informally?

If you don’t want to enter into a written agreement, then there are a number of practical steps you can take to protect your assets informally, including:

  • Keeping separate finances, including bank accounts
  • Making equal contributions to household expenses and renovations
  • Considering whether you should hold real estate individually or jointly. If you hold property individually, then you must finance it with non-marital funds
  • Keeping a record of all financial transactions
  • Ensuring all assets you held prior to the marriage stay in your name alone. If your assets are sold, you should not roll them over into jointly owned property. If you do, then keep a record of this contribution
  • Not placing money you held prior to the relationship into a jointly held asset
  • Documenting any significant financial contributions from friends or family, such as loans or gifts
  • Not paying out the debts of your partner

It is important to know that these steps alone will not necessarily protect your assets in the event of your marriage breaking down,  however, they will help assist in identifying your contribution to the relationship, which is a consideration when determining entitlement.

How Do I Protect My Personal Assets Formally?

Financial agreements before marriage (or prenuptial agreements) may sound like something from Hollywood movies however they are legally binding documents that allow you to determine what happens if you separate.  The Family Law Act which governs divorces in Australia sets out the law about how financial agreements must be prepared so that they are binding. When prepared properly, financial agreements are a useful tool to avoid a lot of distress on separation when it comes to dividing your property.

In order to be enforceable, strict legal requirements must be followed for all prenuptial agreements. The final written document must contain a statement saying that each person has received independent legal advice on how the document affects their rights and whether it is to their advantage or not. Each lawyer must also provide a signed document confirming that legal advice was given.

A prenuptial agreement can include the division of property and spousal maintenance. The document usually details with how the parties will deal with any property and financial resources acquired before, during and after the marriage. It can also cover a number of different events, such as what would happen based on the length of the relationship, or if children are born.

The agreement itself does not have to be fair. However, the process for drawing up and agreeing to the agreement must be fair for it to be legally binding. This is why both parties must seek independent legal advice from different lawyers. As part of this, both parties must make truthful disclosure of financial information and the document cannot be signed under duress. There is no need for a financial agreement to be approved by a court.

Although it’s beneficial to have prenuptial agreements drawn up before marriage, financial arrangements can also be entered into while you’re married or during separation.

Can the Financial Agreement Be Overruled?

There are very limited circumstances where a binding financial agreement can be set aside. For example, to cancel or change a financial agreement, you must be able to prove that:

  • You were a victim of fraud or dishonesty;
  • The agreement cannot be practically carried out (this must go beyond inconvenience);
  • Since the agreement was signed, there has been a major change to a child’s care or welfare; or
  • The other party acted in an unconscionable way.

How do I Protect My Assets in a De Facto Relationship?

In 2009 the Family Law Act changed so that separating de facto couples (including same sex couples) are now treated in the same way as married couples in the division of property and spousal maintenance. This means that the same law about financial agreements also applies if you are in a de facto relationship.

Much like in a marriage, a financial agreement can be entered into at any point in the relationship, even if you’re in the process of separating. If you aren’t sure whether your relationship would be defined as de facto in the eyes of the law, you should seek legal advice to understand the potential legal ramifications for your particular circumstances.

 

If you’re considering how to protect your assets before marriage, or are currently married but would like your assets protecting, then please get in touch to see how we can help you.

I’ve lost my driver’s licence – can I get a “work licence”?

Brisbane Roads

This is a question we hear a lot. The answer is… ‘that depends’. There may be circumstances where you are eligible to apply for:

  • A ‘restricted’ or ‘work’ licence;
  • A ‘replacement’ licence; or
  • A ‘special hardship’ order.

Whether you qualify for any of the above licences will depend on several factors, including the reason why your licence was suspended or cancelled, and whether you were caught driving without a licence. Generally, if you are eligible to apply for any of these types of licences you will have to appear in court and satisfy the Magistrate that, amongst other things, you are a ‘fit and proper’ person to continue to drive, and that the refusal of the licence would cause extreme hardship.

Magistrates often take a hard line on issuing these licences. This is especially the case where the person before them is a repeat offender. If you have lost your licence and you need it to work or for other important reasons, we can help. We can attend court with you and make submissions on your behalf to maximise your chances of being successful in convincing the Magistrate that the issuing of a licence is appropriate in the circumstances. We are available to appear in any of the Magistrates Courts and we are also available to help you appeal decisions from the Magistrates Court to suspend or cancel your licence, or if you feel your suspension is too long.

What is the difference between a ‘Licence Suspension’, a ‘Licence Cancellation’ and ‘Disqualification from Driving’?

The Courts generally have a wide discretion to deal with your traffic offences. Penalties can vary depending on the seriousness of the offence, your traffic history and other mitigating or aggravating factors.

My licence is suspended – what does this mean?

If your licence has been suspended that means that you are not able to drive for the specified period. However, once that period has passed, you are able to drive again without having to apply for a new licence.

My licence has been cancelled – what does this mean?

The Court may cancel your licence, for example, if you are disqualified from driving by the court. Also, your licence may be administratively disqualified by Department of Transport because you have accumulated too many demerit points. Either way, while your licence is disqualified, you are not able to apply for a new licence during the disqualification period, which will vary depending on the circumstances. In fact, it is an offence to do so. Once the disqualification period is served, you must apply for a new licence, because unlike a suspended licence, it is never reinstated, and is completely invalidated.

I’ve been disqualified from driving – what does this mean?

If you are ‘disqualified’ that means that you cannot drive and your licence is automatically cancelled. The courts will automatically disqualify a driver from holding a driver’s licence if they are convicted of a drink driving offence. The Magistrate is bound by certain prescribed maximum and minimum times for disqualification, depending on the circumstances. The court also has a discretion to disqualify any person who is convicted of any traffic offence, if it is ‘in the public interest’. If you are disqualified from driving you must apply for a new licence when your disqualification period has been served.

If you have been charged with a traffic offence and you are in danger of having your licence suspended or cancelled, or being disqualified from driving, we can assist you. Magistrates often have a wide discretion and making the right submissions on the day in Court can have a big impact on your ultimate punishment.