Your first marriage did not succeed but you have now found a partner with whom you want to share the remainder of your life with. You both have children from a previous marriage but no children together. Your only asset is the matrimonial home and life is pretty comfortable.
What happens when either you or your spouse need to leave the matrimonial home due to ill health? Who is going to pay the costs when the cash is tied up in the matrimonial home? What happens when adult children become concerned for the welfare of their parent, not the marriage?
This was a question for the Full Court of the Family Court to determine in the matter of Stanford & Stanford [2011] Fam CAFC 208 after the children appeared on behalf of their parents. The facts of this case were that the husband and wife were aged 87 and 89 respectfully. They had been married for 40 years, each having been married previously and each having adult children.
The wife was the husband’s carer for a number of years in the matrimonial home after he suffered 2 strokes. On 30 December 2008, the wife suffered a stroke herself and had to remain in full time residential care. The husband had recovered well from his strokes and he was able to remain in the former matrimonial home. He visited his wife three times per week and placed $40,000 into a trust account for her use.
The parties still were married but separated due to the ill health of the wife. The wife was in a nursing home which was paid for by her pension however her children were not happy with the level of care that she was receiving. Her children wanted to move the wife into a nursing home that required a $300,000 bond. The difficulty was that all funds of the wife were held in the matrimonial home and the husband did not want to sell as he was still able to live there.
In that regard, the Full Court of the Family Court had to decide whether it had the jurisdiction and the power to order that assets be divided when the marriage had not ended.
After much consideration the Full Court found that it did have the power to make Orders in circumstances whereby the elements of the marriage were gone despite the parties still being married. The Court outlined that it had to be just and equitable to make such an Order to ensure that both parties had the adequate support and financial provisions.
This is a significant case for those couples who have entered into second marriages and their funds have intermingled. Adult children may often seek to be involved to ensure that what they think is the best for their parent even if it may be to the detriment of that parent’s spouse.
If you have entered into a second marriage and want to protect your assets, or make provisions in the future for events such as above, please contact us to make an appointment because at Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business
The Law Society of New South Wales operates the Specialist Accreditation Scheme to help the general public find Solicitors who have proven expertise in particular areas of the law.
Before gaining accreditation a Solicitor seeking Specialist Accreditation must pass rigorous assessments in communication, problem solving, client relations and the law in the relevant area.
A successful applicant for Specialist Accreditation is also required to commit to ongoing mandatory continuing legal education in the specialty area which means that the Specialist must undertake twice the mandatory continuing legal education of a non-accredited Solicitor.
In the end result, people dealing with Accredited Specialists can be confident that they are dealing with a person of proven expertise in the particular field who is also required to continually update and maintain their skills.
The Specialist Accreditation Scheme commenced in 1992 and has been actively supported by Everingham Solomons since that time. At one stage Everingham Solomons was the only firm in New South Wales of more than four Principals where all the Principals were Accredited Specialists in various areas of the law.
With that background, the Directors of Everingham Solomons are very pleased to announce that Jennifer Blissett has been awarded accreditation in the area of Family Law. Jennifer becomes the sixth of the current solicitors of Everingham Solomons to achieve Specialist Accreditation.
Jennifer joined Everingham Solomons in 1999 and is the Director in charge of the firm’s Family Law section. She practices extensively in the areas of-
Property division and settlements
Parenting issues
Care arrangements for children
Divorce
De facto relationships
Child support
Spousal maintenance
At Everingham Solomons we can offer a range of Accredited Specialists to meet your specific legal needs.
There is a lot of it going around and it can have a lethal affect on one’s financial health.
The Australian Law Reform Commission defined “sexual transmitted debt” as:
“the transfer of responsibility for a debt incurred by a party to his/her partner in circumstances in which the fact of the relationship, as distinct from an appreciation of the reality of the responsibility of the debt, is the predominant factor in the partner accepting liability”.
Probably, the most common way of catching sexually transmitted debt is by signing a guarantee at the request of one’s partner without thinking about it or taking advice. Standard form finance company (including trade financiers) and bank guarantees are usually unlimited and contain an “all monies” clause which makes the guarantor liable for ever dollar that the lender advances to the partner/customer. The guarantor is also liable for all interest and charges and the lender’s legal costs on a full indemnity basis.
As well as containing an “all monies” clause, standard form guarantees usually contain a clause by which the guarantor charges all of his or her property, including real estate, with payment of the debt of the borrower/partner. This amounts to an agreement to grant a mortgage over the guarantor’s real estate, which gives the lender the right, after taking some legal steps, to sell the family home or any other real property owned by the guarantor.
Not only that, standard form guarantees usually provide that the lender can take action against the guarantor without first bothering to try to recover the debt from the defaulting borrower/partner
The law provides considerable protection to the vulnerable from the consequences of sexually transmitted debt. That protection comes from the principles of equity, including a special wives’ equity, the Contracts Review Act, the Competition and Consumer Act and the Australian Securities and Investments Commission Act. However, court cases are extremely expensive, time consuming and stressful. Court cases are best left to those whom for such cases are just business e.g. banks, finance companies, insurance companies and the like. They are certainly not for guarantors fighting a rear guard action trying to save their home.
So, guarantees are extremely dangerous to one’s financial health. One’s first response to a request for a signature on a guarantee should be: “Sweetie, if you want a guarantee, buy a toaster.” The second response should be to take legal and financial advice.
At Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business.
My name is Sara Burnheim and I have recently joined Everingham Solomons. I will be working mainly in the Family Law area.
It seems like a lifetime ago that I started my legal career here in Tamworth as a young undergraduate law clerk.
Now I am back some 6 years after leaving and I feel that I have come back home, a more experienced (and worldly) solicitor.
Since leaving Tamworth in 2005 I have had a variety of different experiences, from working in more remote communities, travelling overseas working and taking in the wonders of Europe, to a stint at Parliament House in Sydney.
Finally I have followed my true passion which is the law, and family law at that.
After working in Politics I came to the realisation that I am better at assisting individuals through their legal difficulties to bring them satisfaction and resolution, rather than being part of a global solution.
I am committed to ensuring that each client receives my full attention in their matter to give them the best results within the framework of the legislation.
I started my Family Law career when I was in Coonamble, principally working on children’s matters. When returning to the law, I worked for a Family Law firm in Bowral expanding my knowledge and confirming my dedication to that area.
I have commenced my Masters in Family Law providing me with the most up to date knowledge and practice to give clients the service that they require.
I am thrilled to be back in Tamworth and at Everingham Solomons as part of a dedicated and committed team.
At Everingham Solomons, Helping You is Our Business
When couples separate they are often required to divide the assets and debts that have been accumulated during the course of their relationship. There are a number of ways this can be done. The couple can agree to divide their property without court intervention. Where the parties cannot agree on how to divide their assets or debt it is possible to apply to the court for orders as to how their property and debts should be divided.
When a case goes to court to determine a financial order, the court generally begins by determining the assets and liabilities of the parties. The court considers what direct financial contributions each person has made (such as wages), it considers indirect financial contributions (such as inheritances). The court also considers non financial contributions such as caring for children, domestic duties and also the respective age, health and ability to earn income is taken into account.
There are a number of broad principles that will be considered by a court when determining how an inheritance could be considered. Assets are not protected simply because they have been inherited by one party.
The court will look at when the inheritance was received and the stage of the relationship at the time of the inheritance. Generally, when an inheritance is received very late in the relationship or after separation the court will treat it as a contribution made by the spouse who received it, however, this is not always the case. The size of the inheritance in contrast to the other assets owned by the parties is also relevant.
When there are no substantial assets owned by the couple but there is an inheritance it is more likely the court will make an order for a property settlement from the inheritance, even if the inheritance was received after the date of separation.
This was illustrated in the case of Schirmer and Sharpe (2005). The facts were that the parties were married for 9 years. During the course of the marriage the parties had four children. The total net property at the time of separation was $9,000.00. At the time of the trial it was $833,833.00. The increase was mainly due to an inheritance the wife received three years after separation. The Trial Judge made an order which took into consideration the financial contribution made by the wife (being the inheritance) ordering the wife to receive 90% of the asset pool the husband to receive 10%. The husband appealed this decision but the Full Court dismissed the appeal and found that the Trial Judge to be correct.
When you are considering separating or have separated, you should seek legal advice. At Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business.
Click here for more information on Jennifer Blissett.
Most family law matters that come before the court regarding children concern disputes as to where a child is to live, or how much time they are to spend with a parent. However in a recent Family Court decision, the Court not only had to rule on the amount of time two children were to spend with each parent, but was also forced to step in and choose the name of a two year old girl because her parents could not agree on a name.
The child’s parents separated before the child was born and there had been no agreement in what the child’s name would be. The child had not yet been registered and the mother referred to the child by one name and the father referred to the child by another name.
The child already went by the father’s surname, however in an attempt to compromise, the mother offered to hyphenate the first name. The father would not agree however, claiming that the name the mother picked (even the hyphenation) was blasphemous to his Islamic faith.
It became apparent to Justice Forrest that the father was somewhat controlling of the mother and her capability to act independently of him.
Justice Forrest stated, “I am drawn to the conclusion that the father’s opposition to the name (chosen by the mother) is yet another example of his determination to control the mother and her parenting of these two children.”
What was also interesting in this case was that the father was married to another woman at the time of his “relationship” with the mother and in a sense had two women “on the go”. He also had children to his other marriage.
The Family Court decided that whilst the girl will ultimately decide for herself which name she preferred to be called, it was the Court’s decision that until such time, the first name chosen by the mother should be used and ordered that the girl be registered by that name.
Should you require Family Law advice, at Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business.
Whilst Australia prides itself on being a multicultural society and being accepting of the values of all cultures, the Courts have recognised that some practices may not always be in the best interests of children.
In a decision in late 2010, the Family Court of Australia restrained a 14 year old girl from leaving Australia, thus saving her from an arranged marriage to a 17 year old man she had never met. The Department of Human Services was alerted to the problem when the girl stopped attending school. After interviewing her, the Department was of the view that the girl did not appear to understand the consequences of marriage.
The Court accepted that it would be contrary to the girl’s welfare to permit her to be taken overseas for the purpose of the marriage. The Judge was of the view that a 14 year old girl would not have the understanding of the significance of marriage, which would be attributable to an adult. Given that the marriage could not be celebrated in Australia was another reason for the Judge’s decision.
The girl’s name was ordered to be placed on the Australian Federal Police Watch List and her passport was surrendered.
This decision demonstrates the Court’s views on both marriage and children. Firstly, the Court highlighted the significant nature of marriage and that it should not be entered lightly. Marriage is an institution, whereby both parties should enter it freely and with the proper understanding of all that marriage entails.
Secondly, the Court demonstrated that the best interests and welfare of children is the primary consideration in any proceedings in Australia, regardless of whether that conflicts with any cultural upbringing.
If you have any questions regarding any aspect of Family Law, at Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business.
Your first marriage did not succeed but you have now found a partner with whom you want to share the remainder of your life with. You both have children from a previous marriage but no children together. Your only asset is the matrimonial home and life is pretty comfortable.
