Family Law - Property
Q. How does "who gets the kids", affect your entitlements to property division when you separate?
Generally, the party with the children is entitled to an additional proportion of the property because they have the added cost of providing for the children on a day to day basis. The amount of this extra allowance depends on a wide range of factors.
Q. Can you keep living in your house?
You may be able to keep living in the house until you reach agreement with your spouse on the sale of the property and division of the proceeds. Alternatively, you can keep living in the house if you reach agreement with your spouse and buy out his/her interest in the property.
Q. What happens to your superannuation?
Superannuation is like any other property. It will be divided between the parties as they agree or as the court thinks fit. The court has power to split superannuation of one party between both parties.
Q. Can your ex-spouse take from you the inheritance or gift that you received during the marriage?
The court will usually regard the inheritance or gift received by one party during the relationship as property to which the other party has made no contribution, and accordingly the receiving party will usually receive credit for that contribution when determining how the property is divided.
Q. How can you protect the interest of your children from your first marriage, in your property?
You can ensure you have an accurate will, AND you can enter into an agreement with your new (second or subsequent) spouse commonly called a "pre-nuptial agreement", AND you can take care how you hold the title of any assets to ensure they pass in the manner you wish, AND you can manage how your superannuation death benefit is to be paid.
Q. What is a pre-nuptial agreement and does it work?
It is an agreement signed by you and your spouse, either before or during your marriage, which sets out what is to happen to your property if you separate. It will be binding on all the parties if the formal requirements of the law are complied with.
Q. Can you hide or quarantine assets from your spouse?
In short, no. If you fail to disclose assets, then any agreement reached, or court orders made, can be unwound if the non-disclosure is discovered.
Children
Q. Can I have 50/50 shared residence with the children?
Certainly, if you are able to reach an agreement to that effect with your spouse. If you can't reach agreement, the court will only on rare occasions order equal residency.
Q. How much child support should I pay?
The amount of child support is set by formula under the Child Support Act. The formula is a fixed percentage of your taxable income. Roughly the child support for one child is 18% of [your previous year's taxable income less $6000]. For two children the percentage increases to 27%. The precise application of the formula can be viewed at http://www.csa.gov.au/calculator/basic.htm.
Q. Can my spouse stop me seeing the children?
Unless there are allegations of abuse or violence, you cannot be stopped from seeing your child. The court will always find that it is in a child's interest to have quality contact with both its parents.
Q. What if I need to move with the children to a more remote location because of my job?
You can make an application to the court to relocate. The court will take into account all the factors which impact the best interests of the child before determining whether to allow a relocation request.
Q. Am I able to change the children's surname or their school?
Unless you have a specific court order from the court, you would not be permitted to change a child's surname. The parent who is the resident parent will usually determine the school that a child attends, but such decisions should always be discussed with the other parent.
Q. How can I stop my spouse's new partner being present during contact times?
Generally you cannot, unless there is some special risk associated with the new partner being present at contact time.
Q. What input can I have on major issues such as choice of schools or religion?
Both parents are entitled to have input on major decisions relating to a child, irrespective of which parent the child resides with.
Q. How do I stop harassment of myself and the children?
You can obtain an Apprehended Violence Order from the Local Court . Contact the court or the local police for urgent information and protection.
Q. Do the grandparents have any rights to see the children?
Yes. The nature and extent of those rights will vary depending on the history of their involvement with the children.
Q. Can I change the child support payment amount?
Depending on your circumstances, you may be able to change the child support formula amount. For example, if you have lost your job, or your income has decreased significantly since your last year's tax assessment, you can apply to the Agency for an administrative review of your liability.
Wills and Estates
Q. Can someone challenge my will after I die?
Spouses, children and dependants can challenge your will after your death if you had a moral obligation to provide for them and failed to do so in circumstances where they had a financial need.
Q. What happens if I die without a will?
Your estate will be divided pursuant to a statutory scheme between your next of kin, and not in accordance with your own preferences. In addition, the cost of finalising your estate will be much higher than would have been the case if you had a will.
Q. What is probate?
Probate is an order of the Supreme Court which authorises your executor to finalise your estate in accordance with your will. It has nothing to do with Death Duty. There is no Death Duty payable in NSW.
Q. What happens to my superannuation on my death?
The trustee of your superannuation fund will pay your superannuation death benefit to the person you have directed, provided that person is within the categories of people to whom the trustee is authorised to pay. Otherwise the trustee will pay your superannuation to your estate for division in accordance with your will.
Q. How long does it take to finalise a deceased estate?
Usually a simple estate would be finalised in about 6 to 8 weeks.
Q. Will I have to pay capital gains tax on the sale of the deceased person's property?
Where the sale takes place within 12 months of the death and the property was the deceased's principal place of residence, no CGT would be payable.
Q. How do I arrange my will to protect my child with an intellectual disability?
You can include in your will provisions which appoint a person to manage your estate after your death for the benefit of a disabled child. That person would be able to invest and distribute money from your estate in a way that ensures the best interests of your child are protected. Your will would be flexible enough to ensure that your child's Centrelink entitlements are not prejudiced and also to ensure that your child does not face any unexpected tax liability.
Conveyancing
Q. How long does it take to finalise a sale or purchase of land?
Usually about 4 weeks.
Q. Will I have to pay this new Vendors Duty?
If you are selling your principal residence, no.
Q. How will I co-ordinate the settlement of both my sale and purchase?
Don’t worry, we can ensure that simultaneous settlement of both occurs, and you only have to move once.
Q. What happens about council and water rates?
We ensure that rates are adjusted on settlement so that each party pays their appropriate share. In addition, we notify the authorities of the change of ownership so that the new rates are issued to the correct person.
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