Phone: (08) 8314 7575
After hours: 0412 975 081

Phone: (08) 8447 4466 | After hours: 0412 975 081

Phone: (08) 8314 7575 | After hours: 0412 975 081

Scammell header toolbar trans3

Scammell header toolbar trans3

Family matters header image template scammels

Family Law

Q:

Who can make decisions for me if I am mentally incapacitated?

A:

If you cannot make decisions about your health care, living arrangements and other personal matters your spouse / domestic partner or family members are not necessarily the people that can make these decisions for you.

Medical practitioners, nurses and carers are increasingly requiring a formal authority to enable decisions to be made on behalf of person who is mentally incapacitated. While informal arrangements may be accepted to enable a family member to make these decisions on behalf of a person who has lost their mental capacity, it is best to have an Advance Care Directive in place.

If a medical practitioner, nurse or carer does not accept informal arrangements, and you do not have an Advance Care Directive, orders from the Guardianship Board would be required to formally appoint someone to make decisions about your ongoing care in the event that you are mentally incapacitated. This may not be the person/s that you want to make decisions for you.

An Advance Care Directive enables you to appoint one or more people to act together or independently to make decisions about your medical treatment, your well-being and your lifestyle choices (such as where you live) if you can no longer make these decisions for yourself. In this document, you can set out your wishes regarding your health care and lifestyle choices and what medical treatments you do and do not wish to receive in the event that you are mentally incapacitated.

From the 1st July 2014, Advance Care Directives replace Enduring Powers of Guardianship, Medical Powers of Attorney and Anticipatory Directives. However, any Enduring Powers of Guardianship, Medical Powers of Attorney and Anticipatory Directives already in existence before the 1st of July 2014 will continue to have legal effect. For any questions contact Scammell & Co.


Q:

We separated a while ago, for divorce. Circumstances have now changed.

Does the Court determine what’s fair at separation or now?

A:

What is fair and equitable is determined on circumstances as at the date of determination. Family Law does not ‘freeze’ assets at separation. This means that if parties do not deal with financial matters until some months or years after they separate, one might benefit from a rise in real estate value or increase in equity from regular mortgage repayments. Similarly, waiting could be detrimental if the real estate market dips or if your former domestic partner obtains new loans or debts.

Yes, you can be put in a position of being responsible for your former domestic partner’s post-separation debts, even if your name is not on the invoices or documents. Similarly, your former domestic partner can make a claim against your property even if it is in your sole name or purchased after separation. The only way to avoid this is to obtain a Family Law property settlement to sever financial ties once and for all.

Simply transferring properties with a cash payment to one party is not legally binding by itself. Nor is an informal letter or agreement signed by both parties legally binding in Family Law, even when witnessed by a J.P.

Normally the quickest and most cost-effective way to obtain a property settlement is by an Application for Consent Orders. Don’t let the word ‘Orders’ make you hesitate. No one, not even the solicitor preparing the Application, needs to go to Court if the parties have agreed on how finances are split.

Not obtaining a property settlement can be like driving without insurance. Things could get very expensive if matters do not proceed as you think they should.


Q:

When a marriage breaks down, does all property have to be split ‘ 50 / 50’? My partner and I are separating. He told me that he is entitled to fifty percent of everything we own.

Is this true?

A:

It is not true that the property of a relationship has to be split ‘fifty-fifty’. There is no law providing for this.

If parties reach agreement, they can have any split that they choose. If parties do not agree, the law provides for a process to work out how the property of a relationship should be divided.

The Family Law Act 1975 provides for property settlements between:

•  Married couples.

•  Defacto couples (including same sex couples) who have been living together for two or more years or have a child together.

Where parties do not agree, about a property split, the law provides for a complex weighing of various factors, to reach a just and equitable outcome. The law provides broad powers for the courts to adjust the property interests of each party. Even if an item is held in the name of one person, the court can change this.

Both the financial. contributions and non-financial contributions (such as housework and childcare) are taken into account.

If you are separating, it’s best to contact a solicitor before making any agreement with your spouse about a property split. The final property settlement may have a big impact on your financial circumstances, for years to come.

A solicitor can advise about your rights, and guide you towards the best outcome.

Scammell & Co. provide new family law clients with the first 30 minutes of the first meeting free.


Q:

My partner and I are separating. I know that we need to have a property settlement, but I don’t want to go to court.

What are my options?

A:

Taking a matter to court can be an expensive, time consuming and a stressful process. Going to court is not your only option.

The Family Law Act 1975 provides separating couples with the options of a Binding Financial Agreement as an alternative to court proceedings.

This is a document that is certified by lawyers and, if properly drafted, will prevent future court proceedings about property settlement.

If an agreement can be reached at an early stage, a Binding Financial Agreement can be a cost-effective way of reaching a final property settlement. It can be much easier, quicker as well as

being less costly for you.

However, each party will need to see a separate lawyer for an independent legal advice.

If you are separating, it is advisable to contact a solicitor before you come to any agreement with your spouse about how property is to be divided as the outcome of any such agreement can affect your lifestyle for years to come. A solicitor will be able to advise you about your rights, and guide you towards the best outcome for your particular needs. A lawyer advising you can help you deal with matters your spouse / defacto may be unfairly claiming. Independent advice is very important in such matters and can save time and money.

Remember, Scammell & Co. offer the first 30 minutes of your first appointment free. Bring along all the detail you can and we may be able to resolve more than you may imagine in the first 30 minutes.


Q:

At what age can my children decide who they live with?

A:

Family law does not provide a “magic age” when a child can decide who he or she lives with. A child’s expressed preference is but one of many considerations when determining what is in the best interest of a child. However, generally speaking, the Court will give greater weight to the views of a child closer to the age of 18 than a younger child.

When determining what weight is to be attributed to a child’s expressed preference, the law requires the Courts to consider at least the following:

1.  The degree of emotional and intellectual maturity of the child. While age is relevant, it is not always indicative of a child’s maturity;

2.  The apparent strength of the child’s wishes. Evidence of this might include the child’s tantrums, emotional displays of affection or the opposite, and even in the most extreme cases running way;

3.  Whether the child’s views have a rational basis (e. g. was he or she a victim of, or witness to, family violence); and

4.  Could the child’s preference be attributed wholly or partially to the influence of a parent or other family members.

A child’s expressed preference is rarely dismissed by the Court, but what weight the Court attributes to this view is one that needs to be delicately balanced and presented. To ensure you are successful in implementing your child’s wishes, it is crucial to obtain professional opinions from those who regularly deal with such issues such as social workers, psychologists and Family Lawyers.


Q:

Is it necessary for us to obtain a Divorce … we separated a long time ago and at separation we transferred the former matrimonial home into my name and did so without seeing any lawyers?

A:

While obtaining a Divorce is not ‘necessary’ it, potentially, could be in your interest. A Divorce order has two primary consequences:

1.  It terminates your marriage, allowing you and your spouse to re-marry. Your spouse could still have some rights and obligations (unless relevant legal documents state otherwise) even though you separated some time ago. This might allow him / her to dictate your medical care if you were incapacitated and possibly having a claim in your estate should you pass away. A Divorce will minimise the chance of that happening.

2.  You and your spouse will be prevented from making a financial claim against the other, 12 months after your Divorce. Even though you and your spouse may have resolved financial issues amongst yourselves, it appears there are no property settlement orders to finalise this agreement. One of you can still potentially renege on that agreement and seek more money or assets from the other. You will both be prevented from doing that 12 months after the Divorce is granted. Not obtaining a Divorce is potentially not in your interest if you received very little assets from the marriage.

It is beneficial for you to obtain legal advice to clarify what assets you received at separation

in order to determine how you best proceed. Obtaining a Divorce now could either help or harm you.


Q:

We have separated and agreed on how to divide our finances. Can we avoid going to Court? Do we need a lawyer?

A:

If you and your former partner have agreed on how your finances are to be divided, it is very important that you finalise this settlement by way of Court Orders or a Binding Financial Agreement (BFA). This is known as obtaining a property settlement.

Be careful what your conveyancer might get you to sign. Unless it is a Court Order or a BFA it will offer you no protection against a Family Law claim.

Without a property settlement, your former partner can make a claim against your assets (even those acquired after separation or in your sole name). And, you could be liable for your partner’s debts (including those incurred after separation). While former partners may give you his / her word, our

experience suggests this is often unreliable and can lead to litigation.

If all is agreed, obtaining a Court Order can be relatively easy. A Family Lawyer can prepare an Application for Consent Orders which can be filed at Court without the need for you, your former partner or even your lawyer attending Court. It is often the quickest and most cost-efficient way of obtaining a property settlement.

You do not need a lawyer to make this Application but the Court will not automatically make Orders just because you and your former partner agree. The Court needs to be satisfied your agreement is legally just and equitable. A Family Lawyer can address these criteria and is best placed to ensure Orders are made, accurately reflect your agreement and provide suitable protection.

You wouldn’t leave your home uninsured, so why risk your former partner making a claim against you years later when you saved up more equity in your home.


Q:

Does marriage, divorce or separation have an effect on a person’s Will?

A:

Most Marriage can be a very exciting time for most people. However, it is not widely known that marriage automatically revokes a person’s Will. If you have married after completing your Will you may need to complete a new Will. If you are engaged to be married and are thinking about preparing a new Will it is important to seek legal advice so that a contemplation of marriage clause can be included in your Will. This clause ensures that your Will is not revoked by your marriage.

The commencement of a domestic partner (de-facto) relationship does not automatically revoke a Will like marriage does. However, it is still important to update your Will to reflect your current circumstances.

If you completed your last Will so that your former spouse benefited from your estate and / or appointed them as your executor, trustee or guardian, divorce will revoke any gifts and appointments.

The result of the revocation is that the Will takes effect as if the former spouse had died on the date of the divorce, which can be a problem if you have not appointed substitute beneficiaries, executors, trustees or guardians.

There are some exceptions to the above, so it is important to seek legal advice to confirm how divorce has or will affect your current Will.

If you have separated from your spouse or domestic partner and pass away before your divorce or property settlement is finalised and you have not updated your Will to remove them as a beneficiary and/or executor, your spouse or domestic partner may still benefit from your estate and act as your executor. If this is not what you want to occur then contact Scammell & Co who can assist you with completing a new Will to reflect your current circumstances.


Q:

My girlfriend and I have been dating for 18 months. She lives at my home for 2-3 nights per week.

If we break up now, can she ask for half my house?

A:

Your girlfriend will need to meet at least one of the following three criteria to be successful in making a claim:

1.  Your de facto relationship was at least 2 years;

2.  There is a child of the relationship; or

3.  She made a substantial contribution to the relationship.

It sounds like the length of your relationship is too short at this stage. You should however note that living together is but one criteria in determining when a relationship starts and ends. There may be other applicable factors and you should seek legal advice to make sure these do not apply to you.

You make no mention of a child, so the only other possible criteria appears to be whether a substantial contribution has been made by your girlfriend. Such contribution can also be non-financial but must be ‘substantial’, which has been interpreted as more than ordinary.

For example, if she personally undertook substantial renovation work (like landscaping a big yard area). Such activity may suffice.

The person alleging that a de facto relationship existed has to be the person who made that substantial contribution and the onus is on that person to prove they made the contribution.

Even if you are legally in a de facto relationship, it is not automatic that your girlfriend is entitled to a half of your assets. With more information, we can advise you on what are your legal entitlements.


Q:

My four year old son wants to start staying overnight with me, his father.

His mother refuses to allow this.

Is she allowed to refuse?

A:

The Family Law Act applies a rebuttable presumption that parents should have equal parental responsibility for their child (i.e. both parents have equal say on the long term decisions concerning the child). Where that presumption applies, the Court must consider whether equal shared time with the child is in the child’s best interest and reasonably practicable.

A child’s best interest will vary greatly from one case to another. That is because some children naturally cope better with change, and develop / mature quicker, than others.

Before determining whether any increase in time with you is appropriate, the Court will first consider how the child is coping with the current arrangements. Assuming there is no problem, there needs to be consideration given to why your child’s mother is refusing to start overnight contact.

In answer to your question, the Mother’s personal preference, or personal views of you, are not enough. If there are tangible indicators that the child is not coping with the current arrangements then those certainly need to be addressed before you can expect your time to increase. Matters such as family violence or drug / alcohol abuse are also relevant, even if these are historical. You can benefit from obtaining legal advice to clarify whether the Mother’s reasons justifies postponing overnight time.

Whether you wish to increase your contact or maintain current arrangements, documenting evidence in support of your case is critical. Parenting disputes are won or lost based on the quality of this evidence. We thus recommend that you obtain legal advice on what evidence to document and how to best capture the evidence.


Q:

My former partner and I agreed on parenting arrangements when our son was 3 years old. He’s attending primary school this year.

Can I volunteer at my son’s school outside our agreed time so I can spend more time with him?

A:

The answer depends on the type of agreement you and your former partner have in place. Under each of the scenarios below, you will need your son’s school’s consent before you can attend during school hours.

Informal Agreement

If you and your partner have an informal agreement (e.g. via emails or a verbal agreement) then you can volunteer at his school outside your agreed time to spend more time with him. However, we highly recommend that you advise your former partner of your intentions to maintain civility.

Parenting Plan

If you and your former partner recorded your agreement in a parenting plan then we recommend that you discuss your intentions with your former spouse. You and your former partner should then update your Parenting Plan to incorporate your agreed changes. We can assist with this. If you have difficulty agreeing try mediation.

Parenting Orders

If Orders have been made by a Court on parenting arrangements then you and your former partner must follow its terms strictly. Failure to do so could result in Court proceedings against you. Recent case law suggests that you can volunteer at his school provided that you do not:

1.  Hinder or prevent your former spouse and your son from spending time together in accordance with the order; or

2.  interfere with your former spouse and your son benefiting from spending time with each other under the order.

It is best that we check your Order to confirm your proposal does not result in a breach of your Order.


Q:

My ex-boyfriend and I exchanged sexual images during our relationship. He now will not return my laptop and I am concerned he will publish my photos on a ‘Revenge Porn’ website.

How do I recover my laptop?

A:

Firstly, recent changes to S.A. criminal law has meant that a mere threat to share your private intimate images constitutes a criminal offence. Sharing does not need to have actually occurred.

You need to report him to the Police if he has threatened you with this. They should have the power to seize your laptop as part of your complaint. Even if your “sexual images” do not depict a sexual act but are images of genitalia or (for females only) bare breasts, they are considered ‘invasive images’ which cannot be shared without your consent.

If you do not want to press criminal charges, or if he has not yet committed a criminal act, you could apply under the Family Law.

Act for the return of your laptop in addition to other property / financial orders. Your laptop is considered “property” under the Act and the Court has the power to make orders on who should have possession of it.

You can even seek a Court hearing be held without your ex-boyfriend present on the laptop issue alone, to avoid arousing his suspicion.

Be careful that you do not allow him to use your images to bully you into a financial settlement. That could have significant impact on you for many years to come. If you feel intimidated about dealing with him direct, we suggest that you consider instructing a lawyer to help you negotiate and reach a fair settlement.

Please note that Revenge Porn laws vary from state to state, so the above only applies to South Australian residents.


Q:

My boyfriend has just moved into my home. We have been on and off for a few years now.

If things do not work out this time, will he have the same rights to a property settlement as if we were married?

A:

A property settlement claim will only arise if you meet the definition of “de facto relationship” under the Family Law Act.

You will need to have either lived together for two years or more (accumulatively) as a couple, or had a child together, or one of you made a substantial contribution to the relationship where injustice would be caused if orders were not made.

Up until a recent case, it was thought that the Act treated de facto and married couples largely the same. However, there is now doubt as the Court recently declined to make property orders after a 27 year de facto relationship. The Court ruled that the couple did not “intertwine their finances” enough to merit altering their respective property interests. It would be very unusual if the Court reached the same conclusion for a married couple.

South Australia has also recently passed new laws allowing both heterosexual and homosexual couples to register their de facto relationships. We expect registration will be possible from late 2017. In your situation, it may be best to not register your relationship until you are sure your relationship will last. You should also consider a Binding Financial Agreement to determine what (if anything) your boyfriend is entitled to at the end of your de facto relationship.

Family law is constantly changing, and its issues are unique. We suggest obtaining advice from a lawyer who practises solely in Family Law to ensure you receive the most up to date advice to your situation. Scammell & Co. can help you.


Q:

I am elderly and suffer from cancer. My wife has also just left me. We have not agreed on a Family Law property settlement. I want my assets to go to my children of a prior relationship.

What happens if I die before obtaining a property settlement?

A:

It is important that you first review your Will. If you pass away and your estranged wife is still your executor and / or beneficiary, then she will probably receive most of your assets / estate. Your Will needs to state that your children are the only beneficiaries of your estate, and appoint someone other than your Wife to be your executor. Your executor acts as your legal personal representative when you pass.

You need to also immediately consult a Family Lawyer about initiating Court proceedings for a Family Law property settlement. The Family Law Act allows your executor to be substituted into the Court proceedings if you pass away before final orders are made. In determining what property settlement is appropriate when a party has passed away the Court needs to be satisfied that it:

1.  Would have made a property settlement order if the deceased party had not died; and

2.  Is still appropriate to make a property settlement order.

Family Law Property settlements take into account spouses’ future needs. For a deceased spouse that is no longer a factor. Hence, generally speaking, you will receive a more favourable settlement if you survive your Court proceedings than if you did not.

If you do not commence Court proceedings and fail to obtain a property settlement before you pass, your estranged Wife will most likely succeed in contesting your estate if your Will leaves her with nothing.

Your situation is quite unique. You can definitely benefit from obtaining advice from Scammell & Co.’s dedicated Family Lawyers.

Print this page

Email us

sammell co logo

Your Online Enquiry:

Contact us online by completing the form below.
Please note that fields marked with an asterisk (*) must be completed to ensure prompt response.

1000 characters left