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Pre-Nup or Pre-Nope – Is a Financial Agreement Worth It And Should I Look at Getting One?
Financial Agreements are still a hot topic, now more than ever. During COVID-19 we were inundated with news segments highlighting the escalating statistics relating to separations and divorces. As a result, our Family Courts are now stretched thin, resulting in extensive delays for parties looking to have their financial matters settled.
You’ve got an opinion? Are you sure about that? Are you an expert? If I had a dollar for every time that someone told us here at Butlers, “I think my ex has bi-polar” or “He definitely has narcissistic tendencies. I Googled it and he absolutely fits the description” or “I am telling you, she has OCD. I am sure of it. She just hasn’t been diagnosed yet” or something along those lines, I probably wouldn’t need to be working so much.
Let’s get digital Today, I went onto a social media website, and saw a photo I just had to share. I took a screen cap of the photo, and texted it straight on to a friend. Sound familiar? The technology that’s become a magical part of our daily routines didn’t even register in Marty McFly’s wildest dreams. If you had told the pre-teen me that one day I’d be able to take a photo, view it, and share it with 500-odd “friends” all within about two and a half minutes, or that I could spend my days doing nothing but watching videos of cats on my phone, I probably would’ve laughed in your face – and not just because I don’t think anyone actually has 500 friends. But, somehow, this is exactly the crazy world in which we live.
Viva Voce is not a Ricky Martin song A wise man once said to me that the best lawyers can take the most incredibly complex legal issues and explain them in simple, understandable terms. There’s a lot to be said for that. It’s not necessarily about breaking it down for other people for fear of a lack of understanding – it goes to the understanding and skill of the lawyer, which ultimately reduces the magnitude of the issues, paving the way to resolution. So what of these legal maxims and jargon which people love to throw about from time to time? Prima facie this, viva voce that… Or my personal favourite – mens rea. Am I talking about an element of a crime, or someone’s backside?
The Conference While the title sounds like something John Grisham would write, I can assure it is nothing of the sort. In fact, I will tell you right now, if you’re expecting intriguing characters with deep rooted unresolved issues, or cliff hangers, you won’t find it here. The Conference I’m referring to is the Conciliation Conference, which is an initiative of the Family Court as a form of Alternate Dispute Resolution. I think every now and then it’s important that people are aware of the various processes and steps in the Family Law process.
“Everything is divided 50/50, right?” If I had a penny for every time that question was asked, or if that statement was true, I probably wouldn’t be working. Where did this myth start and why is it still floating around? Is it something that is just assumed by virtue of being in a couple? Anyway, FYI the answer is NO; and neither is 50/50 the starting point. Unfortunately, it appears this guy understood this common myth to be gospel and literally divided everything in half before obtaining some family law advice: https://www.dailymail.co.uk/news/article-3129366/I-ve-left-half-Spurned-boyfriend-chops-owns-two-splitting-girlfriend-including-car-TV-iPhone.html Lucky there weren’t any kids involved.
IN CHILDREN WE TRUST I am now a grandfather and have been practising in Family Law for almost 30 years. Recently I read a poem written by my 15 year old nephew. Isaac brought home to me the true perspective of life through a young person’s eyes. The reason it had such an effect on me was because it highlighted just how important it is to listen to and appreciate our children’s perspective of emotional situations.
Help! I’m about to be cross-examined in a Trial! What should I know and what do I do?! Being called to give evidence in court is stressful. Here are some tips which we think are important for you to know: Dress appropriately: Don’t wear Louboutin heels or an expensive Brioni suit in an attempt to convey that you’re rich and powerful. Likewise, don’t turn up in unwashed rags in an effort to convey that you’re poor (and so you really need all the money you can get). Neither do you have to dress as though you’re part of the Amish culture if you’re trying to convey that you are conservative and caring. You are not a character, you are you and you are involved in this case. The clothes you wear should not be distracting; they should be comfortable and should simply convey that you consider this an important matter and that you have respect for the court.Men should wear a shirt with a collar and pants. No jeans, t-shirts or sunglasses on the head – this is not casual Friday and you are not at the pub. Women should wear dress shirts and pants or skirts or dresses. When I say dresses, I mean modest dresses. What works for you on a Saturday night out on the town will not work the same way for you in court. Avoid too much make-up and heavy perfume – actually, I think that one is just a general life rule.
The Family Law Act states that children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development including grandparents. Since
Facebook and Twitter and…Court - OH NO! When the Facebook craze was in full effect I told myself I would never get an account. The way I saw it was why would I want to be “friends” with someone who I knew in grade 2, where our interaction was solely playing Lego together, and now all of a sudden some 20 years later he thinks that we’re old mates. Don’t get me wrong, I have a Facebook account. I primarily use it to keep in touch with family and friends overseas and to share my frustration or delight in anything that happens in sport i.e. my New England Patriots winning the Super Bowl this year – Go Pats! However I’m often both shocked and appalled at the things people post on Facebook these days. It’s incredible what happens when some people get behind a keyboard. While I understand Facebook and other social media outlets are platforms for people to opine about their thoughts, ideas, views and even what they ate for dinner, it is important to be mindful of what you post on the internet, including and especially social media sites.
Mediate! How? I don’t trust the Bastard!!! Mediation is not about trust but more about understanding betrayal. Relationships, whether it be in our personal life or our employment and business activities; when it all goes south, how do we approach resolution when we are feeling so hurt and vengeful? How can we get what we consider to be a just result in the circumstances? Emotional stress erodes our being until we self-doubt and our self-respect seems to be travelling on a different bus. Some of us urge Karma to find the solution. Some bargain with God and/or a less pure entity, but at the end of the day we want it over: EXCISED FROM OUR LIVES; BUT HOW?
In relation to same-sex marriage, we continue to lag behind the rest of the world. Behind 20 countries in fact. Take the United States for example. Out of 50 States, 37 have legalised same-sex marriage. That’s 74%of the whole country, including Alaba
You may be forced to live separately by choice or by necessity including maintaining separate residences. You may have many reasons for doing this including work availability, care of elderly family relatives in another city or country or to support adult children as they pursue university and career opportunities far afield. However, if you live separately from your partner, are you still in a relationship and what should happen if you break up? What happens if you have drifted apart?
Won’t somebody please think of the children Going through a separation is a pretty awful experience, and it’s not something I can try to sugar-coat. It’s even worse when you have kids; they didn’t ask for any of this, they’re just dragged along for the ride. So how do you protect your kids from the perils and pitfalls of separation? Here are some basic rules:
THE TO DO’S BEFORE THE I DO’S Marriage is about more than just the loving union of two people—it’s also about the union of financial assets and liabilities, and families. Or, as some like to say, it’s about halving your rights and doubling your duties. There are good reasons why you should consider signing a Financial Agreement before you marry or commit yourself to a de-facto relationship. However, not everyone needs a Financial Agreement. Quite apart from the legal issues (which you can discuss with a solicitor), the answer to this question will depend on a number of practical considerations, as follows:
Navigating the Family Court The Family Court of Western Australia is not the sort of place anyone wants to end up in. However, in some matters, it is unfortunately unavoidable. Should you ever find yourself parking under the Perth Concert Hall, and the only show you’re going to see is your life played out publically in front of you (and your ex-partner and respective Solicitors with front row seats), here are a few hints that may make a pretty tough situation a little easier: Security Check: When you enter the Court, you will be required to walk through a metal detector, and your belongings will be run through a scanner machine, a la the Airport. I’ve seen the security guards confiscate all sorts of sharp metal objects, so leave these at home. I’m sure that whoever penned the The Little Book of Calm would tell you to also take the opportunity to close your eyes, and pretend that you are about to board a plane to some exotic location. No judgment - whatever works for you.
Can you trust your Trust? Is your Trust a SHAM? Riddle me this: Has your Trust been created to evade legal obligations? Is there a disparity between actual transactions and your Trust Deed? Are you trying to mislead others in respect of your rights and obligations under the Trust Deed? If you answered yes to any of the above questions, then I am pointing my finger at you, and telling you that your Trust looks like a sham; and your ex could soon be having a bite of that tasty looking cherry of a Trust in the Family Court!
Am I or aren't I? Part 2 For those who have not read Part I of the blog please do so before reading any further Am I or aren't I Part 1. For those of you who read the blog last week you’ll remember that I had left off with our client dying in hospital shortly after being cross examined. The next day in Court we had the unfortunate duty of notifying the Federal Magistrate what had just happened and without missing a beat we made an Oral Application that our client’s nephew, as executor of our client’s estate, carry on the litigation. That was always going to be an uphill battle and it was rejected as there was the need for probate to be obtained on our client’s Will. It was a hurdle of course but one that we did not think would be any issue in overcoming. We were wrong. Our Application was met with a caveat in the Supreme Court put on by the other party’s solicitors as a result of our client having other family that was not in the Will. Notice had to be given to the other family members as to whether they wanted to intervene in the proceedings. That was met with responses of none of the family wanting to have anything to do with our client or the proceedings.
WHY IS MARRIAGE ABOUT SEX? Mankind, from the earliest of times, has been driven to live within a community and to have the intimacy of a loving and committed relationship with the person of their choice. By Christian tradition this relationship would only be solemnised by a Christian Church in the form of marriage if the union was between a man and a woman. In the mid-19th Century, the Courts defined marriage as “the voluntary union for life of one man and one woman to the exclusion of all others. S5(1) of the Marriage Act 1961 continues this definition; “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life” Why do we as a society, refuse to consider or allow a conscious vote by our elected representatives to determine whether the fundamental right of an individual to choose with whom they wish to enter into a union to the exclusion of all others for life should or should not be solemnised? The Answer must be fear.
Am I or Aren’t I? For all our faithful blog readers out there you have no doubt read our absolutely top notch blogs from my colleagues. In case you haven’t noticed we do things a bit different here at Butlers. We like to make the law easy and accessible to everyone, and it should be. For all of our first time readers you will find that these blogs are informative and they give you guidance if you’re about to get into a relationship, or are in a relationship or if you’ve just got out of a relationship. I thought I’d change things up a bit and share a personal experience that I had 2 years into practicing. Now before you feel the need to let out a groan, just give me the benefit of the doubt and have a read. I’m often met with the response of “Oh wow, that must be so tough” or “I don’t know how you do it” when I tell people that I’m a Family Lawyer.
“I’m a sperm donor!” he said. “I’m a parent!” he said. WRONG. Well, at least for legal purposes, in Western Australia. When it comes to matters of artificial conception, the Artificial Conception Act 1985 (WA) states the following: if a man provides genetic material to a woman, and that woman uses his genetic material to become pregnant via an artificial fertilisation procedure, then the man “shall be conclusively presumed not to have caused the pregnancy” and “is not the father of any child born as a result of the pregnancy”. if a “woman undergoes, with the consent of her de facto partner, an artificial fertilisation procedure in consequence of which she becomes pregnant… then the de facto partner of the pregnant woman, shall be conclusively presumed to be a parent of the unborn child” and “is a parent of any child born as a result of the pregnancy”. I don’t know about you, but my first reaction is that that first part does not sit in accordance with what I learnt from Maury Povich.