All data and information provided on this site is for informational purposes only. The Butlers Blog makes no representations as to accuracy, completeness, currentness, suitability, or validity of any information on this site & will not be liable for any errors, omissions, or delays in this information or any losses, injuries, or damages arising from its display or use. All information is provided on an as-is basis.
A person who has experienced Family Violence can find themselves dealing with several different areas of law (and processes), all at the same time. The different areas of law include Restraining Orders, Family Law, Criminal and Tenancy Law. This is because Family Violence is a multifaceted issue and can be experienced by people of all classes, religions, ethnicity, sexual preference, and ages, both inside and outside of the home.
Western Australia has the second highest rate of reported physical and sexual violence incidences. The Northern Territory has the highest. 1 in 6 women have experienced physical or sexual violence perpetrated by a current or previous partner. The rate of abuse for Aboriginal or Torres Strait Islander women is considerably higher. Furthermore, 1 in 16 men has reported being a victim of family violence (Australian Bureau of Statistics 2017).
It is fair to say that the majority of us here at Butlers are dog lovers, and, most of us treat our pooch like they are one of the family. So we entirely understand it when someone asks us during a separation, “but what about the dog?”. There is no specific provision in the Family Law Act 1975 that deals with pets. Practically, you can try and reach an agreement between you as to who keeps the dog (or any family pet, including the goldfish!), or perhaps you can agree that you each spend time with the dog, each week. However, if you aren’t able to reach an agreement, the Court will deal with the dog in the same way as personal property.
One widely held misconception in family law is that, more or less, all of the assets and liabilities of a relationship will be divided 50/50. Many new clients come to us with the first line “I know that the starting point is a 50/50 split but…” This is not the case.
Often one party to a marriage or de facto relationship had property or cash before entering into the relationship. In other cases, one partner may have purchased a property or acquired an asset, which they consider to be their own and which they have devoted themselves to maintaining. One common misconception is that an asset that is solely owned by one party does not get taken into account in a property settlement, upon separation. This can also become an issue where one party purchases an asset, such as a property, after separation but before a property settlement has been finalised.
Unlike Kim Kardashian, in Australia, you cannot marry someone on one day, only to decide that was the wrong decision and file for divorce 72 days later. Instead, the law recognises the fragility and “ups and downs” of relationships, requiring that the marriage has broken down irretrievably. Contrary to popular belief, it is not relevant why the relationship broke down, just that it has. This means that the Court does not consider factors such as infidelity. To show that the marriage has broken down irretrievably, it must be shown that the parties have lived separately and apart for at least 12 months before being able to apply for a divorce. If one person moves out but moves back in, to give the marriage another shot, for example, this is taken into account when determining the required 12 months of separation. If the couple lives together on one occasion for less than three months, or any other not substantial period of time, that time is not calculated in determining the 12 months period.
One question that lawyers often find unmarried people ask outside of work is “if we broke up, would he/she be able to make a claim on my assets?” This answer to this question comes down to whether or not you are in a de facto relationship. Unfortunately, that is not always as cut and dry as it may seem and the topic carries with it a lot of misconceptions. The main one being that there is no set timeframe from which you can definitely say that you are in a de facto relationship. Rather, the legislation simply indicates that you are in a de facto relationship if you are not married, and you live together in a marriage-like relationship. Understandably, what one person considers to be “marriage-like” may be vastly different to what another considers that to be. So at what point are you in a de facto relationship? Have you been unwittingly in one without even knowing it?
Modern families come in all shapes and sizes. The traditional definition of who a ‘parent’ has been challenged by the increasing number of single-parent families, adoptive parents, surrogate parents and extended families. Recent advances in medical science have complicated things further. On 6 April 2016, the first child in the world with three parents was born. A Jordanian couple had been unable to start a family for 20 years, due to a rare genetic disorder carried by the mother. Doctors used a newly developed technique called Mitochondrial Replacement Therapy to implant the genetic material of a third person into the embryo, ensuring that the child did not receive the portions of the mother’s genetic material that could cause the disorder. Being the first child in the world born this way, the baby was dubbed the world’s first ‘three parent’ child. But how many legal parents does the child born on 6 April 2016 have, and why would it matter?
In today’s society, de-facto relationships are not so straight forward and “modern relationships” challenge the traditional ideas of a relationship. In Western Australia, the Family Court Act 1997 (“Family Court Act”) governs de-facto relationships. When determining whether a relationship is de-facto, the Court must decide whether the relevant couple were living in a “marriage-like relationship”. One of the difficulties the Court faces is determining what is “marriage-like” especially in today’s society.
Canadian entrepreneur Gerald Cotton died in December 2018. With him died the ability to access $145 million worth of bitcoin. Cotton’s widow, Jennifer Robertson, says in her affidavit "I do not know the password or recovery key. Despite repeated and diligent searches, I have not been able to find them written down anywhere”. While $145 million may be slightly more than the average asset misplaced when administering an estate, it is not uncommon for executors to struggle to find information regarding a deceased’s assets. Especially for those who take security seriously.
For almost every family, Christmas is a happy but stressful time. Whether it is ensuring there are no gift double-ups, Santa’s true identity remains undiscovered, or that there are no pistachios in the salad as Aunty Laura’s allergic, chaos is an expected part of the end of the year. When mum and dad are no longer together the co-ordination and log
Should Accountants be Drafting Wills? As an Accountant or Financial Planner what would you do if a client asked you to draft their Will? Do you know the risks? Whilst the temptation to be holistic in your services to a client is understandable, this blog will offer some guidance, and identify the pitfalls of engaging in a legal practice which could contravene the requirements under section 12 of the Legal Profession Act 2008 (“the Act”). Lets start with "Only Legal Practitioners may engage in legal practice under the Act".
PROPOSED CHANGES TO THE ADMINISTRATION ACT: WHAT YOU NEED TO KNOW On 27 June 2018, the State Parliament heard the second reading of the Administration Amendment Bill 2018, which would increase the current amounts of the statutory legacies payable on Intestacy. The proposed changes will have a significant effect on what happens if a person dies without leaving a valid Will. If you die without leaving a valid Will, your Estate will be distributed in accordance with the Administration Act 1903 (WA). This situation is called an “Intestacy”. The person who has died is then said to have died “Intestate”.
Part 4 - Tactical Family Violence Restraining Orders and Ethical Issues In our first blog regarding Family Violence Restraining Orders (“FVRO’), we provided examples of tactical FVRO’s in the initial stages of a family law dispute. Our second and third blogs focused on the impact of FVRO’s in children’s issues and financial issues. With the new amendments to the law relating to FVRO’s, the Court is now able to consider many things, including whether or not a Respondent has committed family violence or may commit family violence in the future.
Hopefully, you have been keeping up to date with our previous blogs in relation to Family Violence Restraining Orders (“FVRO”). If not, you can easily access them by clicking here. This blog will be focused on FVRO’s and how they can affect financial issues.
As a firm specialising in family law and wills and estate matters, we see the impact that separation, death and family disputes have on people of all walks of life, every day. There is a known link between serious life events such as these, having a substantial impact on personal wellbeing, often for prolonged periods of time. These issues permeate our society and today, we would like to remind our clients and our wider network that it is okay to talk, and there are always avenues and people who are willing and able to help you.
The Scenarios….what might happen and how do I deal with it? There is an overlap with Family Law and Criminal Law in the form of Family Violence Restraining Orders (“FVRO”). At Butlers, we are able to assist you with obtaining an FVRO or can represent you, if you are the person receiving the FVRO. Over the next four blogs we outline some of the common scenarios faced by people who obtain or receive an FVRO. Part 1 - Criminal Law and Family Law Intersection The neighbour next door is divorcing his wife.
Part 2 - Restraining Orders and Children’s Issues So, you can no longer see your children, because you are subject to a Family Violence Restraining Order (“FVRO”) that extends to, and protects, your children. What are your options? There is an exception allowing you to live with, spend time with, or communicate with your children, as long as there are Family Court Orders in place, allowing you to do this.
Team Pitt or Team Jolie? Remember when Hollywood's newest couple brought the great debate of Team Aniston or Team Jolie? Well, now there is Team Pitt or Team Jolie. Since the couple announced their split in September 2016, various articles about the state of their relationship have flooded media sites.
Big win or big loss? Post-separation lottery wins and other windfalls Imagine this – you and your husband, wife or partner have separated. You haven’t obtained a Court Order specifying who keeps what because you simply don’t think you need one, or, maybe you just haven’t gotten around to it yet. You check your Oz Lotto ticket to find you’ve won – big. Or, perhaps a loved one has passed on and left you an inheritance in their Will. You’re thinking “Surely my ex doesn’t have a right to this money…. Do they?” The answer depends – in some cases they will, and in others they won’t.