ARE YOU IN A DE FACTO RELATIONSHIP?

  

Recognizing The De Facto Relationship Status

In November 2008 the Family Law Amendment (De Facto Financial Matters and Other Measures) Act came into being.  This meant that any couple living in a de facto relationship would have their relationship recognized under the Family Law Act. 

This gave rights to people to persons in de facto relationships to have the same legal obligations and rights as those in a marriage.

RECENT DECISIONS

There is a recent decision where a woman sought to have her de facto relationships recognized in proceedings in the Family Court.  There was one child of her relationship with what she alleged was her partner.

Although the couple did have a child the Court ruled that there were not de facto relationships and therefore the Applicant did not receive the benefits which would arise if a relationship had been found to exist.

Therefore, what is the meaning of a de facto relationship?

The relevant section of the Family Law Act defines a de facto relationship as having the following meaning:

• A person is in a de facto relationships with another person if:

1. The persons are not legally married to each other;
2. The persons are not related by family;
3. Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Guidelines for De Facto Relationship Recognition

The legislation provides some guidelines but these are guidelines only to determine if de facto relationships exist.  These circumstances may include any or all of the following:

     The duration of the relationship;

• The nature and extent of their common residence;
• Whether a sexual relationship exists;
• Degree of financial dependence or independence, and any arrangements for substantial support, between them;
• The ownership, use, and acquisition of their property;

• The degree of mutual commitment to a shared life;
• Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
• The care and support of children;
• The reputation and public aspects of the relationship.

No particular finding in relation to any of these circumstances is to be regarded as necessary in deciding whether the persons have a de facto relationship.  The Court can have regard to such circumstances.

For the purposes of the legislation a de facto relationships can exist between two persons of different sexes and between two persons of the same sex.

A de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

It can be seen therefore that de facto relationships may be hard to establish.  There is no marriage certificate as in a marriage that clearly defines that marriage exists.ARE

Article Source: ARE YOU IN A DE FACTO RELATIONSHIP?

DE FACTO SEPARATION – DID YOU KNOW?

  

De Facto Separation – Did You Know?

Did you know that after separation in a de facto separation relationship that a separating party must bring an application in relation to financial issues arising from the breakdown in the relationship within a period of 2 years from the date of separation?  For instance, if de facto couples separate say on the 1st January in any one year the application must be filed on or before the 1st January in the following 2 year period.

One might conclude that if the de facto separation between parties happens on 1st January that an application to the Court must be before 1st January in the following 2 year period.  However, the application must be brought “within” a period of 2 years.  That means that the period of de facto separation commences not on the 1st of January but on the 2nd January and an application filed on the 1st January within a 2 year period is filed within the prescribed time.

Financial Matters and De Facto Separation

Of course in the case of a marriage, an application in relation to financial matters must be filed in the Court within one year of the date of dissolution of the marriage.  That is the application must be brought within a period of one year after the divorce order becomes absolute.  A divorce order becomes absolute one month after the divorce order is granted by the Court.

If applications are brought outside these time limitations then the parties will require leave of the Court to bring their application.  Unless a satisfactory explanation can be made for filing the application “out of time” the Court will not grant leave and the parties are therefore barred from bringing property proceedings in the Court.  This could create extreme financial hardship for either or both of the parties.  The time limitations must be strictly observed.

Article Source: DE FACTO SEPARATION – DID YOU KNOW?

REAL ESTATE CONVEYANCING BRISBANE

 

BRISBANE CONVEYANCING

Real Estate Property Conveyancing in Brisbane by Aylward Game Solicitors
Aylward Game Solicitors‘ focus is in providing our customers with the best possible services of property transaction.
Each of our in-house conveyancers are licensed and well experienced to perform any case whether it is complex or easy in nature.

In a legal sense, the process of Conveyancing is the tasks undertaken through which the rights, title and interests on the property of the owners are transferred to the new owners / buyers who is ready, willing and able to fund the property at the asking price.

The full Conveyancing Brisbane process involves the preparation of documents and endorsements so as to enact a contract deal between two parties as a catalyst and finalisation of the transaction.

One requires a Conveyancing Brisbane team like us to handle it. Providing the customers with the best possible services of property transaction and focusing on buying, selling or transferring real estate we at Aylward Game Solicitors Brisbane can professionally manage all your Brisbane conveyancing and real estate settlement needs.

There are various matters that will affect the transaction process of the real estate which may include government led legislation or notice on the property either counterparty related sides. It is important and experienced Conveyancer is engaged to deal with these issues since he or she may be best equipped to handle these trivial yet very important details. In many cases a purchaser will seek advice and counsel before commencing into the transaction stage.

Our clients can discuss these issues and seek any kind of answers from our team to ensure the integrity of the deal via Conveyancing. There are a number of searches that are necessary for us to complete and these comprise a total Conveyancing solution.

We strive to perform at the highest level for all our clients, across all sectors, whilst maintaining a low price point.

For the most part, Conveyancing is a mandatory process of transferring ownership title from seller to buyer and it assures future legal security to the buyer. The Conveyancer streamlines the searching process, and takes care of the details so you don’t have to.

Our staff consists of highly experienced and qualified experts with many years of experience in Conveyancing Brisbane. We have provided a wide range of conveyancing services to many thousands of clients since 1996.

Let our knowledge improve your experience and keep you ahead of the game.

Article Source: REAL ESTATE CONVEYANCING BRISBANE

De Facto Couples | family court brisbane

  

De Facto couples have the same rights, responsibilities and legal protection as married couples under the Family Law Act in Australia.

But more stringent definitions mean that couples may unknowingly fall into a relationship — something that can have legal and financial consequences for the unwary. If you separate, your ex-partner may be able to claim a portion of your assets. Negotiating this can add to the emotional trauma of the initial separation.

You have the same rights as a married couple under the Family Law Act. Find out all you need to know.

Changes to state and federal relationship law over the last few years give de facto couples the same rights, responsibilities and legal protection as married couples.

At Family Law, our team will help you understand your legal rights as a couple. We can help you draw up a financial agreement that sets out how you will divide joint assets if the relationship goes awry. Or we can help you negotiate a separation agreement if you’ve separated prior to 1st March 2009.

If you would like to read the relevant sections of the legislation in regard to Divorce Property Settlement please go to the Family Law Act. For more Binding Financial Agreements for information on Prenuptial Agreements.

We support you with representation, advocacy, mediation or collaboration to help you to attain your best outcome regarding parenting, division of assets and spousal maintenance as painlessly and inexpensively as possible.

Family Law offers a free 20-minute initial Family Law and Legal Options appointment for new clients.

This appointment allows you to discuss your situation with complete confidentiality and without any obligation.

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New de facto legislation is incorporated in the Family Law Act and came into effect on 1 March 2009.

A de facto relationship is defined under section 4AA of the Family Law Act:

MEANING OF DE FACTO RELATIONSHIP

1. A person is in a  de facto relationship with another person if:

• the persons are not legally married to each other; and
• the persons are not related by family (see subsection (6)); and
• having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Working out if persons have a relationship as a couple

2. Those circumstances may include any or all of the following:

• the duration of the relationship;
• the nature and extent of their common residence;
• whether a sexual relationship exists;
• the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
• the ownership, use and acquisition of their ;
• the degree of mutual commitment to a shared life;
• whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
• the care and support of children;
• the reputation and public aspects of the relationship.

3. No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
4. A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
5. For the purposes of this Act:

• a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
• a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

The legislation allows for the Family Court and Federal Circuit Court to deal with financial issues arising from a relationship.

De facto couples under the new legislation are able to enter into financial agreements regarding assets acquired:

• before and during the relationship; as well as
• after the relationship has ended.

This part of the de facto legislation in the Family Law Act only applies to partners in de facto couples who:

• separate after 1 March 2009;
• enter into a financial agreement; or
• seek Consent Orders from the Family Court.

Parties who separate prior to 1 March 2009 can, by the consent of both parties, elect to have the matters dealt with in the Family Court. If you separated from your partner prior to 1 March 2009, the provisions of the Property Law Act 1974 (Qld) will apply.

Separation prior to 1 March 2009 – De facto property matters remain under the State Property Law Act and are dealt with in the State Supreme and District Courts.

FAMILY COURT – CHILDREN AND FINANCIAL ISSUES

If you and your partner cannot agree on the parenting of your children or how to divide the property, you may have to go to court unless you attempt a form of alternative dispute resolution. However, the Court cannot make a decision in relation to the property of a de facto relationship if the couple has not been in a relationship for more than 2 years.

If you do take your property dispute to court, the judge will make Orders for you and your partner to split your assets in a way that decides to be fair and reasonable in the circumstances.

The decision of the Court will be binding and if you are not satisfied with the outcome, you will need to appeal the decision in the Family Court of Appeal. Even if you or your partner were to die after the Court has made the Property Order, the Order could still be enforced against the deceased estate.

Article Source: De Facto Couples

GRANDPARENTS AND EXTENDED FAMILY

  

Grandparents under the Family Law Act have a right to be involved in their grandchildren’s lives.

With over 30 years experience in family law, Aylward Game Solicitors Incorporating James Noble Family Law Brisbane will guide you through to the other side of divorce and family disputes relating to grandparents or other close family members.

Family law recognises your rights to spend time with and care for your grandchildren. This extends to other significant family members.

Grandparents (as well as significant family members) under the Family Law Act in Australia have a right to be involved in their grandchildren’s lives. This is a secondary right to the rights of the biological parents of the children.

The grandparents must be significant grandparents in the lives of their grandchildren. They must have a strong relationship and bond with their grandchildren to allow them to bring this application.

Grandparents normally have an involvement with their grandchildren during the times that the mother or father or both have the children in their care. However, where one parent for reasons that have little or no foundation prevents the grandparents from seeing their grandchildren then the grandparents can apply under their own right to have time with their grandchildren.

The Court looks at the potential benefit to the grandchildren having a meaningful relationship and continuing relationship with the grandparents. The Court would look at the nature of the relationship of the grandparents with their grandchildren.

The welfare of the children is of course, as in all relationships, the paramount consideration to be given by the Court if an application is made. The Court would look at the likely effect on the grandchildren of a continuing relationship with their grandparents. The Court would look at the practical difficulties and expenses relating to the grandchildren spending time and communicating with their grandparents. If there are substantial impediments to this then the Courts would not allow that relationship to continue.

If you would like to read the relevant sections of the legislation in regard to Divorce Property Settlement please go to the Family Law Act.

Please reference Section 60CC.

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Normally the time spent by the grandparents with their grandchildren would be a time that is not inconvenient to the children and to the children’s parents. The Courts would also look at the disruption to any of the activities of the children including sporting, educational and extracurricular activities to determine if the time spent with the grandparents is feasible.\

The wishes of the children especially the wishes of teenage children will be taken into account.

The grandparents have a right to apply for the parenting of the grandchildren where the parents of such children are unsuitable for medical or other reasons to care for them. The Courts can make orders for the grandparents to take on the parenting role of the children in such circumstances.

Other significant family members do not have the same rights as grandparents in seeking time with their nieces, nephews and other children of the family. Again if the significant family members have had a large involvement in the upbringing of the children and if the parents, grandparents or other family members are not suitable to parent the children where the children’s own parents are incapable of doing so then those family members may apply to the Court for the parenting of the children. Again the welfare of the children is paramount.

Article Source: GRANDPARENTS AND EXTENDED FAMILY

Spousal Maintenance | Spousal Maintenance qld

  

Aylward Game Solicitors Family Law are Australian Family Lawyers located in Brisbane.

Spousal maintenance is a responsibility you or your ex-partner might have to financially support the other person after separation or divorce. In Queensland, de facto partners may have no right to maintenance if they separated before March 1, 2009. This is not the case if you separated after this date. Your future needs can be considered when the property is divided. In most cases, the courts require that you endeavor to resolve disputes outside of court. We can assist with dispute resolution services. If you cannot agree, you can apply to the court for a financial order.

Protect your immediate financial needs and your financial future

Under the Family Law Act in Australia, both spouses have a duty to support and maintain each other, even after you have separated or divorced. Essentially, the laws are written such that the extent of the support depends on the following:

One spouse (the applicant) is unable to adequately meet his or her own reasonable needs; and
The other spouse (the respondent) has the capacity to pay.
When deciding any financial disputes after a divorce proceeding, the Court bases its decisions on the general principles set out in Sections 79(4) and 75(2) of the Family Law Act 1975. In summary, the judicial officer hearing the matter will try to decide on what is most fair and equitable, based on the following information (for both spouses):

Your property, financial resources, income and debts
Whether the children live with you or your former spouse
Your age and health (which determines future requirements)
Your ability to earn, and whether this has been affected by the marriage
What is considered to be a suitable standard of living?
It is necessary that both parties attempt to reach an agreement outside of court, before filing an application for spousal maintenance orders.

When spousal maintenance applications are filed with either the Family Court or the Federal Circuit Court (Federal Magistrates Court), both parties are ordered to undergo “pre-action procedures” including participation in a dispute resolution.

Family Law are Australian Family Lawyers located in Brisbane, specialising in many area of Family Law, including Spousal Maintenance.

Spousal maintenance is not automatically granted, and often is considered as part of an overall settlement of financial matters.

In rare cases, such as situations involving child abuse, urgency, family violence or fraud, the Court may accept that it is not possible or appropriate for the pre-action procedures to be carried out.

Applications for spousal maintenance must be lodged within 12 months of a divorce becoming final. Later applications require special permission from the court, but this is not always granted. Always seek advice to know your legal options.

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• Spousal Maintenance Lawyer
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Article Source: Spousal Maintenance 

Surrogacy Laws QLD | Family Law Court Brisbane

  

SURROGACY LAWS IN QUEENSLAND

The Surrogacy Act 2010 (Qld) became operative on 1 June 2010. This Act regulates surrogacy agreements in Queensland and permits surrogacy arrangements provided they are not for a commercial purpose.

What are the Surrogacy Laws?

A surrogacy arrangement is an arrangement between a woman (the ‘birth mother’) and another person or persons (the ‘intended parent or parents), whereby the woman agrees to become pregnant with the intention that the child born is to be treated as the child of the other person or persons.

This means the birth mother will relinquish to the intended parent or parents’ custody and guardianship of the child and the intended parent or parents agree to become permanently responsible for the custody and guardianship of the child.

Commercial Surrogacy laws Arrangements

A commercial surrogacy arrangement occurs if the birth mother receives any type of payment, reward or other material benefit or advantage as a result of the surrogacy arrangement.

Commercial surrogacy arrangements of this kind are not legal in Queensland. However, if the intended parents pay for the birth mother’s reasonable medical, legal and counselling expenses arising from the surrogacy arrangement, these payments do not render the surrogacy arrangement a commercial one.

Parentage Order

A Parentage Order is an Order made by the Children’s Court for the transfer of the parentage of a child born pursuant to a surrogacy arrangement. A Parentage Order effectively transfers legal parentage of a child from the birth mother to the intended parents.

Medical or Social Need for a Surrogacy Arrangement and Eligible Women

Women applicants who are intended parents must be unable to conceive or carry a child themselves due to medical reasons. This means that women applicants who are able to conceive or carry a child are prevented from obtaining a Parentage Order.

In the case of female same-sex couples, both intended parents must be able to show that both women are unable to carry or conceive a child on medical grounds.

Surrogacy laws Agreement

The surrogacy agreement (contract) must be a written agreement that sets out the main features of the surrogacy arrangement that is signed by the birth mother and the intended parents and must be made before the child was conceived.

Surrogacy Arrangements and Unenforceable

The problem with surrogacy arrangements in Queensland is that they remain unenforceable.

This means you cannot apply to the Children’s Court to enforce the surrogacy arrangement if things go wrong.

So, despite having a written surrogacy agreement, if the birth mother refuses to give the child to the intended parents, or if the intended parents refuse to take the child, neither party can rely on the written agreement to enforce the surrogacy arrangement in the Children’s Court

In this circumstance, the parties will have to make an application under the Family Law Act 1975 (Cth) for Orders pertaining to whom the child should live with and who the child should spend time with. The Court will then engage in an assessment of the child’s best interests.

Application for a Parentage Order

An application for a Parentage Order for a child can be made 28 days after the child is born and before the child is 6 months old. Applications after this time may be allowed with leave from the Children’s Court.

The intended parents of a child may apply to the Children’s Court for a Parentage Order, provided certain requirements are met. These requirements include:

• That the Order is in the best interests of the  child
• That the child must have lived with the  applicants for at least 28 days prior to the application
• Living with the applicants at  the time the application is made and at the time of the hearing
• That there is evidence of a medical or social need for the surrogacy arrangement
• The surrogacy arrangement was made after the birth mother and intended parents obtained  independent legal advice and counselling
• That the surrogacy arrangement was made before the child was conceived and that the  arrangement is in writing and signed by the birth parents and the intended parents
• That the birth mother and the intended parents were at least 25 years of age when the  surrogacy arrangement was made
• That the birth mother ordinarily resides in Queensland
• That the birth mother and the applicant’s consent to the making of the Parentage Order

Discharge Order

After a Parentage Order has been made, an interested person may apply to the Court for a Discharge Order which effectively discharges a Parentage Order regarding a child. The grounds on which an interested person can apply for a Discharge Order are as follows:

• That it was obtained by fraud, duress or other improper means
• That the consent required was not given or was given for payment, reward or other material  benefit or advantage
• There is an exceptional reason why the Parenting Order should be discharged

If a Discharge Order is granted by the Children’s Court the rights, duties and relationships of the child and all other persons are the same as if the Parentage Order being discharged had not been made in the first place.

The requirement to obtain Independent Legal Advice and Counselling

The Act requires the birth mother, the birth mother’s spouse (if any) and the intended parents to obtain independent legal advice and counselling before entering into the surrogacy arrangement.

All parties involved must obtain independent legal advice prior to entering into the surrogacy agreement so that their rights and obligations under the surrogacy arrangement, as well as the legal implications of entering into a surrogacy arrangement, can be fully explained.

Independent counselling must also be obtained prior to entering into the surrogacy agreement, as it is important that all parties involved are made aware of the social and psychological implications of entering into surrogacy arrangements.

Article Source: Surrogacy Laws QLD