After Separation: what to do with the Matrimonial Home

The family home, which used to be a shared space, filled with joy, sorrow, and countless memories, becomes a complex asset to address when it comes to separation.

The decision of whether to sell, keep, or consider other options requires careful thought and consideration between you and your former partner. It is a decision that should ideally be made jointly if possible.

Here, we explore the various paths you may consider and the implications of each. There can be creative solutions to suit the unique dynamics and needs of different families.

Selling the property

Selling the matrimonial home is a common choice for many separating couples. It is a way to say goodbye to one chapter of life, split the proceeds, and embark on a new chapter of life. Both of you must agree on key decisions of sale if the property is jointly owned, such as choosing a conveyancer, real estate agent, setting the listing price, etc.

While in a fluctuating market, you may want to make sure the sale is profitable after paying off the mortgage and related expenses to ensure there will be a profit to be divided. If the sale potentially leads to debt, retaining the property as an investment or considering alternative options as introduced below, may be more prudent.

Co-owing the property

Some couples opt to continue jointly owning the house for a period of time post-separation. This arrangement can be temporary and allow children to live in a stable familiar environment until they finish school or another period of time as agreed, or until the market has improved for selling, for example.

It requires cooperation and detailed arrangements should be discussed as to the mortgage repayments, and outgoings including rates, utilities, and eventual sale terms. This option may be suitable for families with school-aged children where you and your partner are amicable and can communicate well about decisions.

Keeping the home

One partner may wish to retain the home, often due to the emotional attachment or if they are the primary carer of the children. This typically involves one partner buying out the other’s share and transferring the property’s title from joint to a single name. The challenge here is ensuring the serviceability of the mortgage, as it will need to be refinanced from a joint name to a single name, only relying on that individual’s income.

This process can be challenging and requires the individual to have an adequate and stable income. It could be a concern for a lot of families especially under the current high-interest rate environment. You may need to consult a financial planner and/or a broker who can assess if this option is open in your financial situation. Child support can be considered an income source in some circumstances, depending on whether there is an administrative assessment in place and how long child support has consistently been paid for.

If there is a court order in place requiring the property transfer, our team is equipped to assist with the process.

Renting out the home

Another option is to keep the family home as an investment property, which may offer an alternative income stream. This arrangement involves both of you moving out and renting the property, with the income potentially covering the expenses. This could be a beneficial temporary arrangement when the market is down or if both of you want to keep it as an investment.

It also requires the communication between both of you to be effective and amicable, as you will be handling the tenants, and liaising with the agent. You also need to agree on how the rental income will be applied and expenses paid, as well as allocating who the property management responsibility will fall to.

Making a decision about the family home during or after a separation is never easy. It can require input from third parties such as accountants, financial planners, mortgage brokers, and, for navigating property settlement matters, experienced family lawyers. The team at R+M is here to assist you.
If you have questions about how the family home should be dealt with post-separation, you should obtain specialist family law advice early on. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.
Author: Charlotte Wei, Lawyer

Valuations and the Asset Pool

One of the first questions when completing a property settlement is “What is the asset pool?” By quantifying the assets, liabilities, superannuation, and financial resources of the parties, parties can then start to think about how the asset pool will be divided between them, having regard to their respective contributions and future needs.

It is important that the asset pool is identified before any settlement negotiations take place, the parties attend a mediation/conciliation conference, or the matter proceeds to a hearing.

The value of some assets, such as bank accounts, shares, and accumulation superannuation interests, are usually easily identified by obtaining the most recent account statement. The value of other assets however can be more difficult to identify, examples of such assets include:

• Motor vehicles;

• Collectable items, including antiques and vehicles;

• Real estate;

• Businesses; and

• Defined benefit superannuation interests.

If parties can agree on the value of the above types of assets, the agreed value can be adopted for the purposes of the balance sheet and the property settlement. For example, parties may agree upon the value of a car by obtaining a RedBook valuation, or the value of real estate by obtaining a market appraisal from a real estate agent.

If there is no agreement as to the value of a certain asset, the parties will need to engage an independent expert to value the items. When obtaining a valuation, it is important to:

• Agree upon who will carry out the valuation – the valuer should be appropriately qualified to carry out the valuation;

• Agree upon who will pay for the valuation – it is common for valuation fees to be shared equally between parties;

• Jointly instruct the valuer in writing – it is inappropriate for parties to individually speak with/instruct the valuer; and

• Request that the valuer provide their valuation in writing.

If no agreement can be reached about the appointment of a valuer, and the matter is in Court, the Court has the power to appoint a valuer (known as a Single Expert).

If the matter is in Court, once a joint valuation has been obtained, the parties are bound by the value unless otherwise agreed or ordered by the Court. If one party does not accept the valuation, they can ask questions of the valuer in accordance with Division 7.1.6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; obtain a second valuation and/or seek permission from the Court to rely upon a second valuation (known as an Adversarial Expert Report); this is not a straightforward process, and specialist family law advice should be sought prior to making an application to rely upon an Adversarial Expert Report.

If you have questions about valuations and your property settlement you should obtain specialist family law advice. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Peta Sutton, Senior Associate

Dying without a will in the ACT

If a person passes away without a valid will, or a will that does not adequately dispose of their assets, their estate will be distributed in accordance with the rules of intestacy. 

Intestacy is governed by the Administration and Probate Act 1929 (“the Act”) in the ACT. The Act determines who is eligible to inherit from the estate and the order in which assets are to be distributed. 

Who inherits an intestate estate? 

The primary beneficiaries of an intestate estate are typically the partner and children of the deceased. The Act provides for intestate estates to be distributed as follows: 

• If the value of the estate is less than $200,000, the partner of the deceased inherits the whole estate. 

• If the value of the estate is higher than $200,000, the partner is entitled to the first $200,000, plus 8% interest per annum calculated from the date of death until the date the partner is paid. 

• Any remaining balance is distributed between the partner and any children (or grandchildren) of the deceased. If there is one child, the partner receives half of the remainder and the child the other half. If there are multiple children, the partner receives one third of the remainder and the children receive equal shares of the balance. 

• If the deceased has children and no partner, the estate will be divided equally between the children.  

• If the deceased died without a partner or children, the parents of the deceased are entitled to the estate in equal shares. 

• If the deceased died without a partner, children or parents, their next of kin are entitled to the estate. Next of kin are defined as brothers and sisters, grandparents, uncles and aunts, and nieces and nephews. 

• In the event a deceased leaves behind no family, the ACT government is entitled to the estate. 

Who is considered a partner?

A partner can be a party to a marriage or to a de facto relationship. The Act defines a partner as either:

1. The spouse, civil partner or civil union partner of the intestate: or

2. An eligible partner of the intestate. 

An eligible partner is someone who was the domestic partner of the deceased at the time of their death and was either in a continuous relationship with the deceased for at least 2 years, or is the parent of a child of the deceased. 

If the deceased was separated from their partner but not yet divorced, the partner will still be entitled to inherit from the estate. As such, it is important to update your estate planning arrangements to ensure they reflect your wishes, particularly after major life events such as separation. 

It is highly recommended to seek legal advice before administering a deceased estate. If you would like to discuss your situation and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.

Author: Amy Davis

How is an inheritance dealt with in a property settlement?

When completing a property settlement, one of the considerations made is “what contributions were made by the parties?” Contributions come in all shapes and sizes, and can include inheritances which were received prior to the relationship, during the relationship, and following the breakdown of the relationship. When the inheritance was received, its quantum, and how the inheritance was applied will impact how much weight/credit is given to the contribution. It is common for an adjustment of the property settlement to be made in favour of the party who received the inheritance, however there is no set formula, and the weight/credit applied is at the discretion of the judicial officer hearing the case.

Another consideration in a property settlement is the future needs of the parties, including any changes to their financial circumstances by way of impending inheritance. If a party is a beneficiary of a deceased estate and awaiting distribution of the estate, the nature and quantum of the inheritance could be relevant to the outcome of the property settlement. If there is going to be a discrepancy in the parties’ financial circumstances as a result, it may be appropriate for an adjustment of the property settlement to be made in favour of the party who is not receiving the inheritance; again, there is no set formula, and the adjustment applied (if any) is at the discretion of the judicial officer hearing the case.

What is not as clear is what weight/credit, if any, should be applied to the possibility of a party receiving an inheritance. For example, this question arises where one party has an elderly parent and can expect to receive an inheritance upon their parent’s passing. Consideration needs to go beyond the possibility of a party receiving the inheritance and consider the probability of the party receiving the inheritance. If the party’s parents are elderly, but otherwise healthy, well and have testamentary capacity (meaning they have the capacity to amend the terms of their Will at any point in time) then the fact that the party is to receive an inheritance at some time in the future will likely only be deemed a mere expectancy; a mere expectancy will have little if any weight in a property settlement. However, if that party’s elderly parent is unwell and has lost capacity (meaning they are unable to amend the terms of their Will), the fact that the party to the property settlement is due to receive an inheritance at some point is likely to be seen as a relevant factor when considering the parties future needs.

If you need advice about how any inheritances, received or due, may be dealt with in your property settlement you should obtain specialist family law advice. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Peta Sutton

Caveats in Family Law

When a relationship ends, figuring out who gets to keep certain property can be a cause of concern, especially if you have been contributing to mortgage repayments on a property owned solely in your former partner’s name. What happens if you break up? Can your partner just sell the house without telling you? This is where a caveat may assist, in certain circumstances.

What is a caveat?

A caveat is like a public record indicating an interest in real property. If you lodge a caveat on a property, it means that the registered proprietor is unable to sell or deal with the property without the caveat being removed from the title.

Why and when to lodge a caveat?

In certain circumstances, including where you can establish an equitable interest in a property, a caveat may be used to protect your interest, or to delay certain dealings with a property that you may not know about or consent to. The Family Court has dealt with cases involving caveats in the past and has determined that a mere interest in a property as a result of an arguable case for an adjustment of property interests between separated parties may not (of itself) be a caveatable interest. Care must accordingly be taken when exercising such a right or taking such a step to lodge a caveat over a property not legally owned by you.

How to lodge a caveat?

To lodge a caveat, you must be able to demonstrate that you have a legal or equitable interest in the property. This may include by having made financial contributions towards the acquisition or improvement of the property. The application process involves completing specific forms and submitting them to the land titles office, as well as paying a fee. It is very important to seek legal advice before you do so, as lodging a caveat without a proper basis can have consequences, including in some circumstances financial penalties.

Does a caveat expire?

In jurisdictions like the ACT, a caveat remains on the title of a property once registered, until the caveator takes steps to remove it or the registered proprietor of the property applies for the lapsing of the caveat. If a caveat is disputed, the issue may need to be resolved in the Supreme Court, where a judicial officer decides whether the caveat is valid based on the evidence presented to the Court.

If you have a query about lodging a caveat and you are separated or considering separating, you should seek specialist family law advice.

Our team at Robinson + McGuinness is ready to guide you to ensure your rights and interests are prioritised. Contact us today to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Charlotte Wei

Sorting out the children’s care arrangements

If you have separated from your partner and you share children together, life will (of course) be different. This is especially so if you are no longer residing in the same property. Where you have moved out, or your spouse has, it is important to establish arrangements for care of the children as early as possible.

In discussing the children’s care arrangements, you can decide whether you will implement an ‘interim’ arrangement (say for a few weeks, months or even a year), or you may already have a good idea about what your ‘final’ arrangements might look like (i.e. until the children turn 18).

Generally, you and your former spouse should agree as to any care arrangements together rather than one parent unilaterally imposing the arrangements on the other parent.

To formalise any agreement reached:

1. parents can enter into a ‘parenting plan’ which can be as simple as writing down your arrangements on a piece of paper, then signing and dating the document; or

2. you might also decide to formalise the arrangements in consent orders that the Court approves and ‘stamps’, however this is generally only done when you have agreement about final arrangements.

If you do not reach agreement, you may wish to engage a mediator, who is an independent third party who can assist you in finding an outcome that is mutually suitable (even if you do not consider it to be your best-case scenario).

Important things to think about when you are considering entering into a parenting plan include:

1. What will the arrangements look like during the school term;

2. Will the arrangements change during the school holidays, and what will you do over the longer Christmas/summer school holiday period;

3. Will there be set times for the children to communicate with the other parent;

4. How will you share special occasions, such as religious holidays and birthdays;

5. Which special occasions are important to celebrate - either for you or the other parent;

6. Are there any ground rules you want to establish for travel, whether that be domestic travel or international travel;

7. How will you share important information, such as the details about children’s health or medical treatment;

8. How you and the other parent will communicate, i.e. by email, text, Whatsapp or via parenting communication app.

Before negotiating care arrangements, you should also consider where you will both be residing and your working arrangements, including whether either parent has access to flexible working arrangements.

Ultimately, in deciding which arrangements you put in place for the children, you should think about whether those arrangements will work for the children. This in turn will influence whether the arrangements are in the ‘best interests’ of the children. Whilst some parents consider that an ‘equal time’ or 50/50 arrangement is ‘fair’, this is not always appropriate particularly where the children are young and have an established primary carer. You should also consider the children’s typical routine and whether the children can maintain this routine with the proposed arrangements.

If you are thinking about discussing care arrangements for the children, or if you are concerned that the care arrangements are not working, you should seek advice from a specialist family lawyer. Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Anika Buckley

Property settlements- the death of a party

When one party of a breakdown relationship is terminally ill, it can have significant implications to the distribution of their property, if the party passes away. Whilst a morbid and uncomfortable topic, it is an extremely important one to consider, as it can have serious consequences on a party’s assets, and how they are dealt with after a party’s death.

Death prior to commencing proceedings

Where neither party has commenced court proceedings in the Family Law jurisdiction, the matter will be dealt with under the estate law of the applicable state or territory of Australia. This might mean that if the terminally ill party did not update their will after separation, their former spouse (if provided for in the deceased’s will) may inherit from their estate. This may or may not be the intention of the deceased party.

Seeking legal advice becomes even more pertinent in family law matters when one party is terminally ill. Generally most parties will attempt to resolve their matter outside of the Court system, through independent negotiation and sometimes formal mediation. These pre-action procedures still apply despite the ill-health of a party.

However, if the matter is unable to be resolved through these means, sometimes the only alternative course of action is to make an application to the Federal Circuit and Family Court of Australia to resolve the matter.

Death after commencing proceedings

So, what happens when a party dies prior to a matter being resolved, but after filing an application? Where proceedings have commenced in the Family Law jurisdiction, and a party dies, Section 79(8) of the Family Law Act 1975 (Cth) and Rule 3.19 of the Family Law Rules 2021 apply. The Court may allow for the substitution of the deceased party by their legal personal representative - usually the executor of their estate, or another appropriate party - to ensure the legal proceedings can continue.

The personal legal representative will usually engage in Family Law proceedings with the view of recovering the deceased’s share of the matrimonial property pool for distribution according to their will. However, it is important to remember that the Orders that the Court will ultimately make are likely to be significantly different to the Orders the Court would have made if the party had not died. One example of how such a difference in outcome occurs is that the Court cannot consider the future needs of a party if they have passed away.

Family law and the death of a party can be complex and nuanced. In the event you are faced with this circumstance, you should obtain specialist family law advice. Contact Robinson + McGuinness to arrange an appointment on 02 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Lauran Clifton

Married Overseas and Divorcing in Australia?

It can be difficult to navigate the complexities of an international marriage or divorce for foreigners or residents of Australia. If you’ve been married overseas and are considering a divorce in Australia, this blog may shed light on the process for you.

Are Overseas Marriages Valid in Australia?

The key question many face is the validity of overseas marriages in Australia. The good news is that Australia generally acknowledges marriages conducted abroad, as long as they were legal in the country of marriage and would be considered legal under Australian laws. This means if you legally married in Paris or Beijing, it holds the same validity as if you married in a city of Australia like Sydney.

Residency and Jurisdiction: The Gateway to Divorce proceedings in Australia

The primary prerequisite for filing for divorce in Australia is not the location of the marriage, but the parties' residency status, which requires:

• Either spouse must consider Australia as their home and intend to live here indefinitely, or

• Be an Australian citizen (by birth decent, or grant of citizenship), or

• Live in Australia and have done so for 12 months immediately before filling the Application for divorce.

Grounds for Divorce: Irretrievable Breakdown of Marriage

The only ground for divorce is that the marriage has irretrievably broken down and there is no reasonable chance that you will get back together. To apply for a divorce, you must have been separated for a continuous period of at least 12 months. The period can include time living under one roof, but additional evidence is required in such cases. The 12 months starts from the day one or both parties ends the marriage.

It does not matter who was ‘at fault’ or whether both parties want a divorce.

Legal Maze of international Divorce: More Than just Dissolving a Marriage

While the process of applying for a divorce is usually relatively straightforward, it isn’t the only thing you should be thinking about if you are a separating. You may also need to consider addressing property division, parenting arrangements, and possibly spousal maintenance. These aspects can be particularly intricate when international marriages or relationships are concerned.

Seek Legal Advice

At Robinson + McGuinness we have experienced family lawyers that can guide you through the process of separation and divorce, offering fixed-fee divorce applications. We aim to protect your rights and interests, offering a supportive and knowledgeable guiding hand through this challenging time.

Please contact us to make an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Charlotte Wei

There is no valid Will: what happens now?

When a loved one passes away, there are many things to organise, including the administration and distribution of their assets in accordance with their Will.  However, sometimes there is no valid Will; this may be because the deceased did not make a Will (either by choice or because they were mentally incapable of doing so), the Will does not meet the validity requirements set out in the Wills Act 1968 (ACT), the Will has been revoked, or because the deceased failed to update their Will as circumstances in their life changed such that that the gifts contained therein have lapsed or fail.  When this happens, the deceased is known as intestate, and rather than their estate being distributed in accordance with their wishes, it will be distributed in accordance with the intestacy laws set out in the Administration and Probate Act 1929 (ACT). 

The Administration and Probate Act 1929 (ACT) provides for a intestate estate to be distributed in the following manner and priority: 

1. In the event the deceased is survived only by a spouse (husband, wife, de facto partner), then the spouse will receive the entirety of the deceased’s estate;

2. If the deceased is survived by a spouse and children, then the spouse will receive the first $200,000 (or as much thereof) of the deceased’s estate plus interest at 8% and thereafter share the balance with the deceased’s children - the exact division of the balance of the estate will depend upon the number of children that survive the deceased;

3. If the deceased has no spouse, but is survived by children, then the children equally share in the deceased’s estate; 

4. If the deceased has no spouse, or children, then the estate will be paid to the following categories of people:

   1. Parents of the deceased; 

   2. Brothers and sisters of the deceased; 

   3. Grandparents of the deceased; 

   4. Aunts and uncles of the deceased; and 

   5. In the event there is no person from the above mentioned categories who survives the deceased, then the Australian Capital Territory Government will be entitled to the deceased’s estate. 

Further to the above, if the deceased’s estate comprises of a house, which the spouse of the deceased was residing in at the time of the deceased’s death, then it is possible for the spouse to elect to have the house transferred to them in or towards satisfaction of their interest in the deceased’s estate.

Distribution of an estate in accordance with the laws of intestacy may not achieve the testamentary intentions of the deceased.  For example, if it’s important that friends or charities receive a portion of a person’s estate, such is not possible following the laws of intestacy; this can only be achieved by preparing a valid Will. It is therefore important that individuals prepare a Will and review it every 2-3 years to ensure that it fulfils their intentions. 

If a person does die intestate, it will still be necessary to apply to the ACT Supreme Court for Letters of Administration; this grant will enable the administrator (who applies for and is appointed under the grant) to administer and distribute the estate. 

If you are navigating an intestate estate, or simply want to ensure your estate is distributed in a specific manner, you should obtain specialist legal advice. 

Contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Peta Sutton

Living arrangements post separation

If you have just separated from your partner, you might be wondering what happens next. For example, how do you decide who gets to stay in the house? What do you do with all of your belongings?  

Some couples decide to separate but remain under one roof.  For example, a couple may live together but no longer act as though they are in a genuine domestic relationship (i.e. you might sleep in separate rooms and stop socialising as a couple). Couples may decide to remain under one roof due to a number of factors, such as their financial circumstances or to provide stability for the children.  The arrangements may be temporary or they may last years.

If you are not comfortable remaining separated under one roof, you will likely need to have a discussion with your partner about who will remain in the property.  This decision may be impacted by multiple factors including:

1.  Whether there are children and who is the primary carer of those children;

2.  Who is on the lease if it is a rental property;

3.  Who is on the title of the property if you are owner occupiers;

4.  Whether either of you can meet the outgoings for the property;

5.  Whether either of you are able to obtain suitable accommodation elsewhere; and

6.  Whether there are any safety considerations.

It is important to discuss and establish boundaries around each of you accessing the property and for what purpose.

In the event you do not agree about who remains living in the property, you can also make an application to the Court to determine who will have sole occupation of the property and who shall meet the outgoings in relation to that property.  See the following blog post for more information about what a Court considers in an application for sole occupation: https://www.rmfamilylaw.com.au/blog-edit/2023/10/20/sole-occupation-who-gets-to-stay-in-the-house-after-separation)

If you remain in the property, you will also need to think about how to divide the household contents.  You may not agree about how to divide big ticket items, such as whitegoods, furniture and valuable artwork.  It is useful to keep track of how you divide your household contents, particularly if you have valuable assets as this will generally form part of your property settlement.

It is generally reasonable to allow the other party to collect their belongings and in particular, items which are not in dispute such as personal documentation, clothing and personal effects.  If you are concerned about your former partner collecting their belongings, you can seek advice on establishing a process for them to collect their belongings. For example, a lawyer can advise on safety measures to employ to ensure there is no conflict when they collect their personal effects.

As with anyone moving house, you should also think about whether you need to redirect your mail, update any account details (for example, your electricity and gas) and make sure your home insurance is up to date.

If you would like to discuss your accommodation options in the context of a separation, or if you would like to understand your rights and obligations when it comes to the division of your household contents, you can book an initial appointment with one of our specialist family lawyers by contacting us on (02) 6225 7040, by email at info@rmfamilylaw.com.au or get started now online  to obtain advice.

Author: Anika Buckley