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What happens to my superannuation or pension after divorce/separation?

When parties separate or divorce, a major consideration will be the division of assets. Many people who seek legal advice on property settlement issues after the breakdown of their relationship or marriage are often unaware that superannuation, retirement or pension funds, whether held in Australia or overseas, could be considered an asset and be subject to Australian splitting Orders or other types of splitting or sharing Orders obtained overseas. Whether a Court treats a party’s super or pension interest as an asset within the pool of assets to be divided, or merely as a future financial resource of a party, will depend on the specific nature and characteristics of that interest, which can have a significant impact on a party’s Court proceedings or property settlement. It is therefore imperative that you get the right legal and financial advice about aspects of a superannuation or pension interest you may have. Different considerations apply to interests that are accumulation funds or defined benefit funds; whether they are in the growth phase or pension phase; and the accessibility of those funds as a lump sum, partial lump sum, or as a pension. Additional complications will arise if your interest is an overseas superannuation or pension fund such as a fund held in the UK. These include looking at the appropriate valuation methods to be applied and the selection of a suitable expert; the treatment of tax in potentially two different countries; the particular rules of the fund; and the laws applicable to the fund in the other country that affect the implementation of any super splitting or pension sharing arrangement; or perhaps...

How much child support will I have to pay?

This is a question that is often asked by parents when they have separated. The answer is different for every family. Examples of factors that will affect the Child Support that you pay or receive include the number of nights the children are in your care and each parties’ incomes. The Department of Human Services, Child Support provides a comprehensive website about Child Support and you should visit the Child Support calculator to see how much you Child Support you may be eligible to pay. You can visit the website here. Edwards Family Lawyers can provide you with information and guidance specific to your circumstances, including how you should document any agreement you may reach with the other parent about the amount of Child Support paid and whether other expenses are to be paid such as school fees, medical insurance, gap medical, and other dental...

When can I get Divorced?

A party to a marriage can file an application for divorce after they have been separated from their spouse for a period of 12 months. The application can be made either solely by one spouse, or jointly by both spouses. In some circumstances, parties can be living under one roof and still be deemed to be separated. In these circumstances the court will require some additional evidence from the parties about their separation and if this applies to you please contact us to discuss this in more detail. If you have been married for less than 2 years from when you file an Application for Divorce you will need to attend counselling with a family counsellor or nominated counsellor and produce a certificate to the Court confirming you have done so, or if you do not attend the counselling you will need to seek permission from the Court to apply for the Divorce. The Australian Government provides a free service for families going through separation to attend mediation, dispute resolution or counselling. Please visit the Relationship Australia website for more information. If you, or someone you know would like to seek a Divorce please contact Edwards Family Lawyers to book an initial...

Companies, Trusts and Third Parties in Family Law

Whilst a company is a separate legal entity, parties in contested proceedings before the Family Court often make the mistake of assuming that matrimonial assets owned by a private company, or trust, are protected and quarantined from the property settlement between the parties. However, there are various ways for the Family Law Courts to exercise its jurisdiction over companies and trusts in which parties to a marriage or de facto relationship have an interest. Firstly, the Court may make Orders against a party personally for the purposes of preventing that party from exercising his or her control over a company or trust to the detriment of the other spouse. For example, the Court may Order that a spouse party transfer shares in a company to the other spouse, or that a party resign as a director, or that assets of a company or trust be transferred to the other party. The resulting tax consequences need to be considered. Secondly, if there is a real threat or possibility that one party to a marriage may dispose of, or transfer assets of the marriage that are held by a trust or owned by a company, then the Court has powers to make any Orders to protect the matrimonial asset(s) in question, such as an injunctive Order restraining a party from doing certain things. Thirdly, if the disposal or transfer of assets has already occurred, the Court may set aside a transaction that has the effect of defeating an anticipated Order to be made by the Court. In such applications, consideration will be given to the interests of a bona fide innocent...

Overseas Assets in Family Law Property Disputes

Parties to an agreed property settlement, or litigants involved in property proceedings before the Courts, must take into account and carefully consider any overseas assets or resources they have. If you have overseas assets or resources, they must be disclosed to the other party.  The Australian Courts can make Orders which are binding on a party to the proceedings to deal with overseas assets and resources in a particular way, or the Court may make Orders which take into account the existence and value of the assets overseas. Other relevant issues to overseas assets and resources include: • If parties cannot agree on the value of an overseas asset it may be necessary to obtain a valuation from an independent expert. • The anticipated or possible taxation consequences, both in Australia and/or overseas, associated with the overseas asset or resource.  It is important that advice be obtained in relation to any possible tax implications prior to entering into any property settlement or property Orders. • Any issues related to the implementation and enforcement of property Orders affecting overseas assets or resources.  It may be that a third party’s cooperation, or further Orders from the appropriate court in the overseas jurisdiction, may be required to implement Orders made by an Australian court.  For example, enquiries may need to be made with the Trustee of an overseas superannuation or pension fund to implement a superannuation splitting or pension sharing Order made in Australia. • Depending on the extent of the assets and resources that a party owns overseas and where each party is located, it may be appropriate for that party’s Family Law matter to...

Parenting Plans or Parenting Orders

There are two methods of documenting parenting arrangements for children of separated parents that are recognised by the Family Law Act 1975. The first is a Parenting Plan, which is an unenforceable written record of agreed parenting arrangements. The second is by way of Parenting Orders, which also set out the parenting arrangements between the parties, but unlike a Parenting Plan, Parenting Orders are enforceable in the event of a breach of the parenting arrangements by one parent.  Parenting Orders are either made by the Court with the consent of both parties (commonly referred to as “Consent Orders”) or if parties cannot agree, they are determined by the Court after a Hearing. The individual circumstances of a case, and the specific needs of the children will determine whether a Parenting Plan or Parenting Orders are best suited in your particular circumstances. Each has its advantages and disadvantages. Except in certain circumstances, once Parenting Orders are made, they are difficult to vary in the future unless there is a significant change in circumstances which warrant a variation, or the variation is with the consent of the other parent.  Therefore, long term parenting arrangements should ideally make provision for parenting arrangements to evolve as the children grow and mature. When considering suitable parenting arrangements for your children, it is important to give careful consideration to all the relevant factors including the children’s ages, their physical, emotional and psychological needs, the family dynamics, the relationships the parents have with each other and the children, the practicalities of any proposed parenting arrangements and any other matter affecting the children.  Parenting Plans or Parenting...