What is a De Facto Relationship?

The Family Law Act defines what is a de facto relationship and how the property of those parties will be dealt with in the event of a relationship breakdown.

A de facto relation exists when 2 persons of different, or the same sex are:

not legally married to each other;
not related by family; and
living together as a couple on a genuine domestic basis.

The courts consider many factors when determining if a relationship falls within the definition of a de facto relationship. These include:

the duration of the relationship;
whether a sexual relationship exists;
the degree of financial dependence or interdependence, and any arrangements for financial support between them;
degree of mutual commitment to a shared life;
care and support of children; and
if the relationship was registered under a prescribed law in a State or Territory;

If your relationship falls within the definition of a de facto relationship it is important that you are aware of the differences when it comes to dealing with property following a breakdown of the relationship.

De facto couples have up to two (2) years to apply for financial orders (property settlement), otherwise you will need to obtain the Court’s permission. Married couples have up to twelve (12) months following divorce to apply for orders.

Provided that you comply with the timeframes, you generally have access to the same Court systems as married couples. You are able to deal with the division of assets, maintenance, parenting and child support.

Due to the complexity in the Family Law system you may want to consider entering into a Binding Financial Agreement (‘pre-nup’) before you commence a de facto relationship. While this option is also available to married couples, it is most commonly entered into before the parties marry. A Binding Financial Agreement may provide more clarity to the division of assets should the relationship breakdown.

If you wish to discuss matters relating to de facto relationships, or entering into a Binding Financial Agreement we would be happy to assist you.

The Importance of Contracts

Contracts are without doubt, the most common exposure to law which people have on a day-to-day basis.

Simple transactions such as buying bread, milk or entering a parking lot commonly gives rise to a contract.

Contrary to popular belief, contracts do not have to be in writing to be valid and enforceable, however, it is much each to prove one that is.

There are circumstances in which a verbal contract should never be relied upon and for any commercial transactions, it is always recommended to have a formal written agreement constituting a contract between the parties to the agreement.

Whilst there may be costs and time associated with the preparation of a contract, particularly a detailed contract to evidence an agreement between two or more parties, at the end of the day, it is often found that the time and cost involved at the beginning of the matter will outweigh the detriment that could be sustained if the contract is not fulfilled by one or all parties.

The primary benefit of a written contract is that it clearly documents all the terms that have been agreed between the parties.

It outlines what every party’s obligation is and gives them a uniform document they may fall back upon or referred to in the event that there is a default or breach of the agreement by one or the other.

A contract is used to govern the interaction between the parties throughout the agreement and it is also an invaluable tool if one party needs to enforce its rights for a breach or default under that agreement.

At Spranklin McCartney Lawyers we have an extensive history in providing and drafting the Spokane custom contracts to a variety of individuals and businesses for a wide array of different transactions. Paragraph contracts which we have prepared include:

subcontractor agreements;
terms and conditions of trade;
loan agreements and mortgages;
option agreements;
business sale contracts;
the spoke special conditions for residential sale contracts; and
client engagement agreements.

In addition to our experience in drafting the contractual agreements, we also bring a vast wealth of knowledge and experience to our clients during the negotiation phase of any contracts. It is important to ensure that all terms and negotiations are undertaken properly and accurately such that an accurate contract may then be prepared based upon those negotiations.

If you or your business need a contract we have that you do not hesitate to contact our office as we always happy to chat with you to see how we can assist you will your business.

Real Estate Purchase in Queensland? Does FIRB apply to you?

The Foreign Investment Review Board (FIRB) is the entity which oversees real estate and business investments in Australia by foreign persons.
Section 5 of the Foreign Acquisitions and Takeovers Act 1975 (Cth) (Act) defines a foreign person as a natural person who is not ordinarily a resident in Australia. The Act provides further definitions for corporations and trustees who may also be classified as a foreign person.

Foreign persons who are looking to purchase residential real estate in Australia need to obtain the approval of FIRB before entering into a Contract of Sale.
If approval has not already been granted, a condition should be inserted into the Contract of Sale allowing the buyer to terminate if FIRB approval is not obtained before settlement.
FIRB will generally approve a foreign person’s acquisition of one established dwelling on the following conditions:

a) the property is vacant at settlement;

b) the property is used as a principal place of residence;

c) no part of the property is rented; and

d) the property is sold when it ceases to be a principal place of residence.

There are, however, exceptions to the rule. A few of these include:

1. if you are purchasing the property as joint tenants with your spouse, who is an Australia resident;

2. if you are purchasing off a developer who has approval to sell to foreign persons; or

3. you have acquired the property as the beneficiary of a Will.

Foreign Investment is a complex and sometimes confusing area of law. Failure to comply can result in significant adverse consequences. If you are a foreign person looking to purchase real estate or other business investments in Australia, we recommend contacting one of our friendly staff for legal advice.

For further information regarding FIRB and real estate purchases by foreign persons, please also visit: www.firb.gov.au

Making a Claim for Compensation against an Estate

Correct advice and proper Estate Planning can help prevent claims for compensation against an Estate – consider this scenario:

In 2002, Mary drafted a Will leaving her house to her daughter Alice. The rest of her estate is to be divided equally between her grandchildren. At the same time, she also drafted an Enduring Power of Attorney appointing Alice as her attorney. Alice had no knowledge of the contents of Mary’s Will.

In 2005, Mary became incapacitated and needed to be placed into an Aged Care Facility. To raise funds for a bond, Alice sold the house and used half the proceeds towards Mary’s bond. The remaining cash was put in Mary’s bank account.

In 2013, Mary passes away. Alice discovers that as the house was sold, she is left nothing under the terms of the Will.

What can Alice do?

The situation described above is not an uncommon one. Often attorneys unknowingly sell an asset that has been specifically bequeathed under a Testator’s Will. As the asset is no longer in existence, when the estate is administered the gift is adeemed and the beneficiary receives nothing.

Section 107 of the Powers of Attorney Act 1998 (Qld) provides that where a person’s benefit in a principal’s estate is lost because of the sale or other dealing of the principal’s property by an attorney, a person may make a claim for compensation out of the principal’s estate. This provision applies notwithstanding the person whose interest was lost was the attorney, such as Alice.

A similar provision is contained in section 60 of the Guardianship and Administration Act 2000 (Qld), and applies where the property was sold by an administrator for an adult.

Interestingly, when the Court is determining the quantum of the interest lost by the beneficiary, they will look to the value of the asset had it still been in existence at the time of the Testator’s death.

Therefore, in Alice’s scenario if the house was sold for $300,000.00 in 2005, but is valued at $400,000.00 in 2013, her interest lost in the Mary’s estate would be $400,000.00.

So how can a situation such as Alice’s be avoided?

Your Will and Enduring Power of Attorney should be drafted together. Where appropriate, it may be beneficial to provide your attorney with a copy of your Will, so they are aware of the contents therein.

Contact our friendly team at Spranklin McCartney Lawyers today for estate planning advice, or assistance in making a claim for compensation.

Article accurate as at 8 November 2013

Trustees of a Trust – What are their Powers and Duties?

There are many different types of trusts which can be established. If you have been appointed as the trustee it is important to know your responsibilities and obligations.

As a trustee, you are required to manage the assets of the trust for the benefit of the beneficiaries. This includes handling the assets with the same reasonable care, diligence and skill you would use in managing your own affairs.

Some specific duties of a trustee are as follows:

to carry out the trust in strict compliance with the terms of the trust deed;
to ensure trust property is vested in your name as trustee;
to carry out the trust personally and not delegate your duties;
to keep proper financial records of all trust dealings;
to keep your personal finances separate from those of the trust; and
to pay and transfer income to the right beneficiary.

There are also a wide range of powers conferred on a trustee by the Trusts Act 1973 (Qld), such as the power to:

sell trust property;
lease trust property;
invest trust funds;
mortgage trust property and borrow money;
repair and improve trust property;
insure trust property; and
exchange trust property for that of a similar nature.

Your powers as a trustee may also depend upon the terms of the trust deed.

It is crucial to understand your responsibilities and obligations as a trustee, as the failure to act properly could result in a claim against you by the beneficiaries for any losses sustained.

If you are looking to establish a trust or have been appointed as trustee, we would be happy to help you with any queries or concerns you may have.

In the Office of my Divorce Lawyer Brisbane: When it is over

You are in the offices of a divorce lawyer Brisbane. “Do you take this man/woman to be your husband/wife till deaths do us part?” Most of us expected the fairy tale ending of “and they lived happily ever after”. Reality, however, is that divorce rates are increasing by the year. Many people feel that it is better to get the help of a divorce lawyer Brisbane than be trapped in a miserable and unhappy marriage. One party has to file a petition with the court asking for a divorce, even if both parties agreed to divorce. The petition will state the grounds of the divorce.

Why do marriages fail and what grounds are there for a divorce? Some of the major reasons why marriages fail are because of adultery, lack of commitment, lack of physical attraction and lack of communication. Joseph Guttmann, author of Divorce in Psycho-social Perspective, found in his research that couples getting divorced after five to seven years of marriage are mostly because of high conflict. He also found that marriages that lasted ten to twelve years and then end up as divorce cases are the result of loss of intimacy and connection. Paul R. Amato found in his research that personal problems such as hurt, jealous, poor money-management skills, easy to get angry and having had an affair are the major causes of divorce cases. Your divorce lawyer will refer to the grounds of a divorce as “irreconcilable differences.”

Parties need to try and negotiate their differences. If a couple have no children and little debt the process is less involved than a divorce where the parties have been married for a longer period with minor children and a significant amount of debt. In both cases it remains wise to obtain the services of a divorce lawyer Brisbane. Your divorce lawyer Brisbane will file a petition with the court asking for a divorce. If the parties disagree on child custody and visitation, the court may order mediation. Other issues that need to be negotiated are the property division and spousal support. If the issues cannot resolve between the parties, it will be decided at trial. The legal process of a divorce requires the expertise of a divorce lawyer Brisbane.

A reputable divorce lawyer Brisbane or trusted family lawyer Brisbane can deliver services with the highest of quality and professionalism and guide you every step of the way through the process of getting divorced.

As an Executor, do I need Probate of a Will in Queensland?

Do I need Probate of a Will in Queensland? An executor has the responsibility of carrying out the terms of a will when the person died. The property of the deceased is commonly referred to as an estate. If you are appointed as the executor, you may have to apply for Probate of a Will in Queensland, which is the court’s recognition that the will is legally valid and that you are authorized to deal with the estate. An executor has many duties and it is highly recommended that you consult an Estates Lawyer Brisbane that has the expertise and experience of dealing with deceased estates in Queensland.

The Supreme Court will issue a grant for Probate of a Will in Queensland once it is confirmed and the court is satisfied that the will is the last will of the deceased. The best option remains to consult an Estates Lawyer Brisbane for assistance, as there are many complexes and difficult factors to deal with, such as the probate can be granted in another state, but assets are in Queensland or real estate is to be transferred to a beneficiary named in the will. Before you can apply at the Supreme Court for Probate of a Will in Queensland, you will have to notify all necessary persons of the death of the deceased, identify beneficiaries and apply for a death certificate.

Deceased Estates in Queensland also require an executor to lodge tax returns, finalise tax affairs, advertising for any debts owing and transferring movable (vehicles) and immovable (real estate) property according to the will. Seek the service of an Estates Lawyer Brisbane, because you can be held accountable for any losses.

With the expertise of an Estates Lawyer Brisbane a Probate of a Will in Queensland can be granted approximately four weeks after submitting the request to the Court. If there are any problems, your Estates Lawyer Brisbane has the expertise to deal with it.

PHONE 07 3397 9622