My wife has changed the locks on our house, can she do this?
If no Court Order is in place stating otherwise, and a home is held in joint names, either party is legally entitled to change the locks. That means you could also have the locks changed again, so you can regain access to the house. However, you would not take such action before seeking legal advice, as doing so may result in your former partner obtaining a Protection Order against you, on the basis that your entry back into the house is a form of harassment and intimidating behaviour.
How long do I have to wait before I can get divorced?
You must be separated for 12 months before you can make an application for divorce. It is also possible to apply for a divorce even if you have been living separately under the one roof.
I received an inheritance from my father and my partner thinks he is entitled to a share of it. Surely that can’t be right?
Whether an inheritance forms part of the assets available for division, depends on a number of factors including, but not limited to:
(a) Was the inheritance received before separation, and if so, how long ago?
(b) How much was the inheritance when compared to the value of the rest of the assets?
(c) Was the inheritance applied to relationship assets, such as paying off a joint mortgage?
(d) Do you have children and how old are they?
(e) How long was your relationship from the date of cohabitation until separation?
(f) If received before separation, was the inheritance quarantined in some way?
There are many cases on this issue where inheritances have been both included and excluded from the relationship asset pool. What will happen in your case will depend very much on the very specific facts of your matter.
My next door neighbour received a 70% property settlement, but my lawyer tells me that I am only entitled to 50%.Our situations are very similar, yet the difference in outcomes is huge. Has my lawyer got it all wrong?
The worse thing you can do when you are going through a property settlement is compare your entitlements to someone else’s. Despite you thinking that your situation is very similar to a third parties’, the reality is that property settlement entitlements are so fact specific, that even a few differences in your respective situations could mean a huge difference in overall entitlements. The best thing you can do for yourself is obtain specialist family law advice and take the advice of your lawyer.
My son who lives with me is constantly telling me that he does not want to see his mum. Do I have to force him to go?
If there is a parenting court order in place, stating that your son must see his mother at certain times, then you must abide by the Order. You cannot breach a court order unless you have a reasonable excuse, as allowed for under the relevant legislation and case law. The most common example of a reasonable excuse is where the child is at genuine risk of harm whether physically or emotionally if he/she was to attend a contact visit. If there is no parenting court order in place, while you are not in the strict sense legally bound to send your son, it might be to both yours and your son’s detriment in the long term if you do not send him. That is because the Court frowns very heavily on parents who do not foster a relationship between parent and child, which could result in you losing primary care of your son. The age of the child can also have a huge bearing on this question, as can many other factors. Make sure you seek the advice of a family lawyer before taking any drastic action.
I am a grandparent who has had a falling out with my child and as a result am now being denied contact with my grandchild. Is there anything I can do?
The Family Law Act allows third parties such as grandparents to make an application to the Court and seek orders that they be allowed to spend time with their grandchild. There are many factors the Court would look at when making a decision, a major one being how much time the grandparent has spent with the child in the past.
My former partner and I have reached our own agreement on both property and child issues, which we drew up ourselves and had witnessed by a Justice of the Peace. Is that good enough?
No. This is a common trap that people fall into, mainly because they do not seek legal advice. In family law matters, any agreement reached which is not documented by way of either Consent Order through the Family Court, or by way of Financial Agreement (applies to property settlements only), is not legally binding. This means that 2,4, 6 years down the track, your former partner could “come back at you” and seek a further property settlement, or decide that he/she does not want to follow the agreement you reached with regards to your children. Do not leave yourself open to further unnecessary stress. Get it right from the outset by seeking specialist legal advice when documenting any agreement reached.
I brought a lot of assets into my relationship with my partner which were in my name alone and remained in my sole name throughout our relationship. Those are mine aren’t they if we separate? My partner can’t claim on them can he/she?
Yes he/she may be entitled to a share of those assets, unless a valid prenuptial/defacto agreement was entered into before you married/started living together. In most cases how the assets are held (that is either solely or in joint names) is irrelevant. The length of your relationship is also very important. In some cases, the shorter the relationship, the better that will be for the partner who brought the assets into the relationship, when assessing property entitlements. The above are only a couple of factors which are relevant when determining whether such assets can be claimed on.
So as to diminish my wife’s property settlement entitlements and my payment of child support, I am going to quit my job and do nothing for awhile, or take a much lower paying job. There’s nothing my wife will be able to do about that is there?
Your wife will be able to run the argument that what you are choosing to earn after you quit your job is not your true earning capacity. The relevant question is “what is your capacity to earn income?” not “what do you choose to earn”. If both the Court and Child Support Agency take the view that you are deliberately trying to decrease your wife’s entitlements, then they can deem you to be earning a higher income, which would result in your wife receiving a higher property settlement and higher child support payments.
