Introduction:

The Family Flyer is a free community service by Michael Lynch Family Lawyers. The publication is designed to be informative and topical and to assist you in understanding the ever-changing field of Family Law.

This edition includes:

• Tips on Coping financially after Divorce
• Getting a second opinion
• Ownership of Real Estate
• Wills and Powers of Attorney - On-line
• Property Settlement - Who benefits from a gift?
• Changes coming for Defactos
• Federal Budget and Family Law
• Change in Child Support

Tips on Coping financially after Divorce

• Obtain legal advice (to ascertain your entitlement to Child Support and property settlement).
• Consult a financial advisor (to devise a plan setting out your financial goals).
• Consider Superannuation (whether splitting Superannuation is appropriate for you).
• Maintain a budget (keep a written record of your expenses). 
• Control your spending (use credit cards only as a last resort).  
• If looking at home loan options use a reputable mortgage broker.
• If cash flow is tight consider fixing the interest rate for all or part of your loan for certainty of repayments.
• Ensure you have sufficient life insurance.
• Have a Will prepared.
• Cancel any existing Power of Attorney and establish a new Power of Attorney appointing someone you can trust.

Getting a second opinion

Family Law is a complex and ever changing area of law.

All of the Lawyers at Michael Lynch Family Lawyers practice solely in Family and Relationship Law and are often requested to provide a second opinion on legal advice people have received elsewhere.

We are happy to assist in providing this Specialist assistance and have a fixed fee initial consultation.

If you want a second opinion call Chris on (07) 3221 4300 to make an appointment.

Ownership of Real Estate

There are two ways that couples can own real estate, either as joint tenants or tenants in common.  When couples separate they must be very careful as to what arrangement is in place.

Owning real estate as "joint tenants" means that if one of the parties dies then their interest automatically passes to the other owner regardless of the provisions in their Will. 

If someone holds an interest as "tenants in common" and they die then the future ownership of their entitlement will be determined in accordance with their Will.

Most couples hold property as "joint tenants" , therefore if separation occurs people are well advised to look at severing the joint tenancy.  This is a straight-forward process that then creates a "tenants in common" ownership.  To do this the consent of the other party is not necessary.

Severing the joint tenancy does not attract stamp duty.  It is a process that goes through the Titles Office and you should obtain Specialist Family Law advice in considering your circumstances.

Wills and Powers of Attorney - On-line

It is widely accepted that approximately 8 out of every 10 people don't have a  Will.  There are a number of reasons for this, but now there's no excuse. 

We are pleased to announce that, in association with "On-Line Legal" a professional on-line legal service, we are able to offer Wills and Powers of Attorney on-line (and other Estate Planning documents) at a fixed cost, via the internet.

By clicking on the link on our home page readers can access this resource. It is secure and professional. Visit www.mlfl.com.au.

We continue to provide a personalised service for Wills and Powers of Attorney.  This can be accessed on our website under the "Services" link, visit www.mlfl.com.au.

Property Settlement - Who benefits from a gift?

When a gift is received by a married couple, which spouse should receive the benefit for it in a property settlement?

When determining a property settlement the Court is required to consider the "contributions" made by each spouse.  This includes "financial contributions and non-financial contributions". 

Frequently the parents of one of the spouses provide a benefit to the couple, which raises the question as to whether that spouse should receive a "percentage benefit" for that contribution? 

The Family Court has long held that "where there has been a gift or advance by a relative to one of the parties to the marriage the first step is to determine the ownership of the benefit, i.e whether the parent giving the gift intended to benefit themselves, the parties or one of the parties". 

Where a gift is made solely to one spouse (e.g. a gift by parents to their married daughter) and that spouse applies the property to the marriage, that is a direct financial contribution solely by that party and will be assessed in that way.

In other cases, if the evidence shows that the gift was intended to benefit both spouses then the Court will most likely treat that as an equal contribution by both of them.  

Changes coming for Defactos

The Federal Government is introducing legislation into Parliament in the winter sittings that will have a dramatic impact on how property settlements for defacto couples are done. 

Currently, each State legislates how property settlements in defacto relationships occur.  The Federal Governments plan is that, now that most States have transferred their powers regarding defacto couples to the Federal Government, defacto couples can come under the jurisdiction of the Family Law Act.

We will keep you advised of how this legislation progresses.

Federal Budget and Family Law

The recent Federal Budget announced an extension to the CGT rollover relief for splitting a self-managed superannuation fund. 

The Family Law Act provides that when making a property settlement the parties can agree to "split superannuation".

In self-managed superannution funds quite often the Husband and Wife are the only members.  Up until now if one of the spouses was to receive part of the other spouses superannuation in a "superannuation split" then Capital Gains Tax would be payable on the amount coming from the other spouses member entitlement.

The new guidelines provide that in such a situation both components will attract CGT rollover relief.

This arrangement will commence on 1 July 2007. 

Change in Child Support

In the changes to the Child Support Scheme that commenced on 1 January 2007 there are now provisions that allow parents to spend more time establishing parenting arrangements after separation.

Previously, parents who received a family tax benefit had to apply for Child Support within 4 weeks of separation.  The new provisions do not require parents to apply for Child Support until they have been separated for 13 weeks.  This is designed to enable parents to spend time setting up their parenting arrangements.