Month: November 2016

December Seminar

SPECIAL INVITATION

We’re holding a special seminar where we’ll discuss the benefits of having a Will and Powers of Attorney in place – and what can happen if you do not.

We’ll show you a number of areas people often overlook in their wills, which leads to additional stress, heartache and financial loss for their families. We see these oversights happen on a regular basis – but they are easily avoided. We’ll show you how.

The seminar is FREE to attend – and there are only SIX spaces available.

WHEN: Wednesday, 21 December 2016 from 6pm to 6.30pm.
WHERE: 308 Highett Rd, Highett VIC 3190

Bookings essential! 

To confirm your seat, simply call our office on 9555-7233

OR

Send us an email via our “Contact Us” page.

If you know someone who should attend this seminar – SHARE this invitation with them by clicking here!

Family Law Binding Financial Agreements or Consent Orders: A little now or a LOT later.

We had a client who separated from his wife in 2005. In order to save money, they hand-drafted and signed an agreement between themselves as to how the assets and liabilities of the marriage, including superannuation, were to be divided. The assets and liabilities of the marriage were then divided in accordance with the agreement. At the time both parties agreed that the outcome was fair and reasonable. They did not file for divorce.

In 2014, the wife ran out of money and decided to make an application at the Federal Circuit Court seeking property orders and spousal maintenance. She argued that the agreement that she and the husband had signed was not binding and wanted the Court to make Orders as to the distribution of the parties’ assets and liabilities 9 years after separation i.e. “take a second bite of the cherry”.

 

This resulted in expensive litigation for both parties but they settled the matter just before a trial. The husband paid the wife a token sum of money to finalise the matter. The wife spent more money on lawyers than she was paid by the husband and the husband spent money on lawyers to defend the court proceedings and had to pay the wife the settlement sum. All in all, a lose-lose situation for both parties.

Had the parties obtained legal advice and paid lawyers to assist them in entering into a Binding Financial Agreement or Consent Orders in the first instance in 2005 when everything was amicable, each party would have only spent a fraction (approximately 25%) of what they had spent in litigation.

 

T’was the night before Christmas….

This is an example of parents who separated without a Parenting Agreement or Parenting Orders:

The parents agreed that the children would spend each alternate Christmas with each side of the family. One year, the paternal grandfather was gravely ill – “it’s his last Christmas” she told her former husband. With no formal written agreement in place as to the children’s time with each parent, the Mother took the Children that Christmas, even though it was agreed that the children would spend that Christmas with their Father.

Fast-forward a few years, the paternal grandfather is still alive, and still without a formal written agreement in place, the Mother decides again that she wants the children for Christmas. Again, it’s “not her turn”. She turns up at the former husband’s house on Christmas Eve and takes them away with her. Without a formal written agreement, the Father was not able to enforce the verbal agreement the parties had.

 

Lesson learnt

As time passes, circumstances change. And if there are no legal binding documents in writing to protect the arrangements with the children, your rights and the agreement between you and the other party, then you are exposing yourself to the risk of bitter, expensive and long drawn out Court proceedings later.

 

Here’s what you should do if you separate:

  1. If you have a property/spousal maintenance matter, collect as many financial documents as you can in relation to the assets and liabilities of the pool, for example, bank statements, superannuation statements, tax returns, share dividend statements, trust documents etc.
  2. Consult with a solicitor to obtain legal advice in regards to your rights and entitlements under the Family Law Act 1975. Bring the documents above to the appointment.
  3. Instruct your solicitor to negotiate with the other party after the exchange of documents has taken place (“discovery”). Prior to the issuing of any proceedings for time with the children, the parties must attend upon a registered Family Dispute Resolution Practitioner and attempt Dispute Resolution (there are certain exemptions from this requirement).
  4. If negotiations are successful and you come to an agreement with the other party, instruct your solicitor to draft a Binding Financial Agreement or an Application for Consent Orders and have both parties execute the document. For an Application for Consent Orders, the Application along with the relevant documents must be filed at the Family Court for approval of the Court.

If you know someone who has recently separated, help them out – and share this article with them, by clicking here!

Speak to us to have a written agreement in place that can protect you, your assets and your family.

 

This article provides information that is general in nature and is not a substitute for legal advice.

How do you prove an agreement to vary (or make an alteration) to a contract?

The short answer is to keep written records, including text messages, emails and snail mail. Oral agreements are just as valid as written agreements are however, you need to have something which can be produced that identifies the date, the time and the content of the agreement/alteration. If you keep a diary, write out the agreement in your diary, have everyone sign it and then give everyone a copy of it.

The Domestic Building Contracts Act 1995 (Vic) requires a process to be followed to vary plans or specifications. This includes moving a doorway, changing a colour, size of a tile, changing a brand of fixtures, lights, handles, taps, flooring, colour of render, type of brick, or anything relevant to the way the is construction to take place or to have items excluded from the contract.

But what about other changes to an agreement – including time?

Extensions of time for completion of a contract, or suspension of the building works for a particular reason, are discreet provisions in standard industry produced contracts. However, because they are standard terms, many people do not appreciate their importance. You need to understand these provisions effectively.

In summary, both builders and property owners need documented records to prove the terms or variation of the contract.

Speak with us for more details here or call 9555-7233.

 

This article provides information that is general in nature and is not a substitute for legal advice.

Owners making a claim under the Builders Warranty Insurance (BWI)

When you undertake a building project, you expect the builder to see to the project until it is completed. However, if your builder becomes insolvent, dies or disappears, it is not the end of your project!

A Ministerial Order issued in May 2003 pursuant to the Building Act 1993, provides for the conditions upon which a Builder can undertake domestic construction. Specifically, it provides for obtaining and providing to the owner Builders Warranty Insurance (BWI). This provides insurance for owners to make a claim if their builder is insolvent, disappears or dies. Recently there has been a change to the Order that also provides for a claim by the Insurer to be accepted if an owner obtained a Tribunal’s order against their Builder and that Builder has refused to comply with the Order.

You should have BWI if your domestic building contract is for construction (or alteration) of a dwelling for a value that is more than $16,000 (since 16 June 2016). Prior to this date, BWI applied to any Domestic Building Work that was over $12,000.

Who arranges BWI?

The builder should arrange and pay for BWI before you pay them any money, including any deposit, under the Domestic Building Contract (the contract).

The insurer will send you the certificate and policy once the cover is obtained. It is important to check that the amount of the building works in the certificate is the same as the amount in the contract, and the name of the builder is the same in the certificate as the one stated in the contract.

What are limitations of BWI?

The amount claimable under BWI is limited. The time to make a claim is also limited to 6.5 years of the date the certificate of occupancy or certificate of final inspection is issued.

Within that time, if your individual builder dies or disappears, and you incur increased costs to finish the dwelling, you should make a claim under the BWI. We can help you prepare your claim.

 

What if you do not receive your payments from BWI?

Not only can we help you make the claim for payment of your entitlements pursuant to the BWI, we can also help you with VCAT proceedings to review any Insurer’s decision that rejects your claim.

 

For more information, call us on 9555-7233.

 

This article provides information that is general in nature and is not a substitute for legal advice.