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What is Spousal Maintenance?

Spousal maintenance is a payment made by one spouse/de facto partner to another for the maintenance of that person.

Spousal maintenance is not an automatic right.

Section 72 of the Family Law Act 1975 states that:

A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

1. By reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

2. By reason of age or physical or mental incapacity for appropriate gainful employment;

OR

3. For any other adequate reason.

A party may apply to the Court for an Order for spousal maintenance 12 months from the date of divorce or 24 months from the date of separation in the case of a de facto relationship.

It is common for parties to remain separated but not apply for a divorce. If that is the case, then there is a danger that one spouse may make a claim for spousal maintenance against the other even though the parties may have separated for a long time.

Spousal maintenance payments are generally separate to the property division between parties although they may sometimes form part of the property division/settlement.

For more information about spousal maintenance, speak with one of our lawyers today.

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

Beware of a S6Q Notice.

What is an S6Q Notice? It is a default notice that is sent in accordance with section 6Q of the Privacy Act 1988 (Cth). If you owe a creditor an amount that is more than $150, that creditor can do the following:

  1. Issue you with a first S6Q Notice as soon as the debt becomes overdue;
  2. If the amount is not paid within 30 days of the date the first S6Q Notice is issued, they can then send you a second Notice;
  3. Wait for another 14 days and then register you on your credit report. This can be disastrous as it will prevent you from obtaining finance. The entry on your credit report automatically lapses on the expiration of 5 years of the date of the entry however, 5 years is a long time when you need to, let’s say, apply for a personal loan or refinance.

There are other steps that are available to a creditor to pursue the debt – one of them is to issue a proceeding in court. It is important therefore, to act as soon as the first Notice is received and contact us to obtain advice on your options.

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

Application for Divorce – We can help you

You and your spouse may be able to apply for a divorce (dissolution of marriage) if you have been separated for 12 months and more, there is no reasonable likelihood of resuming your marriage and if you satisfy the jurisdictional requirements for the Federal Circuit Court of Australia to make a divorce order.

We charge a fixed fee for the Application according to Part 3 of the Family Law Rules 2004 (Family Court Scale of costs)(excluding disbursements) and not on hourly rates! This includes drafting the Application along with any accompanying Affidavits, arranging for a process server to serve your spouse with the Application (if necessary), organising the filing service documents at the Court and attending at Court for the divorce hearing (if necessary). If your marriage certificate is not in English we can organise for a translation too.

We had a client who paid $200 to a company (not a law firm) they found on the internet to assist her with completing the paperwork, only to accidentally pay for the wrong Application form. She was not able to get her money back. She was also not informed that she had to then make her own arrangements to serve the Application on her spouse which was an extra charge on top of the $200. In the end she decided to come to us to assist her with the documents and to serve her spouse who was evading service. We got her documents in order and attended at the divorce hearing with her and her divorce order was granted.

Save yourself the hassle of drafting the Application on your own and arranging for service of the documents all by yourself and let us handle the paperwork. Contact us today.

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

Do you have a valid will?

A Will is a document that states how you would like your assets to be distributed when you die. It also identifies people or organisations you would like to be responsible for carrying out your wishes.

It is a legal document, and to be valid, there are a number of processes that must be followed.

According to Section 7 of the Wills Act 1997 (Vic), a Will is not valid unless:

  • It is in writing and signed by the Testator (Will-maker) or by some other person in the presence of and at the direction of the Testator; and
  • The signature is made with the Testator’s intention of executing a Will, whether or not the signature appears at the foot of the Will; and
  • The signature is made or acknowledged by the Testator in the presence of two or more witnesses present at the same time; and
  • At least two of the witnesses attest and sign the Will in the presence of the Testator but not necessarily in the presence of each other.

You must also appoint an Executor. An Executor is someone who is going to manage your estate – i.e. collect your assets, pay your liabilities and distribute your estate to your beneficiaries in accordance with your Will.

Why use a lawyer to draw a Will instead of a Will Kit you can buy from the Post Office?

To save money, many people choose to write their own Will. This may do more harm to your beneficiaries than help.

Here’s why you should spend the money:

  1. You may be sure that your Will is valid;
  2. You may minimise the risk of litigation if a person makes a claim against your estate;
  3. You may be asked to put measures in place for scenarios which you have not thought of before but which your lawyer has picked up;
  4. You may be advised how to make your bequests in a way that helps a beneficiary, not harms them.

Don’t forget: It is a part of Hassall’s Litigation Services to minimise the risk of litigation!

 

Case Study

A client wanted to leave her property to her son who was living in it with her. However, her son was receiving Centrelink benefits. If he inherited the house, he would not be entitled to receive those benefits.

If the son did not inherit the property outright upon his mother’s death and instead received a life interest for him to occupy the property i.e. he had the right to live in the property without owning it, he would still be entitled to receive his benefits. This enabled him to maintain his Centrelink benefits and live rent-free in the property.

In this scenario, the Executor would manage the household expenses such as bills which are paid by the Estate. The house remains in the name of the Estate.

 

Excluding people

If you want to exclude a person from benefiting from your Estate, you must state this in your Will and include the reason(s) why. This helps with showing that you intended to exclude a person from your Will and it was not merely an oversight.

 

Final check

Are you sure your Will is created such that your beneficiaries will be taken care of and only the people you want to benefit from your Estate will? We can remove the doubt – speak to us.

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

Will you have to sell your property after separation?

If you have separated and do not have the capacity to be able to borrow money to re-finance on your home to be able to pay your spouse/partner his or her entitlements under the Family Law Act 1975, then you may have to sell the home.

We can help you assess the other parties’ entitlements and organise an independent valuation (at the shared cost of the parties) for the purposes of a property settlement.

Before proceeding with sale of property after a separation, talk to us so that we may advise you of what steps to take.

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