Family law Q&A on the Chris Smith Afternoon Show
Tuesday, 9 September 2014
CS Ok something completely different in the studio I’ve got Paul Sant from Turner Freeman and you know how this works. This is the legal matters segment, a chance for you to get some free legal advice which you won’t find anywhere else and you can do that courtesy of Turner Freeman and I should mention too that next Monday at Blacktown RSL Turner Freeman is holding a legal clinic and you may have heard some of the advertisements on the station, that’s Monday 15 September it goes from 11 am until 2 pm, a legal clinic at Blacktown RSL the first of its kind for Turner Freeman specialist lawyers will be on hand to assist listeners with their legal issues, RSVP is essential so you’ve got to book and you can contact Sally 8833-2500, contact Sally to get to Blacktown RSL, 8833-2500 and I should mention as I do every week, Turner Freeman also has a local newspaper column which coincides with what we do on the programme today, we are talking divorce today and so you can get some information on divorce through the legal matters segment appearing in your local newspaper and every week we select a caller to receive a $100 Westfield voucher, some of the best callers for the programme get the $100 Westfield voucher courtesy of Turner Freeman and that also includes today, it’s eighteen minutes to 2 o’clock, Paul Sant welcome to the programme
PS Thank you Chris
CS I want to talk about something completely divorce from divorce for a second and I want to go back to a caller we had earlier talking about organ donation and he tried to make a comparison between his wishes in terms of giving his organs and his Will. What’s the situation there?
PS You can express a wish in a Will as to, in relation to your organs, however it’s not binding and the simple answer for that is, that a body or body parts aren’t property. The Will can dispose of assets property, a body or parts of it do not form part of property.
PS So that’s the answer for that
CS But you could also argue it’s the most important asset you’ve got
PS Very true I would think, but no it doesn’t fall within the definition so it doesn’t work
CS Very interesting. Alright filing for divorce, sadly I know too much about this. Where is it best to hear divorce proceedings if a couple were married overseas?
PS Well I would say Australia. There was a recent decision, June of this year of Jasmeet which has some very interesting facts there, they were married in India, the wife lived always in India had no intension of coming to Australia, the husband came to Australia in 06 and lived in Australia since so he was domiciled in Australia.
PS Applies for a divorce, the wife puts on an application to say no the Court’s should be the right jurisdiction, if you are going to apply for a divorce you need to go to India and apply for a divorce. Any way a year later after he filed it was finally determined and what the Court held was the main issue, it’s not the issue of whether what is the most convenient for them, whether India or Australia is the most convenient, rather the question is whether Australia is a clearly inappropriate forum and basically they ended up saying well, in Australia you can get a divorce on 12 months separation, you can’t do that in India and if he went to India he wouldn’t be able to get a divorce unless the wife consented, so they just said clearly Australia is not an inappropriate forum, realised his only chance of getting a divorce was here in Australia, so they said we can do it and granted him a divorce
CS What an extraordinary case
PS Only took him about a year to get it, poor bugger
CS Yeah, what an extraordinary case, 131873 is the telephone number if you would like to talk to Paul about aspects of divorce on the programme, let me explain something by asking this question. There is a big difference between divorce proceedings and orders of the Court aren’t there, these are two separate documents, you’ve got to have, Orders issued by the Family Court and then ratification of divorce by the Family Court
PS No, they’re separate proceedings. There is a divorce proceeding which is purely the divorce, the Order of the Court that says that your marriage to X, Y or Z is dissolved, done and dusted. Then there are property proceedings, then there are children proceedings, you can have interim proceedings. Now they are different because the one issue with a divorce application is that you must wait for a 12 month period of separation. For property, maintenance, child issues you can virtually say oh well we are separated today I’m in Court tomorrow or I’m going to file tomorrow, right in theory. People often get them mixed up and they don’t realise that there is a separate procedure which is the divorce application and unfortunately a lot of people put it aside because it doesn’t really, it doesn’t involve money it doesn’t involve kids and you tend to forget about it, but there are problems with that, because if someone, if you’re not divorced that other party is the spouse and she or he continues to have rights. So 10 or 20 years done the track you might not have lived together for 20 years but that party is still your spouse, you’d I, she or he can still inherit make claims on super, make claims on life policies, if after 20 years separate one party decides how we want to sort out our property the Court looks at the value of the property today, not when it was 20 years ago, big difference
CS Yeah big difference. Wendy has got a question for you go ahead Wendy
C1 Yeah hi there, I was wondering if you could answer something for me
PS I’ll try
C1 I’m correct that in after 2 years together in a de facto relationship it’s considered the same as marriage for all your assets? Correct?
PS 2 years living together as man and wife entitles you to bring a claim under the Property Relationships Act, so living together for 2 years is the same as being married, yes.
C1 Yes, I just wanted to clarify that. I’ve been in a de facto relationship that ended 6 months ago, we were together, living together for 6 years, is there a time frame from when we separate.
PS Very good question, yes there is
C1 So he can make a claim on me, like in 10 years time
PS Yep, 2 years
C1 Can he decides he wants more and
PS 2 years from the date of separation
C1 Ok, very good
PS Alright, that is the big difference between living together and being married. If you’re married the time limit stops 12 months after your divorce becomes absolute, after your final divorce, so you’ve got to be separated for 10 to 15 years you can still bring a claim for property, if you weren’t married but living in a de facto relationship and you’ve separated for 2 years that’s when your limitation stops.
PS That’s when your period stops
C1 Terrific, thank you very much
PS You then have to apply to the Court
C1 Thank you very much for clarifying that
PS Not a problem
CS Tell him to keep his dirty hands off things Wendy. Thank you for the call
C1 Thank you
CS There you go 131873 the telephone number, free advice courtesy of Turner Freeman, Paul Sant ready to take your calls, its twelve to two. That is the real big brother, that it is the real big brother and I should make mention that it was the 8th most popular show last night with 1.067 million people. What! You are connected aren’t you! I don’t even know who big brother is
How did you find, I do. You do. I do, know who big brother is, I’m not going to tell you though, but I do know. You’d tell me if you knew. I will tell you off air, I’m not going ruin it for the whole show ok to say who big brother is. No come on, just let’s call it a rumour, and come on. Well isn’t it one of the Goulburn, isn’t it. No it’s not, I knew you didn’t know. Oh is it a new one. It’s not him. Did he use to do it? No. Yeah he did. No he was the voice over bloke for the show. Oh so is not actually big brother. No. Oh well the voice over bloke for the show. Anyway, who is it then? Turn that microphone off. You tell me who it is. I don’t know, I told you, but anyway big brother is come onto the program to do a few of our identifications, I like that. Ok back to our legal matters segment with Paul Sant from Turner Freeman, let’s go to callers, Sue go right ahead.
C2 Hi guys, I hope this is a quick one and an easy one. My brother has been living in a de facto relationship with a woman and recently separate and she has made a threat of taking, he owns the house and obviously his superannuation, she has made the threat that should like to take half of the house and for an entitlement to his superannuation. In a de facto relationship, when one party already owned a lot of things before hand, are they entitled to a portion of the whole house?
PS No, look there is a myth that seems to be going around at different times that the moment you lived together for 2 years the other spouse is entitled to the one half of all the assets, that’s just ridiculous. It is the same as in Family Law matters, you have to look at the contributions, it depends on how long the parties have lived together, depends upon what assets they had at the time of commencement of the relationship, depends upon how they have contributed, respectively contributed to the acquisition, conservation and improvement of the assets during the relationship.
C2 That all makes sense to me but sometimes the law doesn’t make sense
PS I’m not going to disagree with you
C2 Ok that’s good, that’s put my mind at ease, thank you so much
PS Not a problem
CS Good on you Sue, thank you, Amir hi
C3 How you doin
CS Very well
C3 That’s good, Chris I just want to ask
C3 Paul, I’m going through a Court settlements and conciliation
PS Conciliation conference, yep
C3 I’ve already had two of them, nothing has come of it
C3 Now it’s coming onto 4 years now
PS What in the Court system
C3 Well since we’ve been separated
PS Oh since you’ve separated, yep
C3 I signed a cost agreement with my solicitor on 4/11/2011. He didn’t file for the proceedings, my solicitor didn’t, this is what I need to find out, my solicitor didn’t file for proceedings until the 13/9/2012 is that normal, does it normally take that long for him to file
PS Look each case is different, there is a requirement, particularly in relation to property that the parties attempt a settlement and there are pre action procedures which are a requirement that the parties give financial disclosure. Well I’ve got a matter I think we have been going backwards and forwards for about a year, other matters it might only be one month or two, we are not getting anywhere, we’ll start proceedings. It depends on the matters
C3 Well see this is my whole issue is, my solicitor, ok as a solicitor if the client comes to see you and asks you to represent him, ok. See I asked my solicitor to put a caveat on all, because there are a few properties involved, ok and he ignored my request of putting caveats on the properties
PS Right, let’s just stop there for a moment. Now I’ve seen this happening and it seems to be happening all of a sudden. You can’t simply caveat a property because you’ve got a claim under the Family Law Act, ok and a lot of people think they can do it, but you can’t
CS Right, I’ve got to take a break. We might continue Amir off air and we can continue to try and help him through whatever questions he has and we will take more of your calls so don’t go anywhere, we will be with Paul for another few minutes after the news and also our travel segment coming up as well
You’re listening to the Chris Smith Afternoon Show right across Australia
This is the afternoon programme, thank you so much for joining us this afternoon, we will return to our discussion on divorce with Turner Freeman’s Paul Sant in just a second, some news from Byron Bay and further to the story we brought you at the start of the programme, the wife of that man killed by a shark on the popular beach Clark’s Beach in Byron Bay actually saw the attack apparently, police have confirmed the Byron Bay man in his 50’s died after he was bitten on the right leg whilst swimming off Clark’s Beach at approximately 10-30 this morning, the man was dragged from the water by another man but died at the scene despite CPR attempts from volunteer life guards. Police said the man’s wife was watching her husband from the beach when the attack occurred according to Inspector Bobby Cullen he sustained severe injuries to his right leg the victim’s family is being notified unfortunately his wife was on the beach at the time. The stretch of coast line along Byron Bay has been closed, crowds of locals and tourists gathering along the beach. Now life guards have spotted a shark in the water off the beach and it’s believed to be a great white as a matter of fact channel 7 news chopper from Brisbane has captured a photo of the shark and it does seem to be that of a great white. Inspect Cullen said life guards are attempting to use jet skies to push the animal out to sea and Inspect Bobby Cullen said there was no plan to kill the shark especially with great white’s being a protected species but investigations into the incident are continuing.
Back to our legal matters segment with Paul Sant, let’s go to callers Julie, you’ve got a question for Paul goes right ahead
C4 Yes thank you for taking my call Paul. I’m just newly divorced but we haven’t completed the property settlement yet and until my husband eventually went to a solicitor he was happy for everything to be half and half. Now we were married 33 years and he received an inheritance, the Probate wasn’t done till after he left me though. He now says he doesn’t want to share that inheritance, what’s your thought on that
PS Yes and no. Unfortunately I can’t give you a precise answer it depends upon the facts. The inheritance can be deemed property. Depends upon when the person died, where in the relationship that person died, let’s assume that the relative died you know 4 or 5 years ago and the inheritance happened no
C4 No she only just died
PS Just died, ok
C4 She just died a week before
PS If there is any contributions or relationship between you and the person who died, let’s for example say, you looked after that person or they shared the same house as you or there was some dependency upon you, then I think the Court takes that into account. In any event the Court looks at it as a resource. Even if it wasn’t property as such in the sense of being divided 50/50, 60/40 whatever the Court determines is a fair split, the Court will say will hold on you’ve got $X sitting there as a resource we take note of that fact and as a result you’re going to receive perhaps probably a benefit, but you can’t say that it’s going to be treated necessarily the same as property acquired during the relationship
C4 Ok Paul well thank you very much
PS Julie, can I also give you a $100 Westfield voucher.
C4 I would love that, thank you so much
PS You’re our selected caller this afternoon, a $100 Westfield voucher for you, stay on the line, thank you for calling, Martin you are the last cab off the rank
C5 Oh, aren’t I lucky. I had a divorce 2 years ago and it went to trail, it was pretty messy and we all know that the kids are connected to the property, so basically I came out with nothing, I have just been to another trial a couple of months ago where the Courts took the kids off the mother and gave them to me, so what happens with property now, because I know some guy rang up before and I didn’t quite get the answer as to, can I now go back to the Courts because they have taken them off her and given them to me or what’s the story
PS No, once a property order has been made, the only way you can revisit the property order would be in cases of fraud, duress, none disclosure those types of matters, if circumstances have changed, if you allowed everyone to come back and re-open cases where circumstances change, every matter would be re-litigated and it would be just impossible to deal with
CS But your argument is that the property went to your wife because she had custody of the children for most of the time right
C5 Well this is it, you see I was in a de facto as well and I had property beforehand and everything but nothing was taken into consideration, I had a trial in the Federal Magistrates Court where I wasn’t allowed into my own trial, I then got it through the Parramatta Court where the magistrate said that sometimes the Courts get it wrong Mr Taylor and that’s the way we go, we were told we had one of the worst cases ever seen, we had 2 long week trial, the first trail was supposed to go for a week it only went for a day and this was until 7pm in the Federal Magistrates Court at the end of the night, we were shown the back door, but you know you can’t go and complain about these things because
PS The Courts got to make a decision on the facts that are before it, because I mean I suppose one of the views could have been in a case like that, I’ve got a case at the moment where we are not dealing with property until we resolve the issue with the kids. Now once there is a Court order about where the kids, where the children are living, and then we will look at the property side of things. The Courts got to make a decision on the facts that is before it
C5 Yeah but solicitors get involved in it and it becomes a messy argument because at the end of the day, you know you and your opposition might be fair people but 99.9% of the time we are dealing with people that are just money hungry vultures and at the end of the day it’s basically a war against solicitor against solicitor, it’s not about him and her and at the end of the day these poor kids get dragged into something they didn’t want to get dragged into in the beginning and they live from pillar to post and the next minute the Courts go you know what we got it wrong but we can’t tell anyone about it and
PS I don’t think describing it as a war against solicitor to solicitor is accurate, I mean people I deal with
C5 Well I’ve got a whole family full of them
C5 You know at the end of the day, I’ve been in the system 15 years and I’ve had 3 divorces to the same women
PS 3 divorces to the same women
C5 Yeah that’s it, I was de facto and I went back 3 times cause I had kids and I wasn’t allowed to see my kids, so I was forced to go back and in the end I left actually, I actually left, it was messy she through everything at me, the worst imaginable things done to me. I actually ended up marrying Graham Richardson’s niece, so I did alright in the end
PS What are you complaining about?
CS You’re amazing, Martin thank you very much for the call we’ve got to leave it there, Paul thank you very much for your time this afternoon
PS Thanks Chris
CS That’s an interesting way to end, there you go. Now if you have a legal problem and need specialist advice or a second opinion then make sure you attend the next Turner Freeman legal clinic. Now Turner Freeman believes that everyone should have access to legal advice and this clinic is a free no obligation opportunity to discuss your issues with one of Turner Freeman specialist lawyers, now the clinic will cover negligence compensations, Wills and Will disputes as well as Family and Employment Law. Take advantage of this unique opportunity it’s no this coming Monday September 15 from 11 am at Blacktown RSL, bookings are essential you can call 8833-2500 now to secure your spot, 8833-2500 Turner Freeman Lawyers helping people.