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What does child support cover in Australia?

What is Child Support?

In Australia, child support refers to the financial contributions made by divorced or separated parents towards their children’s upbringing, and this is different from spousal maintenance.

It’s also possible for individuals who aren’t biological parents, such as grandparents, extended family members, or legal guardians, to seek child support. To qualify for this support, a non-parent guardian must be responsible for at least 35% of the time for the child’s care and must not be romantically involved with either of the child’s biological parents.

Child Support Agreements

Under the Child Support (Assessment) Act, parents can choose between two types of agreements to decide the amount and conditions of child support: a Binding Child Support Agreement and a Limited Child Support Agreement.

Binding Child Support Agreement

A binding child support agreement is a private agreement between parents or guardians that outlines how child support will be handled, including the amount and type of payments. This agreement can be established before or after a separation and may encompass regular and one-time financial contributions.

A binding child support agreement can be a valuable way for parents or caregivers to formalize the terms of child support without involving the Child Support Agency. To be considered legally binding, both parties should write the document by hand, sign it, and ensure it complies with the legal requirements.

Key Aspects of a Binding Child Support Agreement

  • Flexibility: Unlike fixed prescribed expenses, these private agreements allow for a high degree of adaptability and certainty for both parties involved; it is not necessarily adjusted by each spouse’s income that year or other factors that they cannot control.
  • Addressing Specific Concerns: These agreements can be designed to manage unique circumstances, like delays in property settlements by an ex-spouse. With appropriate legal advice, typically from specialized family lawyers, these agreements can address all relevant issues.
  • Legal Expertise: Consulting de facto or family lawyers is essential while signing a binding agreement. Their expertise ensures that the agreement is fair, legally valid, and serves the best interest of the child.

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Limited Child Support Agreement

A Limited Child Support Agreement is a written arrangement that may encompass both monetary payments and non-monetary contributions, such as coverage for health insurance and expenses for private education. It is suitable for short-term scenarios that do not exceed three years. Writing this agreement does not necessitate legal advice for any parties involved.

Child Support Payments

Prescribed Payments

In circumstances where the paying parent has under 14% childcare responsibility, certain payments are mandated. According to the Child Support (Registration and Collection) Act 1988, section 71C, as much as 30% of the child support owed can be accounted for through these payments, regardless of the other parent’s consent. The expenses covered under this include:

  • Costs related to school uniforms and textbooks
  • School tuition fees
  • Expenses for medical and dental care
  • Living costs, including mortgage payments or rent
  • Costs associated with vehicle use and upkeep
  • Expenses for childcare

Non-Agency Payments

A non-agency payment is a child support payment made directly from one parent to the other parent or to a third party on behalf of the child. This means that the payment doesn’t go through a government agency like Services Australia. Non-agency payments can include monetary transactions, the transfer of property ownership, or the provision of services.

The Department of Human Services must be convinced that there was a mutual agreement between both parents regarding this payment as a contribution towards child support.

What Does Child Support Cover?

Child support payments are aimed at covering the essential expenses involved in raising a child, encompassing:

  • Nutritional needs of the child, such as food purchases and dining
  • Accommodation costs for the child, including expenses like rent or mortgage, utilities, and upkeep
  • Expenses related to the child’s clothing and shoes
  • Educational expenses, including tuition, textbooks, and uniforms
  • Medical expenses, like visits to the healthcare provider, prescription drugs, and health insurance costs

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What Does Child Support Not Cover?

These are some expenses that are not covered by child support payments. These expenses may include:

  • Tuition for private institutions: Expenses related to attending a private school are not included in child support payments, except when the parents mutually agree to split the cost.
  • Activities beyond the classroom: The costs associated with extracurricular activities, including sports, music instruction, or dance lessons, typically fall outside child support payments. Such expenses are often borne by the parent initiating the enrollment, with agreements usually made to share these costs equally or in proportion to each parent’s income.
  • Healthcare costs: Although child support may cover certain healthcare needs, such as prescriptions, it does not extend to significant medical costs, including dental procedures or surgery. Both parents are expected to agree on how these expenses are handled and shared.
  • Expenses for travel: Travel costs, including airline tickets or fuel, are not covered by child support unless the parents agree to share these expenses.
  • Personal belongings: The cost of personal items for the child, like toys, books, or electronic gadgets, is not covered by child support. It is typically up to the parent to purchase these items to cover the cost.

Factors Affecting Child Support

The process of determining child support payments is designed to guarantee that children are provided with sufficient financial support from both parents following a separation or divorce. Below is a summary of the crucial elements and procedures used in this calculation:

Understanding the Child Support Formula

Basic Principles

The Australian government’s formula takes into account the following factors when calculating child support:

  • Number of Children: The more children there are, the higher the support payment.
  • Age of Children: Payments may vary based on the age of the children, with higher amounts often required for older children.
  • Parental Income: Income levels for both parents are considered while determining child support. Higher-income parents pay more support.
  • Level of Care: The payment is influenced by the amount of time each parent dedicates to the child(ren), with the parent who spends less time being required to make higher payments.

Care Percentage Levels and Their Implications

  • Below Regular Care (0-14%): This means the child is with you for less than 52 nights per year or two nights per fortnight. The paying parent will not receive Family Tax Benefits (FTB) or other family payments.
  • Regular care (14-35%): This means the child is with you for 52-127 nights per year or 2-4 nights per fortnight. The paying parent will pay less child support but may not be eligible for FTB payments. They may be eligible for other benefits like Child Care Subsidy, Rent Assistance, and a Health Care Card.
  • Shared Care (35-65%): This means the child is with you for 128-237 nights per year or 5-9 nights per fortnight. Both parents may be eligible for FTB payments.
  • Primary Care (65-86%): This means the child is with you for 238-313 nights per year or 10-12 nights per fortnight. The primary caregiver does not need to pay child support.
  • More Than Primary Care (86%+): This means the child is with you for more than 86% of the year. The primary caregiver does not need to pay child support and may receive 100% of any FTB.

How is Child Support Collected?

  • Direct payment: The parent without custody may directly transfer funds to the parent with custody through bank transfers or cash payments. However, this method is not highly recommended due to challenges in tracking and enforcement.
  • Child Support Agency (CSA) collection: The Child Support Agency (CSA) has the authority to collect child support on behalf of the custodial parent and ensure its transfer. It is also equipped to enforce the payments if needed.
  • Private collection: Non-custodial parents have the option to send their child support payments to a private agency, which then forwards these funds to the custodial parent.
  • Salary deduction: The CSA is empowered to deduct child support payments directly from the non-custodial parent’s wages or salary through a process, even without their approval.
  • Interception of Tax Refunds: The CSA can seize the tax refund of a non-custodial parent and apply it towards overdue child support payments.
  • Lump sum payment: A non-custodial parent can pay a lump sum in child support, either voluntarily or as mandated by a court decision.

Objections to Child Support Decisions

There are 10 valid reasons, according to Services Australia, to request a change to your child support assessment:

  • High Costs of Spending Time with the Child: If the expenses related to travel, accommodation, or communication with the child exceed 5% of your adjusted taxable income, you may be eligible for a change.
  • Child’s Special Needs: If the child has special needs that significantly increase the cost of raising them, you can request a change.
  • Child’s Education or Training: If the child attends a private school or receives specialized training as agreed upon by both parents, you can apply for a change.
  • Child’s Financial Resources: If the child has sufficient income, assets, or earning capacity to reduce the need for parental support, a change may be warranted.
  • Prior Payments or Transfers: If you have already made substantial payments or transfers for the child’s benefit, you can request a change.
  • Childcare Costs: If you or the non-parent carer incur significant childcare costs for a child under 12, you may be eligible for a change.
  • Personal Financial Hardship: If your necessary expenses significantly limit your ability to support the child, you can apply for a change.
  • Parent’s Income or Financial Resources: If there has been a significant change in your or the other parent’s income, earning capacity, property, or financial resources, you can request a change.
  • Support of Another Child or Person: If you are supporting another child or person, and this significantly reduces your ability to support the child in question, you can apply for a change.
  • Support of a Resident Child: If you are supporting a resident child who is not legally your child, and this significantly reduces your ability to support another child, you can apply for a change.

Important Notes:

Simply being unhappy with your current child support assessment is not a valid reason for a change. You must provide evidence to support your claim for a change.

How Should Child Support Be Spent?

In Australia, it’s rare for parents to control how the other parent spends child support money. The parent receiving these funds is free to use them as they see fit, for either the child’s direct needs or other household expenses, without any mandated guidelines.

It’s considered inappropriate for the recipient of child support to then request the other parent to split every expense equally. This would unfairly require the contributing parent to pay more than their share.

On the other hand, the parent making the payments should not expect their contributions alone to fulfill all financial responsibilities towards their child, including the costs incurred during their stay with them or significant expenses like healthcare and clothing.

Legalities and Agreements

The specifics of child support can vary depending on the agreement between the parents. A legal guardian may work with the other parent to create a personalized agreement that reflects their unique situation. In such cases, seeking advice from family law attorneys is essential to ensure the agreement is both lawful and equitable.

 

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FAQs

Does superannuation impact child support calculations?
Superannuation contributions made from after-tax income are typically excluded from taxable income for child support calculations.

What specific expenses are typically covered by child support payments?
Child support typically covers ordinary living expenses related to raising a child, including food, education, clothing, medical care, and housing costs.

Are there any common child-raising expenses that are not typically covered by child support in Australia?
Generally, private health insurance and private tuition fees are not included in standard child support calculations. However, these expenses can be addressed through a private child support agreement.

How long is a parent generally required to pay child support?
Child support payments typically continue until the child reaches 18 years of age. However, in cases where the child requires ongoing financial support due to a disability or illness, adult child maintenance may be required.

Can the terms of a private child support agreement be changed?
Yes, a private child support agreement can be modified with the mutual consent of both parties. If disagreements arise, mediation or legal intervention may be necessary.

What happens if one parent relocates with the child?
Relocating with children without the other parent’s consent can lead to legal complications. It is crucial to consult with a child custody lawyer before making such a decision. If both parents agree to the relocation, the child support agreement should be updated to reflect any changes in care arrangements or related expenses.

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What is Section 10? How to get your charges dismissed with no conviction?

What is Section 10?

Section 10 of the Crimes (Sentencing Procedure) Act 1999 stands out as a pivotal provision which grants courts the discretion to practice leniency and rehabilitation over punitive measures and dismiss charges for certain offenses without recording the conviction. This saves the eligible individuals from the long-term repercussions that a criminal record could have on their personal and professional life.

Detailed Insight into Section 10 Dismissals:

The Crimes (Sentencing Procedure) Act 1999, especially sections 10(1)(a), 10(1)(b), and 10(1)(c), articulates the criteria and conditions under which a court may choose to drop the conviction. This can result in:

  • A complete dismissal of charges without any obligation or bond.
  • A conditional discharge: It is subject to the accused’s adherence to a good behavior bond. This bond can have the following conditions:
    • Show good behavior (not commit any further offenses)
    • Advise the court of any change in address
    • Appear before the court if called upon to do so

If the person violates the bond, it can result in penalties and a potential criminal record. However, in case of compliance, the court will dismiss the charge.

A Conditional Release Order (CRO):

CROs, under the s 9 Crimes (Sentencing Procedure) Act, consist of two important conditions:

  1. The offender must not commit any offense.
  2. The offender must appear before the court whenever called to do so during the time of CRO.

Additional conditions can be imposed. These include:

  • Rehabilitation or treatment condition
  • Abstention condition: Refrain from using drugs or alcohol
  • Non-association condition
  • Place restriction condition
  • Supervision Requirement: The offender must be supervised by a community corrections officer, or if they are under 18, then a juvenile justice officer will supervise them.

Under S 95 of Crimes Act 1999, regardless of conviction or non-conviction, the maximum term for which the CRO can be imposed is 2 years.

Under S 100 E of Crimes Act 1999, if the offender contravenes additional conditions 3 and 4 of the CRO (non-association and place restriction orders), it can result in 10 penalty points. This means:

  • A fine up to $1100
  • Imprisonment for up to 6 months
  • Or both

Under s 99, several conditions cannot be imposed on the offender in the CRO. These include:

  • A home detention condition
  • An electronic monitoring condition
  • A curfew condition
  • A community service work condition

Eligibility Criteria for Section 10 Dismissal:

Section 10 application is subjected to a rigorous examination of several criteria to ascertain eligibility. This includes the:

  • Character
  • Antecedents
  • Age
  • Health
  • Mental condition of the offender
  • Triviality of the offense
  • Extenuating circumstances (e.g., if Australian law has severe penalties for drink driving, but you can prove it was due to a medical emergency or security reason, you could get a non-conviction order.)
  • Need for a license for the job
  • Any other matter deemed pertinent

Another important factor is the gravity of the offense. In serious offenses, the applicability of Section 10 becomes limited. However, the court usually considers the specific behavior of the offender and its context. For example, in the case of R v AB [2022] NSWCCA 3, the Court of Criminal Appeal NSW granted AB a conditional release offer without conviction because he, himself, was the victim of sexual abuse.

This judicial discretion allows the system to adapt the application of law to each case uniquely, thus reflecting a justice system that values individual circumstances and the potential for rehabilitation.

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How to Get Section 10:

You can improve your chances of getting a non-conviction order or Section 10 Dismissal if you can establish one or more of the following proofs:

Good Character and Clean Record:

You are required to demonstrate that you have a clean criminal record and good character by providing up to three good character references from people who know you. Each letter should be one page long and well-written, highlighting why you should be given Section 10 dismissal.

Poor Mental Health:

If you can establish before the judge or magistrate that you are suffering from mental health conditions like Depression and PTSD, it would be easier for you to obtain Section 10. A well-written report from a trusted psychologist or psychiatrist should serve the purpose. It should consist of different factors discussing why you are qualified for the dismissal. This includes your unlikeliness to re-offend, regretfulness, willingness to attend rehabilitation, and how your mental health compelled you to offend.

Good Explanation:

A clear explanation of the extenuating circumstances without justifying your actions, either in the form of a psychologist’s report or any other expert report, or in the form of your statement, can help you get a section 10 dismissal more easily.

Remorse:

If you can express that you are regretful and fully understand the consequences of your actions via an apology letter, character reference letter, or psychologist report, the chance of your non-conviction increases. Demonstrating in court that you are likely to avoid making the same mistake in the future improves your chances of getting Section 10.

Seriousness of the Offense:

The seriousness of the offense can have a great impact on the decision of Section 10 dismissal. A good criminal lawyer can negotiate with the police and prove in court that the situation was less serious than it was portrayed. For instance, in case of criminal assault, a push is a less serious offense compared to a punch. Hence, a criminal lawyer can find loopholes in the evidence and turn it in your favor.

Willingness to Improve:

Providing proof in court that you are already considering ways to improve your behavior can significantly improve your chances of avoiding conviction. For example, attending a rehabilitation or anger management course or seeing a counselor.

Pleading Guilty:

In some cases, pleading guilty will show that you accept responsibility for your behavior, feel remorse, and want to improve it. This can result in a complete non-conviction or up to a 25% discount in penalty.

Section 10

Amendments in Section 10(1)(b):

Before September 24, 2018, a court could dismiss a charge and give a good behavior bond without a conviction order under the Crimes (Sentencing Procedure) Act 1999, and the offender was placed on a good behavior bond for up to 2 years.

On September 24, 2018, the law changed under the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017. This Act replaced the previous good behavior bond with a conditional release order (CRO) under section 9. Any existing s10(1)(b) bonds were converted to CROs with standard conditions and any additional conditions specified by regulations. This Act abolished certain sentencing options, including:

  • Home detention orders
  • Community service orders
  • Suspended sentences
  • Good behavior bonds

Will Section 10 Appear on a Police Check?

If you are granted section 10 without any bond or conditional offer, it will not appear on your police check. However, if there is a bond period, it will show on your record. Once the bond is complete, it will disappear, and the offense becomes spent.

According to Section 12 of the Criminal Records Act 1991, a spent conviction does not need to be disclosed to anyone. Hence, you don’t need to disclose it to any of your employers. This, however, doesn’t apply when applying for the position of a judge, prison officer, police officer, or teacher. Also, it does not apply in situations when a person is giving evidence in court.

Benefits of Section 10:

  • No criminal record: Whether convicted or not, if Section 10 is applied, the offense will not appear on your criminal record.
  • No disclosure needed (except in a few circumstances): When you have received Section 10, you are not required to disclose it to anyone for any reason. However, conditions apply in the case of a few professions, as discussed above.
  • No impact on professional life: Since there’s no recorded criminal history, your employer cannot deprive you of the benefits you are entitled to. Also, you will not have any difficulty when looking for a new job, as some employers demand a clean criminal record.
  • Travel: Some countries require a clean criminal record if you want to travel there. Hence, Section 10 ensures that your visa and entry do not get denied due to a criminal record against your name.

Need Help to Get a Section 10?

It’s technical and you cannot easily get Section 10. It needs rigorous case preparation to make sure your arguments are supported by independent evidence.

Aussie Legal Partners have an expert team of criminal lawyers who have a successful history of securing section 10 for hundreds of clients. We also have a history of successful appeals for individuals who self-represented or were represented by someone else and were unsuccessful in their application for Section 10. Optimize your chances of a favorable outcome and avoid a criminal record with the help of our expert team.

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FAQs

Can you travel overseas with a Section 10?

Yes, Section 10 allows you to travel overseas without having any impact on your visa or entry. You are not required to disclose it to authorities, and if you aren’t in a good behavior bond, it will not show in your records.

How many Section 10s can you have?

There’s no ruling against receiving Section 10 multiple times except in traffic law orders. The court decides whether you should be given Section 10 based on your criminal record, history, severity of the crime, and other factors mentioned above.

Is a Section 10 a spent conviction?

Once the bond period is over, your conviction becomes spent. This means you are not required to disclose it to anyone except in a few situations, such as when applying for the position of a magistrate or teacher.

Am I required to declare a Section 10 dismissal?

No, you aren’t required to declare it except in a few situations. Please refer to the blog for more information.

How to apply for a Section 10 dismissal?

It requires several conditions to be fulfilled if you want to apply for Section 10. This includes proving that the offense was less serious and circumstances were extenuating. To increase the chances of a successful application, you must consult a criminal lawyer.

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How to Vary or Revoke an AVO, Restraining Order, or Intervention Order

Lawyers and police frequently encounter individuals seeking to vary or revoke Apprehended Violence Orders (AVOs). However, the process is more complex than simply having the complainants change their mind.

Let’s first discuss a few basics before we explain how you can file an application to vary or revoke an AVO form.

What is an AVO?

An Apprehended Violence Order (AVO) is a civil order judicially imposed to protect the aggrieved person (Person In Need of Protection – PINOP) from domestic or personal violence. The order imposes restrictive covenants upon the respondent to safeguard the aggrieved party from harassment, intimidation, or threatening conduct.

AVOs encompass Apprehended Domestic Violence Orders (ADVOs) and Apprehended Personal Violence Orders (APVOs). They may be granted on a provisional, interim, or final basis or as variations. These orders are also known as restraining orders or intervention orders, and these terms are used interchangeably in this blog.

Importance of Proper Service for Varying or Revoking an AVO

After the restraining order is issued, its conditions can be changed (varied) or canceled (revoked). However, a court cannot vary or revoke an AVO if it hasn’t been properly served. Failure to serve it deprives the defendant of a fair trial and renders the court’s decision invalid.

The protected person or the police officer who served the AVO must prove to the court that it was properly and timely delivered. This involves presenting the affidavit or other documentation.

Personal service is the preferred method, involving a police officer or protected person delivering a copy of the order to the defendant. In cases where personal service is impracticable, alternate methods may include:

  • Substituted service (leaving the AVO at the defendant’s usual residence or business)
  • Publishing the AVO in a newspaper
  • Electronically informing the defendant

A court can vary or revoke an AVO under Section 73 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Varying an AVO

Varying an interim or final intervention, restraining, or apprehended violence order means changing its conditions. Any interested party (Police, defendant, guardian, PINOP, or the Secretary of the Department of Family and Community Services) can apply.

Varying an order includes:

  • Extension of the duration of the AVO: The protected party or applicant can apply for an extension before the AVO expires. Even if the application is made on the last day, the order remains in effect for 21 days until the court decides on the next steps. If there’s an objection, the court will request written statements from both parties.
  • Reduction of the duration of the AVO: A respondent may request a reduction in the AVO’s duration due to a change in circumstances under Section 73 of the Crimes (Domestic and Personal Violence) Act 2007.
  • Adding orders to the AVO: If additional protection is needed, a police officer can request new conditions be added to the AVO.
  • Removing orders from the AVO: If certain conditions are deemed unnecessary, a request to remove them can be made. If the protected party objects, written statements from both sides will be required.
  • Modifying existing orders of the AVO: Either party can apply for a modification of the existing orders if circumstances have changed.

Revoking an AVO

When a court revokes an AVO, the order is canceled, and its conditions are no longer enforceable. You can apply for revocation if there is a significant change in circumstances or if the restrictions negatively impact you, such as in cases where firearm possession restrictions interfere with employment.

If the protected party objects, both parties must submit written statements explaining their positions.

Since varying or revoking any order involves complex steps, it’s essential to consult a criminal lawyer to determine the best course of action.

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Reasons to Vary or Revoke an AVO

To successfully have a court vary or revoke an AVO, you must demonstrate a significant change in circumstances. Failure to do so could result in the court rejecting your application. Consulting an AVO lawyer before applying is strongly advised.

Please note that a PINOP cannot unilaterally modify or vary AVO orders. Accepting an invitation from the PINOP while the AVO is still in effect would constitute a contravention. Any changes to the AVO require formal court approval.

Varying or Revoking Provisional Orders

  • If all protected individuals are adults: Both the defendant and the PINOP have the right to apply for a variation or revocation of the provisional AVO.
  • If the protected individuals include a child: The respondent cannot initiate an application to vary or revoke the AVO. The provisional AVO must first be converted into an interim order before any variation can be sought.

How to Vary an AVO

To vary or revoke an AVO, follow these steps:

  1. Submit Application: Complete an Application to Vary or Revoke Apprehended Violence Order form. This application is not available online, but an expert AVO lawyer can assist you in drafting it.

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  2. File with Court: Submit the form to the relevant Local Court. If unsure which court to apply to, follow this guide:
  3. Serve Parties: Deliver a copy of the application to the Police and other affected parties.
  4. Attend Hearing: Appear before the Local Court on the scheduled date to present your arguments. If you miss the hearing, your application will be dismissed.

How to Revoke or Drop an AVO

If the PINOP no longer needs protection due to a change in circumstances, either party can apply to drop the AVO. Additionally, if neither party was present when the ADVO was issued (such as in cases where a police officer requested an AVO on behalf of a victim), it’s possible to file an appeal, which could result in the order being revoked.

We recommend taking the following steps if you are considering applying to revoke an AVO:

  1. Submit a Withdrawal Request: Consult an AVO lawyer to draft a letter requesting the withdrawal of the AVO. This letter should explain the changed circumstances and reasons for the withdrawal.
  2. File Representations with Police: The defendant’s lawyer should submit representations to the Police requesting the AVO’s withdrawal. A skilled AVO lawyer can help draft these representations effectively.
  3. Await Police Decision: Allow the Police to review the representations and decide whether to withdraw the AVO.
  4. Proceed to Court if Necessary: If the Police do not withdraw the AVO, a legal professional can represent you in court to negotiate or contest the AVO.

For Private AVOs, the protected person can apply directly to the court to dismiss the order by submitting a written request.

Can Police Continue to File Charges Even if the AVO is Dropped?

Under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), police are required to act in the public interest and prosecute individuals suspected of criminal offences, even if the AVO is dropped. This includes relying on the victim’s sworn statement, which is sufficient to initiate charges.

FAQs

1. What happens if the victim doesn’t want the accused to be charged?
The PINOP cannot decide if the police should charge the accused. If there’s enough evidence, the police will likely continue with the charges.

2. Can a PINOP withdraw the AVO put by the Police?
No, only a magistrate or the police can modify or revoke the AVO initiated by the police.

3. Can you appeal an AVO?
Yes, if you are the defendant, you have 28 days to appeal the AVO decision.

4. What if the PINOP doesn’t attend the court hearing?
If the PINOP doesn’t attend, the court may either drop the AVO or issue a warrant for their arrest.

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Are Bigamy, Polygamy and Polyamory Illegal in Australia?

What is Bigamy?

In Australia, according to the Marriage Act 1961, marriage is defined as a union of two people, given that they are:

  • Unmarried at the time of the marriage ceremony
  • Of marriageable age
  • Not marrying a person in a prohibited relationship
  • Able to freely consent to the marriage

Bigamy occurs when an individual who is already in a marital union enters into marriage with a third person. This includes marriage ceremonies in foreign countries. In simple terms, bigamy is when one individual is married to more than one person simultaneously. In other words, it refers to the scenario where a person has more than one spouse simultaneously.

Bigamy vs Polygamy

Polygamy involves being married to more than one person simultaneously, so one must engage in bigamy to experience polygamy. It is the general union of three or more people in marriage. There are three forms of polygamy:

  • Polygyny, where a man is married to several women
  • Polyandry, where a woman has multiple husbands
  • Group marriage, in which all members enter into a marriage-like contract, potentially involving multiple men and women

Is Bigamy a Crime in Australia?

Bigamy is a criminal offense under Section 94 of the Marriage Act 1961 (Cth). It’s unlawful for an individual who is already married to enter into another marriage while the initial legal marital status remains in effect.

According to Section 92 of the New South Wales Crimes Act 1900, bigamy is also a criminal offense. It states that a married person shall not marry another person while the initial contract is still legally valid.

In Australia, various legislative measures are in place to discourage bigamy. According to Subsection 23B(1)(a) of the Marriage Act 1961 (Cth), any second or subsequent marriage is void.

Marriage Ceremony Requirements

According to Section 42, a marriage ceremony must be commenced in the presence of an authorized marriage celebrant, for instance, a priest. It’s also necessary to provide the celebrant with the official documentation. Additionally, a Declaration of No Legal Impediment to Marriage needs to be completed. When individuals sign the form, they must agree that:

  • They are not currently married to another person
  • They are not in a prohibited relationship
  • They are both of marriageable age at the time of the marriage
  • They are not marrying a close relative such as a parent, grandparent, child, grandchild, brother, sister, or adopted child
  • They are not marrying a descendant or ancestor
  • No other circumstances would be a legal impediment to the marriage

While Australia acknowledges marriages that occur abroad, it does not legally recognize polygamous marriages.

Polygamous Marriages in Australia

Under Section 6 of the Family Law Act 1975, polygamous marriages may be recognized in Australia if a person got married in a country where polygamy is allowed. However, The Marriage Act 1961 (Cth) may take precedence over Section 6 of the Family Law Act 1975 when considering polygamous marriages entered into overseas, making the recognition of overseas polygamous marriages difficult.

What is the Punishment for Bigamy in Australia?

The penalty for bigamy can include imprisonment for up to 5 years. The court can also penalize a person who knowingly undergoes a marriage ceremony while already married to another person. In New South Wales (NSW), the penalty for bigamy can include imprisonment for up to 7 years.

Bigamy is an offense under both state and commonwealth legislation. You might wonder which penalty the accused will be charged with. Section 94 of the Marriage Act 1961 precedes any state or territory laws related to bigamy, meaning the court decides on a penalty in accordance with federal law.

Federal Law on Bigamy

According to Subsection 94(1A) of the Marriage Act 1961 (Cth) and the Criminal Code Act 1995 (Cth), you are guilty if you are married to two different people simultaneously, regardless of your intent. If you are charged with the offense of bigamy, a Magistrate in the Local Court will hear your case. If proven guilty, you will be penalized according to commonwealth law unless you can successfully defend the charges.

Defense to Bigamy

Mistake of Fact

Belief of Spouse’s Death

If the defendant believes that their spouse was deceased at the time of the second marriage, they can use this as a defense. But this belief must be based on reasonable grounds. For example, receiving the death certificate of the spouse or receiving news from credible sources.

Spouse’s Absence

If the spouse has been absent for seven years or a longer period, and the defendant has reasonable grounds to believe that their spouse is dead, this can also be used as a defense. If the defendant had tried to locate their spouse but was unable to do so, this could strengthen the defense.

Evidence Requirements

Certificate of Death

Section 94(7A) of the Marriage Act 1961 (Cth) allows courts to accept certificates from Australia or foreign countries as evidence. If the defendant has a death certificate for their spouse, it can be presented as evidence to support their defense.

What to Do in Case of Bigamy

If you have committed bigamy, please seek legal advice from a criminal lawyer as soon as possible.

If you find out that your spouse is involved in bigamy, you must establish that you are their first spouse. In that case, your marriage is legal. However, if they married you while they were already married, you should immediately file for a Decree of Nullity with the help of a family lawyer.

 

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Decree of Nullity

If an individual marries another person while already married, the second marriage is legally void according to Section 23 of the Marriage Act 1961 (Cth). Despite this, an application for a Decree of Nullity must be submitted to the Family Court of Australia. Obtaining a Decree of Nullity means the marriage is legally considered null and void as if it never occurred.

A party may request an annulment of a bigamous marriage. It can only be sought for the second marriage, which is considered invalid because the first marriage remains in effect and can only be terminated through divorce.

A marriage might also be considered void if one of the parties is incapable of understanding the nature and effects of the marriage ceremony or is unable to consent due to the marriage being forced.

When issuing a Decree of Nullity, the judge also determines whether the circumstances warrant a referral for criminal prosecution. Before you file for the decree of nullity, we recommend that you consult a family lawyer.

False Statement

In Australia, for a marriage to take place, both parties must sign a written notice and declaration specifying their current conjugal status and belief that there is no legal impediment to the marriage. On this notice, there is a specific box that requires parties to tick, stating: “Neither of us is married to another person.”

It is an offense punishable by eight months imprisonment under Section 104 for a person to give a notice to an authorized celebrant or sign a notice after it has been given, to the knowledge of that person, where the notice contains a false statement, an error, or is defective.

For example, if a person who has previously been married or is currently married declares that they have not been married or is not currently married, they may be committing the offense of giving a defective notice. Giving defective notice is outlined under Section 42 of the Marriage Act 1961 (Cth), which states:  A person shall not give a notice to an authorized celebrant under section 42, or sign a notice under section 42 after it has been given, if, to the knowledge of that person, the notice contains a false statement or an error or is defective.

What is Polyamory?

Polyamory means having an open, intimate, or romantic relationship with more than one person at a time without having any formal marriage contract. Polyamorous people can have any sexual orientation. Polyamorous relationships have many different types, including, but not limited to:

  • Hierarchical poly
  • Anchor partners
  • Triad
  • Quad
  • Polyfidelity
  • Vee
  • Kitchen table polyamory
  • Solo polyamory
  • Polycule

polyamorous-couple

Is Polyamory Legal?

Yes! Polyamory is legal. The Family Law Act states that polyamory—the act of polygamy without parties getting married—is not an offense. Under this law:

  • An individual can have multiple de facto relationships simultaneously
  • Multiple de facto relationships can exist even if a person is married to someone else
  • The act of polygamy can be legal only if a person does not go through marriage ceremonies with multiple people

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FAQs

Can I bring my second wife to Australia?

As long as you are divorced or your first wife is not legally married to you anymore, you can bring your second wife to Australia. You can sponsor up to two overseas partners in your life, with each application having to be at least five years apart.

Can I sue my spouse for cheating?

If your spouse is not married to the person they are involved with or having a relationship with, then according to the law, this is polyamory, which is legal and is a private matter between two consenting individuals. Infidelity is not a crime in Australia.

If polygamy is a part of my religion, can I do a second marriage in Australia?

Even though polygamy is a standard practice in some religions and parts of the world, in Australia, it is not recognized and will be illegal regardless of your intent, religion, or country of origin.

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Is Kava legal in Australia? Legal Import and Consumption Requirements

What is Kava?

Kava is an herbal beverage made from the roots of the Kava plant and is devoid of alcohol. It is primarily consumed in the South Pacific region for cultural and recreational purposes. It consists of the psychoactive ingredient kavalactones, which calms the mind and body when consumed.

Is it Legal to Consume Kava in Australia?

Yes, citizens are allowed to purchase, consume, and take Kava in Australia. The restrictions are on the import of Kava into Australia.

Benefits of Kava:

Research indicates that Kava may be beneficial for treating sleep disorders and anxiety, particularly in non-clinical populations and menopausal women. Its main active ingredient, kavalactones, mitigates stress and anxiety by blocking certain brain receptors while maintaining alertness and motor skills. However, long-term use of Kava can lead to a range of health problems, including malnutrition, weight loss, and apathy.

The Law on Kava in Australia:

The legislative framework regarding the utilization of Kava within Australia has evolved significantly over the last couple of years.

Pilot Program and Commercial Importation:

The Australian government initiated a pilot program in 2019, which relaxed the laws related to the import of Kava and its products in Australia. Stage two of this program was launched on December 1, 2021, and the results will be announced in 2024. The rationale behind this initiative was to embrace the importance of Kava as a health product and recognize the potential commercial opportunities for Kava as a food and therapeutic product. However, it is still illegal to import or sell Kava in the Northern Territory.

Regulatory Changes:

The Customs (Prohibited Imports) Amendment (Commercial Importation of Kava as Food) Regulation 2021 was introduced to amend the Customs (Prohibited Imports) Regulations 1956. This amendment allowed for the commercial importation of Kava into Australia under section 5F. This means that individuals and businesses can now import Kava in Australia subject to the laws and regulations under section 5F.

To import Kava, a permit is necessary. To apply for a permit, go to the Office of Drug Control Website. A complete guide is also available along with the application, or you can consult a criminal lawyer to assist you with the application.

The Laws under 5F Require the Following Conditions for the Import of Kava into Australia:

Permission:

State and Territory requirements and permissions to import, distribute, and sell Kava vary. The importer must seek permission from the secretary or the relevant authority, and a copy must be presented to the customs officer of the particular port.

Application for Permission:

The application must be made on the approved form and submitted to the authorized person. It should provide all the relevant information regarding business purposes, GST registration, ABN, source of Kava, and its intended use.

Import Method:

The import should not be via post.

Exemptions:

Certain drug importations may be exempted if they meet the requirements outlined in paragraph 5(2)(b) or sub-regulation 5(2A) or if the approval is in force under sub-regulation 5(3). These are specific to drug importations, and if you are considering importing Kava and think you are exempted from seeking a permit, consult a lawyer.

Regulation on Kava as a Food:

All food items imported into Australia are required to be safe and regulated by Australian food regulations. Kava imported into Australia must be of the Noble variety and can be dried or raw Kava root.

Acceptable forms include root chips, powder, whole roots, and beverages made using only cold water. It should not be dissolved in organic solvents. Currently, only powdered Kava and beverages made with Kava using cold water are accepted.

Kava formulation needs to be approved by the Department of Agriculture, Fisheries and Forestry. For commercial use, the quantity for which the application is to be made must be 20kg and above. Kava product labels must feature the following cautionary notes:

  • Use in moderation
  • May cause drowsiness

Regulation on Kava as a Therapeutic Good:

Kava, when meant for ingestion in forms such as tablets, capsules, or teabags, is considered a therapeutic product. Each unit of these therapeutic goods may contain up to 125 mg of kavalactone. This dosage is surpassed by that allowed in Kava root powder-based beverages.

The import of Kava requires both a license and a permit for each shipment, which is mandated by the Therapeutic Goods Administration (TGA).

TGA-approved Kava products must include certain warnings, particularly for pregnant women and individuals under the legal age.

Regulation on Kava for Individual Use:

After the ban was imposed on Kava imports in 2019, the amount individuals could bring was 2 kilograms. However, in 2019, this law was amended, and now individuals can bring up to 4 kilograms of Kava in their baggage. This is, however, not allowed for the Northern Territory, and you will need a permit to import Kava even in your baggage.

 

 

Packaging and Biosecurity Standards for Kava as Food:

  1. All Kava products under the category of food consumption must be packaged in clean and new containers.
  2. The packaging should be free from biosecurity risk materials.
  3. Kava must be clean of live insects and any biosecurity risk contaminants.

Regulations for Frozen Raw Kava Roots and Rhizomes:

  1. Frozen raw Kava roots or rhizomes must undergo commercial preparation.
  2. They should also be packed in clean and new containers.
  3. These items should have been pre-washed.
  4. They should have been consistently kept at a temperature of -18°C or colder for at least seven consecutive days before arrival.
  5. These products may be randomly inspected to ensure they are adequately frozen.

Standards for Dried Kava Roots and Rhizomes:

Similar to frozen varieties, dried Kava roots or rhizomes must be processed commercially and packaged in uncontaminated and brand-new packaging. They must be free of live insects and any contaminants that pose a biosecurity risk.

Need Help?

Aussie Legal Partners is skilled in providing guidance to businesses and individuals in lawful Kava import and assists clients who failed to comply with the regulations. To understand the regulations in your state and territory and to comply with them, it’s best to reach out to expert criminal lawyers.

 

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FAQs

Is it legal to buy Kava in Australia?

You can purchase Kava products from various retailers, including supermarkets and health food stores. However, it’s important to note that specific regulations and controls may still apply, such as age restrictions and labeling requirements.

Is it legal to grow Kava in Australia?

There is no specific legislation in Australia prohibiting the cultivation of Kava plants for personal use. However, it’s essential to check with local regulations and state laws, as these can vary by region.

Is it legal to sell Kava in Australia?

Australia has relaxed its laws on Kava, allowing for its commercial importation and sale. This means that businesses can legally sell Kava products, such as Kava powder or Kava beverages. However, there are specific regulations in place. Please refer to the blog.

Is a permit required if the individual wants to import up to 4kg of Kava?

This depends on the state the person is currently residing in. In the Northern Territory, a permit is necessary. However, for other states, it is not required. However, it’s always best to check with local regulations and state laws.

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What is an AVO? Know The Process, Steps and Implications

Violence, as vividly portrayed in fictional narratives, e.g., the chilling events of the Red Wedding in Game of Thrones or the indiscriminate brutality exhibited by the Mountain, can come from people we don’t know or the people closest in our circles. While the realm of Westeros presents a fictional landscape of unchecked violence, individuals within the Australian jurisdiction are safeguarded through the implementation of Apprehended Violence Orders (AVOs).

If you want protection from violence, want to apply for an AVO, or have received it, then keep reading. We will explain everything to make it easier for you to proceed, or you can directly contact our AVO lawyer.

 

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What is an AVO?

An AVO, a civil order, is a legal contract between two parties—the defendant and the Person In Need Of Protection (PINOP), aimed to protect the PINOP from harassment, violence, intimidation, or other threatening behaviour by the defendant by imposing restrictive covenants upon the respondent. AVOs encompass both Apprehended Domestic Violence Orders (ADVOs) and Apprehended Personal Violence Orders (APVOs). They may be granted on a provisional, interim, or final basis, or as variations thereof.

Provisional AVOs

If there’s a pressing concern of threat to the aggrieved by the defendant, then a police officer issues an emergency AVO order without a formal court hearing.

Interim AVOs

This is a temporary AVO order, issued by the court before the final decision, to protect the victim from any immediate violence threat.

How does an AVO work?

An AVO operates by establishing injunctive relief measures that prevent the defendant from engaging in specific behaviours that could endanger the aggrieved person. For example, the defendant may not be allowed to contact the protected person physically or by phone, visit their home or workplace, or be in their company within 12 hours of consuming alcohol.

Difference Between AVO, Restraining Order, and Intervention Order (IVO)

Since every state has a different jurisdiction, each state has a different name for the order which prohibits and restrains other persons from contacting PINOP.

  • Queensland & Northern Territory and Australian Capital Territory: Domestic Violence Order
  • Victoria: Intervention Orders (IVO)
  • Western Australia: Family Violence Restraining Order
  • South Australia: Formerly called Restraining Orders, now called Intervention Orders
  • New South Wales: Apprehended Domestic Violence Order (ADVO)
  • Tasmania: Family Violence Order

Types of AVO

AVO is of two types: Apprehended Personal  Violence Order APVO and Apprehended Domestic Violence Order ADVO

APVO (Apprehended Personal Violence Order) ADVO (Apprehended Domestic Violence Order
Purpose Protects a person from violence, harassment, intimidation, or stalking by someone they do not have a domestic relationship with. Protects a person from violence, harassment, intimidation, or stalking by someone they have a domestic relationship with (e.g., spouse, partner, family member)
Who Can Apply Any individual who feels threatened by someone outside of their domestic relationship. Individuals in a domestic relationship, police on behalf of victims, or victims themselves.
Types of Relationships Covered Non-domestic relationships, such as neighbours, colleagues, acquaintances, or strangers.  Domestic relationships, including spouses, partners, former partners, family members, and those in a household. 
Common Reasons for Issuance Stalking, harassment, violence, or intimidation by someone outside the family or household. Domestic violence, abuse, threats, harassment, or any form of violence within a domestic setting.
Legal Process It is a similar process to ADVO, but the relationship between the parties is non-domestic. Typically involves police intervention; can be applied for by the victim or police on the victim’s behalf.
Duration It is generally temporary but can be extended or made permanent by the court. Similar to APVO; can be temporary or made permanent depending on the court’s decision. 
Impact on the Defendant It can affect the defendant’s personal and professional life, but does not carry the same social stigma as ADVO More severe social implications due to the domestic nature; can affect child custody, employment, and social relationships.

AVO Application and Process

If you are the applicant, you can apply for an Apprehended Violence Order in either of the two ways:

Police Application

If you choose to ask the police to apply an AVO against the defendant, they will decide if there are sufficient grounds to apply for an AVO. They will determine the conditions and type of AVO according to your situation and will give you and the defendant a hearing date in court.

It is important to note that AVO proceedings are distinct from criminal prosecutions. While AVOs often arise from alleged criminal offenses such as assault, intimidation, threats, or property damage, the outcomes of these two processes are independent.

Private Application

If you choose to apply privately through the local court, you will be required to explain to the magistrate why you need an AVO. The magistrate will give you a hearing date and summon the defendant too. It’s crucial to seek advice from an expert AVO lawyer before applying for an AVO, as the application can be refused if the court or police doubt the genuineness of your fears from the defendant.

Once a hearing date is announced, whether the defendant consents to AVO or not, the case will proceed accordingly. In the case of a police application, a police prosecutor will represent you. However, in the case of a private application, you will need an AVO attorney.

 

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As a Defendant

If you are served with an AVO, you have three options:

 

As a defendant, if you are served with an AVO, you have three options:

AVO Orders

To ensure the safety and protection of a PINOP, the court may impose different types of restrictions and conditions on the defendants. These conditions include:

Orders About Behaviour

The order prohibits the individual from:

  • Physically or verbally harming the protected person.
  • Engaging in intimidating or harassing behaviour.
  • Damaging or destroying the protected person’s property.
  • Contacting the protected person through any means, including in person, by phone, or electronically.
  • Engaging in any behaviour that causes fear or apprehension of harm.

Orders About Contact

  • No Contact: The defendant must not contact or approach the protected person in any way, except through a lawyer. This includes in-person contact, electronic communication, and attempts to contact them indirectly.
  • Stay Away: Defendants must stay away from places the protected person is likely to be, such as their home, school, or workplace.
  • Substance-Free Interaction: The defendant cannot be with the protected person for 12 hours after consuming alcohol or drugs.
  • No Stalking: The defendant must not try to find out where the protected person is or monitor their activities.

Specific Conditions Related to Children – Child-Related Contact

If the defendant has children together with the protected person, any contact with them must comply with existing family law orders or be agreed upon in writing by all parties involved, including any relevant government agencies or legal guardians.

How Do AVOs and Family Court Orders Interact?

Family Law Orders supersede conflicting AVO provisions. For instance, shared custody arrangements under a parenting order override AVO contact restrictions. A Magistrate may exercise discretion to suspend a Family Law Order, enabling the full force of an AVO. To ensure the efficacy of these orders, applicants for AVOs must disclose any relevant Family Law Orders to the Court.

Consequences for Defendants

Even though an AVO is not a criminal charge, an ADVO can have very severe repercussions compared to an APVO on your visa, citizenship, employment, and family matters.

Consequences on Visa and Citizenship

Consider, for instance, if you have applied for a visa or citizenship. Then, as a defendant, consenting to an ADVO, even without admitting to the allegations, means long-term consequences. For citizenship, Section 21(2)(h) of the Australian Citizenship Act 2007 (Cth) and for visas, Section 501 of the Migration Act 1958 (Cth) emphasizes the importance of “good character.” An ADVO can be seen as evidence of poor character, making it difficult for you to obtain or maintain a visa or become a citizen.

Consequences on Employment

If the PINOP in the ADVO is a child, you cannot easily obtain a “Working with Children Check” (WWCC), which is a requirement for most jobs nowadays, even if you will not have any direct contact with the children when on the field.

Consequences on Family Matters

The court’s primary concern is the child’s best interest, and an ADVO can influence this decision. One parent might use the ADVO to restrict the other parent’s time with the child, both temporarily and permanently. Supervised visits or limited contact hours can be imposed.

Consequences on Personal Choices

An ADVO can significantly impact your personal choices, such as the restriction on gun ownership. If you possess firearms, they will be seized upon the issuance of an ADVO. Your gun license is automatically revoked for a decade. Even if the ADVO is subsequently cancelled, regaining your gun license requires demonstrating your suitability to own a firearm.

Remember that the consent of the PINOP is not a defense to a breach of an Apprehended Violence Order. The defendant bears sole responsibility for compliance regardless of the victim’s expressed consent to contact them.

What Happens if the Defendant Breaches an AVO?

If an existing AVO is breached, what happens next depends on whether you’re the defendant, PINOP, or a witness to the alleged contravention.

If You Are a Defendant

You should know that an AVO itself does not result in a criminal record. However, the consequences of breaching an AVO can be severe.

  • Breaching an AVO is a criminal offense. If you’re found guilty of violating an AVO, you may be arrested and brought to court, where you may be fined up to $5,500 or imprisoned for up to two years. The conviction will be recorded on your criminal history as a domestic violence offense.
  • Long-term implications: This criminal record can negatively impact future legal proceedings, such as bail applications or sentencing for other crimes.

Seek Legal Advice

Consulting a criminal lawyer is crucial to understand your rights and potential defences if you’ve been charged with breaching an AVO.

Remember: If you have been charged with contravening an AVO, it is highly recommended that you speak to a criminal lawyer before speaking to the police, so you understand your legal rights and options. You may also be arrested and refused bail, which may require you to make an urgent bail application in court.

If You Are a PINOP or a Defendant

Report to the police and provide as much detail as possible. If police become aware of a potential AVO breach by the defendant, they will investigate this. This means they will contact the PINOP and witness to provide a written or video statement, which will then form part of the police evidence.

Application to Vary or Revoke AVO

Once an AVO is issued, you can apply to vary or revoke it. This includes changing the duration of the AVO, adding, deleting, or changing orders. To apply, you are required to visit the relevant local court and seek help from the registry staff to complete an application to vary or revoke AVO form. The registry staff will give you a court hearing date, and if you don’t appear in court, your case will be dismissed.

FAQs

Q: How can I find out if someone has an AVO?
In Australia, you cannot check if someone else has an AVO. Privacy laws restrict access to criminal records to the individuals themselves.

Q: How long does an AVO last?
A standard AVO in NSW lasts for 12 months. However, the court can extend this period up to 2 years or any other specified time.

Q: Can I appeal an AVO?
Yes, the defendant can appeal a final AVO within 28 days of the order being made. Appeals are heard in the District Court.

Q: How much does it cost to get an AVO?
The cost of an AVO can vary. While the court may order the police to reimburse some costs, the PINOP will likely incur additional expenses. Costs typically range from $2,000 to $5,000.

Q: How long does it take to get an AVO served?
An AVO is typically served on the defendant within 1-7 days of the application being made.

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Binding Financial Agreements: Protect Your Assets and The Future

Binding Financial Agreements

These agreements can be executed prior to or during the marriage or de facto relationship or after the marriage or de facto relationship ends. They outline and address the financial and property divisions without going to court.

Purpose of binding financial agreement:

The versatility of Binding Financial Agreements (BFAs) makes them helpful in detailing the financial obligations between the parties so that they can decide on various financial matters, including:

  1. The division of property and assets acquired before entering the marriage or de facto relationship upon separation
  2. The determination of spousal maintenance to be provided after the separation
  3. The approach to handling liabilities incurred individually or together in the future
  4. The division of an individual’s salary or wages throughout the relationship
  5. The management of pre-existing debts.

Division-of-Assets

 

Types of binding financial agreements 

There are three types of binding financial agreements depending on the stage of the relationship:

  1. Prenuptial agreement
  2. Cohabitation agreement
  3. Postnuptial agreement

Prenuptial Agreement:

This binding financial agreement is outlined and signed before the marriage.  It protects assets, provides mental peace, and offers tax benefits to people with significant pre-existing assets, inheritances, or children from previous relationships. It also saves parties from lengthy court proceedings.

Cohabitation Agreement:

A Cohabitation Agreement is a binding financial agreement for an unmarried, romantically involved couple who plan to live together. It outlines the rights and obligations of each partner and details how the couple’s property should be divided if they decide to part ways. This document is suitable for you and your partner if you both are

  1. In a de facto relationship 
  2. Not legally married to one another 
  3. Not related by blood 
  4. Already cohabiting or intending to share a residence

Postnup Agreement:

A postnuptial or post-marital agreement or postnup is a contract between spouses after marriage. It outlines the division of financial assets and responsibilities in case of divorce. It covers scenarios like the distribution of marital property upon one spouse’s death, terms for separation, and issues regarding alimony. However, it cannot address child custody or support as it is always decided in the best interest of the children at the time of separation.

How to make a financial agreement legally binding?

A Binding Financial Agreement (BFA) is a legally binding document. All involved parties are obliged to comply with the terms and conditions of the agreement. 

For a BFA to be considered legally valid and binding, it is essential that 

  1. all parties willingly engage in the agreement
  2. have a comprehensive understanding of its consequences
  3. have received advice from independent legal counsel. 

Independent Legal counsel must ensure that all parties are fully informed of their rights and responsibilities. Moreover, it helps to prevent undue influence or coercion. 

Can a binding financial agreement be overturned?

While Binding Financial Agreements (BFAs) offer a legally enforceable contract for financial dealings, they can be challenged. Under specific conditions, a court may decide to overturn a Binding Financial Agreement. Such conditions include instances where it can be clearly shown: 

  1. Fraud or Misrepresentation:This includes scenarios where one party has been dishonest or provided misleading information in the formulation of the agreement.
  2. Undue Influence or Duress:It means that one party was compelled or pressured into agreeing without voluntarily consenting to the agreement.
  3. Unconscionable Conduct:This is when the terms in the agreement are significantly in the favour of one party, rendering it unjust.
  4. Material Change in Circumstances: 

          This applies if there has been a significant change in the conditions of the agreement.

Consider, for instance, Thorne v Kennedy. Kennedy possessed assets worth around $18 million, while Ms. Thorne had negligible financial resources and no children. Ms. Thorne had moved to Australia from abroad, intending to marry Mr. Kennedy. Just 11 days before their wedding, Mr. Kennedy took Ms. Thorne to a lawyer’s office to sign a Binding Financial Agreement. He told her she should sign the agreement; otherwise, he would call the marriage off.

Prior to signing, Thorne was advised to get legal advice independently. She was informed that the agreement was heavily biased in favor of Mr. Kennedy and offered her no benefits in case of a divorce.

Despite the advice, Thorne signed the Agreement four days before their wedding, and they got married as planned. The High Court of Australia later annulled the prenuptial agreement for several reasons. This includes:

  • Whether each party is given the right to negotiations
  • What is the emotional state of each party, and is there any overt or covert pressure to conclude the relationship?
  • Whether each party is given right to reflect upon the consequences of the BFA
  • What’s the financial position of each party, and whether they have received individual advice?

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What do BFAs Cover?

Under Section 90D of the Family Law Act, a binding financial agreement covers property division. This includes division of assets, real estate, vehicles and investments. Apart from that it covers debts and liabilities, superannuation funds division and spousal maintenance.

section-90d

Family Lawyer Role in Binding Financial Agreements:

You are required to get independent legal advice from an expert family lawyer to:

  • Ensure Complete Transparency: 

It is important to ensure that all the parties involved share their financial details to make an accurate contract. 

  • Seek Independent Legal Counsel: 

All the parties need to seek independent legal advice to completely grasp the implications and consequences of the contract.

  • Facilitate Negotiations and Mediation: 

Lawyers will negotiate to achieve an equitable and balanced deal that satisfies the requirements of everyone involved.

  • Understand Enforceability: 

Your lawyer will know how enforceable the contract is by identifying possible loopholes.

Why a Binding Financial Agreement is important?

  1. Safe Financial Planning: BFAs provide a clear financial blueprint that minimizes ambiguities and possible disputes if a relationship ends.
  2. Asset Safety: The agreement ensures that personal assets are protected and equitably distributed based on the mutually agreed terms.
  3. Personalized Agreement: The parties can customize the agreement to suit their unique financial situations.
  4. Efficiency and Economic Benefits: Establishing an agreement in advance can lead to significant savings in terms of both time and legal expenses for both parties in the future.

Do BFAs have any disadvantages?

Overall, the benefits of BFAs outweigh the disadvantages. However, considering the nature of the agreement, sometimes, complexity arises, often necessitating the input of legal professionals. Additionally, BFAs might not offer the necessary adaptability to accommodate future situations like income variations, employment changes, or alterations in family structure.

How can a BFA be terminated?

  • Mutual Decision: 

Should both parties decide to end the agreement, they can mutually execute a new agreement to supplant the current one.

  • Consent Order: 

Parties have the option to seek a court’s decision to nullify the agreement if there are legitimate grounds for it

  • Termination Clause: 

The agreement might specify an expiry date or conditions specifying the circumstances under which the agreement will terminate.

In conclusion, where Binding Financial Agreements (BFAs) can serve as an efficient method for safeguarding the assets of an individual, it is important to ensure that it is just and balanced to prevent future disputes.

For this purpose, we advise our clients that such agreements must be formulated by a family lawyer This approach significantly reduces the likelihood of the agreement being contested and potentially invalidated by a court.


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FAQs

How much does a binding financial agreement cost?

Lawyers typically charge clients between $3000 and $5000 to prepare a Binding Financial Agreement (BFA).

Are binding financial agreements enforceable?

To ensure a BFA is legal and enforceable, it must adhere to the rigorous requirements outlined in the Family Law Act. This mandates that each party willingly agrees to the BFA and is fully informed. For a BFA to be recognized as valid, there’s a prerequisite that all involved parties sign, acknowledging they have received independent legal advice.

How to get a legally binding financial agreement?

The fundamental components that must be present for the agreement to be considered a legally binding contract include 

  1. mutual agreement, demonstrated through a valid offer and acceptance 
  2. sufficient consideration
  3. the legal capacity of the parties
  4. the legality of the agreement’s terms

How to write a binding financial agreement?

To write a BFA, please consult a family lawyer. You can not write it yourself because it would not be legally binding or enforceable.

Does a binding financial agreement need to go to court?

Binding Financial Agreement (BFA), doesn’t usually require court’s approval to be valid as long as legal standards are met and both parties agree. However, any party violates it, court intervention may become necessary to resolve disputes.

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What is caveat on property? How to apply for it?

What is a caveat on a property?

The literal meaning of the caveat is “warning“. It is a legal notice placed on a property’s title, alerting other parties of your interest in it despite not owning it yet. This is also known as an “unregistered interest“. Filing a caveat against a property serves as a warning to anyone intending to engage with the property that another party has a pre-existing claim or interest in the property.

Notably, it does not grant ownership but serves as a notification of the claim.

What is a caveatable interest?

An interest in a property means that someone has a stake in the property, whether through ownership, legal rights, financial claims, or contractual agreements. This can include:

  • Ownership: Having a partial or complete ownership stake in the property.
  • Legal Rights: Holding legal rights to use, occupy, or benefit from the property.
  • Financial Claims: Having a financial claim against the property, such as a mortgage or debt.
  • Contractual Rights: Having contractual rights related to the property, such as a lease agreement or purchase contract.

An interest in a property means that someone has a stake in it, whether through ownership, legal rights, financial claims, or contractual agreements.

Who Can Lodge a Caveat?

Anyone can lodge a caveat with a caveatable interest in a property. This means the person has a claim or right related to the property, such as:

  • Settlor or Beneficiary: Someone who has settled land or is claiming under a will or settlement.
  • Interested Party: Anyone with a legal or equitable interest in the land, whether through agreements, unregistered instruments, or other means.

Some examples include:

  • Contract Purchaser: Someone who has signed a contract to purchase real estate.
  • Seller of Land: A seller who has received part payments but is no longer the registered owner.
  • Purchaser Paying Installments: A purchaser paying the purchase price in installments but not the registered owner.
  • A person with a Right of Access: Someone with an unregistered easement.
  • Tenant: A tenant under an unregistered lease.
  • Party to a Contract: Someone who has signed the contract to buy the property (often a mistake by real estate agents).
  • Creditor: A creditor seeking to prevent the seller from disposing of the property.
  • Equitable Mortgagee: A lender who holds an equitable mortgage over the property.
  • Partner: A partner in a relationship.
  • Lessee: A person who holds a lease on the property.
  • Beneficiary: A beneficiary under a trust.
  • Victim of Fraud: Someone who has lost their interest in the property due to fraud or forgery.

Remember, only a person with a caveatable interest can lodge a caveat.

When is a caveat used?

A caveat can be used in various situations to protect an interest in a property. Some common scenarios include:

  • Property Purchases: When a contract of sale has been signed.
  • Family Law Matters: When only one party is registered as the owner of the property.
  • Estate Disputes: When there are multiple beneficiaries or disputes over inheritance.
  • Lending and Debt: By lenders or debtors to secure their interests.
  • Business Transactions: To provide security or protect interests in business dealings.
  • Other Situations: When a party has contributed to the property but is not registered on the title or has other grounds for a claim.

Non-Financial Contributions and Caveatable Interests

In certain situations during divorce or separation, non-financial contributions to a property can give rise to a caveatable interest. For example, providing childcare or maintaining the property can create a claim that allows for the lodging of a caveat. 

 

Related: What you are entitled to in case of divorce?

 

It’s strongly recommended to consult with a family lawyer before lodging a caveat. Improperly lodging a caveat can carry legal risks.

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Types of Caveats in Australia

 

1. Registered Proprietor’s Caveat

  • A registered proprietor can lodge a caveat against their land.
  • This is typically done in situations like:
    • Revoking a power of attorney without informing the attorney
    • Losing possession of a signed transfer of land without being paid
  • Evidence to support this caveat is usually a statutory declaration by the registered proprietor.

2. Caveat to Prevent Improper Dealings

  • This caveat prevents the registration of any instruments or documents that require the owner’s signature.
  • It must be lodged in the name of all registered proprietors.
  • Registered proprietors with mortgaged properties should consult their lender before lodging this caveat.

3. Caveats Under the Transfer of Land Act (TLA)

  • There are three types of caveats under the TLA:
    • Absolute Caveats: Prevent any interest from being registered on the title.
    • Subject to Claim Caveats: Allow other interests to be registered only if they acknowledge the caveat’s interest.
    • Until After Notice Caveats: Require the person registering an interest to notify the caveator first.

It is crucial to understand that only individuals with a caveatable interest can lodge a caveat. This means that having a claim or right related to the property is essential.

Why Use a Lawyer?

For any real estate transaction, it’s advisable to have a lawyer handle the caveat process. They can:

  • Assess Caveatable Interest: Determine if you have a valid claim that justifies a caveat.
  • Identify Contractual Restrictions: Check if any contracts or agreements prohibit lodging a caveat.
  • Avoid Negative Consequences: Ensure that the caveat is lodged correctly to prevent delays in property transfers or financing difficulties.

Duration of a Caveat

According to the New South Wales Land Registry Services (NSW LRS), a caveat typically lasts 21 days from the date it is served; however, this duration varies according to state law. In South Australia, a caveat is registered against the title of the property until it is withdrawn or removed. 

Extending a Caveat

A caveator can extend the duration of their caveat beyond the initial 21-day period. To do this, they must obtain a Supreme Court order and file it with the relevant land registry.

What does it cost to lodge a caveat?

Like other legal documents, lodging a caveat involves fees paid to the local state government department. The cost varies depending on your state and whether you’re lodging or withdrawing a caveat for one or multiple properties.

The fees for lodging and withdrawing a caveat are the same in NSW, VIC, WA, SA, and QLD.

  • NSW: $164.31
  • VIC:  $57.31
  • WA: $197.91
  • SA: $197.61
  • QLD: $197.00

However, in TAS, NT, and the ACT, the lodging and withdrawal fees for caveats differ as follows:

  • ACT: $304 lodgement fee, $155 withdrawal fee
  • NT: $248 lodgement fee, $152 withdrawal fee
  • Tas: $174.90 lodgement fee, $138.51 withdrawal fee

There are also additional legal fees if you decide to use a lawyer to lodge a caveat on your behalf, which can be more than $100 depending on where you lodge.

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How to lodge a caveat on property ?

To lodge a caveat, the caveator (the person filing the caveat) must provide details of their claim and contact information. The relevant government authority will then notify anyone with an interest in the property who is affected by the caveat.

The process for lodging a caveat is generally the same across all Australian states.

Steps to Lodge a Caveat:

  1. Consult a Legal Professional: It’s highly recommended to seek legal advice before lodging a caveat to ensure you have a valid claim and understand the process.
  2. Prepare the Caveat: A solicitor or conveyancer can prepare the caveat for electronic lodgment, or you can download and complete the caveat form.
  3. Submit the Caveat: Lodge the caveat and relevant exception form with the appropriate government authority.
  4. Pay Fees: Pay the required fees associated with lodging the caveat.

Once lodged, the caveat will be recorded against the property title, preventing the registered owner from selling the property for a specified period.

Important Note: Only individuals with a valid caveatable interest should lodge a caveat. Lodging a caveat without a legitimate claim could result in compensation to the registered owner if they suffer losses.

What details are required to lodge a caveat?

When lodging a caveat in NSW, it’s essential to provide the property’s details accurately. This requires using the correct folio identifier, which corresponds to the exact property on which you intend to place the caveat.

  • Seek Professional Guidance

We strongly recommend consulting with a lawyer or conveyancer before lodging a caveat. They can offer expert advice on your legal rights, obligations, and the associated costs. Each case is distinct, and legal counsel can help you navigate the process effectively.

How a caveat appears on title?

 

Challenging or Removing Caveats

  • If there is a caveat on your title that you think is unreasonable, we recommend you seek legal advice.
    There are several ways to manage or remove caveats that are recorded on a title, including:
    1.  Order of Court: The caveat can be removed by an order of the Supreme Court
    2. The caveat lapses: The caveat can automatically lapse under a lapsing notice issued by another party
    3. Withdrawal: The person who lodged the caveat can remove it
    4. Obtaining caveator’s consent
  • 5. Canceling by the Registrar of the Land Titles Office

Laws Governing Caveats

  • The law governing caveats varies in each state and territory. The table below outlines what laws apply in each.

What should I do if my interests are adversely affected?

Safeguard your interests:

A lawyer can provide valuable guidance on the potential risks and benefits of lodging a caveat, tailoring their advice to your specific circumstances. While a caveat can offer protection for your property interests, it’s essential to weigh the potential risks and benefits carefully before deciding to proceed.

 

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FAQs about property caveats

How do you know if you have a caveat on your property?

According to Section 138 of the Transfer of Land Act, the Registrar of Titles is obligated to inform the registered proprietor of a property when a caveat is placed on their title. This notification is typically sent via post to the property’s address.

How long does a caveat on a house last?

A caveat typically remains in place for an extended period unless it is removed or withdrawn.

Сan a caveat stop a property sale?

A caveat can hinder property transactions by preventing sales, transfers, or additional encumbrances. However, it generally does not restrict the property owner from using existing mortgages or security.

 

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Family Violence in Australia: Signs, Statistics, and Legal Support

It’s a Saturday night, and you are having family time with your spouse and children. You turn on the news, and a news story comes up:

“Father of two murders his wife and children.”

Some reported he was a respectable businessman, and some said he was a nice guy. Nobody saw it coming. 

Gold Coast mother, Teresa Bradford – yet another victim of domestic violence.

You turned the news off, but it did not change the fact that, in Australia, every week, a woman loses her life to domestic abuse.

 

The idea of home and family brings a feeling of security and safety to the individuals living there. Each culture has its sayings and songs about the importance of home and the comfort and security to be found there. Yet, for many people in Australia, home is a place of suffering. This is particularly true for women. 

What is family violence?

Family violence refers to the abusive and violent behavior of a family member (intimate partner, parents, caregiver, guardian, or child) towards another member of the family to control, humiliate, threaten, or scare them, making them feel unsafe. Domestic Violence is a broad term covering a range of patterns of behavior. It includes (but not limited to)

  • Psychological abuse
  • Emotional Abuse
  • Sexual Abuse
  • Spiritual abuse
  • Gaslighting
  • Physical abuse

Most people look for the physical signs of abuse. However, in most cases, the cornerstone for domestic violence is power and control, and it’s very difficult to recover from this type of abuse. Domestic and family violence abusers, generally, don’t leave physical marks, and hence it’s not easy to recognize the abuse if you aren’t well aware of it. If you are unsure about your situation, don’t hesitate to reach out to family law experts who can help you identify the signs of domestic abuse and provide the support you need.

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If you or someone you know is experiencing any of these warning signs, it’s time to reach out for help.

Your family member:

  • Threatens you that they will hurt you or your loved ones, including pets
  • Threatens you with self-injury
  • Gaslights you
  • Socially isolates you and makes you abandon your friends and other family members or restricts you to home
  • Doesn’t provide  you with essential financial support if they are legally bound for it
  • Controls your life choices 
  • Makes you question your memory and mental health
  • Enforces their decisions on you in different matters eg, having or terminating a baby
  • Makes you take drugs you aren’t prescribed by a doctor
  • Touches you improperly
  • Have sex with you without your consent
  • Enforces their religious beliefs on you
  • Monitors your social accounts and interactions with other people without your permission.
  • Hits, kicks, punches, or threatens you with a pointed object
  • Denies you liberty and autonomy
  • Have coercive control over your life

These are some of the examples of the ways in which a family member can abuse you. 

The effects of domestic violence on victims range from physical injuries to mental health issues such as depression and anxiety, social isolation, financial dependence, and even death in extreme cases. On average, one woman a week is murdered by her current or former partner. And the impacts are generally long-lasting and don’t end with abuse.

 

“I’ll never be completely healed; it’s something you live with but doesn’t dominate your life anymore.”

Gypsy

In the case of children, whether they witness it or experience it, it can severely impact their psychological and emotional growth and increase the risks of behavioral problems, e.g., anxiety, depression, academic problems, etc.

Statistics on Domestic Violence

  1. 1 in 4 women and 1 in 14 men have experienced violence by an intimate partner since the age of 15. These statistics have increased as compared to the previous report of the Australian Institute of Health and Welfare 2018, reporting domestic violence victims 1in 6 women and 1 in 16 men.




  2. According to the Miles and Bricknell 2024 Report, 84 (female 46, male 38) out of 220 were domestic abuse victims, out of which:
    • 38 were killed by an intimate partner
    • 16 were killed by a parent
    • 16 killed by a child
    • 4 killed by a sibling
    • 10 killed by a family member other than a child, parent, or sibling 
  1. The most common forms of abuse (in cases where male abusers killed the female) were:
    • emotional and psychological abuse (82%)
    • physical abuse (80%)
    • social abuse (63%)
    • financial abuse (27%)
    • sexual abuse (16%) (ADFVDRN and ANROWS 2022)

It’s important to note that victims often experience multiple forms of abuse simultaneously. While physical and emotional abuse are prevalent, many survivors also endure financial, social, and sexual abuse. This overlap means that the sum of abuse types exceeds 100%.

 

 

Australian laws against family violence:

The alarming rise in the cases of domestic and family violence has led to the changes in the family law act 1975, resulting in harsher penalties for the abusers by the government of Australia.

Offenders now face increased jail terms, with the possibility of life imprisonment according to the gravity of the crime committed. Not only this, there are more compensations available for the victims now, e.g., paid domestic violence leave, “leaving violence payment” program etc. These legislative changes reflect the increasing societal awareness of the devastating consequences of domestic violence and a determination to create a safer environment for all. 

Related: Changes to Family Law Act 2024 – Australia Family Law Reforms

 

Apply for AVO:
 If you are feeling unsafe and threatened and want protection from the abuser then you can apply for an AVO. If you have already applied for it and want to update or vary an AVO, you can directly book a free consultation with our AVO lawyer to help you explore your options. If you have received the AVO and want to revoke it, we are offering you complimentary consultations because we know the potential consequences of AVO on your family and professional life.

 

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FAQs

 

How do you prevent domestic violence?

Firstly, create a safety plan: inform trusted friends and family members, pack essential documents, medications, look out for shelters for emergency evacuation.

Secondly, document the abuse by recording incidents, evidence, calls, voicemails, and photographs in case of injuries.

Lastly, seek legal support.

What to do if someone threatens you in Australia?

You can apply for a restraining order, also known as a family violence protection order, if it involves family members or a personal safety order for non-family members. Alternatively, you can contact the police or call 000 for emergency assistance.

Am I in an abusive relationship?

If your answer is yes to most of the questions below, then you are, in fact, in an abusive relationship and need urgent help,

  • Do you ever feel uncomfortable or afraid around your partner?
  • Does your partner check up on you constantly or insist on knowing where you are all the time?
  • Has your partner ever insisted on reading your text messages, emails, or social media?
  • Does your partner lose his or her temper often?
  • Are you afraid to disagree with your partner?
  • Has your partner ever put you down or insulted you in front of others?
  • Has your partner ever controlled how much money you have and/or how you spend it?
  • Does your partner act overly jealous or accuse you of cheating often?
  • Have you stopped seeing friends or family to avoid upsetting your partner?
  • Has your partner ever locked you in the house?
  • Has your partner ever blamed you for the way he or she acts?
  • Has your partner ever made you feel uncertain or made you doubt your memory of events?
  • When your partner is angry, does he or she throw or break things to scare you?
  • Have you ever been frightened that your partner might threaten the safety of you or your children?
  • Has your partner ever threatened to hurt you or your children?
  • Has your partner ever hurt you or your children?
  • Has your partner ever forced you to have sex with them?
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What is a Prenup? – How Is It Beneficial for You?

I have worked hard from my teenage years to adulthood to save money and build a stable financial future. When I was starting a new chapter, marriage, I was thinking about all the possibilities to protect my financial future with my partner. Although I have made that decision after giving it a lot of thought, it is always best to prepare yourself for the worst.

My main concern was to protect my assets even if I get a divorce in future or get separated from my husband. I looked for all the options and after thoroughly researching and understanding the Family Law Act 1975 Australia, I learned about prenuptial contracts. It is your key to a happy married life and in an unfortunate scenario, to a peaceful divorce.

“If you do get married, get a prenup. It’s not about money at all. It’s about having a document that states how you’ll dissolve your marriage while you still have a shred of respect for each other.”

– Alec Baldwin –

You must be curious by now, “What is a prenup, and what are the reasons for getting a prenuptial agreement in Australia?” Let me get you to the depth of it through this blog. It will summarise all the details and facts I collected through my research.

Let’s start with understanding “what is a prenup?”

What is a Prenup?

A prenup, also known as a prenuptial agreement in Australia, is referred to as a Binding Financial Agreement (BFA) by the Family Law Act 1975. A prenup is a legal document, a binding financial agreement, between a couple getting married soon. This agreement is also legal for couples planning to live in a de facto relationship instead of marriage.

A premarital agreement is a legal record of each partner’s financial contribution to the relationship. These contributions can include money, assets, real estate, and family homes. The agreement also outlines the terms and conditions of separation or divorce and how the finances will be distributed in such unfortunate events.

Let’s move on to the reasons why you should get a prenuptial agreement.

What Are The Benefits to Get a Prenuptial Agreement?

benefits of prenuptial agreement

There are several reasons why you should get a prenuptial agreement. Some significant reasons are listed below.

  • Asset Protection
  • Mental Peace
  • Tax Benefits
  • Avoiding court proceedings
  • Privacy

Let’s have a look at them one by one.

1. Asset Protection

Prenuptial agreements play an essential role in protecting your assets. You can get yourself a prenuptial agreement either before your marriage or during your marriage.

Here are a few situations where your agreement will help you protect assets.

  • You own a business or partner in a business.
  • You have got a large inheritance or will get it in the future.
  • Your income is expected to increase substantially.
  • You have already faced a lengthy and complicated property settlement dispute with your previous partner.
  • If you are financially more substantial than your partner, a prenuptial agreement will protect your pre-existing assets, and your partner cannot claim that in case of separation or divorce. It is essential to do so to protect the assets that only belong to you.
  • Suppose you have children with your previous partner and want to ensure that they are provided for, regardless of what happened to your relationship. Making your prenuptial agreement with effective estate planning ensures the property descends to the next generation.
  • Prenuptial Agreements can plan for the future and specify how joint property should be obtained, financially maintained, and handled in the event of separation.

You will feel safe once you get a prenuptial agreement, as your property will be secure. Along with security, this agreement lessens your mental burden and gives you time to put your energy into other tasks.

Let’s look into the details of how these agreements give you mental peace.

2. Mental Peace

A prenuptial agreement is made with the mutual consent of both partners, so both parties agree upon the terms and conditions of the contract. These agreements strengthen, stabilise, and make a relationship. A prenup is considered fair and reasonable by all parties involved in it.

A prenup provides trust, comfort, and mental peace to both partners before any issue arises. In case a dispute arises, the court will not set aside the prenup just because one partner thinks it is unfair.

The family courts will disregard the agreement only when there are conduct such as:

  • Fraud
  • Intimidation
  • A court may intervene in a prenup if unconscionable conduct or material non-disclosure exists.
  • Additional situations are outlined in the law before a court thinks about getting involved in the agreement made.
  • If a party has separated prior to death, the prenup will still be enforceable against that party’s representative and will not be affected by that party’s death.

Do you know how prenup offers tax benefits? If not, then you must keep reading.

3. Tax Benefits

In Australia, prenuptial agreements grant parties the same substantial tax advantages as rulings from family courts. The parties benefit from rollover benefits for capital gains tax and stamp duty reductions in situations where these benefits would typically be applicable if court orders ultimately decided on a property settlement. If a party divides their property through a private or informal agreement, these tax benefits do not apply.

You can hire a professional family lawyer who can explain all the benefits in detail, specifically according to your assets. Moreover, a family lawyer will give you additional information about taxes applied to your assets and how to manage them skillfully to protect you. Aussie Legal Partners is offering a free consultation to discuss your case and look into its specifications and possible solutions.

You should also learn how a prenup can help avoid court proceedings.

4. Avoiding court proceedings

If you have a prenuptial agreement before a property settlement or divorce case, you will be more likely to settle things on time and cost-effectively. You can save yourself from extra expenses and emotional burdens associated with legal property settlement proceedings through Family Court. If we do a fair comparison, preparing a prenup is less costly than long-term legal fights.

Mostly, if both partners agree, it takes around two to three months for the preparation and legal execution of a prenuptial agreement. The duration of preparation of the agreement depends on the complexity of the parties’ finances and the nature of the negotiation. Despite the new Federal Circuit and Family Court Rules and Practice Guidelines, it takes years to conclude property settlement disputes, even after giving your best.

Hang on! You can’t miss how a prenup offers you privacy.

5. Privacy

A prenuptial agreement offers you privacy as it only requires you, your partner, and your lawyers to be involved in negotiating the terms and conditions. On the other hand, when your case is being heard in a family court, members of the public and even other litigants can observe the hearings. The Family Court also involves family, friends, and independent witnesses.

Key Takeaways

  • A (BFA) prenuptial agreement is not just a legal formality.
  • It’s an intelligent step towards a secure future.
  • It safeguards your assets, ensures your children’s inheritance, and gives you peace of mind.

Aussie Legal Partners recognizes the sensitivity and significance of these agreements. We can guide you through the process, ensuring that your agreement is tailored to your specific situation and can withstand any challenges. Our team of dedicated family lawyers will guide you through the complexity of family law with comfort and confidence.

Call Aussie Legal Partners, book your free consultation, and take the first step toward a safe and secure future.

Book Your Free Consultation Now
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About Aussie Legal Partners

With a team of accomplished attorneys, our firm is driven by a passion for justice and a commitment to achieving outstanding results for our clients. Our lawyers are a cohesive force of legal talent, well-versed in various practice areas, including family law, criminal law, Business & Commercial Law.

Practice Areas

Business & Commercial Law
Criminal Law
Family Law

Parramatta, Sydney, NSW

Office 2, 16 Kendall Street, Harris Park,
Sydney, NSW 2150, Australia

Email: info@aussielegalpartners.com.au

Contact: +61 272 503 911

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