Thanks for all of your questions on the blog. I can see that this service is really needed, and I am happy to help where I can. I am worried that sometimes your questions are urgent and need an answer quicker than I can get to them.
Did you know that you can phone to have a free 10 minute or so chat with one of our lawyers at any time during business hours? Usually we have a solicitor who can take your call right away, or if not, can all you back within the hour. Alternatively, Or you can email us on enquiries@journeyfamilylawyers.com.au for a free email response. This helps many people each week and we are happy to do this and give you the information that gives you some clarity about your legal position. Sometimes this is all people need in the early stages of their separation or divorce journey.
If you are ready for more detail, though, you can also have an hour long, confidential , no obligation consultation on property settlement and divorce, children’s custody issues, or any other Family Law matter with a Journey Family Lawyer for $143.00 GST inclusive? If you cannot get to one of our offices, in Strathpine, Spring Hill or the Sunshine Coast, then why not have a phone conference for an hour. We do it a lot, and we even have clients from interstate and overseas that we never see. These days with email it is much easier to have long distance representation. We have helped many people this way.
You will generally leave one of these conferences with a clear idea of where you stand, and also a plan for the future. People often say they wish they had come to us sooner, as these things had been keeping them awake at night. To make an appointment or to phone to talk to a lawyer, call
07 38325999 (Brisbane)
07 32059000 (Strathpine)
07 5443 1120 (Sunshine Coast)
Kind regards,
Lynette
Hi lynette,
My partner moved into my house with my two biological children 6 yrs ago. I had him sign a cohabitation agreement to protect my home and assets.
I have left the house to my children in my will should something happen to me, but I’m considering marrying this man. I realise the cohabitation agreement will fall invalid and I don’t want to ask for a prenup to be signed, but is my will void once we are married since he becomes my next of kin? I would hate to think he gets my children’s home if something were to happen to me.
Thanks for your help
Toni
Hi Toni,
You have two areas of law to deal with; firstly there is Family Law which applies when both parties are alive. When one person dies or is anticipating that event in the future, the law relating to that is Succession law.
We specialise in Family Law so you need also to get some advice from an estate / succession lawyer about your particular situation.
Under the Family Law, the issue of property is not straight forward. Many people think that property is split 50/50. Whilst that happens in a lot of cases, it is not necessarily the situation in your case. The reason is that when the law calculates the percentage split, it looks at a number of factors. These include initial contributions of the parties to the relationship, ie the more one party contributes the greater the weighting (except in longer relationships). As well, the law looks at financial and non financial contributions during the relationship and thirdly, post separation needs of the respective parties. From that the percentage split is worked out.
In your case, you need to look at all the assets of the both of you and all other factors to work out who will get what share of the assets. Let us know if you want to do that exercise (you need to come in for an appointment to do that).
Also, do not forget that all assets come into the property pool. This includes things like shares, superannuation, interests in businesses as well as real estate.
With your Will, yes, you need to redo your will if you get married. Also, there are potential complications if you do re-marry as your husband does / will have a potential claim on your estate. We would strongly recommend you see an estate lawyer to talk about these issues, before they become a problem.
Hope this is of assistance; let us know if we can assist further.
Hi,
I was wondering if there is any legal course of action I can take to force my ex-defacto partner to carry out their end of our separation agreement. We have both sought legal advice, however in an effort to settle things swiftly I came to a private agreement with them on 31st December last year yet I am still waiting for them to uphold our agreement. Whenever I email the other party about it, all I get are lies, stall tactics and deception. I am losing my patience and need this finalised. What can I do??
Reagrds
Hi Madeline,
You have not given us too much detail about the nature of the problems you are having with your Ex. It makes a difference in our response if it is about children or property or the actual separation. In all cases, there is always the option of taking the other party to Court. Often we issue Court proceedings simply to force the other party to deal with the issues and we don’t actually end up in a Court Hearing.
I suggest you send us a detailed email of your situation and we will address it as best we can. Our email address is enquiries@journeyfamilylawyers.com.au.
Just would like to know how you can go about arranging a temporary custody or residential order to stop the other party taking the children until everything is settled.
regards
Theresea
Hi there Theresea, if there is a real risk that this will happen, you need to see a Lawyer straight away and bring an Application to the Court to get a residence Order and, if there is a risk of overseas abduction, then a PACE alert may be necessary. Please see our article on PACE alerts here.
You may only make an Application to the Court without a mediation certificate if the matter is urgent. Otherwise, you will have to attend mediation first and obtain a s60i certificate prior to applying to the Court. More info can be found on the section 60i certificate here.
If you feel your matter is urgent and requires immediate attention or should you require additional information, please call our head office on (07) 3832 5999 and ask to speak with one of our Lawyers for a free, 10-minute consultation.
All the best.
Hello. I have been seperated and subsequently divorced for about four years now. After my seperation I moved to Queensland leaving my three children in Tasmania with their mother. Although my eldest son (now 14) wanted to move with me at the time his mother wouldn’t allow it
Since my move my son has not been happy at home and spends 80% of his time with my mother. His grandmother takes him to school nearly every morning, and feeds him most nights and has him every weekend. My son has now expressed that he really isn’t happy and really wants to be in Queensland with me.
Where do I start with this process of getting him here with me?
Look forward to hearing from you.
Cheers.
Marcus
Hi lynette, justa quick question, i maybe recieving an inheritance soon & was just wondering if that is considered in child support payments, i have my children 50% of the time but becoz I earn more she has me paying child support regards Michael
Hi Michael, as far as Child support goes, that inheritance should only have an impact in relation to the interest you earn on it as it increases your income. Theoretically, it is possible for her to seek a review based on the fact that your income does not properly reflect your property and resources.
Good luck
Regards Lynette
Hi Lynette,
I have been separated from my ex since April this year. We have 2 children. I would like to stay in the house for the children. The question I need to ask is would I be able to get him to sign the house over to me and keep the loan in both our names. Is that able to be done if he agrees to do that? Or will the house have to be sold. The reason is I don’t think I would be able to get a loan for the whole amount the mortgage is for.
Regards
Sharlene
Hi Sharlene,
Sorry for the delay in responding, Lyn is unfortunately unavailable so I’m responding on her behalf. If you would like the property to be transferred to you, we would recommend having an Order made by the Court. That way, there will be no stamp duty payable on the transfer to you. In relation to whether you might be entitled to retain the property, the Court will use a four step process to determine whether you are entitled to it. There is an article on our website that might be helpful for you to take a look at. I would recommend that you make an appointment with one of our solicitors to work through this process with you to determine whether you might be able to retain the property.
- Katherine Ross, Associate
Hi. My exhusband and I still jointly own the family home in which the kids and I still.reside. Can he refuse to allow my new partner to stay overnight with me at the house?
Hi Claudia,
Our apologies for the delay in responding to your query. Lyn is unavailable so I’m responding for her. The short answer is that because both of you are on the deed, both are you are able to make decisions about the property. In the reverse, neither of you can force the other to do something in their property that they do not want to. The best example that I can give, is that both of you are able to reside in the property unless there is an Order from a Court that expressly denies the other person the ability to enter. So whilst your former spouse is able to expressly deny his consent to your new partner staying in the house, likewise you are able to give your permission. I would suggest speaking with your former spouse to see if an amicable resolution can reached prior to final property settlement. Obviously at the end of the day, one party will either retain the property or it will be sold so this is only really a discussion that needs to dsicuss what happens until then.
- Katherine Ross, Associate
Hi Lynette,
My partner separated at the beginning of this year after an 18 year de facto relationship. His 2 main problems are:
1) She refuses to move out of the home and has changed the locks. The mortgage hasn’t been paid since he left and administrators are about to take him to court over the default which will destroy his credit rating. How do we get her out of the house? She is essentially a squatter.
2) She refuses to give him his personal property, photographs, music, books etc. He has told her she may keep all the furniture, but he does want his personal items back. How do we get them?
Many thanks for any advice you can give.
Regards, Martine
Hi Martine,
Sorry for the delayed reply. Lyn is not in today so I am responding for her. There is a couple of important things that you should know. There is a time limitation that attachés to de facto property. You will have two years in which to either finalise the property settlement or commence proceedings to do so. If she is in the house and the house is in joint names, there is nothing to stop him from changing the locks back (of course, she can do the same to him again). If the mortgage isn’t being paid by either party, the property will need to be sold. If they cannot agree to do this, then a Court Order will need to be obtained to sell the property. It’s important that this occurs sooner rather then later so that his credit rating doesn’t become worse. With regards to his personal property, again, if the property is in joint names, there is nothing to stop him (unless there is a Court Order saying so) from entering the property to collect his personal belongings. However, if he doesn’t wish to do this, then unfortunately, aside from possibly seeking the assistance of the police (and sometimes they do not wish to get involved) then he must obtain a Court Order to collect these items as well. I think that at some stage he will probably need to speak to a solicitor to obtain some further advice. All the best.
- Katherine Ross, Associate
Hi Lynette, here is a hard one… I’m french, I married my husband in 2009, and have a temporary resident visa, if we are still together in 2 years (2013), I could obtain residency, but here is the problem… I found out he cheated on me just 7 weeks after we got married, and found out a month later on the day he got locked up for drug charges he had prior our relationship. I was 7 months pregnant and devastated, with no money on my own as I left my new job in the mine bc of the pregnancy. I had no help back then because I wasn’t resident, not even temporary at that stage. I couldnt return to France either as I dont get along with my family since they’re jehovah’s witness and Im not anymore. So I stayed with him, he got out of prison and even though I never forgave him and despite many arguments, he always refused to go anywhere, he refused to break up and with a baby and no family I just couldnt leave anywhere. I had no choice because financially I totally depend on him. Also, I was told I would risk to lose my child if I left him, as my visa would be cancelled, and I would be sent back to France. I’d like to know if I was to separate from him, and eventually divorce, would I be sent back to France, or could I stay with my children here in australia? Thank you for your time….
Hi Amelia, firstly I would like to apologise for the delay in replying due to the busy Christmas period. we specialise in Family Law. Your question as to whether you would be sent back to France is a question for an Immigration Lawyer. I suggest that you contact the Refugee and Immigration Legal Service (RAILS) on telephone 3846 3189. Once you obtain advice as to your residence status, we will be able to assist in advising you as to the appropriate parenting arrangements in the circumstances.
- Joshua Peters, Associate – Spring Hill Office
I have been divorced since February. I have had several attempts to negotiate a property settlement with my ex with no success. Our house is in joint names and we have our super. My question is, what will happen if we are unable to come to an agreement before the 12 months is up? Are we going to be bound forever with the house in both names.
Zelda,
Hi. Lynette is away so i am replying in her stead.
If you leave the property settlement and do not commence legal proceedings, you will be stuck in that situation until you get a lawyer to start things going. You can do it sooner or later; the only difference is that the later you do something, the more costly it will be. If you do nothing then the house will stay in joint names until one of you dies.
The solution is to get a lawyer to write to him to threaten to issuecourt proceedings if he doesn’t agree to a property settlement. If he still refuses. The next step is to issue court proceedings. At this point he will realise you are serious and hopefully agree to property settlement without too much trouble.
There are a lot of others issues with property settlement that affect things and you really need to see a lawyer in the first instance just to see where you stand in your particular situation. After that you can work out what you want to do.
hope this is of some assistance.
Regards
Bryan