Saturday, June 11, 2016

Family Law Pre and Post Nups essential in modern Australia

You can see for yourself this case where the mother in law has to pay up (by selling her own home) her son's former spouse our of a property settlement post-divorce. It may defy comprehension why a Family Court ordered this against the mother in law who wasn't obviously a party to the failed marriage. Yet this could have been avoided if the son (the husband) and his wife had entered into a post nuptial agreement (the technical work is Binding Financial Agreement) protecting the son's mother's assets. 

With the Family Courts discovering 'rights' which most people couldn't conceive they existed, it is absolutely critical, and the responsible thing to do, to get yourself a good lawyer, particularly when all is going well within the marriage or de facto relationship, and enter into an agreement providing for all contingencies and ensuring the parties' rights are well understood and protected. 

When things go wrong in a relationship, this can't be done and lawyers are employed to clean up the mess not to prevent it. I encourage you all to get a lawyer well before that happens.

This is the piece from The Australian on 2 May 2016
The 90-year-old matriarch of a wealthy Melbourne family has been ordered to sell the seaside home that has been in her family since 1956, or find $1.1 million to pay out her son’s ex-wife.
The matriarch, who cannot be named for legal reasons but is known in court documents as Mrs H, told Federal Circuit Court judge Grant Riethmuller she would “rath­er die’’ than sell the place that holds so many “beautiful memories’’. Judge Riethmuller decided that was “hyperbole in a form not uncommon for someone of such advanced years’’ and ­ordered Mrs H to sell the property by May 18 or find $1.1m to give to her former daughter- in-law.
The dispute arose after the daughter-in-law went to court claiming an interest in the property, described as ‘‘large and beautiful … on high ground, close to the ocean’’ with “beautiful natur­al gardens’’ and a boat shed.
She told the court she moved into the property with her husband after they fell on hard times in 1985. She raised her children there and did not move out until 2009, after more than 25 years of marriage.
Mrs H’s son told the court his mother allowed him to live in the house “for a modest rent’’ because he had been bad with money all his life, and was now bankrupt.
His ex-wife told the court Mrs H told her several times over the years that the property was theirs.
She gave the court receipts showing they made many improvements to it, and quoted Mrs H saying such things as: “You know you can stay there forever, it’s yours … you can do what you like to it.’’
Mrs H vehemently denied saying any such thing: “I have never, never said I would part with (it). It’s completely a make-up. My ­father gave me that property. I remember the date. He said: ‘Every Christmas, we have a terrible time getting a place for us all to stay. I think I’ve found it. What do you think?’ … We all walked around and we loved it. It was a holiday house for the whole family.’’
She agreed her son’s ex-wife had lived there for more than 20 years, including for two years after the marriage broke down, but this was “much to our shivering, I must say.’’ As for letting the ex-wife stay there forever, she said: “How could she stay there forever? I have other children. It was a holiday house. … I would never promise it to anybody.’’
The vehement nature of Mrs H’s testimony did not persuade Judge Riethmuller, who said he preferred the evidence of the ex-wife and her daughter. “I find that the wife should receive­ a half-­interest in (the) property,’’ he said, adding that Mrs H should be allowed to “retain the property if she was able to … (provided) she make a payment of $1.16m to the wife. If it is not paid within 90 days, the property should be sold.’’

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