A prenuptial agreement can provide clarity around finances and property for couples
A prenuptial agreement, also known as a prenup or premarital agreement, is a legal document for couples who are planning to live together either as a married couple or in a de facto relationship.
The agreement covers what will happen in the event the relationship breaks down through divorce or separation, with regards to the couple’s finances and property and how these will be divided.
Prenuptial agreements are becoming increasingly popular in Australia, particularly among high net worth individuals who wish to protect their assets and income.
Under South Australian law, prenuptial agreements are recognised as valid and enforceable, provided they meet certain requirements. For a prenuptial agreement to be valid, it must be in writing and signed by both parties. The agreement must also be entered into voluntarily, with both parties receiving independent legal advice.
Prenuptial agreements can be used successfully to cover a wide range of issues, such as property division, debts and liabilities, spousal support in the event of divorce, the treatment of inheritances and pension entitlements, parenting matters - they can even deal with pets.
A clause commonly found in prenuptial agreements is one that states that in the event of divorce, each party will keep their respective assets which they brought to the marriage, rather than dividing them equally.
Prenuptial agreements can be ineffective if the agreement is found to be unfair or unconscionable. A court may also find that the prenuptial agreement is unenforceable if one or both parties had not received independent legal advice, did not fully understand the terms of the agreement at the time it was entered into, or the agreement did not disclose all of the assets or liabilities.
In conclusion, prenuptial agreements are powerful and effective tools for any couple looking to kickstart a successful long-term relationship. However, it can be daunting to determine what you and your partner need to solidify your prenup. Specifically, what clauses should be included and what you need to consider when developing them.
It is essential to seek legal advice when drafting a prenuptial agreement to avoid uncertainty, potential hostility if the relationship fails, and costly litigation should the matter end up in court.
For further information about Scammell & Co's family law services, please click HERE
*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.
Proposed domestic violence bill not necessarily the answer to shared custody disputes
A private member’s bill has been introduced into parliament by Federal Labor MP Graham Perrett in response to the shocking murder of Brisbane woman Hannah Clarke and her three children at the hands of her former partner.
The family law bill aims to remove what Mr Perrett describes as confusing laws around child custody arrangements.
As it is, the family law assumes parenting should be shared equally between parents who have separated - regardless of either party’s conduct or history of domestic violence.
Mr Perrett told parliament “There is a widely held misconception that equal shared responsibility means equal shared care. ”
“This misconception sets up a false expectation that parents have some right to guaranteed equal time with their children. “
“This can incentivise an abusive partner to litigate their parenting dispute. It may lead to a parent agreeing to an unsafe parenting arrangement, in the belief that they have no choice.”
Scammell & Co. have a highly experienced Family Law team providing child custody advice and best outcomes to parents going through a separation or divorce. Please contact us either by calling 8447 4466 or via email: reception@scammell.com.au to arrange a confidential intial appointment.
*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.
Considering a DIY Family Law Consent Order? You might be setting yourself up for failure.
While the Family Court's 'DIY Kit' provides information and guidance about making an Application for Consent Orders, we highly recommend that you obtain legal advice and assistance before attempting to draft the Court documents yourself.
In addition to the application form, you must submit Consent Minutes of Order detailing the terms of your financial/ parenting agreement with your former partner. Even if you both agree on the wording, if the Minutes are not drafted properly or if you fail to provide sufficient information to the Court, you will receive a requisition letter advising that your application was unsuccessful. Your former partner might then perceive your agreement as unfair and seek changes.
Poorly drafted Minutes could also result in future problems. For example, if your former partner refused to pay your settlement sum or in the agreed time, you could be left without non-litigious options to get your money. Or, what are reasonable terms for interstate and overseas travel with the children?
Our experienced Family Law solicitors have the knowledge and experience to foresee and avoid such difficulties. By tailoring your Minutes (and application form) to your individual circumstances, we can best ensure that you obtain orders in the terms agreed.
Natalie Lloyd
Solicitor
Family & De Facto Law | Divorce | Children/Parenting Matters
nlloyd@scammell.com.au
*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.
How to register to receive maintenance from your former spouse or partner
There are two main types of maintenance; child maintenance (also known as “child support”), and spousal or de facto partner maintenance (ie. “alimony”).
You can apply for child support online via your myGov account. For further information, contact the Department of Human Services on 131 272 or visit their website: www.humanservices.gov.au. It is worth noting that child support does not account for things like private health insurance or private school fees.
Unlike child maintenance, spousal maintenance is not automatic. Unless your spouse/partner agrees to pay you, obtaining spousal maintenance can be notably complex. Your application needs to establish that:
- Your spouse/partner is “reasonably able” to pay; and
- You are unable to support yourself adequately.
Both your spouse/partner and your expenses will be critiqued. Several other factors are also relevant, such as yours and your spouse’s age, health, income, parenting
obligations, “a standard of living that in all the circumstances is reasonable” etc.
Given the complexities involved, we recommend that you speak with one of our experienced Family Law solicitors to determine your rights and prospects of success.
*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.
An ex is threatening to share intimate images of you. Know your rights.
The sharing of intimate images (sometimes referred to as 'sexting') is the act of taking sexually explicit photographs or video and distributing them to another person (or persons) via mobile phone or other online communication method. Even though the intimate images may have been initially taken with the consent of the person/s featured in the image (including if the images were 'selfies'), once this content has been made and initially distributed, the person (or persons) featured in the material loses control of it. Such material can easily be redistributed to anyone else or made public without the consent of the person/s featured in the images or video.
The non-consensual sharing of intimate images (whether express or implied) can be used to coerce, control, abuse, blackmail, humiliate, intimidate or harass another person. As such, it can have a serious impact on victims, including psychological injury and trauma, as well as a loss of reputation, social standing, or employment.
In South Australia, under the Intervention Orders (Prevention of Abuse) Act 2009 (SA), it is a criminal offence to distribute, or threaten to distribute, intimate photographs or videos of another person without their prior consent.
If you have not consented to the publication or distribution of any intimate material, we recommend that you contact the police and report the offence. Based on your statement the police may decide to lay criminal charges against the person who has shared (or is threatening to share), inimate photos or video of you.
Given the seriousness of this offence you should also consider obtaining an Intervention Order (often referred to as a Restraining Order), against the person making such threats. This will prevent him/her from making any further threats towards you.
An intervention order is a court order made against a person - including a current or former spouse or defacto partner or someone you have been in an intimate relationship with, who has physically abused you, made threats of violence towards you or intimidated you in some way. The person you fear (known as the defendant) must obey the order made by the court. An intervention order has certain conditions which can make clear that the defendant must not assault, harass, or intimidate you. An Intervention Order can also say that the defendant must not contact you via telephone, email or online, or attend your home or workplace.
It may also be appropriate to name other people, such as children or other family members as protected persons, when applying for an Intervention Order.
The person's threatening behaviour is a form of “violence” under the Act, which is given a broad definition. It may also be possible to obtain an injunction for personal protection thereby prohibiting your ex from engaging in further threatening behaviour and/or posting any intimate photographs or videos of you online.
For further information on Intervention Orders please click here
*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.