During many relationships, whether marriages or de facto, one or both parties may receive an inheritance from a family member or friend.  Often such inheritances are applied to the parties’ joint pool of assets in some way, such as paying off a mortgage.

Problems arise when the relationship breaks down, and the party who received the inheritance seeks to somehow “quarantine” or “get back” the amount of the inheritance.

If received post-separation, you may be successful in arguing that the inheritance should be excluded from claim by your former partner.  However this can affect what you are entitled to by way of property settlement from your joint assets.

If received during the relationship, particularly if early on, it is likely that the inheritance will be treated as a joint asset.  In such cases, the person who received the inheritance often receives what is called a “contribution” percentage adjustment in their favour when assessing property settlement entitlements.  However, that adjustment is rarely dollar for dollar equivalent to the inheritance amount received.

Whether an inheritance forms part of the assets available for division, depends on a number of factors including, but not limited to:

• Was the inheritance received before separation, and if so, how long ago?
• How much was the inheritance when compared to the value of the rest of the assets?
• Was the inheritance applied to relationship assets, such as paying off a joint mortgage?
• Are there any children and how old are they?
• Who is going to have the ongoing care of the children?
• How long was your relationship from the date of cohabitation until separation?
• If received before separation, was the inheritance quarantined in some way?

There is much case law on this issue, where inheritances have been both included and excluded from the relationship asset pool.  What will happen in your case will depend very much on the very specific facts of your matter.

If you are entering into a new marriage or de facto relationship and expect to receive a substantial inheritance in future from say a parent, you may wish to consider whether you should enter into a Financial Agreement (prenuptial agreement) with your new partner to protect the prospective inheritance in the event of a separation.  Depending on your particular circumstances, entering into a Financial Agreement may be advisable.

By Katrina Oner

http://myfamilylaw.net.au/inheritances-and-family-law/

If you require further assistance in any matters relating to family law please feel free to contact Bloxham Legal on 9221 5815 or info@bloxhamlegal.com.au

by Marguerite Picard

Who gets the House after Divorce? The Kids? Yes, sometimes the kids do get the house. For a time anyway.

For many separating parents, the idea of the kids having to move or “lose” their house is painful. Over the years, I have known many couples who have tried moving in and out of the family home, instead of their kids being the ones to pack their bags all the time.

For this to work, both of you need to be equally committed to the idea, be relatively low conflict, and to be able set “rules of occupation” before you start. The first rules will need to be about how you pay for it, how long the experiment is to last, and how you are going to review it.

You do need other rules too. And remember, breaking and bending of the rules is death to bird’s nesting.

It can sound almost  trivial at the start to talk about the up-close-and-personal rules for the shared homes. Who shops for the food? Who cleans the fridge? What are the rules about changing the linen, housework, inviting new partners in, looking after the dog and the budgie, finding your own space? Most of the tedious things are made easier if you have, or can afford, two homes with private spaces, and you can pay for cleaners and other domestic services.

Bird’s nesting can be a gentler start to separation, if it works for both parents, and your kids don’t get to hear or pick up on the gripes that come with the territory. Eventually, most people want to “move on” or feel that the kids are more settled, and the arrangement ends. That isn’t a failure, its a natural progression.

One of my clients, Steve we’ll call him, shared the family home with his ex for almost a year after they separated. The parents moved in or out each Saturday morning. Their plan was to spend time with their kids week about indefinitely, but after  a year of packing their bags once a week, Steve and his ex decided that they needed to come up with a plan that meant their kids had a “main” home, and only had to pack overnight bags for a day or a short stay. They “nested” for the sake of their kids. They applied the lessons from nesting for the sake of their kids too.

http://myfamilylaw.net.au/birds-nest-parenting/

If you need to discuss family law matters please feel free to costa t one of our family lawyers on either 92215815 or info@bloxhamlegal.com.au

The law affecting families in England and Wales is changing. Since legal aid was withdrawn in family law cases by legislation in 2012, resolving disputes amicably on divorce has never been more important. People are having to navigate a complex legal framework without legal support at the most emotionally fraught time of their lives.

But the law itself is failing divorcing couples by making compromise more difficult. It effectively encourages spouses to attribute blame even when no-one is at fault. Family lawyers and leading judges are now calling for legislative reform.

Since the 1970s, the sole ground for divorce in England and Wales is irretrievable breakdown of the marriage. This is established on proof of one of five facts: adultery, behaviour, desertion, two years separation with consent or five years separation without consent. The latter two facts require no fault but do mean years of waiting – and if a couple mutually wish to divorce there may be various emotional and economic reasons why they cannot wait this long.

So, although couples are not required to attribute blame to establish irretrievable breakdown, they are often compelled to do so if they want to end their marriage quickly. For instance, if one can prove that their spouse is guilty of adultery – an option not available to same-sex married couples – or behaviour that is unreasonable, the divorce can be finalised in less than six months. All this means that divorce is a much quicker process when there is someone to blame.

It is therefore unsurprising that the latest available statistics indicate that the most common reason spouses divorce is unreasonable behaviour, as the graph below shows. A YouGov survey commissioned in 2015 by Resolution, an organisation of family lawyers, found that 27% of couplesproved irretrievable breakdown on the basis of fault because it was quicker and easier, admitting that neither spouse was to blame for the separation.

Fabricating fault

One of the most significant reasons spouses turn to apportioning blame is that their property and finances cannot be divided until the divorce is finalised. For individuals who had previously been financially dependent on their ex-partner, a delay of a couple of years in financial relief could be disastrous. One way of avoiding this is to blame the other party for the marriage breakdown, even if such allegations are untrue.

This is problematic to say the least. Spouses may ruin an otherwise amicable separation by having to decide whose name will be recorded on the divorce petition as being responsible for the end of the marriage. Worse still, this process is unnecessary, as allegations of fault in a divorce petition have no bearing on how the marital assets are subsequently divided.

Research has shown that this emphasis on fault increases animosity during relationship breakdown, because it encourages family disputes to be resolved in an adversarial way. The consequences of this are serious. Attributing blame can lead to bitterness and hostility, reducing the chance of reconciliation and prolonging the resolution of issues such as child arrangements and financial redistribution. It also costs more and puts pressure on court resources.

Not only is this detrimental to any children involved, but an emphasis on apportioning fault in proceedings could also jeopardise couples’ chances for successful mediation. It has consistently been proven that mediation is less likely to be successful in high conflict situations, yet fault-based divorce brings conflict to the fore. For the increasing numbers of people representing themselves in court, a fault-driven divorce process further aggravates an already volatile situation. This can be very damaging when there is no solicitor present to alleviate tensions.

Appetite for reform

Reform that eliminates fault from divorce law would not only encourage a non-adversarial process, but as president of the Family Division James Munby put it, more “intellectual honesty” would be brought to the divorce process because spouses would not have to make fictitious accusations of unreasonable behaviour against each other.

Calls for reform have been around for 20 years. The Law Commission recommended reform in 1990. But, provisions seeking to eliminate fault on divorce in the Family Law Act 1996 were never introduced and were repealed by the Children and Families Act 2014.

Now, amid recent developments such as the potential introduction of online divorce next year, reform may finally be imminent.

On November 30, more than 150 family law practitioners from Resolution lobbied parliament to make divorce a “kinder process” by reducing the wait in cases where both spouses consent and no-one is deemed at fault from two years of separation to six months. There is also public appetite for no-fault divorce.

Those opposed to reform are concerned that it would mean a huge surge in the number of divorces, and that this, in turn, would destabilise the family unit. Yet, there is no research to support this and the divorce rate is currently at its lowest since the 1970s. In Scotland, where couples can consent to divorce after one year of separation without blaming either person, divorce rates are also decreasing.

Resolution’s campaign for the removal of fault-based divorce highlights the pressing problems with divorce law in England and Wales. Fictional allegations of fault are exacerbating bitterness at a time when spouses must go increasingly through to the divorce proceedings without any legal support.

https://theconversation.com/divorce-can-be-nobodys-fault-the-law-should-do-more-to-recognise-that-51836

If you need assistance with Family Law matters please feel free to contact this office on 92215815 or at info@bloxhamlegal.com.au

A lot of separated parents travelling do not realise they need formal consent from the other parent before they travel out of Australia.

If there is a Family Court Order which permits overseas travel the travelling parent should take a certified copy with them. However, if there is no Court order, written permission should be obtained from the other parent.

There are penalties for breaches. If one parent takes the child out of the country without the other parent’s permission it could be a criminal offence under the Family Law Act.

Formal measures to ensure the other parent does not take the child outside of Australia without consent involves considering having the children placed on the Family Law Watch List (previously referred to as the Airport Watch List).  This will require proceedings to be commenced (which will also invoke s. 65Z of the Act).

If the child leaves without permission the law relating to The Hague Convention is activated. This is an international agreement where more than 90 signatory countries agree to uphold child custody orders from other signatory countries.

Nevertheless, good co-parenting would suggest that both parents communicate about travel plans in advance.

If you need advice on travel arrangements and child related matters over this Easter holiday period please feel free to contact us on 9221 5815 or info@bloxhamlegal.com.au.

Each year, local authorities in England act as corporate parents for the 100,000 children who are placed in care. One important responsibility a parent has to their child is to provide them with stability. This helps them to feel secure and to develop attachments with caregivers, as well as a sense of identity and belonging.

A lack of stability during childhood can affect normal cognitive and emotional development, and have long-lasting negative consequences. For children in care, achieving stability often focuses on reducing the number of moves between foster carers or changes in social workers. What is less often considered is the process of leaving the care system.

Ideally, a child leaving the care system should move to a long-term, stable environment. But we know that some children become caught in a “revolving door”, with repeated entries and exits in and out of the system throughout their childhood.

To understand which groups of children in England are most likely to re-enter care, my colleagues and I have analysed administrative data from the Department for Education. Overall, we found that one-third of children re-entered care within five years of leaving it. Our sample looked at 4,076 children who exited care in 2008. By 2013, more than 35% had re-entered it.

There are three factors which influence the likelihood of a child re-entering the care system: how they leave, their characteristics, and how stable the placement was in the first place.

How a child leaves the system

Children can leave the care system in England in a number of ways. The main ways are returning to their parents (with or without further supervision from social services) or being placed in a new family setting through adoption, residence or special guardianship orders.

Our analysis found that the highest rate of re-entry to care was among children who were returned home to their parents (40% re-entered within five years) while children who exited through special guardianship or residence orders had much lower rates of re-entry. Because it is not possible to identify adoption breakdowns in the Department for Education’s administrative dataset, these children were not included in our analysis.

Based on these figures, it would appear that residence and special guardianship orders represent a positive strategy for achieving permanent, stable homes for children exiting care. But when comparing rates of re-entry, it is important to remember that not all children are equally likely to exit care in these ways.

Children can only leave care through a residence or special guardianship order if there is a suitable and willing guardian available and the biological parent agrees to relinquish some of their rights. Children who meet these criteria may not be representative of all children in care. For example, there may be fewer people willing to become a special guardian for children with severe behavioural issues or complex health needs.

Demographic characteristics

Research on re-entry to care in the US has shown that black children are more likely than others to re-enter care. But when we analysed the data for England we found that white and mixed ethnicity children had the highest rate of re-entry. More than one third re-entered within five years compared to one quarter of black, Asian or other ethnicity children.

Older children were also more likely to experience the breakdown of an exit from care resulting in their return to the care system. Almost half of adolescents re-entered care within five years compared to one quarter of children aged between one and four.

Stability of care affects the stability of exits

The dataset we analysed contained some information on the stability of care, including whether a child had left care previously, the number of placement moves and the average length of each placement. As in other studies, we found that children who had less stable experiences in care had higher rates of re-entry. Children who had a single, stable placement in care were half as likely to re-enter as children who moved carer five or more times.

As a result of unstable placements while in care, children may have difficulty developing and maintaining relationships after they leave the system. For example, a study involving interviews with older fostered and adopted children revealed how feelings of insecurity hindered their ability to develop close and trusting relationships with caregivers.

Another possible explanation is that unstable care may be an indicator for other issues that can also affect the stability of exits. Children who are the most challenging cases when entering care – for example, those who may have behavioural issues or complex health needs – may be more likely to move carers multiple times.

Many children leaving care need additional support or monitoring, such as ongoing care plans and home visits. To better understand which groups of children in England are most likely to re-enter care, I have developed a free, online calculator that estimates the likelihood of re-entry. Understanding which groups are most likely to re-enter care could help guide social workers and potentially reduce the risk of “revolving door” care experiences and the associated adverse effects.

https://aifs.gov.au/cfca/2017/01/24/why-some-children-are-more-likely-go-back-care-others

If you have any concerns about child related matters please feel free to contact this office on 92215815 or info@bloxhamlegal.com.au

‘I advise clients to focus on the important things’  

Imagine a German man who is married to an English woman and working in the City. He may be delighted at the prospect of moving to Frankfurt – she may not be, particularly if she doesn’t speak German. And parents will be concerned about the disruption of removing children from school. The couple might decide that one parent will move while the other stays behind, at least in the short term. These stresses – balancing the conflicting demands of home and career – may bring a relationship to breaking point.

‘Relationship planning’ is now more common. Managing expectations from the outset – with nuptial and cohabitation agreements – can often promote happiness over the long term. For example, if one partner expects to stop working to care for a child, and wants their spouse to support them, it is better to make this expectation clear from the start.

There’s less of a sense of a ‘meal ticket for life’. There has been an increasing focus on how long maintenance should continue to be paid to spouses – usually wives who have cared for children. Returning to work once a child starts school is becoming the norm, so there’s less sense that a non-working parent is entitled to ongoing financial support.

Avoid paying your lawyer more to fight over an item than it is worth. I always advise my clients to step back and focus on the important things. When emotions are running high, spouses tend to fixate on the smaller points of contention, such as objects that hold sentimental or symbolic value – and it can become expensive.

The parent with full-time care responsibilities (usually the mother) still tends to be worse off after divorce. Even though the courts are now properly recognising the contribution made by a non-working spouse, women are often left to face a daunting financial future.

Read more: http://www.dailymail.co.uk/home/you/article-4109076/Meet-divorce-power-brokers.html#ixzz4dFUb1OOk

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If you need assistance with any matters relating to family law please feel free to contact this office for a free initial consultation on 92215815 or info@bloxhamlegal.com.au

The nightmare began when “Ms Chou”, a court provided pseudonym, attended the Registry of Births, Deaths and Marriages in 2014 to record a defacto relationship with her new beau, “Mr E”, to help her sponsor him for an Australian partner visa.

The officer processing Ms Chou’s application told her a person with a similar name and personal details was registered as “married” but, nonetheless, issued the requested certificate.

Ms Chou told the Family Court she became an Australian citizen as a teenager in the 1990s after migrating to Australia with her family as a child and had a school aged daughter whose father she never married.

In the course of Mr E’s partner visa application the Department of Immigration asked Ms Chou why she had wrongly claimed she had never previously sponsored a spouse or partner.

The Family Court heard Ms Chou strongly maintained her response was true and was “shocked and distressed” to discover records showed a person matching her identity married a “Mr Tang” in 2000.

Ms Chou told the court she had never heard of or met Mr Tang or the named witnesses and celebrant, and believed a previous boyfriend had sold copies of her passport and other identification to feed his gambling addiction.

Ms Chou said her efforts to have the records rectified were unsuccessful so she reported the matter to police but they refused to act, saying it was “a civil matter”.

After an approach to immigration officials also failed, Ms Chou sought to have the marriage nullified by the Family Court.

However, when Ms Chou went to file her hearing request, she was told the marriage had already been dissolved, by a divorce granted in 2005, and her application was rejected.

So, in January Ms Chou reapplied to have both the marriage and the divorce expunged.

Justice Janine Stevenson agreed to dispense with service of the legal papers on Mr Tang, accepting Ms Chou’s evidence that she didn’t know him or how to contact him, that he was not on electoral rolls and that Federal Police found no record of a Mr Tang with the given birthdate.

She also accepted that Ms Chou had genuine concerns about any contact with Mr Tang.

Ms Chou told the court: “I feel as though I have been violated by this person to an extreme degree and he has committed a crime against me.

“I feel fearful and violated by his fraudulent activity and identity theft and I do not want him to know anything further about me.”

Ms Chou testified she had never seen or signed any of the divorce documents and that Mr Tang’s lawyers had told her their file no longer existed.

Justice Stevenson accepted Ms Chou had had no knowledge of the marriage or divorce.

“Accordingly, I find that the purported consent of Ms Chou to the marriage solemnised in 2000 to Mr Tang was obtained by fraud,” she said.

Justice Stevenson declared both the marriage and the divorce void.

http://www.heraldsun.com.au/news/law-order/woman-wins-bid-to-void-fraud-marriage-and-divorce/news-story/bddd8ea5ea3d0ebfbeb4fc175d775aac

If you need help with family law matters please feel free to call 9221 5815 for a free initial consultation with one of our talented lawyers.

Townsville lawyer Sharell O’Brien says it is the courage of the women she helps that inspires her fight against domestic violence.

Ms O’Brien is the supervising solicitor at the North Queensland Women’s Legal Service (NQWLS) which assists women from Sarina to Cape York with free legal advice and referrals.

“It takes a lot for people to seek help, and them coming to us and seeking that assistance shows a lot of courage,” Ms O’Brien said.

Since joining the service three years ago Ms O’Brien has introduced several online tools to assist women in more remote parts of the state get the legal advice they need.

She said her Ask Nola website and the distribution of laptops equipped with Skype to remote outreach locations have been very effective.

“Being able to use technology to get out to the rural, regional, remote areas and provide legal advice … helps women who wouldn’t necessarily have found that information anywhere else,” Ms O’Brien said.

Australia’s domestic violence epidemic

The NQWLS provides more than 6,000 legal services each year and has seen a 60 per cent increase in demand in the last year.

Ms O’Brien said Australia was experiencing an “epidemic” of domestic violence at the moment and Cairns and Townsville are two of Queensland’s domestic violence hotspots.

Ms O’Brien said the Australian culture of ignoring domestic violence or thinking it is none of your business had to change.

Ms O’Brien said her work could be very confronting, but it was satisfying to be able to help women and children in need.

“Every day we see someone that is experiencing domestic and family violence and we are able to give them legal help or referral information … and that allows us to make their lives a little easier, their children’s lives a little easier,” Ms O’Brien said.

“Each day you do have little wins.”

Call our friendly team at Bloxham Legal on 9221 5815 for further advice on domestic violence matters, including applying for a violence restraining order, if necessary.

http://www.abc.net.au/news/2016-11-24/sharell-obrien-domestic-violence-lawyer-townsville/8051264

Using flowers and butterflies, one Russian tattoo artist is helping victims of domestic violence hide the physical scars from abusive relationships they want to put in the past.

Yevgeniya Zakhar posted an ad on her social media page last year offering to ink abused women for free after she heard about a Brazil tattoo artist already offering the service.

Soon, she was flooded with requests.

Hearing her clients’ stories of beatings and burnings, though, was so stressful that she had to limit the number of women she sees to one day a week.

“I didn’t expect to be inundated with visits,” said Ms Zakhar, who works in Ufa, a city about 1,200 kilometres east of Moscow.

Earlier this week, President Vladimir Putin signed into law a controversial bill decriminalising some forms of domestic violence in Russia.

The measure makes battery on a family member punishable by a fine or a 15-day arrest, if there is no bodily harm.

Domestic violence is a long-standing problem in Russia. Police estimate about 40 per cent of all violent crimes take place within families. In a survey last month by the state-run Russian Public Opinion Research Centre, 19 per cent of respondents said “it can be acceptable” to hit one’s wife, husband or child “in certain circumstances”.

Supporters of the new law insisted it did not encourage or sanction violence, but instead gaves families a chance to reconcile after what the bill’s co-author, Olga Batalina, described as an “emotional conflict, without malice, without grave consequences.”

Yevgeniya Zakhar’s clients usually pick butterflies or floral designs to cover the visible signs of abuse. The clients confide in the artist, sharing the horrors of relationships that went from bad to violent to vicious.

“Girls are willing to talk, often because it will be the last time they speak about the scars,” she said. “They don’t talk about it later because they will be talking about their beautiful tattoo, not a scar.”

Katarina Golovkova underwent eight hours of surgery to save her arm after her boyfriend threw her against a window five years ago.

She thought about getting a tattoo to cover the scars, but did not have the courage to visit a tattoo artist before she spotted Zakhar’s ad.

“People saw it and asked, ‘What is this scar about?'” Ms Golovkova recalled.

“It was a constant reminder. You see this arm every day, it’s there. At least now I can freely open it up, and people say, ‘How cool!'”

Ms Golovkova, who was stalked by her boyfriend for weeks after she finally left him, had not heard about Russia’s new domestic violence law, but she did not like the idea.

Ms Zakhar said she had tattooed more than 1,000 women at no cost since she started reaching out to abuse victims last year.

She said not one reported receiving help from police.

“The girls say, ‘What’s the point? Why go to the police if they are not helping?'”

http://www.abc.net.au/news/2017-02-09/russian-women-hide-domestic-violence-scars-with-tattoos/8253648

If you need advice on domestic violence please contact Bloxham Legal on 9221 5815, or info@bloxhamlegal.com.au for a free initial consultation.

By Rebecca Trigger

The WA Family Law court is grappling with an “unprecedented” increased workload, with wait times for trials expected to blow out to two years and the chief judge calling on the Government to provide additional resources.

An acting judge who was employed to deal with the existing backlog can no longer take up the role because of health concerns.

Meanwhile, the court’s chief judge will no longer be available for trials in Perth, as he moves full time to a federal family court role, leaving just four full-time judges for the court.

In a letter to the Family Law Practitioners’ Association, seen by the ABC, chief judge Stephen Thackray warns the court is facing a backlog of cases stretching into next year and this will create a “serious problem” for the court.

“The pressures created by this unexpected turn of events will be exacerbated by other significant listing changes that have become necessary in the first half of 2017, some of which will affect trials already listed in January and February,” he writes.

Judge Thackray will increase his workload as senior judge in the Appeal Division of the federal Family Court from March, which he said meant he would no longer be available for trials in Perth.

He said he was talking to the state Attorney-General to try to find a solution. Temporary appointments ‘band aid on a festering sore’

Family Law Practitioners’ Association president Michael Berry SC said temporary appointments needed to be replaced by permanent, full-time judicial officers.

“In the past we have had a number of acting positions, we have had acting registrars, acting magistrates, acting judges,” he said.

“This is an unstated acknowledgement by Government that the resources are needed, but Government is putting a band aid on a festering sore.”

He also warned families would suffer if the delays were not addressed.

When these relationships break down, it is essential that government provides adequate resources for people to have their disputes resolved.”

According to last year’s annual report, the average wait time for a trial is already more than a year and a half.

Mr Berry said this could blow out to two years.

A spokeswoman for Attorney-General Michael Mischin said he had asked the Federal Government for more money to appoint another permanent judge to the Family Court.

The Federal Attorney-General has been approached for comment.

Families ‘need security, certainty’

Community Legal Centres executive director Helen Creed said any increased strain on an already overloaded system would cause distress for vulnerable families.

“The reason they are going into the family court is to try and put some safety into their lives, either to try and get a situation where they are safe in their own home, or their children are protected,” she said.

“So any delay in that is just going to add more and more pressure, more and more stress, for what is already already a stressful situation for them.”

Community Legal Centres Association deputy chairwoman Carrie Hannington said many of the cases going through the family court involved domestic violence issues.

“The Family Court process is highly stressful psychologically and emotionally under any circumstances, and there is a need for expedient settlement of matters,” she said.

“The presence of violence and the need to find solutions to matters that arise from it — including safety issues — greatly increase the stress factor and need for expediency.”

She said expected delays, combined with an already under-resourced community legal sector, which will this year face more funding cuts, meant disadvantaged clients would only be put at further disadvantage.

Western Australia is the only state to have its own family law court.

If you have any questions relating to the above article please contact Bloxham Legal at info@bloxhamlegal.com.au or 9221 5815.