HOW TO WIN YOUR FAMILY COURT BATTLE
featuring THE KAPOK TREE and SUN TZU

You know regularly I’m told by mums and dads ready to pursue each other in the Federal Circuit and Family Courts that they will do whatever is needed and fight for however long it takes to win their matter. Certainly sounds like quite a battle they’re envisaging, one that will need all their strength and most probably all their money.

And really it is a fair mindset to have when your “worser half” won’t negotiate or come to fair and reasonable agreements on matters like parenting and finances before court proceedings are contemplated. Separation and divorce often leave a trail of acrimony at the end of matrimony.
That’s hardly a good environment for reasonable negotiations or successful mediations.

Unfortunately, it’s all part of the mixed up process that the family law rule making gods have decided on – you must try mediation before you can apply to the court for orders. That pre-court mediation normally never works, people are just too hot under the collar.

So most parties front up at court rather angry with each other with demands and agendas that are self centred and partisan. Demanding applications are met with equally demanding responses from the other side. Everyone, including the lawyers, present with a tough thorny exterior that resembles the Aussie Kapok tree.

And here is my local Kapok tree and it’s about to teach all of you hard as nails new litigants a lesson on court strategy.

You see for eleven months of the year the Kapok is a rather unfriendly looking tree covered in thorns and not very compelling to the local birds. Basically, the birds ignore it and the humans just look at it with aghast. How could a tree look so unattractive…I won’t be taking a selfie or showing any interest in this thing.

However, once a year at the beginning of Spring, the Kapok does something very breathtaking for one month, it produces the most beautifully enticing vermillion coloured flowers.

It sends a signal to all and sundry that it has transformed, is approachable, and importantly ready for business. The birds love it, the crowds love it and the selfies flourish. Yes everyone is paying attention to that rather clever chameleon, the Kapok.

So how do YOU want to present at the start of your court “battle”?

One of the greatest tacticians the world has ever known, Sun Tzu,  provides interesting lessons on how to win on the battlefield. None of them involve blaming someone or being overly defensive or refusing to negotiate. Let’s take a look at a few of Mr Sun’s pearls of wisdom:

“The wise warrior avoids the battle”.

The court gives both parties opportunities to undergo court appointed mediation if you haven’t worked out an agreement out prior to court – fail here and not only is there no guarantee of a win but a real certainty of a big legal bill. Barristers and lawyers in contested hearings ain’t cheap!

“He who is prudent and lies in wait for an enemy who is not, will be victorious.”

Having a fair and reasonable approach to something like parenting will be positively noted by the court. Demanding sole parental responsibility without grounds or seeking disproportionate property splits will not.

“Who wishes to fight must first count the cost”

Emotionally, physically and financially. Enough said.

“The supreme art of war is to subdue the enemy without fighting.”

Always have in your mind an idea of where to give ground, it helps the other party feel they are getting a win and they will usually reciprocate. Remember, you will never get everything you want.

Sun Tzu was very successful when it came to the battlefield because he rarely wasted energy on engaging in war.  In a way he was a tough thorny fella (like that Kapok tree) but he knew that the only way he would tempt anyone to deal with him would be to show a different side and offer an unexpected olive branch…or flower.

NEED HELP?

If you’re self representing and need help with your approach …or are struggling with the applications and affidavits needed for court, please drop us a line and we will be happy to help. 
Lawyers are expensive and often unaffordable. The Legal Eagle offers a low cost professional alternative so your can have great documents and be ready and confident for your day on the court “battlefield”.

Please get in contact with us via Facebook messenger or through our appointments page

Parting may be a sweet sorry for William Shakespeare but if neither of you are in Romeo and Juliet mode anymore, what happens to the gifts you received from each other?
What happens to the rings and the jewellery?
What happens to that lovely cash present Aunty Doris gave both or one of you last year? 
Dividing marital assets at the end of a relationship can be quite straightforward, but how do the courts look at gifts and divorce?

It is not unusual for parents to give their adult children significant gifts to help them get ahead in the property market, to go on a holiday or perhaps to assist with the raising of their children. This is all perfectly standard and legal, and many people are lucky enough to receive monetary gifts from their retired parents.

A problem arises when the adult child receiving a gift of money is in a relationship and this relationship later ends.

Does the other spouse have a right to the money that was given as a gift?

How can a person hold onto their gifts in a property settlement?

Will the gift be counted as part of the divisible pool of marital assets?

Property settlements do not follow any specific formula and many different points come into consideration.

Here are some of the most important elements to consider when looking at gifts in property settlements:

Assessing Contributions In A Property Settlement

A property settlement involves identifying a couple’s – whether de facto or married – assets, resources and liabilities and working out their total value. This typically involves looking at bank accounts, superannuation, property, mortgages, loans and sometimes other physical assets such as cars.

Both parties’ contributions to the marriage are evaluated. Contributions can be classified as direct and indirect, financial and non-financial.

Non-financial contributions include caring for children and maintaining the household. These are viewed as equally valuable as earning an income to provide for the relationship and family.

The court will divide the assets according to the contributions made by each party to the relationship.

However, adjustments may be necessary to account for a difference in the spouses’ current or future earning capacities.

One spouse, for example, may be the primary carer of the couple’s children and therefore have a limited capacity to work.

A person may also be less able to work due to illness, age or other reasons.

Any gift received by a party to the marriage will most likely to be counted as a financial contribution they made to the relationship, even the often given bloody wedding toaster.

If the gift was received before the start of the relationship, it will be categorised as an initial contribution.

As this increases the contributions the gift recipient made to the marriage or de facto relationship, their entitlements in the property settlement are likely to increase as well.

But be careful – there are other factors that affect the division of assets, and every case is different and is considered on its own.

Who Received The Gift?

Because a property settlement is about assessing contributions to the relationship, an important question is who was intended as the beneficiary of the gift.

If one spouse in the relationship receives a substantial monetary gift, it must be determined whether the gift was meant for their sole benefit or for the benefit of the other spouse as well.

Unless it is clear that the gift was meant for the equal benefit of both people in the relationship, the court will usually consider the gift as received by only one party. This will then affect the assessment of contributions as well as the adjustments made in the property settlement.

However, the question of who the gift belongs to holds less weight the longer the couple were married or in a relationship.

When dividing the property and assets following the breakdown of a shorter marriage or de facto relationship, such as one lasting for five years, it is more likely that any monetary gift received by either party will be kept out of the divisible asset pool, remaining the property of the gift recipient.

For longer relationships lasting at least ten or fifteen years, regarding gifts in property settlements, it is less relevant which side of the family the gift came from. Here, the court is more likely to treat both spouses as equally entitled to the money.

Determining who receives gifts in property settlements or whether a gift is divided equally depends on the assessment of contributions and each party’s earning capacity.

Protection of Gifts When Getting A Divorce

If you are the person giving a significant gift to your adult child, the possibility of their relationship ending in the future and their spouse claiming the money can be a legitimate cause for concern.

There are some strategies you can use to protect against this possibility, even if you do not think it very likely, and to keep the gift in your child’s possession in the event of a relationship breakdown.

One way to safeguard any gifts in property settlements is by recording your gift as a loan to make it technically repayable to yourself.

Loans are treated differently in property settlements from outright assets.

The court will not consider it as part of the divisible pool of marital assets as it is money that needs to be repaid.

If the court decides to have the loan repaid using the resources in the asset pool, following the finalisation of the divorce you are able to regift the money to your child.

The second way to ensure a gift remains belonging to its initial recipient is to draw up a binding financial agreement, or a prenuptial agreement.

Here, both spouses acknowledge the existence of the gift as belonging to one spouse, and acknowledge that the gift is not divisible with the other spouse in the event of relationship breakdown. A binding financial agreement is a legal document, witnessed and signed by an authorised person such as a Justice of the Peace.

The Engagement Ring

Parents are not the only people who may be concerned about the division of gifts in property settlements.

When a relationship breaks down, the spouses can have their mind on a very significant and symbolic gift made from one to the other, the engagement ring. No matter how ugly the ring, it is always held close at heart.

Australian couples now marry later than ever before, the engagement period lasts longer and over 75 per cent of couples move in together before getting married. Because the ring is generally a very expensive purchase, exactly who it belongs to – the gift recipient or the gift-giver – becomes a very important question.

Up until around the mid-20^th Century, family courts typically considered the ring as belonging to the person who gave it to the other spouse. The thinking was that the gift was given in contemplation of marriage, but the marriage never happened.

Today, the law varies on who owns the engagement ring, and the court’s decision often depends on factors including the value of the ring itself, who gave it to whom and whether the couple cohabited.

For many couples, the engagement ring can be a significant purchase.

Engagement rings are often expensive pieces of jewellery, but the value attributed to gifts in property settlements is based on their current second-hand purchase price rather than their value at the initial time of purchase.

Therefore, engagement rings may diminish in value when considered as part of the property settlement.

If the judge finds the engagement ring to not be of great value, and therefore not worth any kind of division or transfer of ownership, they will then usually allow the person who received the ring to keep it.

However, engagement rings with a significantly higher second-hand value, and therefore more likely to be causing conflict in the property settlement, will generally be counted as part of the asset pool to be divided between the spouses.

Considering the engagement ring as a gift given with the promise or expectation of marriage may affect a court’s decision on who retains ownership of it following a break-up.

The court’s decision may depend on who gave the ring and who left the relationship.

If the person who was given the ring refused to fulfil the conditions of the gift – marriage – then they may have to return the ring.

If the person who gave the ring refused to follow through with the promise of getting married, they may have no claim to the ring in the property settlement.

All this is based on the assumption that the couple in question cohabited as a de facto couple while they were engaged.

To be entitled to a de facto property settlement, which does not differ from the property settlement of a married couple when they divorce, a couple must be living together on a genuine domestic basis, not related to each other and not legally married.

The majority of Australian couples live together before marrying, making the ending of an engagement and the ending of a marriage a similar matter before the family court and raising the same issues regarding gifts in property settlements.

Don’t forget to check out all our great family law info HERE.
HEY…
And if you’re sick of wasting money on a lawyer, or just want to self represent, we have a great team of lawyers who can help you with your documents and forms and guide you through the court process at low cost.
Avoid those $400+ an hour lawyers, they’re just not worth it!


Contact us via Facebook messenger, or drop our fabulous Paralegal Abbey a line at abbey@TheLegalEagle.com.au 

When a relationship ends one of the most common initial reactions is to want to sell, burn or otherwise dispose of your former partner’s belongings or things you had purchased together. Whilst there are numerous articles in magazines and online about the psychological and emotional benefits of culling your ex’s stuff, few mention the implications this may have on your family law matters.

What is considered property?
When dividing assets, the Family Court applies a four step process which starts with ascertaining the value of the asset pool available for division. Property is defined by section 4 of the Family Law Act 1975 as:

“Property, in relation to the parties to a marriage or either of them, means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.”

Whilst this of course includes more obvious items such as real estate, cars, superannuation and bank accounts it also includes various personal belongings such as furniture, artworks, jewellery or collectibles. Essentially, determining an asset pool includes everything that you are your partner own jointly or as individuals.

This can be further complicated when considering matters such as inheritance, pension entitlements and accrued long service leave which may be considered by the Family Court to be a financial resource. It is important to distinguish between what is property and what is a financial resource as this may impact the overall division of assets.

When can I get rid of his/her stuff?
The general position is that no items should be sold, encumbered, damaged or in any other way disposed of until property matters are resolved on a final basis. You may have seen the recent “Art of Divorce” auction held by Russell Crowe in Sydney where he made approximately $3.7 million selling off various artworks, jewellery and collectibles accumulated through his career.

As tempting as it may be to auction off or throw out your ex’s belongings, this ought to be done only following a final agreement, which we recommend is documented by way of formal Family Court Orders to ensure enforceability and finality. Attempting to sell, dispose of or otherwise damage goods involved in family law matter may give rise to urgent proceedings being commenced in the Family Court seeking an injunction against one party from doing.
Find what happens with the kids when you divorce HERE
AND
Find out what happens if the kids DON’T want to be with one of you HERE
We have tons of resources on The Eagle so please feel free to check them all out!