July 13

Binding Financial Agreement

A Binding Financial Agreement is shortly called as BFA. As per the Family Law Act 1975 (Cth) the agreement can be entered at any time of the relationship before, during and after. The agreement deals with all financial and property issues between the parties, including the claim for spousal maintenance. The agreement must be drafted according to the legislation and the parties required to seek the independent legal advice for executing the valid agreement. The binding financial agreement is reached between the parties without the interference of the Court as such it is important to remember that the agreement must be carefully and accurately drafted, and parties should enter into an agreement with full disclosure of all relevant circumstances, avoid duress, undue influence and unconscionability.

For further information, please contact Solicitor Michael Harris on 9557 2915 or by email [email protected]

June 25

COVID-19 early access to Superannuation and its impact on Family Law Property Settlements

Pursuant to the information on the Australia Taxation Office’s website, individuals who are financially affected by COVID-19 can access some of their superannuation early. Those individuals will not need to pay tax on any amount released to them and will not need to disclose it when lodging their tax returns. Eligible parties can apply to access up to $10,000 of their superannuation until 30 June 2020 and a further $10,000 from 1 July 2020 until 24 September 2020. It is important to understand how any early access to superannuation affects the matrimonial pool. Given that superannuation is part of the marital assets, regardless of whose name the superannuation is held, the parties (a spouse or a defacto partner) are entitled to that superannuation as part of the matrimonial property split. If one party accessed their superannuation early, the other party can argue that a partial property settlement has been distributed to the party who accessed their superannuation early for their sole benefit.


For further information, please contact Michael Harris on 9557 2915 or by email [email protected]

July 21

The Federal Government recently announced substantial increases in fees

The Federal Government recently announced substantial increases in fees to be paid to both the Family Court and Federal Circuit Court in respect of family law cases. The legal profession through both the Law Council of Australia and the various state representative bodies (including the Law Institute of Victoria) has voiced opposition to the fee increases as they will seriously prejudice access to justice, especially for less affluent members of the community. The Government sought to introduce fee increases on an earlier occasion, but the proposal was rejected by the Senate. It has threatened that if the increases are not approved on this occasion, savings will be made by closing court registries and not replacing six judges who have retired. Either or both would have a serious effect on access to justice and the timely delivery of court services.

This is just another case of governments (of both persuasions) consistently refusing to adequately resource the federal courts, and to properly fund legal aid so as to enable access to those courts.

To view more information about our Family Law service please click here

May 18

Resolving Property and Financial Matters at the end of a Relationship.

Generally speaking, there are 3 issues to discuss after a relationship breaks down irretrievably.

1. Divorce (if the parties are married). You cannot apply for a divorce until separated for at least 12 months. Separation can be under the same roof if not living as a couple.

2. Parenting. If there are dependant children (under 18 or still full-time students), satisfactory arrangements need to be made for the childrens’ care and maintenance. This can often be done by informal agreement with or without the help of a counsellor, but if agreement cannot be reached, may need to be decided by a Court.

3. Property and Financial.

There are basically 3 steps in ascertaining a fair and equitable apportionment of the relationship assets.

(A) Carefully calculate the nett asset pool (including both parties’ superannuation). This will involve obtaining current statements from financial institutions, super funds, credit-card providers etc., valuations of real estate and businesses.

(B) Calculate what is a fair and equitable share for each party. The starting point is a 50/50 distribution, but this will require adjustment to take into account many factors, including:

.what the parties brought into the relationship (which becomes less important the longer the relationship),

.which party has the primary responsibility for care and maintenance of children (if any),

.any relevant health issues, and

.the parties’ respective future earning capacity.

Although this is not an exact science, an experienced family lawyer, once in possession of all relevant information, will be able to provide a reasonably accurate estimate of what each party can expect to receive.

(C) Work out how the distribution is to be achieved. Is one party in a position to “buy out” the other, or will assets (perhaps even the family home), need to be sold? Is a superannuation split necessary? Is it preferable to document any settlement by way of consent Court Orders, or can it be done by way of a Binding Financial Agreement?

Parties who have ended, or who are contemplating ending, a relationship, are in stressful, and usually unchartered waters. Early advice from a competent family lawyer will remove some of that stress and provide a blueprint for negotiating an early and hopefully amicable property settlement.

To view more information about our Family Law service please click here