Monthly Archives: March 2013

Dirty Tricks in the Business of Winning Family Law Battles

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10-dirty-divorce-tricksAs the sun went down on a remote property in NSW, a private investigator peered through the window of a storage shed and spied his target. Exposed in the afternoon light was about $400,000 of farm machinery – assets the home owner swore he had sold, before gambling away the profits. Click. The private investigator’s client had an interest in those assets. She was the home owner’s wife.

In the game of stealth to which the couple’s relationship had descended, each was now plotting to maximise their outcome from the property dispute. He was squirrelling away goods, and she was having him shadowed. Extraordinarily, in family law circles their tactics are viewed as run of the mill.

Private investigators, secret tapes, the hacking of social media pages and the manipulation of children – nothing is above litigants in the highly charged atmosphere of divorce and custody proceedings in the Family Court.

”It brings out the worst in people,” says family lawyer Deborah Searle. ”Very occasionally it brings out the best in people, but not often.”

Searle has been in the game for 25 years, which is longer than most lawyers can handle family law before the emotional disrepair of their clients starts to suffocate them.

They deal extensively with litigants who are bitter and spent, and only briefly with those who have resolved their differences amicably.

Most of the time when couples employ dirty tactics, it is met with eye rolling among family lawyers, who have nothing to gain and stand to be penalised if their clients are caught breaking the law.

”Mostly they hide money and assets,” Searle says. ”And they think they’re the first to think of it. We all have a laugh about that one.” The women hide it in their sister’s account. ”The men think they’re a lot cleverer than that. They hide it in property in someone else’s name and think we’ll never find it. It comes out.”

One case recalled by family law solicitor Max Meyer involved a wealthy man with an offshore bank account in Fiji who claimed the account belonged to his mate. The pretence backfired when, after the case had concluded, the friend claimed he was entitled to keep the money because it had been sworn to him under oath. The man then had to return to court and confess to perjury so he could at least retain a portion of the money, even if it had to be shared with his wife.

The women hide it in their sister’s account. ”The men think they’re a lot cleverer than that. They hide it in property in someone else’s name and think we’ll never find it. It comes out.”

”Sometimes after separation people will go out and buy a new car, because the minute they buy it, it loses half its value, so their wealth is spent in a more enjoyable way [than spousal maintenance],” Meyer says. ”It’s petty, of course it is. But we only see the worst examples. People who work things out for themselves, we don’t see.”

Private investigators are common. Searle has engaged them on her clients’ behalf when she is looking for something specific. She arranged the private investigator who knew exactly where to find the farm machinery. But often clients engage them on a speculative basis. ”Drink-driving with the kids in the car, the boyfriend she claims she doesn’t have … they’re hoping something useful turns up,” Searle says.

Private investigator Guy Oakley has worked on ”many, many, many” such cases, and although he often turns up misconduct on the part of his surveillance subject, often the indictment is on his client. He helped one woman retain primary care of her child by confirming that her ex-partner was out taking heroin while the child was staying with him. But on another occasion, Oakley was able to demonstrate to his client that his wife was not having an affair with the son of a Fijian tribal chief, but merely looking for a holiday from their unhappy marriage.

”I was able to go back and say, ‘You’re just so paranoid it’s driving her out the door’,” Oakley said. ”A year later their marriage was back together and it was fantastic.”

Such upbraiding advice is a luxury the Family Court does not have. The couples that come to the Family Court and play out the miserable remnants of their relationships have exhausted all other options, and seek the clean certainty of the law. They are destined to be disappointed.

”Family law is different to other areas of the law in that it attempts to effectively legislate what are really personal relationships, and people really struggle to accept the boundaries that the law imposes,” family lawyer Paul Doolan says.

”There’s a lot of bad behaviour in personal relationships that just continues when the relationship breaks down. While they’re not common, we do see a lot of instances of people hacking email accounts, of opening mail, of recording personal conversations, recording telephone calls, hiring private investigators and of attaching GPS trackers to cars.”

The evidence collected under such circumstances is often deemed inadmissable, but even in circumstances where it is accepted it is viewed dimly by judges. Federal Magistrate John Coker said in a judgment published in January that a woman’s secret recording of her ex-partner disparaging her reflected more poorly upon her. ”It would seem, clearly, to be an evidence-gathering exercise and one that, in my view at least … gives rise to serious concerns as to the behaviours of the party who records such evidence,” he said.

The low regard in which judges hold such evidence was most spectacularly illustrated in a case in which the female litigant – dubbed Ms Langmeil by the court – tendered a DVD that she said contained proof ”beyond doubt” that her ex-partner had molested their children. In a jurisdiction bedevilled by the self-destructive impulses of its litigants, Langmeil’s application was a classic own goal, which saw the court strip her of the primary care of the children. She had installed secret cameras in the matrimonial home and recorded 100 minutes of footage of herself with the children.

…we do see a lot of instances of people hacking email accounts, of opening mail, of recording personal conversations, recording telephone calls, hiring private investigators and of attaching GPS trackers to cars.”

Justice Graham Bell concluded, as a result of that and other evidence, that Langmeil’s ”unjustified, bizarre and delusional” allegations against the children’s father was destroying their relationship with him. ”I did not see anything untoward in the conduct of the children save that I thought the mother exhibited a total lack of control and discipline over the children … These DVDs in my opinion have strengthened the case of the father enormously.” One of the family consultants engaged for the trial said Langmeil’s actions amounted to child abuse.

Since the couple’s 2008 split she has tipped the arsenal of weapons available to family litigants at her hapless ex-husband – false accusations of sex abuse, the coaching of child witnesses and secretly taped conversations. The Family Court has delivered 14 judgments in relation to her applications, and she is now required to get permission before she can make another. Earlier this month, the full bench of the Family Court denied her such permission.

Langmeil exemplifies the inability of some family litigants to accept the court’s decision, but she is also an extreme demonstration of how children are manipulated to further their parents’ ends.

Family lawyers refer to the ”Disneyland dad” who has all the money and all the fun with the children on the weekends, while his ex-wife does the weekday drudgery. Aside from the personal kicks, some parents woo the children in this way to enhance their image before the judges. It also improves their chances of being awarded ”shared care”, which means at least 128 nights with the children. From that point on, the number of nights that the children spend with that parent reduces the amount of child support that they have to pay and may strengthen their hand in making a claim on the family home.

”The percentage of time spent caring for the kids will also impact on a property settlement, so a cynical approach would maximise the percentage of time in the orders sought to get the advantage and suddenly losing interest in having the kids thereafter,” Searle says.

”The child support would be altered to reflect the reality but the property orders have already been made and would not change.”

Other parents try to disrupt their children’s relationship with their ex-partner to achieve primary care responsibility. Meyer has been involved in cases where the mother shadows the father’s family excursions, sitting two rows behind them at the football, for example. In one case, the mother rang her daughter and asked if she could come along to a dinner that her ex-husband had organised with the children and his new partner, placing the child in the awkward position of having to turn her down.

”If they behave so badly that the children are alienated from the father, the court is faced with a terrible dilemma,” Meyer says. ”Sometimes the only thing the judge can do is say, ‘Well, the damage is done. I can’t send this child to their father because they’ve been so poisoned by their mother. They’re not going to see him at all’. That’s when your personal morality is outraged, but the interests of the child are the primary consideration and the court has to focus on that.”

Parents of disabled want more flexibility to hysterectomy ban

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Australian Human Rights CommissionParents of women with severe disabilities are being forced to take their daughters overseas for hysterectomies after their requests for the procedure were denied in Australia, a leading endocrinologist has told an inquiry into involuntary sterilisation.

John Carter, the father of a 31-year-old daughter with a moderately severe intellectual disability, said laws on sterilisation can place an unfair burden on people with disability and their families.

”We are aware of instances where parents have taken their daughters to Thailand or New Zealand to have a hysterectomy because their request to have a hysterectomy performed in Australia was rejected by the Guardianship Tribunal,” he wrote in his submission to the Senate inquiry into involuntary or coerced sterilisation of people with disabilities in Australia.

”For a country that is allegedly as caring and compassionate as Australia, to have citizens undertaking such trips strongly suggests that the current situation is far from ideal and we believe that significantly greater flexibility needs to be demonstrated in our legal system and by bodies such as the Guardianship Tribunal when deliberating on applications.”

Dr Carter and his family appeared at the inquiry’s public hearings in Sydney on Wednesday.

The inquiry also heard a submission from the mother of a woman with a severe intellectual disability who argued that her daughter has the same rights as her sisters. ”As such, the notion of sterilisation for her is as irksome, and unwarranted, as it would be for her siblings,” she wrote in her submission.

A mother of a 16-year-old said her daughter had the mental age of a three-year-old and was unable to make an informed decision about her fertility. ”As a mother of a disabled person I make the decisions that she cannot,” she wrote. ”Therefore this decision should include the input of the one person who cares for her every need in life. It’s not about me, but about enabling me to provide the best support possible for my scared and overwhelmed daughter.”

The Australian Human Rights Commission recommends that sterilisation of children without their consent be criminalised along with the taking of a disabled child overseas with the intention of having them sterilised. The United Nations considers involuntary sterilisation a form of torture and an act of violence against children.

The hearings continue with the inquiry due to report on June 19.

Declaration made where the relationship occurred from “time to time” over a long period

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holding-handsThe Supreme Court of South Australia has made a declaration that a relationship existed between the plaintiff and a deceased person (referred to as K) entitling the plaintiff to make a claim for provision out of K’s estate in circumstances where they were in a sexual relationship “from time to time” over a lengthy period.

The plaintiff and K lived together in a sexual relationship from time to time over a period of about 38 years. Prior to meeting K, the plaintiff had two relationships with women, and had a child from each relationship. The plaintiff married three further times during the period he knew K. According to the plaintiff, he maintained a relationship with K throughout each marriage.

The plaintiff sought a declaration pursuant to the Family Relationships Act 1975 (FRA) that he and K were, on a given date, domestic partners and, if such a declaration was granted, an order for provision out of the estate of K.

During the proceedings, the parties reached a compromise and sought a declaration that the plaintiff and K were in a relationship from 1 February 1992 until 1 December 1996.

Despite the declaration sought by the parties, the court made it clear that it had to be satisfied that the plaintiff was entitled to the declaration sought and, if made, that he was entitled to the provision out of the estate contemplated by the parties. Accordingly, it was not a matter of simply making consent orders as the court had to be independently satisfied that the plaintiff came within the provisions of each statute.

Despite finding that the required relationship for a declaration did not exist at the date of K’s death or at an earlier time, the court considered whether it was in the interests of justice that a declaration be made. The court referred to the nature of the relationship between the plaintiff and K over the period and noted that there were significant periods during which it could be said that they lived together in a close personal relationship, namely during the periods they lived together (February 1973 to April 1974, August 1985 to January 1987 and January 1989 to March 1990).

The court found there was a mutual friendship, including a sexual relationship, which manifested itself often from 1973 to 2011. The court also noted that the plaintiff looked after K when he was unwell.

Another factor which counted “very much” in the plaintiff’s favour was that the defendants, in anticipation of a declaration being made, settled the plaintiff’s claim.

In all the circumstances, the court found it was in the interests of justice to make a declaration that there existed between the plaintiff and K the required relationship entitling the plaintiff to make a claim out of K’s estate.

Related Family Law Judgments

Japan to finally join Hague Convention on child abduction

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hague-member-statesIt may have taken more than 30 years, but Japan is finally joining in the 1980 Hague Convention, in which it is required to return abducted children to their usual place of residence in case of failed international marriage.

A government spokesman said that Prime Minister Shinzo Abe’s Cabinet has already given its approval and will immediately submit the necessary legislation to parliament.

Japan is the only Group of 8 member who was not a signatory to the convention. Thus, for the longest time, non-Japanese parents, usually the fathers, are left without a recourse should their former spouse remove the child from wherever they used to live and bring them to Japan.

It is to be noted that unlike other western countries, Japan does not recognize joint custody and it often grants custody to the mother of the child. It looks that things are starting to change now. Chief Cabinet Secretary Yoshihide Suga said, “It is important for our country to join the Hague Convention that sets international rules on dealing with illegal kidnapping of children, now that the numbers of international marriages and international divorces have increased.”

During Abe’s visit last month with U.S. President Barack Obama, he had promised that Tokyo will take part in the treaty. In the past few years, the Japanese government has always said that they will sign the treaty, and yet, it never did. In fact, this issue has been one of the few conflicts between the two countries. This time, perhaps, because Abe seeks to find favor with the U.S. government, he has made good with this promise, whereas others before him obviously have not.

Related Family Law Judgments

Legislation passed to facilitate the merger of the Family Court of Australia and the Federal Magistrates Court of Australia

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family-court-of-australiaThe Family Law Act 1975 has been amended by the Courts and Tribunals Legislation Amendment (Administration) Act 2013.

This Act makes amendments to the administrative structures and processes of the Federal Court of Australia, the Family Court of Australia and the Federal Magistrates Court of Australia.

In particular, the Act will amend the Family Law Act and the Federal Magistrates Act 1999 to facilitate the merger of the administrative functions of the Family Court of Australia and the Federal Magistrates Court of Australia.

The Explanatory Memorandum provided that the changed administrative structures and processes will allow these agencies to achieve savings and operate more efficiently and effectively into the future.

Final confirmation is awaited in relation to the commencement date.

Anti-Vaccination network faces deregistration for misleading public

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The AVN has been blamed for a growing number of parents refusing to vaccinate their childrenTHE future of the Australian Vaccination Network is in doubt, following the government rejection of five suggested new names for the group because they don’t reflect its anti-vaccination stance.

The AVN has until March 21 to change its name or it faces deregistration, after NSW Fair Trading Minister Anthony Roberts issued a formal order that its name misleads the public.

The organisation does not present a balanced case for vaccination and has no medical evidence to back its anti-vaccination stance, he says.

The controversial group has been attacked by doctors and scientists for discouraging parents from vaccinating their children and NSW Fair Trading has received complaints about its name.

The organisation will this week attempt to thwart the minister’s order through an appeal in the NSW Administrative Decisions Tribunal.

AVN president Greg Beattie told News Limited it was vital the words Australia and Vaccination remained in the group’s name because they defined what the organisation was about.

The organisation does not present a balanced case for vaccination and has no medical evidence to back its anti-vaccination stance, he says.

He said the group had sent a letter to the Fair Trading Department to ask whether they would accept one of five suggested name changes.

These include Australian Vaccination Information Network and Australian Vaccination Choice.

“We can’t just change our name under the Association’s Incorporation Act, we must go through a process of consulting with our members and we need a 75 per cent majority vote,” Mr Beattie said.

“We’ve had the name for 19 years, so we want as small a change as possible.”

Mr Roberts said he was demanding the name change “because we will not tolerate parents being misled by its name and children’s health being put at risk”.

“Here’s my tip for the AVN, suggest a name which reflects your anti-vaccination stance.”

Australian Medical Association president Dr Steve Hambleton said parents visiting the AVN’s website may think they were getting a balanced view of immunisation, rather than just the case against.

“The name changes they are proposing still suggest they are providing both sides of the argument when indeed they don’t,” he said.

The lobby group has been blamed for a growing number of parents refusing to vaccinate their children, a move that reduces the herd immunity from vaccination and potentially exposes babies and children to deadly diseases like whooping cough and measles.

Late last year, the Academy of Science published a guide for parents on the importance of vaccination to fight the group’s influence.

The number of Australian babies not fully immunised is now one in 12 and the number of parents registering a conscientious objection to immunisation has leapt from 4271 in 1999 to more than 30,000.

Professor Ian Frazer, who developed the cervical cancer vaccine, has warned immunisation levels for some diseases were falling below those required to prevent deadly outbreaks.

Parents’ war over daughter’s schooling ‘insidious’, claims Magistrate

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Federal Magistrate Tom Altobelli

Federal Magistrate Tom Altobelli

A FRUSTRATED magistrate has declared the hatred of two parents engaged in a war over the schooling of their daughter so “insidious” it would constitute a “weapon of mass destruction” if bottled.

The scathing attack by Federal Magistrate Tom Altobelli followed a bitter court-room brawl between the mother and overseas-based father of a Grade Seven student, who narrowly-avoided being uprooted from her school earlier this year

The ruling, after a seven-day trial, has set up another legal showdown as the “resilient” 12-year-old, who is one of three children caught in their parents’ cross-fire, faces a possible challenge from her father to move her at the end of 2013.

Mr Altobelli declined to give exact details of the conflict, but declared the father the “winner by a nose” in the race for most “toxic communication” in the five-year marriage breakdown.

“(It) is a photo finish, but this steward finds that (the father) was ahead by a nose,” Mr Altobelli said.

“Clearly the father has no insight that toxic communication from him invites a toxic response, a criticism that might equally be levelled at the mother.”

He ruled in the mother’s favour after the girl requested to remain at her mother’s chosen school.

“(If) it were possible to bottle the hatred between the parents it would constitute an insidious weapon of mass destruction,” Mr Altobelli said.

“Unless the court expresses indignation on behalf of the children for what the parents have done, for what the parents are doing, and for what the parents are likely to do in all probability in the future, the children’s voice will most likely never be heard.”

“The behavior of both the mother and father in this case is appalling.

“It is an understatement to say that the communication between the mother and father tends to be toxic.”

While the father won the title for “most toxic communicator”, Mr Altobelli singled-out the mother for her arrogance and totally self-absorbed behaviour.

He said she was “plainly” motivated by child support issues.

Mr Altobelli refused to grant the mother an order which would see the daughter complete her secondary schooling at the current school.

It is now open for the father to launch a second legal challenge at the end of the school year.

Mr Altobelli said the ugly reality of the conflict appeared set to exist whatever school she attends.

“Quite frankly, she cannot help having the parents she does,” he said.

“One would have thought that the prognosis for the children, if this were to continue indefinitely into the long term is a poor one.

“It is nothing less than tragic that the mother and father cannot perceive the impact on her and her sisters of the chronic conflict that exists between them.”

Family Court stops dad putting transfer tattoos on son

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kids-temporary-tattooA FATHER has been banned from sticking transfer tattoos on his four-year-old son.

A court heard the boy was caught in a conflict between the different personalities of each of his parents.

His father had a free-flowing attitude to life and a more relaxed household.

The Family Court heard the father “from time to time” put the transfer tattoos on his son because it was something he enjoyed doing.

But when the boy went back to his mother’s house they were immediately removed, a process the boy described as “painful”.

Justice Margaret Cleary said this left the boy in a difficult position even though it was not a matter of any significance.

“It is not the issue of the tattoo itself, it is respect for the child’s dilemma,” Justice Cleary said.

“It should not happen that the child runs into trouble over having those tattoos on him.

“It simply should not happen, not because it is good or bad, but because it creates a difficulty for him.”

Justice Cleary said it left the boy with the dilemma of some behaviour being acceptable in one house but one for which he could be “very sharply reprimanded” in the other.

The court heard the parents had a very poor relationship, communicating through text messages and not seeing each other face to face.

Justice Cleary said the boy had never had a chance to see his parents in any kind of positive light.

Despite this, the court heard they had been able to agree on most issues but were in serious dispute about how much time the boy spent with each parent.

The father was not involved in the court hearing but “has a genuine interest and commitment” to his son.

The boy’s preschool had reported he was “struggling”, tired and emotionally fragile.

He had become physical with other students and was not inclined to engage with others during the day.

Justice Cleary said it might be a symptom of the difficulties he was having living in two households.

She made orders to improve communication between the parents and for the son to spend more time with his father.

Naughty lawyers slipped off the book

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OLSC-legal-Practitioners-Disciplinary-RegisterThis week there was a flurry of activity at the Bureau de Spank.

This is the name informally nominated for the creaking disciplinary mechanism to which members of the legal profession are subjected.

More often than not it involves the application of wet lettuce leaves to the buttocks of those unlucky enough to have been caught.

It’s a squid-like apparatus with the Legal Services Commissioner, the Law Society and the Bar Association all waving disciplinary fronds at members of the profession.

The overriding feature is that at each stage of this ”independent” regulatory process lawyers are regulating their colleagues, whether it is the council or committees of the Law Society, the Bar Association or the Legal Services Commissioner, Steve Mark, himself, or the judges.

One job the law requires of Mark is that he keeps a disciplinary register of lawyers who have been birched for unsatisfactory or unprofessional conduct by the state’s Administrative Decisions Tribunal.

You wouldn’t think that was too hard a job; after all the decisions of the tribunal are public, and many of the cases are brought by Mark’s office, so he would have more than a passing acquaintance with the cases.

Registers for offenders have been a growing fashion. Sex offenders, paedophiles, perpetrators of domestic violence all have their names inscribed on these special rolls.

Naughty lawyers are not immune from register fever and their prior misdeeds are supposed to be online within the website of the Office of the Legal Services Commissioner, within the website of Lawlink, the online manifestation of the Department of Attorney-General and Justice. Good luck finding it.

Zealous citizens keep an eye on the naughty lawyers shame sheet, hoping to see listed someone from the legal caper with whom they’ve had a run-in.

So it came to pass that it was discovered that 16 names were missing from the register, some from disciplinary cases in 2006 and 2007 and then through 2009 to January this year.

Among those missing in action were the high-profile names of Robert Bryden and Bandeli Hagipantelis, from the big personal injury law shop, Brydens. They had been spanked and fined $48,000 each last year for breaches of the lawyers’ advertising regulations.

The odd thing was that proceedings against these two prominent Sydney lawyers were brought in the Administrative Decisions Tribunal by the Legal Services Commissioner himself.

I sent the list of those missing in action to Steve Mark, asking for a comment.

Well, it was all a schemozzle.

Bryden and Hagipantelis had ”slipped through the cracks” and were straight away added to the register – only four months late.

”We must thank you for the notice,” although Mark thought the delay ”unlikely to have resulted in any damage to the public”.

A day or so later others from the missing 16 began to creep onto the register. Martin Piper, missing from the register for more than six years (failing to comply with undertakings to the Legal Services Commissioner), Anthony Margiotta, also appeared six years later (a caution for failure to comply with court orders), and Brett Hurley, an absence of nearly four years from the register (impersonating a solicitor acting for the other side), Ren Hai Jiang (unethical conduct), Peter Kaiser Simpson (delay in payment of disbursements), Paul Stokoe (obstructing investigators)

There were also three solicitors from decisions made last year whose names speedily appeared on the register this week after we inquired of Mark what was going on: Peter James Martin, Jinhi Kim and Trevor Butt. And there was solicitor Joseph Adam Johnson who was spanked in January this year for failure to assist in the investigation of complaints. Two other names remain unposted.

By now it was evident Mark’s ”cracks” were really chasms.

He tried to explain: ”As you would be aware, we administer the disciplinary register and when the disciplinary decision is made by the Law Society or Bar Association they supply us with information for placing on the register. We do not otherwise have this information.”

In fact, Mark was told in correspondence from October 2007 that the register was ”badly maintained”. It would not be too impossible a task simply to follow-up the public findings by the Administrative Decisions Tribunal with the bar and Law Society.

It’s easy to overstate things, but it does seem the regulatory arrangements for lawyers are not operating as seamlessly as they should.

Certainly, there’s the lingering belief that the Keddies fiasco was badly handled, to the detriment of the profession’s reputation.

The problem is the design of the system, whereby complaints about lawyers are batted between the Legal Services Commissioner, the Law Society and the bar. The commissioner sends some of the complaints to the professional bodies. If the customer is not satisfied with the outcome the commissioner can be asked to review the findings.

The solicitors’ and barristers’ trade unions insisted on having a co-regulatory role, arguing that to allow an ”independent” body to look at disciplinary matters would threaten lawyers’ independence.

The government swallowed the reasoning, spurious as it was. It means the Law Society, the Bar Association and the Office of the Legal Services Commissioner share in the dwindling kitty that funds the regulatory system, the Public Purpose Fund, which is the income earned on the balances of clients’ money held in solicitors’ trust accounts.

You could say that clients are paying for the privilege of having their complaints about lawyers’ conduct handled by associations whose job it is to protect the interests of solicitors and barristers.

It seems cock-eyed.

The Legal Services Commissioner has to limp along on a budget of just over $4 million, regulating more than 25,000 lawyers in the state.

The solicitors’ and barristers’ unions should surrender their regulatory functions and associated funding so they can concentrate on nice things like parties and PR.

It would save them the discomfort of the straddle on the barb wire fence.

With these assets, I thee wed

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PrenupWHILE the likes of Kim Kardashian and Tom Cruise appear to attach a prenuptial agreement with the marriage certificate, the future of financial agreements in Australia is looking uncertain.

An upcoming decision in the Family Court is set to test the controversial legislation on which these prenups are based.

As it stands, the law in this area seems so uncertain that many lawyers will no longer be involved in drafting financial agreements for fear of being sued in the future by disgruntled clients.

There is an increasingly strong view among lawyers that the normal property settlement procedures of the Family Law Act are a fairer and easier means to follow in a divorce.

The issue arose after a case where a bloke fell in love and married a pole dancer soon after splitting from his first wife. The couple entered into a prenup where the new wife would receive $3.25 million if the marriage broke down within four years – he was worth $16 million.

Sadly, the couple split after two years. He claims she lied about being in love with him before the marriage.

In 2004, changes to the Family Law Act required solicitors to certify they had ensured their clients fully understood their financial agreements. This led to litigation where people avoided paying out their prenup, claiming they weren’t given sufficient legal advice.

As you can see, the whole area has become a minefield.

But the point is that more Australians are marrying later.

They have been working longer and have usually built up their own assets such as a home unit or house, car or other investments. The future ownership of these assets, particularly when one partner has more than the other, can be a very sensitive decision.

Marriages should be built on mutual trust, but does this extend to giving away joint ownership of hard-fought investments to spouses who may have blown all their savings on a good time?

That’s why many financially-mismatched couples have followed the US trend of prenups, especially if kids and assets from a previous marriage are rolled into the equation.Each couple is different and the answer depends on what both are comfortable with.

Many family lawyers point out that, given the uncertainty surrounding financial agreements, the normal process of the Family Law Act can be the fairest outcome.

The court will take into account all property initially brought by each party to the relationship and then assess the contribution of each person during the relationship. These may include:

  • Any property bought during the marriage;
  • Gifts and inheritances received by each party;
  • Property each party owned before the marriage
  • Assets and goodwill that a party has built up in a business.

According to the lawyers, protecting the assets you have brought to a relationship starts with good records. Getting assets valued at the time the relationship starts as a base level and clearly valuing any assets from inheritances and windfalls you may receive is important.

Ongoing monetary housekeeping can also keep some sort of financial independence in a relationship.

There may be reasons for each of the partners to continue with separate bank accounts into which their wages are deposited and specific expenses are paid.

A budget should be completed as soon as the marriage starts, particularly if separate bank accounts are to be maintained and each spouse is responsible for their expenses.

It’s also a good test of whether you are both financially compatible.

There is nothing more horrifying than finding you’ve married a compulsive shopper if you’re a spendthrift.

Such incompatibility can ruin a marriage.

How to own a property is also an interesting decision. There are two choices, tenancy in common or joint tenancy.

Tenancy in common assigns each of the spouses direct ownership of a nominated portion of the property. It means each spouse is responsible for their own mortgage and share of the property.

A joint tenancy agreement means that each is jointly and severably responsible for the entire property as well as the mortgage.

Also remember that marriage automatically negates previous wills. It is essential that wills be rewritten after marriage and regularly updated to take into account new offspring and changed circumstances.

FINANCIAL AGREEMENT SCENARIOS

  • One party brings substantially more to the marriage.
  • One has an ongoing business enterprise or farm which would have to be sold or divided.
  • Shares, employee bonus scheme entitlements, superannuation or trust entitlements need to be protected.
  • There are assets that one party wishes to exclude from the communal assets.
  • There is an international consideration (one party is a non-Australian) and overseas assets may be in jeopardy.
  • Assets or children from a previous relationship need to be protected.