“What’s mine is yours and what’s yours is mine” …but what about the joint bank accounts?

Most people who are married or in committed relationships intertwine their finances. Typically, this takes the form of joint ownership of the family home, motor vehicles and of course the joint bank account (or credit card).

While most people realise there is a process to divide assets and work out who receives what, in our experience there is often confusion regarding the law surrounding accessing jointly held cash.

Common questions people ask family lawyers are:

  • Can I take my half from the joint bank account?
  • Can I take all of it?
  • He/she has transferred it to their account, but I know the banking passwords – can I take it back?
  • How can I stop him/her accessing the joint account?

What’s ours is mine…

When people co-own a bank account both parties are equally entitled to access all of the money i.e. they don’t own half each. They each own the full amount.

This means that whoever gets to the bank first (figuratively speaking – probably the computer first) can legally clean out the joint account.

In this situation it would be necessary for the party who didn’t take the money to take further steps to protect their interests. Neither the bank nor the Police would bear any responsibility to rectify the situation.

Fortunately, however the Family Law Act 1975 does contain remedies and provide Judges with power to address this situation on an interim, or final basis.

For example, if someone was to transfer money to their own account from the joint account, the Court would be able to make Orders, such as, for some or all of the money to be paid to the other person, restrain a person from further dealing with the money, or Order that it be paid into a trust account pending the final determination of all of the issues.

What’s yours is mine…

It is also not uncommon for married couples or people in de facto relationships or other committed relationships to share passwords, pin numbers or banking details (their banks would be angry if they found out).

We have also encountered situations where some people regard being married, or in a de facto relationship (particularly for a long time) as granting equal rights to property. This is not the case.

Being married or in a relationship does not convey property rights.

People may have a common use of property, but ultimately if property is not jointly owned it generally belongs to one of them.

During the relationship it may have been ok to use credit cards, bank accounts or make bank transfers from your partners account but only because this was impliedly or expressly authorised.

If there is no authorisation from the owner, then accessing funds in the above manner may well be stealing, and land you in hot water with the police.

As a general rule, if you’re separated do not use the ex-partners cards or accounts unless there is an express authorisation (in writing).

What’s mine is yours…

The Family Law Act 1975 empowers the Court to adjust interests in property provided the Court does “justice and equity” i.e. the court can take what’s yours and make it his or hers.

The Court also has a number of powers (alluded to above) that can assist in making sure property that may be distributed between the parties to the relationship, is protected until such time as all of the matters are considered.

There is also steps that people can take themselves to avoid Court, unnecessary costs and inflaming the situations. Some examples are:

  • Contact the bank and see if they have an ability to “freeze” an account at the behest of one party;
  • Have a discussion with your ex-partner. Ask them whether they will agree to splitting the funds a certain way, or whether they will agree to having the money deposited to a neutral third party such as a solicitor’s trust account, to be held for both parties.

If in doubt and before taking action that you feel may not be right or may likely inflame your situation, please contact a family law solicitor at Hooper Family Lawyers at Victoria Point or Coolangatta on 3207 7663 for advice.

Alternatively for more information we have many helpful resources on our website.

Accredited Specialist Family Lawyers Gold Coast and Coolangatta

Hooper Family Lawyers is making a sea change…of sorts…we’re staying in the Brisbane Bayside (we love it here) however we now also have a branch office on Griffith Street, Coolangatta.

We will be offering specialised Family Law advice to the Gold Coast and Northern NSW regions including:

  • Family law advice;
  • Consent orders;
  • Parenting Plans and child custody matters;
  • Mediation;
  • Property settlement;
  • Spousal maintenance;
  • Domestic Violence protection;
  • All other aspects of de facto and family law legal and Court representation.

Our office in Coolangatta is situated within walking distance to the Magistrates Court at Coolangatta, and we will be providing representation in the Federal Circuit Courts at Lismore and Southport, as well as representation in the Brisbane Family and Federal Circuit Courts.

For us this is an exciting opportunity to grow our firm, forge new relationships, and provide our expert family law services on the Gold Coast and Northern NSW.

Our mediation services via “Decide Mediation” will also be available from the Gold Coast office, and we are available to travel for mediation from Brisbane to Coolangatta and Northern NSW.

Regardless of whether you wish to see us in Brisbane or on the Gold Coast, we look forward to helping you resolve your family and de facto law issues in a timely and cost effective manner. Please contact our Coolangatta office on 1800 891 878 for an appointment with an Accredited Family Law Specialist. If you would like more information about us, please visit our website at https://www.hooperfamilylawyers.com.au/

Peter Hooper accredited family law specialist is a Brisbane Family Lawyer and Director of Hooper Family Lawyers, a family law firm in Brisbane practicing exclusively in Family and Relationship Law.

Most family lawyers in Brisbane, and across the country, time cost. Therefore it stands to reason that if you’re able to assist your lawyer to reduce their time, you will save money on fees.

One of the areas where a lot can be done to assist your lawyer in reducing time is with affidavits required to be filed in family law matters in the Federal Circuit Court of Australia and Family Court of Australia.

What is an affidavit? It is a sworn statement of the evidence you will rely upon at a hearing in family law cases. In most family law matters your evidence in chief, that is the facts supporting your case, is communicated in a affidavit format.

The affidavit is your story told by you and therefore if you know some of the rules about producing an affidavit, and produce a good draft yourself in a Word format, you can help reduce your costs. Here are some tips:

What are the requirements? – The rules for each jurisdiction set out the requirements and are summarised below. You can find the Rules by clicking the links below or by visiting the relevant Court websites:

  • Rule 15.08 Family Law Rules 2004 “FLR” and rule 15.25 Federal Circuit Court Rules 2001 “FCCR” (Div 15.4 FCCR) provide for the use of the printed forms. Again the forms are available in a Word format on the Court Website or on our website via the following link: Hooper Family Lawyers forms.
  • The forms have places for the names of the parties, official court section to be completed and the statement at the end to be completed by the qualified witness i.e. JP/Commissioner for Declarations or solicitor;
  • Rule 15.09 FLR – the affidavit should be:

o      Confined to the facts in dispute relevant to the issues in the case;

o      Confined to admissible evidence;

o      Consecutively numbered paragraphs;

o      Sworn in the presence of the qualified witness;

o      Signed on each page;

o      Filed in court;

o      Any alterations should be initially by person swearing and witness;

o—Use words for the month in a date i.e. 30 May 2014 and figures for

number i.e. $20 for twenty dollars.

o      Annexures – need to be attached and referenced etc.

  • Rule 24.01 FLR the affidavit should:

o      Written legibly – preferably types in a 12 point font;

o      Be on A4 sized paper;

o      Have left and right margins so it can be read when bound but no more than a 2.5cm margin;

o      Be at 1.5cm line spacing.

The affidavit is your story but tell your story in chronological order i.e. start at the beginning and work towards the most recent relevant circumstances.

Don’t be afraid to use headings. Sometimes if the story needs to be broken up over several different topics, heading will allow you to group your topics into relevant areas. Headings can also assist you to organise your thoughts to cover everything you need to, and most importantly make your affidavit easier to read.

Make sure the affidavit is simple, clear and brief. Don’t use 40 words to say what you can in 4.

Affidavits are sworn documents that must be truthful. You may have to include something you think is bad for your case, make an apology, or make a positive acknowledgement of the other party. Being truthful is more important to your case than any other aspect and often more “points” can be scored with the judge by being truthful than contradicting what you perceive to be a fact in favour of the other party.

Complying with the rules will make your affidavit easier for the Judge to read; which means the facts you want the Judge to be aware of will be more easily understood.

Please remember it is not your job to form conclusion that is the Judge’s job. A good affidavit only sets out the “relevant factual matters”. Judges have a lot to consider and generally do not look favourably upon reading large volumes of unnecessary material.

Try and avoid emotive language and adverbs. This type of language tends to try and lead the Judge towards a conclusion. Adverbs are words that tell as more about a verb. For example John “simply” turned and walked away; or John “literally” slammed the door. Statements containing adverbs may lead the Judge to conclude a lack of credit or tendency to exaggerate.

Hopefully you have found this helpful but please note there are many other considerations to putting together a persuasive and effective affidavit. This blog is not intended to cover every circumstance and before filing your material; I recommend that you attend upon an accredited specialist family lawyer in Brisbane for advice.

Separation almost never places anyone in a more favourable economic position.

The effect of separation is usually results in assets needing to be divided or sold, the family is living in and maintaining two households, incomes are now kept separate and so on.

On top of this most people understand that they will need a family lawyer; and that family law services are by their nature expensive.

So what is the answer?

The good news is if you can control your emotions and manage to keep the brakes on your amygdala (the stress and anxiety emotions part of your brain), a lot can be done to reduce the cost of separating.

Here are five tips:

  1. Reconciliation Counselling – To use some clichés, perhaps you don’t need to throw the baby out with the bath water. And prevention is better than cure. There are plenty of good counsellors out there who can assist. If the relationship can be saved that is arguably the best outcome for everyone;
  2. Stay calm – Easier said than done. Separation is an emotional process and people handle things differently. If you are struggling get help from your GP and/or a counsellor ASAP. A lot of people who don’t handle separation well can engage in destructive and self-destructive behaviours which cause breakdowns in communication and can cause the settlement process, or resolution process, to be drawn out and much more expensive;
  3. Get Good Advice – I’ve spent a lot of years working as a family lawyer in Brisbane, doing my law degree, specialist accreditation in family law and my Masters degree in family law. Family Law is not something you can Google and figure out in an afternoon. Before you and your spouse/partner start to negotiate with each other, find out from an expert in family law what the range of outcomes are. That way you have some idea what the parameters of your negotiation should be;
  4. Negotiate with each other in a business-like manner, in writing – You’ve both had advice now you can get down to brass tacks. If you’ve followed point 2 above, communication should be possible and you’ll save a fortune in not needing family lawyers bounce letters back and forth. Here I find email is best because it is in writing (which encourages people to behave) and date stamped. Please note generally settlement discussions are “without prejudice” and section 131 of the Commonwealth Evidence Act 1995 applies. This means generally settlement negotiations cannot be used in evidence in the family law property proceeding. The key here is to limit your “without prejudice” settlement communications to negotiations; and don’t mention other wider issues in the same correspondence. Please note however if the matter doesn’t settle, and reasonable offers have been rejected, after the trial the judge can consider the offers in deciding whether to make a costs order against a party.
  5. Go back to your family law lawyer – After you’ve reached an agreement, the agreement needs to be formally recorded in order to achieve a final resolution. You’ll already know this however because you will have gotten the advice first at step 3 above. The party’s family lawyers will be able to advise you what method of recording the agreement is best for you.

Sometimes when communications break down some help is required. Using your Brisbane family lawyer places a degree of separation between you and your spouse/partner if relations are strained. Mediation is also a very useful process to help people reach an agreement.

Remember, the cost of separation is not always financial. The emotional cost must also be considered and in my experience most people can only really start to heal their emotional side after their family law issues have been resolved.

Peter HooperHooper family Lawyers in Brisbane

After the reality of the separation has set in, most people start thinking about how the future will look, and how they are going to finalise the current chapter of their lives.

Not surprisingly, for the first time ever it dawns on them they should probably speak to a solicitor and specifically a matrimonial lawyer or family lawyer. If you watch a lot of US drama programs the phrase “divorce lawyer” might be on your radar.

Having never been in this situation before, stressed and fearful about the future, and with the internet overflowing with options for lawyers of all shapes and sizes; the next question springing to mind is “which family lawyer should I choose?”

Here are 5 tips that I think might help you weed out the winners from the “wannabes”:

  • Firstly, make sure they know something about family law and the way the family law system operates. This might seem like a given, but take it from an accredited specialist family lawyer in Brisbane who deals with other Brisbane lawyers on a daily basis; there are plenty who dabble in this area without a high level of knowledge. Ideally your solicitor will specialise in family law and be a Law Society accredited family law specialist. Getting poor advice early on can set the stage for a protracted, unhappy and expensive litigation;
  • Secondly, find a lawyer who’s happy to speak to you frankly about costs. You have the right to negotiate the retainer and it is important that budgets are discussed before the work starts. Sometimes commercial considerations will need to shape the decisions you make; and failing to plan ahead can lead to disaster. The worst lawyer is the one who runs up a massive bill, and deserts you half way through a matter when the funds run dry. Your family lawyer should put your best interests ahead of their fees.
  • Thirdly, your family lawyer needs to be level headed and not seek to unnecessarily antagonise your ex-partner. Separation can be high conflict; however often relationship are ongoing, especially where children are involved. Ask your family lawyer about the FLPA “Best Practice Guidelines for Family Lawyers”. If they turn their head like a confused puppy you may be in trouble. Sometimes it becomes necessary to adopt an aggressive approach, however this should only occur after more amicable attempts at resolution have been exhausted; or in response to an ex-partner (or their lawyer) resorting to bully tactics.
  • Fourthly, you and your family law matter are unique and you need to be treated as such. As I heard one of our Judges say in the Federal Circuit Court in Brisbane recently, “…this is not a sausage factory”. People deal with the stress of separation in different ways and your lawyer needs to have the life experience and maturity to understand where you are at. Additionally, the advice you receive must be tailored to your particular circumstances and a case plan developed early on as to how your matter will be managed. The old business adage applies here, “those who fail to plan, plan to fail”. Having a plan also helps manage your budget; and remain focused on the important issues to be negotiated or determined.
  • Fifthly, find a lawyer you like. I’m not kidding, it’s important. You need to be able to trust this person with the most personal aspects of your family life and you need to respect the advice their giving you. If you like your lawyer chances are it’s because your gut is telling you they have your back and they’re trying hard to help you.

Hopefully the above will be helpful in finding the right lawyer for you, and take some of the stress out of separating; and moving forward with your life.

By Peter Hooper – Brisbane lawyer specialising in family law

 

Can you afford to Divorce? – Article written by Olivia Maragna and published by brisbanetimes.com.au

 

My Comment:

“I think another expense is the high costs of legal fees that can also flow from relationship breakdown.

My view is the importance of planning for high legal fees will depend upon the nature of the relationship; and likelihood of the separation being acrimonious. Bigger fights mean bigger fees and it’s no surprise to people who have experienced family law litigation that lawyers are the ones who can often profit the most.

I often tell my client that the smartest and least expensive way to resolve a dispute is to follow these steps:

  1. Before starting to negotiate, each party should obtain independent legal advice from a lawyer skilled in family law. Lawyers, who dabble in family law, don’t know the law, or who behave in an inflammatory manner can cost you money. My view is, to avoid doubt see a lawyer who is an accredited family law specialist;
  2. Armed with accurate advice, commence negotiation. Discuss with the other party what you need or want based on what you have been told the range of outcomes may be. There are 2 ideas here. Firstly, if both parties have had proper advice, the range of outcomes communicated to them will likely overlap. When there is an overlap in the advice both parties have received, settlement is more likely because there is common ground. Secondly, rather than negotiate by way of “Dutch auction”, try and form an understanding of the other party’s needs and motivations. If the parties understand each other it may be possible to think outside the box and achieve the settlement most mutually beneficial;
  3. Negotiate by email or in writing. Settlement communications prima facie can’t be used in court by virtue of section 131 Evidence Act 1995 (Cth), and the common law regarding privilege attached to settlement negotiations. If in doubt you can add the words, “without prejudice” to your communications;
  4. Once an agreement is reached, return to the lawyers to have the agreement drafted into the proper form.

Having a consent order application, parenting plan or binding financial agreement drafted without the costs of the “back and forth” between lawyers can save a lot of money.

If you can’t communicate with your spouse directly; or if there is power imbalance through intimidation or family violence; the lawyers and mediators may be the only option to assist with the negotiation process.

If it is the case there is acrimony, negotiation is difficult or court is unavoidable, there are some strategies you can use to reduce your legal fees:

  1. Most lawyers time cost so limit your communications to what is absolutely necessary;
  2. Provide detailed instructions in writing so your lawyer doesn’t have to chase you for information;
  3. Ask your lawyer if they can provide you with blank court family law forms in a Word format. If not, please note all of the court documents and some very useful fact sheets can be found on the Family Court and Federal Circuit Court websites (we have commonly used forms available on our website). Providing your lawyer with instructions in this format can reduce time and thus costs to you;
  4. Provide your lawyer with a detailed relationship chronology in a Word format. The chronology should start at the beginning of the relationship and specify all of the important dates and occurrences. You should do a different chronology for property and children. In documents such as this stick to the facts and avoid statements of opinion or submissions;
  5. If your lawyer asks you to obtain information or documents, be proactive. Costs can be reduced by avoiding the necessity for the lawyer to chase you up; and if the matter moves quickly without dragging on costs will likely be reduced;
  6. Consider the “cost benefit analysis” when examining the other party’s proposal. Is what you’re fighting about worth the cost? Costs in family law matters are not just financial. There is a lot of stress associated with the process and if children are involved it is very beneficial to try and preserve a future working relationship with the other party;
  7. Read your costs agreement and ask for estimates of costs before major work is undertaken.

Reducing costs can be achieved by working with your lawyer and by keeping the issue of costs clearly understood between you and your lawyer.”