(Solution) Family Law - Assignment

Family Law

Table of Contents
INTRODUCTION...........................................................................................................................1
MAIN BODY...................................................................................................................................1
CONCLUSION................................................................................................................................5
REFERENCES................................................................................................................................6

INTRODUCTION
Family law is a set of rules and legislations governing family relationships such as
adoption, divorce and child custody. Primarily, it had nexus with law of property and succession
which is registered and mentioned in records of government. Attorney can be appointed to
represent in case of disputes or conflicts (Graycar, R. (2012). The report covers a joint balance
sheet of the parties involved in the case study, rights of a spouse regarding maintenance and
discussion of claim made in property settlement. Lastly, the binding of agreement by the court on
the parties.
MAIN BODY
Family settlement is a wider concept as it deals with matter pertaining to a family. The
domestic issues that occur in a family are the matter falling under family law. This includes rules
and statues regulating legal responsibilities between individuals who share a domestic
connection. The relationship are generally of blood or made from marriage. However, it can
affect casual relationships in some cases.
In the given case, Cam Merch and Jules Robin got married in the year 1997 at the age of
28 and 24 respectively. Jules was posted as a secretary with a small law firm. Later, she joined
MSQ as a Partner specialising in corporate law. They had two children aged 13 and 9 years old.
They got separated after few years of marriage whereby they have mutually decided the custody
of their children. On the other hand, Cam has started his own telecommunication company
whose profit started to decline after some years. This forced Cam into high depression for which
he started taking therapy in a renowned clinic in United States.
The report shows answer to different questions explaining the elements of family law
along with disclosure of all the properties pertaining to Cam and Jules. The questions are as
follows:
1. Joint Balance Sheet of Cam and Jules showing assets, liabilities and financial
resources:
Assets Value Wife Husband
Property 100000 50000 50000
Shares 300000 75000 225000
yacht cruisers 4000000 1000000 3000000
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Cars 1300000 195000 1105000
Furniture 100000 50000 25000
Comsec Share
Portfolio 4300000 1075000 3225000
Jewellery 2400000 2400000 -
total Assets 12500000 4845000 7630000
LIABILITIES Value Wife Husband
External liabilities 12500000 4845000 7630000
2.
Superannuation Value Jules Cam
$1200000
million
$ 1200000
million
-
2. Cam is refusing to pay the mortgage that encumbers the Point Piper home. Jules
and the children continue to live in the home. Cam is also refusing to pay for Jaibu's work.
Cam is assessed by the Child Support Agency to pay Jules $950 per week in Child support.
Cam says that the child support amount is enough for Jules to meet her expenses. Advise
Jules on her rights to make a spousal maintenance application and her prospects of success.
Spousal maintenance refers to the amount that is paid by a husband or wife to their
former or ex spouse after divorce has been finalised. It is paid on monthly basis which is extends
to number of years as mentioned in the agreement. It mark closure only when recipient remarries
or any of the parties get expires (Spousal maintenance, 2019). There is no connection between
spousal maintenance and child maintenance. In other words, if a person, after divorce, is paying
child maintenance only and not spousal maintenance then it will not be clubbed together. It is an
important factor in case of finalising a family law property settlement. It can also be paid in lump
sum. On the other hand, child support is the financial support for the children of a divorced
couple. It supersedes spousal maintenance.
In the given case, Jules can file for an application under Family Law Act, 1975 in the
court, whereby she can claim a specified payment which would be sufficient to make her basic
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needs meet. According to legal provisions, it can be made by the either of the partner from a
broken marriage or relationship.
Furthermore, an application for this maintenance can be made as soon as separation takes
place. In other words, from the day of separation. An important point to be noted is that, there is
no requirement of finalisation of divorce in case of a married couple (Henry, & Hamilton,
(2012). The duration which has been provided for filing an application is 12 months following
the date of divorce. If the stipulated period has expired, a preliminary application has to be made
for bringing application for spousal maintenance.
There is a fixed procedure which is followed by Family Court in order to examine the
validity of the claim along with capacity of the spouse to pay. It is based on “need versus ability
to pay” criteria.
Apart from this, there are circumstances in which spousal maintenance will be ceased.
These are upon the death of the dependent or the date that has been provided in the agreement. It
is compulsory for any of the spouse who is capable enough to pay, to provide spousal
maintenance because one gives time and care to children and the other party earns the income
(Australia. Family Law Council. (2014).
The process, rules and legal provisions of spousal maintenance are complex in nature, thus, a
correct decision should be take whether to make an application or defend an application.
Furthermore, every detail of financial position should be disclosed. Jules has every right to seek
her spousal maintenance money from Cam as they have divorced and Cam is capable to pay.
Also, the contention made by Cam that Jules can meet her expenses from the Child Support
money is absolutely wrong. According to Family Act, child support are meant for the survival of
child only and no spouse can use this for their own purposes other than child's. Hence, Cam is
under a responsibility to pay spousal maintenance to Jules by which she can meet her expenses
and live a peaceful life.
3. Cam comes to see you for advice about property settlement. Advise Cam in
relation to his claim pursuant to section 79 and 75(2) of the Family Law Act, 1975 using 5
step process.
In the literal sense, property settlement can be defined as an agreement executed between
husband and wife pursuing a divorce whereby division of their assets is mentioned. It can be
made either mutually or as an order by family court. It includes property acquired by a couple
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either before marriage or during marriage. Family Law Act, 1975 provides the main motive of
family settlement is to bring an end to financial relationship between parties (married couple or
de-facto relationship). Hence, it includes both assets and liabilities to assess the financial status
of each of the parties (Oldham, (2019).
Section 79 of Family Law Act, 1975 provides that court may make order as it deems fit in
the following cases:
 in the case of properties related to marriage or where the interest of the parties has been
altered because of the marriage
 in the case of bankruptcy property in relation to a bankrupt party to the marriage
 an order for the settlement of property in substitution for any interest in the property
 an order requiring:
(1) either or both of the parties to the marriage
(2) the relevant bankruptcy trustee.
 No order will be passed unless it is just and equitable to make the order.
 While deciding the case, the court should taken into into account financial and non-
financial contribution at the time of marriage or any other contribution made by marriage
for the welfare of family or any other order as it thinks appropriate (Brimmer (2014).
Apart from this, there are other points which should be known to Cam before opting for a
claim in the property. This will give more clarity to this section so that it can be applicable in an
appropriate manner. This provision will be taken for the settlement of property.
Further, there are steps as provided under this act which are applied in a case to
determine a conclusion so that prompt settlement can be made. These are as follows:
1. Identification of all properties wherein each party has a legal or equitable interest and the
property holds a valid value. Before proceeding with the case, it should be valued by a
registered valuer.
2. Each party's financial and non-financial contribution should be assessed including cost of
improvement and other related contributions. It will require identification of assets,
liabilities and superannuation of each party.
3. Needs pertaining to future should be considered and adjustments will be made in the
percentage of assets, liabilities and superannuation equal to their individual contribution
has they been alone and not married.
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4. The court will consider the outcomes determined in the step 2 & 3 above and order will
be passed which is just and equitable (Taft, & Florescue, (2018).
Cam should be aware about his financial and non financial position for prompt settlement
of properties so that no mistake in this regard can be done.
4. Cam presents you with a Financial Agreement pursuant to section 90B signed in
both parties in April 1997, four week before Cam and Jules married. He signed it with his
lawyer which was sent to Jules' lawyer for signing which was signed two weeks after failing
her first test in her English Course at the University of Sydney. Cam said she failed the
course because she was nervous about the wedding, and all of her relatives arriving from
Cape Town that week. Provide advice to Cam as to whether the Agreement would be
deemed as binding by the Court.
Financial agreement as defined in Family Law Act, 1957, an agreement entered into by
parties to a marriage for binding them legally in case the marriage break down. These
agreements are also called “prenuptial agreements” but in legally referred to as “financial
agreements”. It can be entered into in contemplation to a marriage. Family Law Act provides
some requirements which should be fulfilled so that it can bind the partners. These are as
follows:
1. Agreement must be signed by all the parties
2. Each spouse should be given legal advice from legal practitioner regarding the effect of
agreement on the rights of that particular party along with this, the advantages and
disadvantages (Roberts, (2017).
3. Either before or after signing the agreement, each spouse party was provided with a
signed statement by the legal practitioner stating that the advice referred above.
4. A copy of the statement so mentioned in point 3 should be provided to a spouse party
should be given to other spouse
5. the agreement has not been terminated and has not been set aside by a court.
In this case, Cam and Jules has entered into this agreement before the marriage which is
absolutely valid and should be treated according to this section 90B of Family Law Act, 1957.
hence, this agreement is binding on both of them.
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CONCLUSION
From the above report, it has been concluded that family law is necessary for binding
each partner with their legal rights and responsibilities. This helps in bringing the trust of married
couple as they have legal provisions according to which all the activities should be carried.
Furthermore, the custody and maintenance amount should be paid accordingly. All of such
circumstances will be governed through Family Law Act, 1957. Also, this law is meant for a
family so that disputes or conflicts can be settled within legal boundaries. There are sections
which give power to either of the party for preventing misuse of any rights regarding properties.
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REFERENCES
Books & Journals:
Graycar, R. (2012). Family law reform in Australia, or frozen chooks revisited
again?. Theoretical Inquiries in Law. 13(1). 241-269.
Henry, P., & Hamilton, K. (2012). The inclusion of children in family dispute resolution in
Australia: Balancing welfare versus rights principles. The International Journal of
Children's Rights. 20(4). 584-602.
Australia. Family Law Council. (2014). Report on Parentage and the Family Law Act. Attorney-
General's Department.
Oldham, J. T. (2019). Divorce, separation and the distribution of property. Law Journal Press.
Brimmer, M. (2014). When an Ex Can Take It All: The Effect-And Non-Effect-Of Revocation
on a Will Post-Divorce. Md. L. Rev. 74. 969.
Taft, R. S., & Florescue, L. G. (2018). Tax Aspects of Divorce and Separation. Law Journal
Press.
Roberts, M. (2017). Mediation in family disputes: principles of practice. Routledge.
Online:
Spousal maintenance. 2019. [Online]. Available through: <
https://www.lavan.com.au/advice/family_lawyers_perth/what-is-spousal-maintenance-
3f>.
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