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John Melis
John Melis,
Category: Australia Law
Satisfied Customers: 545
Experience:  Principal Lawyer at Legal AU Pty Ltd
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I am considering a divorce. If I do divorce am I able to

Customer Question

Hi, I am considering a divorce. If I do divorce am I able to have my new 'partner' sign something so that after two years of living together - she decides to leave so as to ensure that she will not be able to claim half of whatever is left from my divorce settlement? THanks
JA: Because family law varies from place to place, can you tell me what state this is in?
Customer: ACT
JA: Has anything been filed or reported?
Customer: no
JA: Anything else you want the lawyer to know before I connect you?
Customer: Not that I know of but I am happy to answer any questions.
Submitted: 2 months ago.
Category: Australia Law
Expert:  John Melis replied 2 months ago.

Dear customer, my name is***** solicitor, thank you for using Just Answer, I will assist with your question today. Please allow me a few moments to review your post and I will respond accordingly.

Kind regards
John Melis

Expert:  John Melis replied 2 months ago.

Dear customer, you can enter into a financial agreement between the parties.

Relationships all have their moments but when it comes to an end the challenge is to be able to reach a mutual separation with property that is fair to each party. This is never an easy task as each party considers they have rights and to find a common acceptable agreement between the parties does take time.

No matter what the final outcome agreed upon between the parties may be, the best result is one that does not involve the courts and has been settled between the parties through the use of their lawyers.

Determining what is just and equitable in a property separation is not an easy task as there are many factors that need to be taken into account under the Family Law Act 1975. Then one aspect which does surprise a number of disputing parties is that the dividing of the assets is not a precise mathematical equation.

The meaning of just and equitable can be viewed in various ways and looking at a couple of court cases is a good way to demonstrate.

In Bevan v Bevan [2013], a Husband & Wife were married in 1972, and the Husband left the Wife in 1994. Then in 1995 the Husband gave a power of attorney to the Wife telling her that she could keep all the Australian property, as the husband had setup a new life in England and would not return to Australia. The couple eventually divorced in 2010 and the Husband commenced a court action for property separation with the assets in Australia. The trial judge dismissed the Husbands claim, and the Husband appealed, and on appeal the court again dismissed the claim by the Husband on the basis that the Wife was led to believe that the Husband would not make a claim for the Australian property in the future, based on the Husband’s previous conduct, which was just and equitable to the Wife.

In Norman & Norman [2010] the relationship finished after 15 years, and the court awarded 60% of the property assets to the Husband and 40% to the Wife. The Wife appealed the decision on the grounds that the settlement was not just and equitable as the trial judge failed to follow the four step process for assessing property separation with the fourth step. On appeal the court dismissed the Wife’s claim, and noted that there is no requirement for the court to follow a four step process with property settlements to reach a just and equitable settlement.

In Stanford v Stanford [2012] both the Husband and Wife were in their second marriage. The Husband and Wife were living separately as the Wife had dementia and was in a nursing home. The Wife’s daughter who was her case guardian commenced property proceedings against the Husband. The Wife died before final orders were made and the daughter continued with the property separation claim. The question that was before the court, was it just an equitable for a division of the assets against the Husband. The court found that even though the Wife had dementia there was no basis to show that the Wife had altered her property interest. The court found the marriage was still intact and it was not just and equitable for the division of property against the husband.

Property separation is never easy, and determining a just and equitable settlement is not a straight forward mathematical calculation.

Kind regards *****

Expert:  John Melis replied 2 months ago.

Dear customer, if you would like to discuss this matter further, I welcome you to request telephone services.

Don’t forget to rate my service.

Kind regards

John Melis

Expert:  John Melis replied 2 months ago.

Dear customer, parties who are married but wish to secure their financial position should their marriage breakdown can do so by entering into an agreement pursuant to s 90C of the Family Law Act 1975.

Likewise, if the parties to a marriage separate (and are not divorced) and wish to finalise the distribution of the assets, liabilities and financial resources of the marriage, they can finalise the settlement by way of a financial agreement pursuant to s 90C of the Act.

An agreement under s 90C of the Family Law Act 1975 can include provisions for:

(a) the party, or the child or children, for whose maintenance provision is made; and

(b) the maintenance of one or both parties.

When preparing an agreement when the parties have children or anticipate having children, care must be taken to ensure that a proper division of property (and/or maintenance if applicable) has been made so that the person who is likely to have the primary caring responsibilities for the children will not suffer hardship as a result of the agreement. This can be achieved by preparing clauses which use the number of children born of the marriage (and age of the children and whether they have special needs) as variables in a formula.

A financial agreement made during marriage and after separation will take effect upon one or both parties signing a separation declaration.

Kind regards *****

Expert:  John Melis replied 2 months ago.

Dear customer, if you would like to discuss this matter further, I welcome you to request telephone services.

Don’t forget to rate my service.

Kind regards

John Melis

Expert:  John Melis replied 2 months ago.

Dear customer, if you would like to discuss this matter further, I welcome you to request telephone services.

Don’t forget to rate my service.

Kind regards

John Melis

Expert:  John Melis replied 2 months ago.

Don’t forget to rate my service.

Kind regards
John Melis

Expert:  John Melis replied 2 months ago.

Dear customer, I have not heard from you for a while. I am willing to answering your questions on your very important matter as you need.

I also request if you could kindly rate my service as well with 5 stars.

Kind regards *****