While the actual decision to get married does not by itself require any legal guidance, the act of getting married can affect both you and your intended spouse in many different ways. Obviously, it is everyone’s hope that a marriage is going to last forever, and it is best to arrange your affairs in anticipation accordingly.
However, for some people, it is desirable to try and maintain more certainty over the ownership of assets. This is often the case if this is not your first marriage. For example, some people wish to maintain certain assets for children of a former marriage.
A Pre-Nuptial agreement (or Binding Financial Agreement) as most of us would understand that term, is, in many cases, not a legally binding agreement for married couples throughout Australia. Pre-nuptial agreements can be binding upon de-facto couples in certain states.
The law of Pre-Nuptial Agreements is not necessarily as “black and white” as you may believe.
Pre-Nuptial Agreements can be used as evidence of the parties’ intentions at the commencement of their marriage and there are various other mechanisms such as Trusts which can be used to try and achieve the same results as the American style agreements.
We are well placed to advise you on these issues and would encourage anyone considering a Pre-Nuptial or Binding Financial Agreement to contact us to discuss their individual circumstances.
Pre Marriage Checklist
Buying a property is the biggest and most important investment decision you are likely to make in your life. If you fail to do your research, or if you receive bad advice, buying a property may also be one of the most costly decisions of your life.
The process for buying property can be broken into the following:
Pre exchange -> Exchange -> Post-Exchange -> Settlement
We can help take some of the stress out of this important process by working with you to ensure the completion of every step – NOTHING is left to chance.
Failing to do your homework when selling a property can result in an unfavourable outcome, with significant costs and legal ramifications.
At Q Socilitros, we are experienced in all areas of conveyancing law. We will take the legal stress out of selling your property by ensuring we fully understand you and your goals; and by delivering reliable, easy-to-understand advice.
The conveyancing process will generally go like this:
As its name implies, family law is the area of the law concerned with family and domestic matters relating to property, finances, and care of children including:
Only about 5% of divorces and separations end up in court, with the remainder having a mutually agreeable settlement between both parties negotiated through solicitors. While courts do their best to be fair to all concerned, rarely is everyone happy with the result of a court decision. Resolving family related issues through solicitors is always preferable to having the court decide these matters.
If a time comes when a business or an individual cannot pay all their debts when those debts become due, they are then classified as insolvent. An individual may also be declared as bankrupt in regards to their personal finances if they cannot control their debts. Insolvency occurs when the amount of money coming in to one’s accounts is less than the amount of money needed to be paid out for bills and expenses. Examples of accrued debts may include credit cards, overdraft, unpaid salaries, invoices, overdue rent or mortgage, tax owed, and unpaid bills. If you do not have a way to pay your debts and are unable to reach an agreement with your creditors, you may be in a position of impending insolvency.
An individual with considerable financial hardship may declare themselves bankrupt through a Debtor’s Petition with ITSA. Creditors who are owed money may make a Court application to make someone bankrupt. Once an individual becomes bankrupt, a Trustee will manage their property and assets with the goal to sell any assets that have sale value and use the proceeds from the sale of assets to pay the creditors as much of the money owed as possible. Once you have declared bankruptcy, you may not be allowed to travel overseas or become employed in certain professions. Bankruptcy may be able to be discharged after three years, yet it remains on the record for seven years. If all debts are able to be paid in full, the Trustee can opt to annul the bankruptcy. Alternatives to declaring bankruptcy include financial counselling, debt agreements, and a controlling trustee/personal insolvency agreement.
In the case of in insolvent business, it is an offence if the directors continue to operate and incur further debt when a company is in an insolvent state. Options for a business facing potential insolvency include liquidation (winding up), Voluntary Administration/Deed of Company Arrangement, and Receivership. In liquidation, a Liquidator is appointed to wind the company up; selling its assets to pay outstanding debts. The company then is de registered and will not longer exist. This is most often seen in court liquidation and creditors’ voluntary liquidation. In voluntary administration, an administrator investigates the company’s history and financial position to make a recommendation in regards to its future. Creditors then must make a decision to accept a Deed of Company Arrangement as proposed by the directors which would permit the company to make a binding compromise on all creditors, to liquidate, or to return the company into the control of the directors. Receivership involves a receiver/manager for the company assets as appointed by a secured creditor or the court who takes charge of the allocation of the assets to the creditors. This may occur concurrently with liquidation or Voluntary Administration.
A notary public is a public official who has been appointed with the authority to provide services in relation to certain non-contentious concerns such as estates, deeds, powers-of-attorney, and international business. A notary might administer oaths, take affidavits, prepare, witness, and authenticate the execution of certain documents, and prepare ship’s protests in cases of damage. Commercial or personal documents that either originate from or are signed in another country generally must be notarized to be officially recorded and take legal effect. A notary must remain impartial in these matters as his duty is to the transaction itself and not just to one party.
Notary services include:
Personal litigation is the process of taking legal action (a lawsuit through the courts or mediation between solicitors) to enforce your personal rights. Often personal litigation is undertaken when you feel you’ve been personally wronged, such as in an employment or personal injury case.
Examples of personal litigation concerns include:
In general, one bringing a suit against another party is seeking monetary compensation for their damages which they believe to be directly caused by the actions or lack of action by another party.
Additionally, one may wish regulations to be altered to prevent future instances of injury to others. Often, personal litigation will be settled out of court, if both parties can agree on an equitable settlement. Because of the efforts and emotions involved in going to court, settlement is often a preferable option.
The granting of a Power of Attorney gives to the recipient the power to do all actions and things and to bind third parties just as if the original grantor of the Power of Attorney had entered into the Contract themselves.
There are many different forms of Powers of Attorney
However they fall into five main categories:
In Queensland, if any document signed under Power of Attorney is intended to be registered at the Department of Natural Resources (the Title Office) then the Original Power of Attorney must be registered at the Title Office.
There are a host of conditions surrounding each of these categories, which our experienced Solicitors can explain to you in detail.
Trusts are legal mechanisms that follow pre-set conditions (as designated by you) on when and how your assets will be distributed upon your death. Using a trust gives you the control the timing and method of distribution of assets, but also can save you in taxes, reduce liability to creditors, and avoid the necessity of probate court (the body that administers wills).
A testamentary trust goes into effect upon your death with the express purpose of allocated your assets to your desinated beneficiaries. A trust is no substitute for a will, a trust should only be used in conjuction with a will as part of an overall estate planning strategy developed in working with one’s solictor.
Trusts are not just for the wealthy! You may benefit from establishing a trust if:
Some possible advantages to using a trust:
Simply put, everyone who is an adult needs a will. If you die without a will (known as dying ‘intestate’) the courts will decide how your assets are distributed (often by standard formulas based on familial relationship) and potentially create additional costs, delays, and headaches for your heirs. Taking the time to write out your intentions saves trouble for everyone down the line.
Formalising your wishes in a will makes your desires ‘official’ so there is a known record as authorised and signed by you. It’s also critical for those with small children to name guardians by way of a will or this too will be decided by a court. A will also allows you to leave a portion of your assets to charitable institutions. While the basics of deciding how to allocate your assets may be simple (such as leaving everything to one family member), a properly trained solicitor should be involved as well to ensure that your will hold up if challenged in court.
What if you change your mind? You may amend your will at any time. It’s recommended to review your will periodically to ensure it still is applicable to your financial and familial situation. At the same time, you’ll want to review your beneficiary designations for your retirement, pension, and insurance policies as those are automatically transferred.
While rarely considered a ‘fun’ process, estate planning is essential regardless of your net worth for piece of mind in knowing your assets will be distributed according to your desires. Planning ahead and recording your wishes will additionally reduce administrative costs and headaches for your family. A full estate plan typically includes a will, assignment of power of attorney, and a living will/health care proxy (medical power of attorney). Family trusts may also be appropriate in some circumstances.
Your first step in estate planning should be to take inventory of your assets. This includes your investments, retirement savings, insurance policies, and real estate and/or business interests. Then ask yourself: Who do you want to inherit these assets? Who do you want handling your financial affairs when you are unable to do so? Who do you want making medical decisions for you if you are unable to make them for yourself?
It is also critical to discuss your plans with your heirs as well as other family members who may question your decisions. It is better to avoid surprises or any challenges to your will which will hamper your wishes being carried out.