Probate

As an additional aspect of our services John R Quinn & Co prepare and undertake Applications for Probate of the will of a deceased person. An Executor usually, but not always, cannot deal with the assets of a deceased person without first obtaining Probate.

Probate is a Court Order certifying that the executor has been granted Probate. Once Probate is granted the executor can collect or “bring in” the assets of the deceased, pay liabilities of the deceased and thereafter distribute the assets of the estate in accordance with the terms of the will of the deceased.

The executor may need assistance with matters such as Probate, Transmission Applications, defining and collecting assets and lastly the distribution of the estate.

Kevin O’Kane will ensure that the professional administration of your estate is undertaken efficiently and effectively. Kevin will explain clearly each stage of the process.

Succession Act Applications

(Formerly known as The Family Provision Act)

In the event a claim is made to alter the terms of a will or to set the will aside, the executor would deal with such Applications and would normally seek the assistance of a lawyer in so doing.

Kevin O’Kane of John R Quinn & Co is highly experienced in this area and is able to provide such services. Kevin will advise you as to your potential success or otherwise in the event you make a claim on an estate, or you dispute the validity of a will or if as an executor you are defending the terms of a will.

The strength or weakness of your case will be fully explained by Kevin as well as the process of filing or defending a claim, mediation and out-of-court settlements and actually conducting proceedings if the matter is contested by way of a hearing.

The costs of our involvement in your matter will depend upon what work has to be done. However, you can be assured that as a specialist family law firm where practitioners have a combined experience of 70 years in this special area of family law that the benefit will far outweigh the costs.

Details of our costs will be made available after you decide to retain our services. This will be set out clearly in the Costs Agreement which we shall forward to you.

When you attend an appointment with a lawyer from John R Quinn & Co you will receive practical and considered advice. You have the opportunity of discussing all matters of concern you have about your marriage/de facto relationship. Legal advice may include answers to your questions about:

• How agreements are formalised such as Consent Orders or Binding Financial Agreements.
• Where the children will live and how they will spend time with the other parent (Previously called child custody and contact)
• Spousal maintenance and child support
• How a property settlement is achieved

Our offices are conveniently located in Sydney CBD opposite Hyde Park near both Museum and Town Hall Stations.

We look forward to assisting you.

Australia has a “no fault” divorce system, which means that the law does not allocate blame to any party for the marriage breakdown.

You may only apply for a divorce in Australia if there has been an “irretrievable breakdown of marriage”. You need to satisfy the court that you and your spouse have been physically separated for a minimum period of twelve months and there is no likelihood that you will be reunited as a couple. It is possible for couples to be separated and remain living in the same premises. Please ask your lawyer about these circumstances.

You or your spouse may apply for a divorce if either of you is an Australian citizen, by birth or descent, or a resident of Australia or consider Australia as your home, having lived in Australia for twelve months prior to filing for a divorce.

A divorce does not mean you have agreed on a property settlement or parenting orders. These are separate issues which must be finalised within twelve months of obtaining a divorce unless you obtain leave of the court.

We are aware of the special needs of overseas clients.

With today’s improved communication tools including Internet and email we are able to overcome the difficulty for our overseas clients in obtaining prompt legal advice.

It is now common for couples and families to reside outside Australia for employment or other reasons.

John Quinn who is a fellow of the International Academy of Family Lawyers can assist you in the event that International Family Law issues arise that are relevant to you.

No matter which country you are residing in John Quinn will be able to assist you in your Family Law matter if you or your spouse/partner is an Australian citizen.

Maintenance is when a spouse/partner has to maintain their former spouse/partner after a relationship ends.

You may receive maintenance:

• If you are separated or divorced from a spouse or separated from your de facto
  partner.

A party claiming spousal maintenance needs to be able to show:

1. There is a need for maintenance and
2. The other party has capacity to pay.

There are time limits. You must apply with one year of the date of your divorce or annulment or within two years from when your de facto relationship ended.

A maintenance order normally ends:

• When you receive a property settlement.
• You enter into a new de facto or marriage relationship.
• Your responsibility for caring for children changes significantly.
• The person paying maintenance dies.

Sometimes called a Prenuptial Agreement or Financial Agreement, a BFA is an agreement whereby parties may regulate their financial affairs formally within a marriage/de facto relationship either before, during or at the end of a relationship.

A BFA is sought in particular when the parties are older and have established assets of their own. The parties have their own children from previous marriages and relationships to consider. In such cases it is often the desire of all parties to protect the previously owned assets for the benefit of their own children.

In situations where long established family businesses/wealth (handed down from many generations) belongs to one party of the relationship, it is often required that the younger generation enter into a BFA so that the wealth/family business/farm property is preserved.

Reasons vary as to why parties require a BFA and may include:

• A party’s wish to continue making their own arrangements for the ownership and
  management of their property, income and financial resources.
• Increased certainty as to the property retained by each party in the event the
  marriage/relationship fails.
• The security that assets acquired prior to the relationship (including inheritances) is to
  be retained by the party owning the assets in the event of the breakdown of the
  relationship.
• The avoidance of possible conflict with respect to financial matters before, during and
  after a marriage/de facto relationship.

It is imperative that each party is provided with independent legal advice before the parties enter into an agreement and statements of independent legal advice must be provided to each of the parties and exchanged with the BFA.

Such advice includes:

• The effect of the agreement on the party’s rights,
• What the advantages and disadvantages of making the Binding Financial Agreement are for the parties at the time of making the agreement and also into the future.

It is important to note that a BFA continues in force and effect notwithstanding the death of a party and is binding on the legal representatives.

If de facto couples marry, having previously entered into a BFA, such BFA will automatically be terminated.

The words “child custody” and “contact” have been replaced in the Family Law legislation by the words, “resident parent” and “time spent with”. The intention of the legislative changes is to emphasise that no parent owns the child.

Both parents whether married or not have full responsibility for all their children until a child is 18 years old. The Family Law system strongly encourages parents to reach an agreement
regarding the care of their children. Children are directly affected by separation and divorce whether by change of residence, loss of the family home and familiar surroundings and in particular a change in the amount of time they spend with each parent. The court can formalise agreements between parents in relation to the children by making Consent Orders.

If agreement relating to the child/children can be reached in conference with a Dispute Resolution Practioner then the court can be requested to make Consent Orders which reflect the agreement reached.

One cannot commence proceedings relating to children in the Family Court/Federal Circuit Court of Australia unless the parties have attended upon a Dispute Resolution Practitioner.

If agreement cannot be reached, the Dispute Resolution Practitioner will issue a section 60 i  Certificate which must be filed with any application for Parenting Orders. There are exceptions to this rule for example if there is an Apprehended Violence Order (AVO) in existence.

A family violence order is an order made under a law of a state or territory to protect someone from family violence. Family violence orders have different names in different states: apprehended domestic violence orders (NSW), intervention orders ( Victoria ), protection orders ( Queensland and ACT), restraining orders ( South Australia , Western Australia and Northern Territory ) and restraint orders ( Tasmania ). Family violence orders typically prohibit one parent from coming within a set distance of another parent, or prohibit one parent from stalking or harassing the other parent. Sometimes family violence orders can contain limited exceptions, such as allowing contact between parents for the purpose of delivering or collecting a child.

Children can sometimes be included on family violence orders made for a parent. More commonly, child protection orders are made by a state Children’s Court where there are grounds for believing that a child is in need of protection.

Under amendments to the Family Law Act which became effective on 1 July, 2006 when parties separate, whether married or not, and they have issues about ongoing care of their child or children before there are Court proceedings about child issues, they should have attempted to resolve such issues. This generally requires they attend a Relationship Centre.

However, attendance at such Centres only becomes compulsory after 1 July, 2007, subject to specific exceptions which include cases of urgency and domestic violence. However, before attending such Centres you should obtain legal advice so that you are aware of your legal rights.

A Relationship Centre is no substitute for obtaining legal advice. In all cases we recommend you obtain legal advice. You are not required to attend a Relationship Centre if you separate and have no issues about the child or children, but have issues relating to maintenance or division of assets.

We are a specialist Family Law firm with many years of experience and practice.

We have accredited Specialists in Family Law who can help you through the very difficult time following the breakdown of a marriage/de facto relationship.

We give personal guidance through both simple and complex divorce matters, division of marital assets and matters relating to your children.

The decision to end a relationship and seek a divorce marks a major change in your life. You want a lawyer on your side who will clearly explain every step and every option that is available to you.

We are here to help you.

Changes in the law were introduced in December 2002 which enabled the Family Court to make orders that enable a party to a family law matter to split their superannuation and have a percentage or a set amount transferred from their superannuation fund to the superannuation fund of their spouse.

Superannuation is now considered as a property asset in a marriage/de facto relationship.

The superannuation Splitting Orders are binding on the Trustees of the superannuation funds.  The interest in a party’s superannuation can be calculated and if necessary valued.  Our family lawyers will provide you with access to qualified experts who can value a superannuation entitlement if necessary whether it is an accumulated or defined benefit interest.  It is also necessary to consider the taxation of the superannuation entitlement when a valuation is undertaken.

Under the Australian Constitution the Commonwealth Parliament has jurisdiction to make law in relation to marriage and divorce.

Matters arising from the breakdown of marriage and/or a de facto relationship are covered by the Family Law Act.

The courts exercising this jurisdiction are the Federal Circuit Court of Australia and for more complex matters, the Family Court of Australia.

In some circumstances it is possible to apply for a divorce even though you have not lived physically apart from your spouse for the required 12 month period.

If a couple reconcile for a period of up to three months after separation it is possible to calculate the periods before and after the period of reconciliation to calculate the twelve month separation period.

Also in some circumstances it might be possible to apply for a divorce where you and your spouse have lived under one roof for all or part of the 12 month period. It is necessary in these situations to satisfy the court that you and your spouse lived separate lives despite being in the same home.

It is a good idea to consult a solicitor for advice if you intend to live a separate life under the same roof as your spouse. The lawyer is able to advise you on how to structure your relationship and daily affairs in a manner likely to satisfy a court that you and your spouse have lived separate lives.

It is against the law to remarry before a divorce becomes final.

A delay of approximately three months occurs between the date of filing for divorce and the date of the divorce hearing. The divorce becomes final when the court issues a divorce order at
the expiration of one month after the divorce hearing.

Marriage celebrants require the production of a divorce order at least one month prior to the intended marriage date if an intended party to the marriage has previously been married.

We advise that it is best to allow for at least two months after the date of a divorce hearing before confirming celebrations for a new marriage to take place.

If you need clear advice about deceased estates, obtaining a Grant of Probate or Letters of Administration, contesting or defending a will, or making other legal arrangements for your later life such as the preparation of your will, appointing a Power of Attorney or appointing an Enduring Power of Attorney, Kevin O’Kane will expertly and compassionately assist you during what is often a stressful time.

If you believe a will or the administration of an estate in New South Wales is unfair, wrong or  suspect (that is the way in which an estate is being administered), Kevin O’Kane will give a considered assessment of your case and provide you with options and the prospects of successfully challenging the will.                            .

He will also advise you of your chances of defending any inheritance bequeathed to you in a will as to which you are entitled under the Survivors Act if there is no will, if the inheritance is under challenge.

If you believe that:

1. Your share in a will should have been larger
2. A particular asset should have been left to you and was not
3. Prohibitive conditions have been attached to your inheritance
4. You have been excluded from a will but should have been included
5. The person making the will was under duress, was not legally competent, or did not understand what he/she was doing
6. The beneficiaries of the will are fighting among themselves
7. A person/persons not named in the will is/are making a claim and you are the beneficiary.

YOU REQUIRE EXPERT LEGAL ADVICE AS SOON AS POSSIBLE

Kevin O’Kane is able to assist you as he is fully aware of your legal rights in this area of law and he will strongly assert your legal entitlements if the matter does not settle and proceeds to court.

Contact us on +61 2 928 3344.

Because John R. Quinn & Co. is a firm specialising in divorce law,  we are highly experienced in relation to property matters, child custody disputes, separation and divorce. Divorce is a branch of the law that presents special challenges, as the parties will often be at different emotional stages in dealing with the separation.   We deal every day with issues of property and child custody, therefore we know the advantages to our clients of well informed advice, which then leads to reduced anxiety and better outcomes in their property settlements and divorce proceedings.

Established in 1992, the Specialist Accreditation Scheme offers members of the Law Society the opportunity to strengthen expertise in a particular area of practice and acquire a reputation for excellence in their chosen fields.

The Scheme’s professional development programs across 14 areas of practice are highly regarded within the profession.

Specialist Accreditation status also enables members of the public to easily identify a solicitor with specific knowledge and skills.

More information (NSW Law Society)>

The International Academy of Matrimonial Lawyers (IAML)

IAML is a worldwide association of practising lawyers who are recognised by their peers as the most experienced and skilled family law specialists in their respective countries.

IAML was formed in 1986 to improve the practice of law and administration of justice in the area of divorce and family law throughout the world.

John R Quinn, our principal and founding partner, is a fellow of the International Acadamy of Matrimonial Lawyers.

Once a judge’s decision has been made it is final unless it is appealed, or in some situations if circumstances on which the order depend change (for example: a parenting order where one of the parents makes plans to move overseas after it has been made, or something similar).

If you think the judge made a mistake, appeals must be filed within 28 days of an order made by a judge or Federal Circuit Court Judge.  If you simply disagree with a decision there is no further recourse under the law.  You can’t use an appeal to re-hear the original dispute.  An appeal must be based on an argument that there is an error in the judge’s decision, either in law or in interpretation, that is the Judge:

1. Made a mistake as to the facts,
2. Was guided or affected by any extraneous or irrelevant matters;
3. Failed to take into account any consideration material to the decision;
4. Acted upon a wrong principle – which includes a failure to give any or any adequate reasons for the decision.

The court presumes that the decisions of the lower Court are correct, so the proof otherwise must be compelling.  For example, in the years 2000-2010 only between 5% and 15% of Appeals lodged were upheld. Generally more property than parenting appeals are successful.

Appeals are generally listed for hearing before the Full Court (three judges of the Family Court).

If you and the other party agree on changes to existing orders, you can file consent orders to change them.  If you cannot agree with the other party, you need to decide if you can apply to the court to change the order. To change the orders, the court must be satisfied that the change is needed, based on:

• either party’s changed circumstances
• a change in the cost of living
• the discovery that evidence was withheld or was wrong.

The Family Court is aware of many schemes by parties to hide assets.  There is a general duty of disclosure and specific rules relating to financial arrangements that are punishable by penalties if parties do not comply with them.  The duty of disclosure is ongoing, so if there are changes in parties situations or facts come to light that were hidden even years after orders were made, then it can be a basis for asking the Court to change orders.

Individuals with high net worth need to be particularly thorough in getting advice about the duty of disclosure as the court would be less likely to believe a simple, innocent mistake was made by people with generally sophisticated financial affairs. If proceedings are current, the non-disclosing spouse can risk the judge making adverse finds about their credibility that may affect all of their evidence, if the court forms the view that hat witness has deliberately withheld relevant information.

If you suspect your spouse if hiding assets from the court, we can advise you on the evidence you will require to prove that is the case. If your financial arrangements are complex, we can advise on how to comply with the disclosure requirements in detail.

With complex, high net worth divorce or separation matters involving significant assets such as investments, trusts, business interests and real property it is very important to have experienced legal representation handling the division of such assets.

We have extensive experience in this area of the law and understand the importance of looking after your multifaceted financial matters with the utmost care and attention to detail.

Superannuation is treated as property under the Family Law Act 1975. It differs from other types of property because it is held in a trust. Superannuation splitting laws allow superannuation to be divided when a relationship breaks down between an ex wife or ex husband. The orders are made to the Trustee of the super fund.  Orders can be by consent if the parties agree, or at the request of either party the court can include super splitting as part of a property order. The superannuation splitting laws apply to couples who were married or certain de facto relationships and couples who haven’t settled their property arrangements.

Splitting does not convert the superannuation into a cash asset – it is still paid out according to superannuation laws (for example, it is usually retained until retirement ages are reached).  You must get legal advice about the payment splitting agreement or it won’t be binding on the trustee of the superannuation fund.

A valuation of the super can be obtained by sending a Form 6 to the trustee, which establishes that you are entitled to the information, and a Superannuation Information Request Form.

When parties over the age of 50 years separate they generally have been in their marriage or de facto relationship for many years. The parties have either children in secondary school or university or their children are independent adults and often have left home.

In many case such parties may be able to access their superannuation interests or are able to access their superannuation within a few years. The parties may have business interests which must also be taken into account in a property settlement. These business interests may involve family trusts. It is therefore very important for such separating couples that consideration be given on how best to achieve an equitable division of those assets considering that the parties have spent many years together accumulating them.

In considering the restructure of a family business we would always recommend that we work in conjunction with the accountant of the parties to ensure that the parties arrive at the best possible outcome. It is imperative that sensible, workable business decisions are arrived at so that if possible all outstanding issues between mature couples are resolved and dignity and respect is maintained between the parties for each other.