Frequently Asked Questions

This relates to couples, including same-sex relationships, who have been residing together in a marriage-like relationship for at least two years.

The Family Court of Western Australia also takes into consideration financial dependence, ownership of property and if there are children involved.

Where the couple have a child under the age of 18, they may be deemed de facto prior to the two-year threshold.

If the partner applying for an order has made substantial financial, non-financial or homemaker/parent contributions then it may be deemed to be a de facto relationship.

The current legislation for de facto couples came into effect on 1 December 2002, giving the Family Court the ability to determine the allocation of property and maintenance in de facto relationships, previously this was a Supreme Court matter, making proceedings very costly and time-consuming process.

The Family Law Council is a statutory authority established under section 115 of the Family Law Act 1975 (Cth).

The functions of the Council, as set out in section 115(3) of the Act, are to advise and make recommendations to the Attorney-General concerning:

• the workings of the Family Law Act and other legislation relating to family law;
• the working of legal aid in relation to family law; and
• any other matters relating to family law.
• The Council may provide advice and recommendations either of its own motion or at the request of the Attorney-General.

It is possible, however, a determination will be made in each individual case, as to whether there is an eligible requirement for financial maintenance.

De facto couples are not entitled to split or flag superannuation; however, the Court will take superannuation contributions and maintenance requirements into consideration when determining how the property is divided between parties. The Court is required by law to consider superannuation entitlements of both parties when determining distribution.

Parties have two years from date of separation to make an application for property settlement. After this time a separate application for leave to apply must be made in the Family Court of Western Australia.

Yes, you can make an Application for Consent Orders without the need to attend the Family Court. There are several requirements to make this application if you are a de facto couple as well as orders you need to draft to accompany the application, which will usually require a solicitor’s assistance. Drafting your own orders can leave you vulnerable to recourse from the other party if they are not drafted correctly.

De facto partners do have a claim against the estate of the deceased partner, if there is no Will determining distribution. If the Will made by the deceased party does not provide adequate provision for their de facto, the partner can make a Family Provision Claim against the deceased estate.

If there are allegations of violence and genuine fears, then your solicitor can notify the Court, which will put necessary measures in place to always ensure your safety.

During proceedings, you do need to go into conference rooms for negotiations between attendances in the Court room, but you can always be placed in separate rooms, with a messenger travelling between the rooms.

The agreement can be made by Form 11 Application for Consent Orders or by a Minute of Consent Orders if the matter has been in Court. The matter may also go to a trial if it is an ongoing dispute. This means the agreement is enforceable and if there is a breach of the agreement the matter can again come before the Family Court.

The agreement can be changed if circumstances in the lives of the parties or the children change. An application to vary the orders can be made.

Throughout the Court process there will be some temporary arrangements put on place until the final decision is made by a Judge. These arrangements are usually made within a short time of an application for interim orders is made.

BFAs deal with property, financial resources as well as maintenance:

• to protect existing assets or likely inheritances;
• to ensure that children of previous relationships inherit;
• to preserve family farms or other businesses for future generations;
• to give greater weight to the contribution of a higher income earner; or
• to avoid disputes about financial matters at the end of a relationship.

You are required to come into the office for an initial consultation, to ensure you completely understand the agreement you are to potentially enter into along with all requirements as well as the estimated costs.

Your estimated costs for the agreement will likely be no less than $2,500 plus GST.

After the agreement has been drafted, you will approve the document and it will be sent to the other party’s solicitors for them to obtain independent legal advice. At this point, the other party’s solicitors may request further disclosure and could also request changes to the document.

Once all the requirements have been satisfied then the document is executed.

If a binding financial agreement has already been drafted and you require legal advice, you will need to come into the office for your initial consultation and provide the solicitor with the drafted BFA.

At that consultation you will receive advice on the agreement to ensure you understand your obligations in full. The agreement will not be signed at this consultation.

After the consultation you will be sent a letter of advice which you are required to sign and send back prior to the agreement being executed.

There are times where we require further disclosure and amendments made to the drafted agreement if it does not meet our standards to ensure its’ compliance.

This constitutes a conflict of interest, and we cannot see both parties. We are required to provide independent legal advice to only one party of the agreement.

You must be 18 years or older to make a Will and have legal capacity which means that you must be able to understand the nature and effect of the document you are signing, the nature and extent of your estate, and the people who may have a legitimate claim upon your estate.

In Western Australia, a Will is revoked by marriage and by divorce, if the divorce occurs on or after 9th February 2008. If either of those events occurs, your Will is void and you will need to prepare a new Will at that time. You can make Wills in contemplation of marriage or divorce which will overcome that issue.

When someone passes away without a properly prepared Will, it can be expensive for those left behind to deal with the legal issues that arise in administering the estate. With no Will, the estate will pass to family members set out in legislation called the Administration Act and may include one or more spouses (including a separated spouse), de facto partner, children, parents, siblings, nieces, and nephews, whether or not it was the person’s wish these people benefit.

If you have a Will, you can specify who you want to be involved in the administration of your estate and who will benefit from it.

A Will is essential for every adult with assets (including superannuation). When you make a Will, you will appoint a person to administer the estate after you pass away (the Executor) and specify who will receive the estate (the beneficiaries).

A Will is one of the most important documents that you will ever sign. You can prepare your own Will; however, you may need advice that is tailored to your financial situation, and your family circumstances and you may want to talk through your wishes with an advisor. A solicitor can advise you on the current legislation to ensure that your Will is valid and discuss with your ways to plan the distribution of your estate to minimise the chances of a dispute.

Drafting your own Will without appropriate advice may mean that the Will is ineffective by failing to:

• Deal with all of your assets, creating a partial intestacy and difficulties in administering the estate.
• Execute the Will properly in the presence of two independent witnesses.
• Appoint an Executor (or an appropriate Executor)
• Set out clearly your wishes as to the disposition of your estate.

There are strict requirements that must be complied with to ensure a document is a valid Will and a solicitor experienced in Estate Planning will be able to advise you to ensure the document is prepared and executed appropriately.

Wherever your personal or business assets are, it is important to receive professional advice about your Will to ensure that it accurately reflects your circumstances and that it will benefit your loved ones.

A person must be over the age of 18 years and have mental capacity to execute an EPA.

No, you cannot make an EPA on behalf of another person if they have lost legal capacity. If they are physically incapable but are still capable of making their own decisions in relation to financial issues, that person can execute an EPA.

An EPA must be signed in the presence of at least one authorised witness and a second independent witness over the age of 18 years.

A Power of Attorney ceases to be of effect when the person giving the power (the donor) loses legal capacity. An Enduring Power of Attorney endures even through that person has lost legal capacity.

The EPA permits an attorney to make decisions relating to your (the donor’s) finances and property.

An Enduring Power of Attorney can be revoked by the donor at any time so long as he or she has legal capacity. The State Administrative Tribunal (previously known as the Guardianship & Administration Board) can also make orders to revoke an Enduring Power of Attorney.