New South Wales is way ahead of the world in their willingness to enable drivers to display a valid driver’s license via their Smartphone. In 2017 the idea was proposed and the legislature got to work on turning this state of the art possibility into a reality. While the delay has been long and glitches have occurred, the public is now able to show valid identification with a touch of their Smartphone screen.
How Do I Get My Licence on my Smartphone? 
The App is available at Service NSW, available for download here. Initially, the App must be uploaded to your phone, then you must follow the given instructions to gain access to your driver’s license. The process is simple, however, it is important to remain patient while attempting to access this new function as there have been issues over the past weeks with access and proper installation. Once the App is properly installed and your phone is part of the system, you should be able to access your license on your Smartphone with ease and efficiency.
What Restrictions Are There? 
There are some very important caveats to the use of this App for identification purposes. First, not all venues are accepting the App as valid identification. Therefore, you might find that when making some purchases the vendor or business may still require your plastic driver’s license. And because there is no set time frame for which businesses and vendors have to adopt the digital identification process, patience will again be required by all for an unspecified period of time.
The next caution is most important for the successful use of the digital driver’s license. The user is one hundred per cent responsible for;

A Smartphone screen that is not cracked thereby making it possible for the police, place of business or vendor to scan and accurately read your driver’s license.
That the Smartphone is adequately charged at all times to allow for access to the user’s identification.

In the event that the person attempting to use the Smartphone version of their driver’s license is not in compliance with the above requirements, then a plastic license must be made available to the officer or business you are trying to work with. If you cannot produce the plastic version of your driver’s license for proper identification, you will be subject to the same penalties as always.
Legally there are some additional components that all users must be aware of. These include;

The system is not valid in areas of Australia that have not adopted the new technology. Hence the digital license can currently only be used in South Australia and New South Wales Australia. If you are travelling through any other part of Australia, you will need to have your plastic driver’s license on your person.
In the event you are stopped for a traffic violation do not pick up your phone until you are asked to show identification by the officer on the scene. It is still illegal to be holding your phone while driving your car. Hence, if you have your phone in your hand before the officer requests your form of identification, you can be cited for a violation.
The law does not require you to physically hand over your phone for viewing or verification. However, if after attempting to pull up your digital identification, you are experiencing difficulties, it is best to produce your plastic license.

Finally, there are safety and security issues to contend with. While all involved agencies have taken the utmost precautions to prevent identity theft, it can still happen. Therefore, in the event that you lose your driver’s license, you must report it immediately so as to activate the process of showing your license as lost or stolen in the system. The loss or cancellation will show up in the system immediately. Lastly, the digital license contains a hologram to help ensure complete protection for all users.
This new technology is both innovative and exciting for all those who designed, implemented and are now using it to its greatest advantages. And, as long as those who are accessing the system are aware of its attributes and responsibilities, everyone should be able to use it easily and successfully.
If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.
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Things can get ugly. Even normally rational people may do strange and unaccountable things when stressed by the death of a parent.  Whether you anticipate that a sibling (either one of your own or one of your parents) may dispute a Will or whether you already find yourself in this difficult situation, it can be helpful to understand what the dispute is about, how likely it is to succeed, and what options exist for resolving the problem. 
Understanding the dispute
Technically, there are two different kinds of disputes. The first (called a “challenge”) disputes the validity of the entire Will. These types of cases usually arise when the person who made the Will was suffering from a mentally debilitating disease, they were pressured to change their Will by a caregiver, the Will is a forgery or was improperly signed or witnessed, or the deceased was fooled into signing something that they did not realise was a Will.
A successful challenge will end with the entire Will being invalidated and the estate to be distributed under the terms of a previously valid Will or under the rules of intestacy.
More common are Will contests, where someone, perhaps an adult child, believes that he or she should have been in the will, or perhaps provided for more generously under the Will.
In the event of either kind of dispute keep in mind that courts give great deference to the expressed intentions of a deceased person. Close questions tend to be resolved in favour of the terms of the Will.
Elements of a Will contest in NSW
A Will contest requires two things. First, the person contesting the Will must fall within a category of “eligible persons.” In addition, an eligible person must show that the deceased had a moral obligation to provide for him or her, considering the size of the estate and claims of other beneficiaries.
Who is an eligible person?
The Succession Act 2006 defines a category of “eligible persons” who may contest the provisions of a Will. This category generally includes, among others:

A child of the deceased;
Someone who was, at any particular time, wholly or partly dependent upon the deceased person; and  a grandchild of the deceased person or a member of the household; or

A person with who the deceased was living in a close personal relationship at the time of death.

That casts a wide net, which would include children, stepchildren, perhaps siblings of the deceased or voluntary live-in carers. 
A moral obligation to provide
Then, however, the eligible person must also demonstrate that the deceased had a moral obligation to provide for him or her, considering the size of the estate and claims of other beneficiaries. This often referred to as a Family Provision claim.
Courts look at:

a claimant’s financial position;
the size and nature of the deceased’s estate;
the totality of the relationship between the claimant and the deceased, and;
the relationship between the deceased and other persons who have legitimate claims on the estate.

Thus, for example, an estranged son or a wealthy daughter might have a lesser claim than a financially dependent grandchild who lived with the deceased or a dutiful, unpaid, live-in friend who provided care and comfort during the deceased’s last years. 
What to do
If you are creating an estate plan that you believe may create a dispute, there are any number of strategies you can pursue in advance that may reduce tension. These include making lifetime gifts, funding a benefit through life insurance, establishing a Trust within the Will and appointing an impartial trustee to oversee the distribution of assets. Explain your choices to those who might otherwise be surprised.
If you are acting as the executor or are the beneficiary of a Will that is currently being disputed by a child or sibling of the deceased you should certainly seek legal representation. This is not a do-it-yourself project. Professional representation may do a great deal to avoid conflict.
Have the issues of money and inheritance reared their ugly heads? The attorneys at Owen Hodge Lawyers are ready to discuss the risk of a Will contest, what may potentially happen and how to avoid lasting damage to relationships and finances. Please call us at 1800 770 780 to schedule a consultation.
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While we all like to believe that parent/child relationships are ones in which the bonds cannot be damaged or broken, the reality can be quite different. In many families, particularly after cantankerous family court issues, such as divorce, parents often find themselves in poor standing, or even estranged, from one or more of their children. And, depending upon the severity of the emotional harm, it is possible for a parent to want to choose to disinherit one or more of their children.
At first glance, it might seem as if this is entirely up to the parent in question. However, the court does not necessarily follow this logic. Instead, there are several factors the court will take into consideration when a disinherited child makes a claim against a deceased parent’s estate plan.
The Succession Act 2006 (NSW) allows for a child who has been disinherited to make a claim against a deceased parent’s estate. The initial three areas the Court will investigate have to do with the child’s needs, including maintenance, education or advancement if the circumstances warrant. The Court will review the information they can gather via the family and the disinherited child and use the information to determine the following:
What was the nature of the relationship between the parent and the child?

This takes into consideration the frequency with which the parent and child had contact with each other
The nature of the contact each other
The time period of no contact with each other, if applicable

What was the financial obligation of the parent to the child?

The court will consider if the child was still a minor, a university student or a working self-supporting adult
The court will also review if the parent was making any other types of financial contributions to the child or adult child at the time of death and whether this type of loss of aid would cause the disinherited child financial hardship.

What was the character of the child and/or parent before and after the death?

The court will review if the parent and child were truly estranged
Or, if one party or the other was continuing to attempt to make reasonable contact with the other in furtherance of an ongoing relationship.

The Court will also look to prior case law determinations. However, it is important to note that these determinations are often made on subjective information. Family relationships and the facts surrounding them are very different for each family situation. As such, the court can often appear to be inconsistent when making a determination regarding a disinherited child’s claim against a deceased parent’s estate. Yet, there are some relatively standard issues the Court will review when making a final determination about redistributing the deceased’s estate. These include;
Moral Duty; 
Moral duty is a concept which the Court believes to be inherent in the parent-child relationship. Simply put this is a duty that is implied to all parents regarding their obligation to care for the basic needs of their child. These needs will include shelter, clothing, food, education and basic living necessities that are needed for a child to function successfully in the community
Financial Need; 
Financial need is less subjective that moral duty. The Court can look to the past support provisions the parent was responsible for and the current financial conditions of all of the children involved. In the instance that a parent leaves all of their financial assets to a child who is financially secure and nothing to a child who is a minor or struggling financially, the more likely the court is to redistribute the deceased parent’s assets.
If a parent feels strongly enough about disinheriting a child or an adult child, it is best they consult with one of Owen Hodge Lawyers Estate Planning solicitors. While this might seem excessive, it is important to involve both specialties as the areas of law will cross over one another under these circumstances. It is highly likely that we will be able to provide the parent with the proper language and explanations that will make their decision more likely to stand up in Court.
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If you are separated and you or your former spouse are travelling overseas this holiday, here’s some hints and tips from the Owen Hodge Family Law team that you should turn your mind to:
Consent
It is important to make sure that the parent travelling has a copy of the other parent’s written authenticated consent, or alternatively an order permitting overseas travel to avoid any problems at the airport. 
If you are unable to come to an agreement with your former spouse and the situation is urgent, you can look to make an application for the child to be placed on an Airport WatchList.  
Prior to Departing Australia 

It is imperative that the non-travelling parent has a copy of the flight itinerary showing the departure time as well as the return flight details and all other important travel documents. 
Make sure there are open lines of communication between both parents (exchange emergency contact details) so that everyone may be informed in the event of an emergency.

Hague Convention
It is worthwhile to check that the overseas travel destination is a Hague Convention Country. As a signatory under the Hague Convention on the Civil Aspects of International Child Abduction, Australia has an agreement with many other countries to prevent your child’s removal (without a court order) from the country where they habitually reside. 
The convention allows for a parent to apply for the child to be returned to Australia, however, they can only do so if the child is taken to another Convention country without prior consent, or is kept in a convention country longer than the agreed-upon period of time.  
If you have any questions about this or any other family law matter, don’t hesitate to contact the Family Law offices at Owen Hodge Lawyers on 1800 770 780 or by emailing us at [email protected]. 
On behalf of the Family Law team at Owen Hodge Lawyers, we wish everyone a happy and safe holiday!
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Under current NSW laws, all those gig workers who drive for Uber, deliver for UberEATS or do any number of tasks, are independent contractors rather than employees.
Employee rights are guaranteed and enforceable under the law and various wage agreements. An independent contractor’s rights, on the other hand, are determined under the terms of the contract between the worker and the ultimate contractor (in this example, Uber) that pays for the services. In theory, these rights are enforceable under contract law.
However, in reality, these rights are hard to enforce. The driver or tasker has no real power to negotiate the details of a contract, little money to sue and may be unfamiliar with the language and legal system. In a dispute with UberEATS (over tip allocation, for example), the delivery guy is likely out of luck. It may be $4 this time – not worth fighting over. But more realistically, it is $4 multiplied over all the UberEATS deliveries, multiplied over all the delivery workers. 
If you are a gig worker, what can you do to enforce your rights? 
If you work on any other sort of contract, what do the issues of gig worker mean to you? If you are a wage worker, do you feel the chilly winds of contract work at your back? 
Wages vs. Contracting
The issue that makes work in the shared economy attractive for many – retirees, students and busy mums, for example – is flexible scheduling. You can work, or take the day off or work more, depending on what else is happening in your life. It is the same issue that is largely dispositive of whether a worker is legally considered a wage earner entitled to many statutory protections or a contractor with only contract rights. These may not include minimum wage, workplace safety protections or insurance in the event of injury.
There are other jurisdictions, like California, that have grappled with the implications of this distinction have crafted other multi-factor tests. But in Australia, the issue still seems to be relatively simple. 
Practical tips
At a minimum, independent contractors should make sure that they understand the terms of their agreements and the limits of their entitlements. Only then is it really possible to make an informed decision about whether this work arrangement is suitable for your situation.
The proliferation of gig work has also sparked no small amount of political discussion about whether legislative change is necessary to protect otherwise vulnerable workers and to balance the needs of employers who may feel the need for an on-demand workforce.
Implications for other workers
It is not simply the Uber driver, though, who feels the effects of the growth of the sharing economy. Some argue that the growth of a workforce that is not protected by wage, hour and other labor laws, weakens the bargaining position of those who have, for years, argued for the expansion of those rights.
On an individual level, the growth of the gig economy may also open the door to other forms of prohibited discrimination. Imagine the plight of the older worker who is pushed out of a job by subtle forms of age discrimination, but then offered the opportunity to perform the same tasks on a contract basis. The same could happen on the other end of the experience scale, where a newer worker is hired on a “provisional” or “trial” basis as a contractor, but somehow never brought on as a permanent wage earner. 
Other legal protections may come into play, but the changing nature of work, including the growth of a subclass of inexpensive, unprotected workers may have implications for those who work in more traditional situations.
Do you have questions about your employment rights, whether you work in the gig economy or otherwise? The attorneys at Owen Hodge Lawyers are here to answer your questions. Please call us at 1800 770 780 to schedule a consultation.
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Business entities and borrowing money
Significant tax benefits are to be gained from making an informed decision on whether to purchase an asset in the name of a person or a company. For example, if you buy a property under your name, you would only have to pay tax on half of any capital gains realised on that property by virtue of the 50 per cent discount on capital gains under current law.
On the other hand, purchasing the same property using a company would expose the company to a 30 per cent tax on the full capital gain, and the distribution on winding up would be taxed as a dividend with no discount for the capital gain. This is effectively double the tax incurred on the land purchased under your own name.
Consider a situation in which your company (in which you are the sole director and shareholder) already owns unencumbered property. You want to buy a new second property in your own name and you have to borrow $500,000 from the bank to purchase this new property. Your bank requires both a mortgage over the new property and a guarantee to be given by your company, to be secured by a mortgage over your company’s property. Let’s call this the “guarantee mortgage”.
Our current tax laws state that if the liability of your company is not contingent, then the loan by the bank to you would be treated as an unfranked dividend by your company to you. This is one of the problems created by Division 7A of the Income Tax Assessment Act 1936 (“the Act”) .
So it is important that the guarantee mortgage clearly states that any claim by the bank against your company’s property is contingent upon a default by you under the mortgage you enter into to acquire the second property in your name.
But if you miss even one interest payment on the new loan, then the company guarantee mortgage becomes “other than contingent“, and the new loan of $500,000 is taken under tax law to be a deemed dividend paid by your company to you.
This means that you will be bound to pay tax on the $500,000 loan.
This outcome may only be avoided in narrow circumstances. For example, s 109RB of the Act allows the Commissioner of Taxation to disregard a Division 7A deemed dividend only on the specific grounds of ‘honest mistake or inadvertent omission’. This would not help in the circumstances outlined above.
What about s 340-5 of schedule 1 to the Taxation Administration Act 1953? That allows the Commissioner to release an individual from payment of tax if you would suffer serious hardship if you were required to satisfy the liability.  But PS LA 2011/7 clarifies that serious hardship means being unable to buy food, clothing, medical supplies or pay for accommodation. That is a very tight test.
The upshot is that whilst companies are well understood by banks and the public at large, it is not always a good idea to use them in business dealings.
Business entities and subdividing a property
Now consider another typical situation where you have bought your new home which is on a large block of land. You are aware that it is generally better to buy residential premises in your personal name because there is no CGT on the sale proceeds. But CGT is not everything and sometimes other taxes can apply.
You are renting it out for the time being because you can’t afford to move in right away.
A year goes by and you move in. You then decide to subdivide the block because you want to build a second house on it and live in the second house.
While you have some savings to do this, you also have to borrow an extra amount. You start the subdivision but before it is completed, you come across another house elsewhere, and decide to live there. So you sell the old house and borrow a little more to build a bigger and better new home on the subdivided lot.
It is built!  Does GST apply to the sale? Yes, it does.
In a private binding ruling (‘PBR’), issued on 9 October 2018, the Commissioner said that the above situation reflected the conduct of an enterprise and required the sellers to register for GST. This made them liable for GST on the sale.
The GST Act defines ‘enterprise’ to include things done ‘in the form of an adventure or concern in the nature of trade’. In the PBR, the Commissioner said that ‘enterprise’ includes ‘a commercial activity that does not amount to a business but which has the characteristics of a business deal’.
What were the ‘characteristics of a business deal‘ that the Commissioner identified in the PBR?
He said that (i) there was a change of purpose for which the property was held; (ii) there was a subdivision and house construction; (iii) there was a coherent plan for development; (iv) the original house was sold to fund the construction; and (v) the new house was actually completed.
So bearing these issues in mind, you will have to register for GST and according to GSTR 2001 / 7, pay it from the sale proceeds.
 
In any event, you will have to provide the buyer with the information needed to deduct 1/11th from the price and pay it directly to the ATO. Failure to do this would result in you incurring a fine which could be as high as $21,000.
Even if you don’t provide the information needed, the legislation requires that the buyer must set aside 1/11th of the contract price for payment to the ATO. Penalties for the buyer for failure to do so are calculated as the same amount that ought to have been deducted.
So you ask yourself – would you have been better off buying the whole of the land in the name of your company? In this instance, the answer is likely to be ‘no’ because the sale of the old house was CGT free and whilst the sale of the new block (with the new house on it) attracted CGT and GST, only where your company had substantial accrued tax losses (which can be offset against the capital gains), would it be appropriate to consider using your company.
Leigh Adams
Special Counsel – Owen Hodge Lawyers
December 2019

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Maybe, possibly not – but there are three big categories of things to think about:  estate issues, tax consequences and the warm, squishy, family stuff. Kids, you know. 
Rule number one is to get some objective legal advice. There are plenty of people who will want to sell you a scheme, and you may be blind to your nearest and dearest blind spots. 
Estate Questions
This is usually where the idea starts. Who wouldn’t want to give a child or grandchild a good start in life?  To be clear, it is legal to buy a property in the name of a minor (someone under the age of 18). The Title Deed will simply note that the owner is a minor. It is a simple matter to change the deed when the youngster is of age.
If it’s a gift made during the lifetime of the giver, then the questions that may arise are not estate law questions.
But there are questions. The Department of Human Services describes giving away assets or transferring them for less than their market value as “gifting”. This can include selling or transferring property for less than market value.  Gifting real property may affect an Age Pension or other benefits.
Kids and Grandkids
Until the child or grandchild reaches the age of 18, a property that has been gifted to them cannot be sold, mortgaged or dealt with in any way without a court’s approval.  These proceedings are expensive and unlikely to succeed. 
Market conditions may change. The financial circumstances of parents or grandparents may change. Grandchildren, including the number of them, may change. The child, who was an angel at 7, may demonstrate questionable judgment at 18. Gifting real property to a young child necessarily deprives the giver of flexibility in choices.
Tax Issues
The three issues, depending on how you choose to approach this puzzle, might be stamp duty, capital gains tax and Goods and Services Tax (GST). Tax issues, along with estate considerations and the perils inherent when minors meet assets must be part of the calculation.
For example, if the child takes ownership and full control of the property at the age of 21, 20 years after it was placed in trust for her benefit, the stamp duty will be calculated on the value of the property when she is 21. The capital gains tax will be calculated as of the same date.  Either of these obligations could make a well-intended gift far less valuable. 
Would it be better to transfer the property to a trust, over which you are the trustee, thus maintaining control? What about appointing a corporate trustee at the child’s majority?  Would it be better to delay the child’s ability to control the real property until age 21? 
There are a variety of possible solutions. Which is appropriate will depend on the relative weight of all of the personal factors. No one solution is right for every situation.
If you have questions about transferring property to a young child as a way of sidestepping estate tax issues, call us at 1800 770 780. The attorneys at Owen Hodge Lawyers look forward to helping you evaluate all of the complicated factors that you should consider to arrive at the best possible solution.
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In light of the overwhelming environmental concerns that the public has and what appears to be relative inaction by the government, many feel that they have no choice but to head to the streets to protest. From school children to CEO’s, individuals have turned out in droves – but what happens if a protest is scheduled during working hours? Does your employer have any power to stop you from going? 
The Fair Work Ombudsman has warned people they can’t simply not show up to work in order to attend planned climate protests across Australia. 
Legally, it has been recognized by Australian common law that the citizens of Australia have the right to participate in public assemblies of their particular concern or interest. The right to assemble is codified in the Summary Offenses Act of 1988. Such right is also expressly stated in the Peaceful Assemblies Act 1988. However, such public assemblies are governed by laws which are meant to ensure that such events are peaceful and do not erupt into violent emotional displays of interest. 
While the personal right to assemble exists, it does not necessarily transcend a person’s obligation to their employer during working hours. As such, the Fair Work Ombudsman has issued a statement to all Australian citizens that you cannot simply leave work, or not show up for work, to attend a public protest pertaining to your particular beliefs or interests.  
The law is clear, persons wishing to be absent from work to attend to a personal situation or interest, must give their employer notice of the absence and receive permission for the same. You then must use your own personal time or holiday time to attend the event.  
In addition, it is important to check the personal policies of your particular employer. If your employer has set out the proper manner in which to request personal leave, you must adhere to their policies. In the event that an employee does not follow the procedural requirements of their employer, for the taking of personal leave to attend a public protest, the same employer-driven sanctions can be levied against the employee as in any other personal, vacation or sick leave occurrence.
If you are attending a protest it is important to keep these legal and safety issues in mind;

Be alert to your surrounds
Follow the directives of police officers or crowd control authorities
If directed to do so, leave the area ie: if you have wandered onto private property and are directed to vacate, you must do so
Research past events promoted by the organization to determine if the events have a history of violence or peaceful actions
Speak respectfully to all persons in authority and respond to their requests upon being asked
Remain aware of a situation turning dangerous and leave immediately

Hence, it is strongly recommended that if you are interested in attending a public event during your hours of employment, that you take all of the same steps to secure time off. As such, give your employer proper notice, including the date and time of the event and the duration you plan to be absent. If your employer does not grant you permission, it is best to adhere to their decision. If you do not, you must understand that your employer will have the right to take ordinary actions as defined in your employment agreement or human resources policies. If you do receive permission, attend the event in a manner that will promote your safety and the safety of those around you.
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An order for a parent to pay maintenance for an adult child is still rare. However, today’s children over the age of 18 are finding the road to financial independence harder and therefore adult child maintenance issues have become more common. It’s not lazy children; most of the time, it’s a changing economy.
Parents, caregivers or adult children may seek an order for maintenance if maintenance is necessary:

to enable the young adult to complete his or her education; or
because of a physical or mental disability.

Generally, the sticky issue is not whether maintenance is due. Rather, the questions are how to calculate it and how it should be paid.
Who can apply and when?
Under section 66L of the Family Law Act, a parent, grandparent or any other person concerned with the care, welfare or development of the child may apply for maintenance for the child from a parent. This application can be made when the child is 17 in anticipation of an 18th birthday or at times thereafter. 
It is quite common for a child embarking on university or other advanced studies to make an application seeking support from financially well-off parents.
In terms of physical or mental disability, it is also common for the carers of children transitioning from the Child Support System to seek further maintenance. There is no upper age limit in the law, although other factors and resources may be considered. 
 
How much?
In determining the amount of maintenance that should be paid, courts balance:

How much financial support the child needs, not limited to subsistence needs and considering the child’s other resources and earning ability; and
Each parent’s financial position, including earning capacity, support obligations toward other dependents and income forgone by having a child live with the parent.

Within these two considerations, specific facts like the child’s course of study, the likelihood of success, financial outlook or health prognosis may also come into play. University students are often presumed to be capable of working on a part-time basis while they study. An adult child with a degenerative condition might not be presumed to be able to continue to contribute income past a certain set time.
Whether the parent and child have a warm personal relationship is not a factor that courts will consider when determining whether maintenance is due or the amount of maintenance that would be appropriate. Modern decisions acknowledge that estrangement may affect how maintenance is to be paid, however.
How will it be paid?
Where a parent has cooperated with respect to previous maintenance payments, instalments are usually the most appropriate method of payment. In situations where a payer has been recalcitrant or parent and child are long-estranged, a court may order a lump sum. Other creative options exist including a transfer of property or the requirement that a portion of a lump sum payment be invested in a way that can be counted on to produce future income.
Courts may order maintenance payments for an adult child seeking further education or for a disabled adult. If you have questions about seeking maintenance for your adult child still living at home, (or for yourself, if you are that individual) please call us at 1800 770 780. The attorneys at Owen Hodge Lawyers would be happy to advise you.
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Accepting employment comes with the ordinary expectation that as an employee, you will get paid. In entering into any form of work, be it as an at-will employee, or a contractor, one of the main issues to contend with is the amount, form and frequency of the payment of wages for your time. Usually, employers and employees are able to come to a mutually agreed-upon wage and the manner for its payment. However, there can arise circumstances where an employer does not make proper payment of wages to an employee. And, while it is rare, as an employee it is important to know what to do under these circumstances.
The majority of employers are well aware of the state and federal laws that govern payment of wages to employees. The Fair Work Ombudsmen Act required employers to pay employees accordingly;

In line with the federal minimum wage
In a manner that is consistent and timely, such as weekly, biweekly, semimonthly or monthly
Paydays need to be defined; for example, weekly on Thursday

In addition, wages can be paid in a few acceptable forms;

Cash
Check, money order or postal order payable to the employee
Electronic transfer

However, it is possible that your employer could miss or reduce a wage payment or a superannuation contribution. These reasons this could include;

The possibility that an overpayment was made for which the employer is now trying to take credit
Mutually agreed upon deduction that the employee didn’t realize was starting during the particular pay period in question
The employer is in the process of bankruptcy

If monies are missing from your paycheck, or you do not receive a paycheck, there are steps you can take to remedy the situation. Initially, it is recommended that you approach your employer and ask about the missing wages or superannuation payments. It is possible for an employer, or their payroll company to make a mistake. So, before jumping to any untoward conclusions it is always best to make a reasonable enquiry as to why your wages have been altered or not paid as expected.
If the employer does not give a satisfactory explanation or offer to cure the missing wages, you then will have to consider how to take action to recoup your loss. First, you will want to consider putting your demand for the missing wages in writing. A simple email with the date of the pay period from which the wages are missing and the number of monies you remain entitled to, should suffice. Include in your demand letter a request to be paid by a particular date and allow time for the employer to cure the error. 
In the event that your employer does not respond or cure the mistake in wages paid, you will need to consider taking the issue to the next level. At this juncture, you can file a claim with Fair Work Ombudsmen. This process has a couple of simple steps that you can easily complete.

Go to the Fair Work Ombudsmen website and complete the Work Place Complaint form. Be prepared to supply information from your pay stub and your employment on this form
Be responsive to the investigator who will contact you to discuss your claim. Be sure to have the pertinent information available to share with the investigator
Prepare to attend a voluntary resolution session with your employer present. This will allow for both you and your employer to participate in a mediation process that might cure the unfortunate circumstances

In the event that you and your employer do not reach an agreement via mediation, further action can be taken by the Fair Work Ombudsmen or you can file a claim with the court. A court case will initially be filed in Federal Circuit Court. To begin this process, you must do the following; 

Be sure your claim is for unpaid wages or entitlement
Determine the value of your claim; if it is $20,000.00 or less you may use a small claims procedure
If it is for $20,000.00 or more, you will have to use the regular court procedure

For New South Wales it might also be possible to start your claim in a more local venue such as the Chief Industrial Magistrate’s Court or the Local Court. 
If the employer is in the process of declaring bankruptcy, you can still make a claim for your unpaid wages. In these circumstances, you can make your claim under either the General Employee Entitlements and Redundancy Scheme (GEERS) or Fair Entitlements Guarantee (FEG). However, it is important to remember that you might not recoup all of the wages you are entitled to. 
While it is a very unfortunate circumstance that causes wages not to be properly paid, it does happen. The best way to begin handling a situation such as this is to go to your employer and attempt to solve the problem directly with them. This can result in a fast resolution of what might have been a simple error. However, in the instance that the problem is larger than a simple error, and there is a genuine dispute, there are other avenues available to employees for recovering lost or unpaid wages.
If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.
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If you are a business owner or an investor with a history of success, there may be several ways for you to migrate to Australia. Which suits you best will depend on the details of your situation, so expert advice is well worthwhile.
Two of the most frequently used pathways are the business investment and innovation visa (subclass 188) and the business talent visa (subclass 132). Other options exist, including visas for those who already own and manage a business in Australia, but the subclass 188 and 132 are among the most useful for those looking at initial migration.  
Keep in mind as you explore these options that both require substantial financial investment and a commitment to active management.
Business investment and innovation visa
A business investment and innovation visa allows eligible individuals to migrate to Australia and conduct business activity for four years and three months.
There are five streams under this visa. The three most generally useful are:
Business innovation stream – this is particularly appropriate for  substantial owners of Australian businesses who are involved in day-to day management in activities including the those who are involved in developing links with international markets, exporting Australian goods or introducing new technology, for example;Investor stream – this is suitable for investors who make an investment of  AUD $1.3 million in an Australian business and individually or with a partner have assets of at least AUD $2.25 million; andSignificant investor stream – this requires assets of at least AUD $5 million and willingness to invest in complying investment funds. These investment funds must include venture capital funds or growth private equity funds that invest in startups and small private companies and eligible managed funds or Listed Investment Companies that invest in emerging companies.
The subclass 188 visa is provisional but may, after the initial period of four years and three months, lead to eligibility for a permanent business innovation and investment visa (subclass 888) and permanent residency. You may also be able to bring your family with you to Australia.
Business talent visa
The business talent visa is intended to allow individuals to establish a new or develop an existing business in Australia. There are two streams:
Significant business history stream –requires a  net value of at least AUD $1.5 million, an annual business turnover of at least AUD $3 million for at least 2 of the 4 fiscal years immediately before you are invited to apply, and total net assets of at least AUD $400,000 as the ownership interest in one or more qualifying businesses for least 2 of the 4 fiscal years immediately before you are invited to apply; andVenture capital entrepreneur stream – this is for those who have sourced venture capital funding from a member of the Australian Investment Council and funding of at least AUD $1 million from an Australian venture capital firm.
Both varieties of business talent visa are permanent. The subclass 132 visa may permit individuals to enroll in Medicare, apply for Australian citizenship and sponsor eligible relatives for permanent residency.
If you are a business owner or investor interested in migrating to Australia, you have several choices to make. The attorneys at Owen Hodge Lawyers would like to help guide you through the process – to find the way that best suits your situation. Please call us at your earliest convenience at 1800 770 780 to schedule a consultation.
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The short answer is “Maybe.” It all depends on what the contract of sale requires. The real issue is what you want to negotiate for in that contract. It will likely be drafted by your solicitor.
Many buyers of an ongoing business expect a period of training. How you want to offer it will likely depend on three things: timing, financial arrangements, and your state of mind about parting with a venture that you may have put years of work into building.
Pre-settlement vs. post-settlement
At settlement ownership of the business is officially transferred to the new owners. There is usually a period of time after the sale contract has been signed but before settlement. During this period many sellers offer some general training about how the business runs. Buyers may think of it as a later stage of due diligence during which they may come to a fuller understanding of what they are about to buy.  This phase of training may also include an introduction to key suppliers and contractors. If employees are not fully aware that the business is to be sold, they will realise that at this point.
Post-settlement training is often more substantial and may be particularly important if the buyers are inexperienced or the business is particularly complicated. It may also involve your staying on for a period of time in a managerial role.
Financial issues
At the outset, it is important to acknowledge that training, however much you offer to the new owners, is valuable. It should be factored into the sale price and described as particularly in the contract as the hard assets being sold. Make sure to value it adequately.
Secondly, consider that if the sale falls apart after pre-settlement training has occurred, that valuable asset may have been wasted. If you have already conveyed specific training or proprietary information, you may have, in fact, weakened the market position of your business. This is one reason that pre-settlement training is often relatively general.
Finally, remember that if you are offering owner financing of the transaction, you have a financial interest in the future success of the business. Offering training to the new owners may increase the likelihood that you will get paid the negotiated price.
How do you feel about continued involvement?
By the time many entrepreneurs are ready to sell the business, they are well and truly done with it and eager to get on to the next new thing. When all other issues are concerned, this would argue for limiting post-settlement training.
On the other hand, many who have built a business feel great loyalty to long-time employees and customers and would like to have a continued role. Consider, though, that it is often very difficult for someone to transition from being a business owner to an employee of or outside consultant to the enterprise. The power to make decisions has moved on to the new owner.
Many advisors counsel limiting the period of post-settlement training or, at least, contractually defining pre-set exit points and the compensation due at each point.
 If you are selling your business, the attorneys at Owen Hodge Lawyers would be happy to assist you. There are a lot of things to consider as you weigh the pros and cons, timing and extent of training that you are interested in offering to a new owner. These should all be resolved at the contract negotiation stage of the sale. It is far better to address the question of training new owners before the contract is signed. Call us to schedule a consultation at 1800 770 780.
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When in the midst of a divorce settlement it can be tempting to move quickly to reach a final agreement and closure. However, taking action with too much haste can cause significant future issues. There are three specific areas which must be carefully investigated, understood and resolved before everyone can move forward with a clear and clean dissolution. These are inheritance funds, the effect of any assets of a new partner on the final financial agreement, and subsequent claims against an ex-spouse or partner for future assets.
It is rare that an inheritance is left to both spouses or partners. Instead, it is most common that the inheritance is received by one spouse or the other, but not directly given to both. In the instance that an inheritance is distributed to both spouses or partners, the monies will belong equally to both parties. However, it is more complicated if the funds are left only to one individual. While it may seem that the person the monies are left too would remain the only one with an ownership interest in the funds, this is not necessarily so. If the funds are received and kept entirely separate from access or benefit of the spouse or partner and family, then singular ownership is retained by the beneficiary. However, if the monies are commingled in any way, the ownership of the funds can then be challenged. Comingling of funds can occur in any of the following ways;
Monies received are put into a joint financial account including; savings, checking, mutual investments or shared retirement fundsMonies are used for the benefit of the family such as; improvements to a family home or the purchase of a new home.Monies are used for the payment of ongoing living expenses including; mortgage payments, property taxes, utility bills, or paying down general household or family debtMonies are used for recreational or holiday purposes
If an inheritance is used in any of these manners, the Court can, and often will, determine the monies belong to the family and hence are an asset which can be divided amongst the divorcing parties. In addition, the following circumstances can also be factored into the Court’s decision regarding ownership of an inheritance;
Whether the inheritance was received early in the marriage or closer to the time of the separation and divorceHow the inheritance affects the financial structure of the relationship or marriage.
A second consideration is the assets of a new partner. The new partner’s assets can be calculated into the funds being considered as part of the divorce financial pool. While this may sound odd, it is not as unusual an issue as one might think. In the instance that either partner moves on quickly and begins a new cohabitating relationship, the assets of the new person can be considered as part of the collective assets of the old marriage or relationship. This can happen in a few different ways;
The partner who is in the process of divorcing has not yet finalized their divorceThe persons engaged in the new relationship start to cohabitate before the divorce is finalizedThe new partner is contributing to the welfare and care of the divorcing partner
In each of these three situations, the value being contributed by the new partner to the divorcing party can be considered an asset to the situation as a whole. The monies being expended by the new partner are now part of the asset pool and can cause a change in the calculation of the divorce assets including the amount of entitled spousal support.
An even more concerning circumstance is if the new partner comes into monies while cohabitating with a divorcing party, and the financial arrangements are not finalized. In this case, the assets of the new partner can be considered as assets of the divorcing spouse. Hence, the monies of the new partner can be directed to be paid to the ex-spouse of their partner.
The final consideration is when an ex-spouse makes a claim against assets of the person they divorced years ago. While this may not seem ordinary, it can happen. The circumstances that can create this open-ended entitlement to future assets include;
If the ex-spouse can show that the original financial agreement was unfair at the time of its makingIf the original agreement was not properly recorded with the CourtEven if the time limit to bring an additional claim has lapsed, a claim can still be brought if the party bringing the action can show severe financial hardship
Each of these three situations requires the assistance and advice of professionals, including solicitors and financial planners. It is highly recommended that during the course of dividing marital assets these professionals are consulted with so as to prevent any future unravelling of a seemingly completed financial agreement.
If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.

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Purchasing a boarding house may seem an attractive investment opportunity for those eager to get into the property market. Potential buyers should be aware, however, that this is a highly regulated industry, designed to protect residents from unscrupulous landlords and neighbourhoods from unwanted development. Unwary owners can be caught in the uncomfortable middle.
A boarding house may be a good investment, in the right neighbourhood with the right tenant mix. But potential boarding house purchasers should pursue this option only with a full understanding of the legal issues involved. Forewarned is forearmed.
What is a modern boarding house and who lives there?
Contrary to popular misconception, today’s boarding houses are not dens of down-and-outers. Think of boarding houses as another form of affordable housing – micro-apartments, if you will. Renters may include working people, retirees, students looking for alternative student housing, and young couples. Assisted boarding houses accommodate those with additional needs like disability. That is a different category.
In Sydney, developers are building high-end boarding houses with rents as high as $500 per week. Elsewhere, rents may run in the mid-$200s and up. Accommodations typically include a furnished room and a communal kitchen, laundry and living room. Some offer rooms with kitchenettes. There are often limited parking facilities. There were 1,062 registered boarding houses in NSW as of May 2019, according to the Department of Fair Trading.
Boarding Houses Act 2012
To ensure that boarding houses are maintained to high standards, the Boarding Houses Act 2012:
establishes a public register of boarding houses in NSW;increases inspection powers for local councils;introduces occupancy rights for people living in boarding houses; andmodernises laws that apply to boarding houses accommodating people with ‘additional needs”.
Under the Act, there are two kinds of boarding houses that may be publically registered. “General boarding houses” accommodate five or more paying guests for three months or more, but do not include hotels, motels, hostels, Airbnbs, or aged-care facilities.
“Assisted boarding houses” accommodate two or more individuals who have additional needs, including age-related frailty, physical or intellectual disability and those who need support or supervision with daily tasks and personal care. Assisted boarding houses must be licensed by NSW Ageing, Disability and Home Care.
Local councils are responsible for approving new boarding houses and enforcing safety and accommodation standards in existing boarding houses. They also have the power to fine operators if they are unregistered and order them to meet building, safety and accommodation standards.
Residents have a variety of rights, including rights to safe and secure housing, adequate kitchen and bathroom facilities, minimum room size and access to sunlight in common rooms. Tenants must have either a rental agreement or an occupancy agreement. They may not be evicted without written notice.
 Recent changes in the law
Recent changes in the law have affected the income-producing potential for boarding houses in what many see as an effort to increase the power of local councils to regulate housing density.
An amendment to NSW’s Affordable Rental Housing State Environmental Planning Policy requires that boarding houses offer one parking spot per two rooms, up from one parking spot per five rooms.
A 2019 amendment in NSW sets a 12 room maximum for boarding houses in low-density R2 zones.  Some speculate that the limits make boarding houses economically unfeasible in some areas of Sydney.
Other changes to the Act may be forthcoming, as it is now under review to assess whether it continues to be fit for purpose.
If you are thinking about purchasing a boarding house and are concerned about the legal issues, please call the attorneys at Owen Hodge Lawyers at 1800 770 780 to schedule a consultation. We look forward to working with you.
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This is likely a complication you were not anticipating. Now what?
The short answer is  that your rights and obligations as a tenant on the day after your landlord dies are the same as they were on the day before your landlord died, whether there was a Will or not. How these are actually accomplished may change, however, and you may have to make new arrangements for the future. Here are a few of the questions we hear most often:
Do I have to move?
Probably not right away. If you had a lease, your landlord’s death does not automatically end it. The landlord’s legal representative or next of kin will take over your late landlord’s rights and responsibilities under the existing agreement, which will run to the previously agreed-upon end date.
Ultimately, the heirs may decide to sell or re-purpose the property, so it might be wise to begin to look around for alternatives.
If your landlord’s representatives want to end your tenancy because you are in breach of the agreement, the lease is about to end or there is no current lease, they must give you a formal Termination Notice that meets the requirements of Fair Trading. The minimum period of notice is:
14 days – if you are 14 days or more behind with the rent or have committed some other breach of the tenancy agreement;30 days – if the fixed term of a lease is about to end;30 days – if the premises have been sold after the fixed term has ended and vacant possession is required by the buyer under the terms of the sale contract; or90 days – if the fixed term period has expired and no new agreement has been signed.
 Do I still have to pay rent?
Yes, of course. If you stop paying rent, you may be required to leave the premises on 14-days’ notice. The trickier question is who to pay if you have previously been paying the landlord directly.  
The administrators of an estate are generally entitled to receive the rent until the property is legally transferred to the proper heir. Be very careful, however, to confirm that whoever comes forward is the proper person to receive your payment.
If you remain unsure, the safest thing to do is to open a separate, interest-bearing bank account and pay your rent into that account. It will stay there until you have adequate assurance about who should receive the money. This may be an issue about which you should seek legal advice.
Who do I contact for maintenance concerns?
The representatives of your landlord’s estate are still responsible for maintaining a property that is clean, fit to live in and in a reasonable state of repair, as required by law. Hopefully, they will have been in touch with you about who to contact before any issues arise.
If the repair is urgent, you may want to consider paying for it yourself in an amount of up to $1,000, and then seeking redress through a Tribunal, if necessary. Keep paying your rent, though, and keep careful records of any expenses you have incurred.
If it is not clear who the landlord was, or who has taken over his or her responsibilities, you or your attorney may have to do some sleuthing. That may begin with a surviving spouse, death notices, records of probate or Land and Property, an agency of the NSW State government. 
How do I get my bond back?
Some of the same advice applies to efforts to reclaim your bond at the end of your tenancy, at least as far as the problem of identifying your landlord or any representatives. You may also seek assistance from the Fair Trading where necessary in order to actually reclaim the bond.
If you landlord dies without a Will and you have troubling questions about how you can preserve your home and financial rights, please contact us at 1800 770 780 to schedule a consultation. The attorneys at Owen Hodge Lawyers will be happy to speak with you.
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The loss of a loved one creates many emotional issues and financial considerations. One of the more difficult aspects of dealing with the death of a family member is making sure that the Will is carried out as required. This job usually falls to the named executor or executrix. For the purpose of this article we will refer to this person as the executor. The executor must ensure that not only the personal assets and gifts are properly distributed, but that any properties that need to be re-deeded or sold are also taken care of.
Initially, in the instance of someone who dies without a Will or a named executor, the estate must first go through the process of probate so that someone can be named to distribute the assets via the intestacy laws. Hence a grant of letters of administration must be obtained from the court. Once this letter is obtained, and an executor is named, the assets of the deceased can be distributed in accordance with the laws of intestacy.
When a Will has been properly executed and is available for review, the process is a bit different. Again, the Will must go to probate, however, under these circumstances, it is merely for the Will to be found valid and allow for the named executor to begin properly distributing the assets. This is called receiving a Grant to Probate. From this point forward the assets can be distributed.
However, bigger issues can arise when an asset needs to be sold before the value of it can be distributed to those who have been named. Most often times this scenario occurs with the selling of a family home.
There are several steps required for an executor to sell a deceased estate. These steps include:
Applying for the Grant to Probate; the home cannot be sold until this Grant has been issued.Having the deed put into their name so as to confer upon them the right to legally transfer the property.Obtain a property valuation. It is wise to secure more than one for comparison purposes.Inspection of the property to uncover any repair costs that might be necessary to make the property sellable.Interview at least 3 realtors who are familiar with the community the home is located in.Place the home with a realtor for listing and sale.Provide all of the necessary paperwork to support the completion of the sale.Distribute the value from the sale as directed in the Will.
In addition to the concerns stated above, there can be tax implications when selling a deceased estate. These issues can be complex and, as such, it is highly recommended an executor seek the advice of those professionals who are familiar with the proper payment of all taxes that could be due and owing. To begin to understand the implications of the taxes owed, the Australian Tax Office can be of some assistance. The types of taxes that could be due include:
Capital Gains TaxInheritance TaxThe application of the Three Year Rule
In its simplest form, Capital Gains Tax is paid when the beneficiary sells the property. Hence, once the executor has completed the sale of the property, the CGT will become due out of the proceeds of the sale. Subsequent thereto, the balance of the monies can be distributed to the rightful beneficiaries.
The three-year rule applies if there is no named beneficiary for the property. In this case, the property will remain with the executor and taxes will need to continue to be paid on the property per the current tax laws. During this time, it will be important for a decision to be made regarding the distribution of the property. If no decision is made, the tax rates will change after the three-year period expires.
As Australia does not have an inheritance tax, this issue need not be confronted. However, it is possible that other tax issues could arise and, as such, it is important to be aware of those that might apply in each specific situation.
Estate issues can be quite complicated, particularly when selling the property and handling the accompanying tax issues. Under these circumstances, it is best to consult with both a solicitor and an accountant familiar with the tax code to ensure that all outstanding taxes are properly handled.
If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.
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We have mentioned in the past how the use of a written text message can be considered sufficient evidence under Australian law. For example, we have discussed how a worded text message can be considered as a person’s informal will in particular circumstances.
We are now stepping beyond this and are examining the emergence of emoji use within text messages. While emojis by their very nature are ambiguous, the increased use of emojis overtime has resulted in a widely understood language of connotative meaning. This has resulted in written words being substituted with emojis in order to express specific feelings towards others.
This is a relatively new legal issue, with emojis being used more frequently as we progress forward in the 21st century. According to international social intelligence company, Brandwatch, around 9.9 million Australians regularly use emojis to communicate, and many use emojis more often than words to communicate feelings (Brandwatch, 2017). 
In the past, family law courts have struggled to keep up with the way in which emojis are being used as replacements for threatening and condescending written words. This is quite concerning, with the use of emojis such as the red angry face, the sharp knife and the gun emoji being used to imply anger and violence in a subtler way than a written text would suggest.
In recent years, there have been more and more cases where the use of emojis have been used as evidence in legal cases. In a 2017 New Zealand case, Judge Phillips found that the use of the airplane emoji from a person to his ex-partner after the words “You’re going to f***ing get it” indicated he was going to catch a flight to her and was ‘coming to get her’. As a result, the judge decided this emoji was purposely sent as a threat and he was sentenced to eight months in prison. 
Despite the fact that family law courts are now more frequently considering emoji use as having an underlying connotative meaning, it is difficult to ascertain accurately as emojis could have a multitude of meanings. For example, a simple wink face could indicate flirting, teasing, joking or sarcasm. If this is the case, you will need an experienced family lawyers to help you in drawing from the immediate message; by looking at the sender and receiver’s personal message history, as well as another other aggravating circumstances from a wider cultural context.
If you have any questions in regards to your family law case, please do not hesitate to contact the experienced family law solicitors at Owen Hodge Lawyers at 1800 770 780.

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At first blush, this looks like a complicated question. First of all, there is the matter of protecting assets in a de facto relationship. Secondly, there is a visa question. The icing on the cake is either the fact or the fear of a relationship breakdown, which could ultimately require one party to leave Australia.
Actually, although this is certainly an issue that should be discussed with an attorney, the situation is not quite as multi-layered as it looks because of two simple rules:
De facto partners have the same rights as married partners if and when a relationship ends; andA migrant on a Permanent or Temporary Partner Visa have the same rights under the Family Law Act 1975 as an Australian citizen. Applications for property settlements and parenting orders can be entered into by either the visa partner or the citizen partner.
Therefore, the way to protect your assets when your other half is on a partner visa is much the same as the way you would protect your assets in any other de facto or married relationship — with a Binding Financial Agreement. The best advice, of course, is to settle financial matters before disputes arise.
Practical steps to take
The best approach may be to keep your finances separate from the beginning. Typically, this may include:
not combining your finances in any way – don’t have a joint bank account or joint ownership of property or vehicles;having your partner contribute board or rent if you rent or if you alone own the home where you live together;maintaining individual responsibility for debts and liabilities, including credit cards;making financial decisions independently; andnot naming your partner as the beneficiary of your Will, superannuation funds or life insurance policies. 
Remember that protecting assets is not the whole story
Should your relationship with a partner who is on a partnership visa fail, there will certainly be other complications, including your former partner’s ability to remain in Australia. If there is a child of the relationship, that is even more true.
Consider that the law protects the rights of that child, especially if the child is an Australian citizen, separate and apart from the rights of sparring parents. Asset protection is part of the picture, but not the whole thing, which is yet another reason to have the counsel of an attorney who understands both areas of law. At that point, it really does become a complicated question.
If you have questions about how to protect your assets from your partner who is on a partner visa, the attorneys at Owen Hodge Lawyers would be happy to advise you. Please call us to schedule a consultation at 1800 770 780.
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The process of divorce is difficult for many reasons. One of the most personal and financially stressful situations that must be sorted is the continued ownership, or sale, of the family home. There are several possible options, including one party remaining in the home, the sale of the home, the conversion of the home into a business agreement between the divorcing parties, or retention of the home for the sake of the children’s stability.
What happens if someone wants to stay in the home? Firstly, we must asses if they can afford it. If they can, then an agreement can be reached which will allow for this to take place. However, it is often the case where neither party can afford to financially maintain the home on their own. In this case, the property will have to be sold.
While this article will touch on some of the most salient points for the distribution of real property in a divorce, it is very important to understand the complications and the gravity of the distribution of marital property. Therefore, it is highly advised that the divorcing couple seek the assistance and advice of a solicitor.
The very first decision that the separating couple need to come to is who will stay in the house, and who will leave. In the case of domestic violence or the possibility of the situation becoming harmful to one person or the other, it may be best for the couple to take on separate living arrangements. If safety is a concern, the court will usually take those circumstances into account and therefore physically leaving the home will not adversely affect the party who chose to move out. In the most severe of cases, if domestic violence is a genuine concern, and one party is refusing to leave, the other party can request a court order for occupancy under section 114 of the Family Law Act 1975.
If danger is not an issue, then it is important to take the following into consideration;
Can the parties afford the cost of two separate living arrangements?Are there children involved who would be better suited to staying in their current home?If the parties cannot afford to live separately, are there arrangements that can be made to reduce the stress of living together?Is it possible for one parent or the other to stay with family or friends to reduce the need for the expense of two homes?Can the spouses share the home, alternately, which will allow each of them to have some space but still maintain the family home for the children?
Each of these considerations requires both a personal review of the circumstances and a financial accounting of what is truly affordable.
In the event that one party or the other will be keeping the home, the title can be changed to the name of the person who will take the property in its entirety. To do this the couple will require the assistance of a solicitor. Financial information will need to be procured and presented by the party wishing to keep the home. The mortgage lender will need to be consulted for the new mortgage to reflect a single owner. The financial responsibilities of the loan and the title will need to reflect that ownership now resides with only one person. In this event, it is highly likely the value of the property will still need to be determined and the equitable distribution of the same, calculated. This will allow for the party who is vacating ownership of the home to still receive their fair share of the monetary value of the home. This value will have to be paid out of the equity in the home, or from the assets of the spouse who is buying the home.
In some instances, the parties will consider the home and investment for either their children or their separate futures. When this happens, spouses may decide to maintain dual ownership of the home. This agreement can be drafted and signed in the form of a contract. The contract can specify the percentage or value that each party will own in the home, separately. It may also take into consideration how long the agreement will last; for example, until the children graduate from high school. It is highly likely the agreement will also address who will reside in the home i.e. one parent or the other, alternating parents, or possibly renters.  Finally, the agreement can specify a particular point in time that the property will be sold and indicate how the assets will be distributed at that time.
While there are always concerns about leaving the home prior to the divorce, the court usually will look beyond the need for one partner or the other to move out. Instead, if the home is going to be sold, then the court will make an equitable determination as to the division of the profits from the sale of the home. While the division is often 50% of the current value of the home to each, this is not always the case. In making the determination the court will consider the following:
The financial and non-financial contribution of both spousesSeparate property investments in the marital homeThe overall value of the marital asset poolThe future needs of both spousesFairness of any proposals by either partyThe duration of the marriage, overall
Lastly, it is important to remember that there are specific deadlines, subsequent to the granting of a divorce, within which property decisions and distributions must be made. In most instances, it is one year, or 12 months, from the date of the final divorce decree.
Because of the vast number of rules and options available when attempting to divide an asset such as a marital or family home, it is best to seek the advice of a solicitor. Using a well-informed experienced solicitor can help a couple more easily navigate the various steps required in all of the possible options.
If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.
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