Legal Tip 47: Finalise divorces

Discussion in 'Legal Issues' started by Terry_w, 9th Aug, 2015.

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  1. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Finalise divorces


    Many people out there are separated from their former spouses and have new spouses. Where the former spouse was from a legal marriage then if there is no divorce that person is still your spouse. This is the case even if the marriage was registered overseas but not in Australia.


    This has a lot of consequences as legally you may have 2 spouses. If you die without a will then under NSW law both spouses will share your estate under the intestacy laws. This could be good for you if that spouse dies first, but if you die first then your current spouse could not get 50% of your assets. If there are children with either spouse it gets more complicated.


    If there is an old will then it may still be current. Divorce may mean the will is revoked or any gift to the former spouse is voided. If there was no divorce then this won’t happen. I have met a few people who had inadvertently left everything to a former spouse.


    Loss of capacity could lead to issues too. Former spouse could be considered next of kin in emergencies or the former and current could be fighting over control of your limp body while you are in a coma.


    If there was no divorce then there would probably have been no property settlement. Property settlements will consider the assets of the parties as of the date of the hearing so the longer you leave it the more assets you may acquire.


    So bite the bullet and get that divorce!
     
  2. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    I just noticed that I had missed Tip no 47, so I have changed the number of this one to make up for it.
     
  3. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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  4. Redwing

    Redwing Well-Known Member

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  5. pinewood

    pinewood Well-Known Member

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    This is so clearly unfair.
     
  6. Westminster

    Westminster Tigress at Tiger Developments Business Member

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    When you separate please ensure you change your Will and your superannuation nominations - do not wait for the divorce or forget about it. Oh and your POAs!!!

    People do die in between separation and being granted divorce and it can make an even messier time worse.
     
  7. Tink

    Tink Well-Known Member

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    How easy /hard to finalise the divorce?
     
  8. Peppas

    Peppas Well-Known Member

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    You can do it without a lawyer, though it may be easier with independent legal advice, particularly for the property settlement and if kids are involved.

    More info here - Getting divorced | australia.gov.au
     
  9. money

    money Well-Known Member

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  10. money

    money Well-Known Member

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    If a marriage was done overseas, can a divorce be done in Oz or other country in the world by just one party or do both parties need to meet up and apply for a divorce together? If the other party doesn't have to be involved, how are they notified about the divorce if they live overseas?
     
  11. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Depends on the ex
     
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  12. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Paul@PAS likes this.
  13. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Yes can be done here. You have to serve docs on them or attempt to do so and get substituted service approved by courts
     
  14. money

    money Well-Known Member

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    I would imagine it would get a lot more complicated if they live overseas and the marriage was done overseas too.
     
  15. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Not too much so. You might be able to use registered post for example.
     
  16. Tink

    Tink Well-Known Member

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    Moe complicated with kids, investments, profits and losses yet to be encountered by selling
     
  17. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Not necessarily.

    This thread was about divorcing and the effect on death. You could still jointly own property with an ex-spouse and you could still do a property settlement after divorcing.
     
  18. Paul@PAS

    Paul@PAS Tax, Accounting + SMSF + All things Property Tax Business Plus Member

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    I am dealing with a bizarre issue with Private Health Insurance. Couple separated. They have children. They maintained the private health.

    ATO say they are spouses. And must report each other. We explained they are not spouses. Former spouses. Tax law and private health anomaly. ATO finally admitted they needed to consider not all couples insurance policies means a couple are always spouses.

    My daughter went to get travel insurance. Her and a friend - Are they partners ?? No but travel insurance says if the share same accom and travel on same journey that they can. Even if same sex or not. The insured definition of partner isnt same as that for couples. Applies to friends too.
     
  19. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    'Spouse' even has different definitions in law. What is a spouse for family law might not be a spouse for trust law or succession law for instance.
     
  20. Perp

    Perp Well-Known Member

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    I was looking into this recently following a query from a polyamorous family of three.

    As Terry said, you can only have one de jure (legal) spouse, but you can have a (theoretically) unlimited number of de facto spouses, instead of or as well as your de jure spouse for family law purposes.

    See Family Law Act 1975 (Cth) s4AA(5)(b): 'a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship'.
     
    thatbum and Terry_w like this.

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