Frequently Asked Questions
There might be a lot of confusing and difficult legal concepts that you may not have heard and questions you may have relating to your particular situation. Let us take the guesswork out and provide simple answers to some of these questions in plain English for you to understand.
What is the Meaning of Probate?
Probate is an Order from the Supreme Court, also known as a Grant of Representation. The Order identifies the legitimate Executor, named in a Will, to deal with all assets in the name of the deceased. Before houses or cars can be sold, bank accounts closed, or life interest policies claimed, you will need an Order for a Grant of Probate from the Supreme Court. Follow the link for more information:
If you are suffering or suspect someone is suffering family violence or domestic violence, it can be a very delicate and difficult situation to confront. If the situation is urgent, immediately call 000 and ask for police assistance. Intervention Orders (IVO) are designed to provide protection to victims of family violence. You may not need to leave your home, even if your partner owns the property. IVOs can prevent your partner from approaching the house. If you would still like to explore the possibility of leaving your home, and access other support services, please contact services like the Orange Door for support.
I am Feeling Unsafe with my Partner. Can I leave?
What Does Bail Mean?
Bail is a release permitting a person to return home after being charged with a criminal offence. This comes with the condition that you attend Court when required until an outcome in your criminal matter has been reached. However, bail is not automatically granted in all circumstances if the Court considers there to be a reasonable risk to the community or you will not likely attend Court when summoned. To convince the Court to grant you bail, several arguments can be made to influence the Judge to grant you bail. Follow the link for more information about Bail.
If you know that your partner is taking the children overseas and not intending to return, it is vital that you seek immediate legal representation. It is possible to obtain an urgent Order from the Federal Circuit and Family Court of Australia, even after hours. You will need to be prepared to provide evidence of any current parenting arrangements, how you know your partner is taking the children overseas, the children's passport details, details of the flight and history of family violence. Refer to the link to the Federal Circuit and Family Court of Australia's website on urgent passport applications for more information.
Can I Stop my Partner Taking my Children Overseas?
What is the Meaning of a "Prenup"
"Prenup", or prenuptial agreement, is a contract between two people in a committed relationship planning out the division of all personal and shared assets and liabilities between the parties before marriage in anticipation of a possible separation. This is more commonly referred to in the Australian legal industry as a "Binding Financial Agreement" or BFA. This can be a sensible step in protecting your rights to a property division. However, prenups can be done at any point in the relationship, even after separation. Follow the link to find out more about Financial Agreements.
An Executor is an appointed representative of the Will maker in their Will. This position provides the legal basis to seek a Grant of Representation by an application of Probate with the Supreme Court. The Executor must uphold the wishes of the Will and act in the best interests of the beneficiaries named in the Will. The Executor's duties include making immediate funeral and burial arrangements, securing and protecting all the assets of the deceased, obtaining a Grant of Representation, liquidate all the assets, prepare final tax returns (if needed), and distribute the estate. This is a very simplified version, make an appointment with us to find out more.
What is the Meaning of an "Executor"?
Can my Binding Financial Agreement be Challenged?
In order for a Binding Financial Agreement to be "Binding", it needs to at least satisfy the following requirements according to section 90G of the Family Law Act:
1. The Agreement needs to be signed by all parties;
2. Each party needs to have obtained independent legal advice. This means that you cannot try to reduce your costs by having both you and your partner speak to the same solicitor. This would be a conflict of interest and would void this requirement.
3. Both parties need to be provided with a signed statement; and
4. Has not been otherwise terminated by agreement or set aside by the Court.
Other circumstances, under sections 90K and 90UM that might undo an agreement would be:
1. Fraud (non-disclosure of material);
2. Intention to defraud a creditor;
3. Signed under duress;
4. Change in circumstances making the agreement impracticable or inequitable (E.g. birth of a child).