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    Debt and the End of a Relationship: Everything You Need to Know 1024 683 Dorter

    Debt and the End of a Relationship: Everything You Need to Know

    Ending a relationship is such an incredibly challenging process to go through, both financially and emotionally. Add debts to the mix and the process can be even more complicated and stressful.

    If you find yourself in a situation where you’ve ended your relationship and are separating, being informed as to what constitutes a “loan, liability or debt” for family law purposes is important so you obtain your correct and fair entitlements in a property division after separation. Here’s a guide on how debts are treated you’re your relationship or marriage ends and what you can do to protect yourself in the process.

    What is marital or joint debt in a separation?

    Marital or joint debt refers to any debt that was incurred by either spouse during the relationship. This can include various types of debt, such as:

    • credit card debt
    • mortgage loans
    • car loans
    • personal loans
    • student loans
    • business loans
    • taxation liabilities
    • other financial obligations

    During divorce and separation proceedings, the division of debt is often an important aspect of the overall property settlement. The court aims to ensure a just and equitable division of both assets and debts between the separating spouses.

    However, the specific rules and guidelines for debt division may vary depending on the jurisdiction and the individual circumstances of the case.

    Is a spouse responsible for their spouse’s debt?

    Each spouse is generally responsible for their separate debts incurred before the marriage or relationship, assuming the debt is incurred in their own name. This does not however mean that the debt is excluded from the balance sheet.

    When it comes to debts accumulated during the relationship or marriage both spouses are typically considered equally responsible in the eyes of the law. Regardless of which spouse incurred the debt, who benefited from the debt, or whether the debts were accumulated individually or jointly. The debt ordinarily would appear on the balance sheet and treated as though it was incurred by both parties.

    However, if there is evidence of “waste” for example where actions have been taken by a spouse to intentionally reduce the value of assets or increase liabilities, then that spouse can be held responsible for the resulting debt.

    Examples of waste could include:

    • incurring gambling debts or losses;
    • alcohol or drug addiction; and
    • or selling an asset from the shared pool and spending the money without justification.

    Keep in mind that only actions that are deemed excessive or reckless will be treated as wastage and that reasonable expenses are not considered wasteful behaviour by the Court.

    Do couples split debt in a separation?

    In many cases, couples are responsible for splitting the debt accumulated during the relationship as part of the separation process. The division of debt can be approached in a couple of ways:

    Agreement between the spouses

    In an amicable divorce/separation where both parties can agree, they have the option to negotiate and determine how to divide the debt. This may involve assigning specific debts to each spouse or agreeing to pay off certain debts jointly.

    Negotiation and Mediation

    If you’re unable to come to an agreement, you can try to resolve your dispute by engaging in negotiation and/or mediation. Legal professionals, like family lawyers, can help you in these processes to devise a strategy and desired outcome and advocate for you to achieve this.

    Court determination

    If the spouses are unable to reach an agreement on the division of debt, the Court will make the decision based on factors such as the financial circumstances of each spouse, their ability to repay the debt, and the overall division of assets and liabilities.

    How is debt divided in a separation?

    The division of debt can vary depending on the specific circumstances of the case. When making that decision, the court will consider various factors:

    • the financial situation of each spouse
    • their earning capacity
    • contributions to the marriage
    • and other relevant factors

    How do I protect myself from my partner’s debt?

    Protecting yourself from your partner’s debt can be a concern during the separation or even while you’re still in the relationship. While specific strategies may vary depending on your individual circumstances, below are a few general steps you can take.

    Prenuptial or Postnuptial Agreement

    Consider entering into a legally binding financial agreement with your partner, either before marriage (prenuptial agreement) or during the marriage (postnuptial agreement). These agreements can outline how debts and assets will be divided in the event of a divorce or relationship breakdown, providing clarity and protection for both parties.

    Separate Finances

    Maintain separate bank accounts and credit cards instead of joint accounts. By keeping your finances separate, you can reduce the risk of being held liable for your partner’s debts. However, this may not completely protect you if debts were incurred jointly. These debts may still be taken into account in assessing the overall outcome of a property settlement.

    Monitor and Document

    Keep a record of your financial transactions and debts to establish your own separate financial identity. Regularly monitor your credit reports to ensure there are no unknown or unauthorised debts in your name.

    Consider Debt Liability

    Be cautious about taking on joint debts, co-signing or guaranteeing loans with your partner. Understand the potential risks and implications before agreeing to be responsible for someone else’s debt.

    Seek Legal Advice

    Consult with a lawyer to understand the law and your obligations before signing any legal document. We can guide you on how to protect yourself and navigate the complexities of debt division in the unfortunate event of separation.

    How we can help you

    Managing your debts can be incredibly challenging, especially during a separation. If you choose to work with us during this difficult time here’s what you can expect from us:

    • We’ll provide legal advice, explain your rights and obligations regarding asset and debt division.
    • We will assess all the assets and debts involved in your marital property pool, including properties, bank accounts, investments, and outstanding debts.
    • We will assist you in negotiating with your spouse to reach a fair settlement. If needed, we can represent you in court proceedings, prepare your case and advocate for a fair division of assets and debts.
    • We will help you with the preparation of legal documents, such as financial statements and settlement agreements, accurately reflecting your agreed-upon terms.
    • After the division is finalised, we will guide you through ensuring compliance with Court orders or agreements, and if necessary, help you enforce the orders.

    Throughout the process, we will provide personalised advice, support, and representation, ensuring that your best interests are protected.

    Speak with a family lawyer today.

    woman looking at her mobile phone.
    Are You Sharing Too Much? The Consequences of Social Media in Family Law  1024 683 Dorter

    Are You Sharing Too Much? The Consequences of Social Media in Family Law 

    Social media has become a powerful tool in our daily lives, shaping the way we communicate, share experiences, and connect with others. However, it’s important to understand that what we post on social media can have far-reaching consequences, especially when it comes to legal matters, such as divorce and family law disputes.

    The rise of social media has also brought about a significant shift in how evidence is gathered and presented in courtrooms. More and more judges and legal professionals are turning to social media posts, comments, and photos as valuable sources of evidence. This means that what you share online can potentially be used against you or in your favour.

    In this article, we will discuss how social media can affect legal matters, what the law says about social media and offer guidance on avoiding pitfalls. With this knowledge, you can make informed decisions about your online presence and minimise any negative outcomes from posting on social media.

    Types of Posts That Can Cause Issues

    Inappropriate social media posts can have significant repercussions in family law matters. It’s crucial to be aware of the types of posts that can cause issues and potentially harm your case. Here are some examples:

    • Sharing private information: Posting personal or sensitive details about your spouse or child can violate their privacy and may negatively impact your legal proceedings.
    • Negative comments: Making derogatory or disparaging remarks about your ex-spouse or their character can reflect poorly on your own credibility and may affect custody or parenting arrangements.
    • Provocative or explicit images: Sharing provocative or explicit images that could be deemed inappropriate or offensive may not only damage your reputation but also impact child custody determinations.
    • Displays of a lavish lifestyle: Posting pictures or boasting about an extravagant lifestyle, such as expensive vacations or luxury purchases, can create an impression of financial resources that may influence spousal support or property division decisions.
    • Anti-social behaviours or criminal activity: Documenting or bragging about engaging in anti-social behaviours or participating in criminal activities can have severe repercussions in family law cases, including potential impact on child custody arrangements.
    • Screenshots of private messages: Sharing screenshots of private messages, especially those containing sensitive or damaging information, can violate privacy rights and potentially be used as evidence against you in legal proceedings.
    • Threats of violence: Making threats of violence or engaging in aggressive behaviour online can not only harm your case but may also have legal implications, including potential restraining orders or criminal charges.
    • Employment history and legal proceedings details: Revealing information about your employment history or discussing specific details of ongoing legal proceedings on social media can compromise confidentiality and potentially influence outcomes in your case. It may be treated as an offence to publish or reveal details of family law proceedings on social media. It is best practice to refrain from posting anything in relation to family law proceedings.

    Social Media as Evidence in Family Law

    Social media has become a significant source of evidence in family law cases, with courts increasingly presented with posts, comments, and tagged content as valuable evidence. Here are some examples of how social media evidence can impact family law matters:

    Derogatory Posts

    Negative or disparaging comments about your ex-partner on social media can be used as evidence against you, potentially affecting decisions related to child custody, visitation rights, and spousal support.

    References to Legal Proceedings

    Any mentions or discussions about ongoing legal proceedings on social media can be discovered and presented as evidence in court, potentially influencing the outcome of your case or resulting in penalties.

    Screenshots of Private Messages

    Private messages shared on social media platforms can be captured and used as evidence in family law disputes, revealing conversations that may impact issues such as child custody arrangements or allegations of misconduct.

    Photos Showing Drug or Alcohol Use

    Images depicting drug or alcohol use can be detrimental to your case, as they may suggest a lack of responsibility or a potentially unsafe environment for children.

    Displays of an Extravagant Lifestyle

    Social media posts showcasing an extravagant lifestyle, such as expensive purchases or luxurious vacations, can be used to argue against financial need or support claims, potentially affecting decisions regarding spousal maintenance or child support.

    Impact on Divorce Cases

    Social media posts can have a significant impact on various aspects of divorce cases, including parenting orders and decisions related to spousal or child maintenance. Here are some ways in which social media can influence divorce proceedings:

    • Parenting Orders and Maintenance Decisions: Social media posts can play a role in determining parenting orders and decisions regarding spousal or child maintenance. Negative or inappropriate content shared on social media platforms can be used as evidence against a party, potentially influencing the court’s perception of their suitability as a parent or their financial circumstances.
    • Influence on Parental Responsibility: Evidence of drug or alcohol use posted on social media can have a direct impact on the determination of parental responsibility. Such evidence may raise concerns about a parent’s ability to provide a safe and stable environment for their children, potentially affecting custody arrangements and visitation rights.
    • Establishing Length of a De Facto Relationship: Social media evidence can be utilised to establish the duration of a de facto relationship. Posts, photos, or check-ins on social media platforms can serve as a record of a couple’s activities and public acknowledgment of their relationship, aiding in determining the length of the relationship for legal purposes.

    Understanding Section 121 of the Family Law Act

    Section 121 of the Family Law Act is a provision in Australian family law that deals with the protection of privacy and confidentiality in family law proceedings. It sets out restrictions on the publication and disclosure of certain information that may identify parties involved in family law cases. The purpose of Section 121 is to safeguard the privacy, well-being, and fair trial rights of individuals involved in family law disputes.

    Under Section 121, it is prohibited to publish or disseminate information that may lead to the identification of parties in family law proceedings. This includes not only names but also other identifying details such as addresses, physical descriptions, employment information, recreational interests, and property ownership. The restriction applies to various forms of communication, including social media posts, public discussions, media reports, and other means of disclosure.

    Consequences of Inappropriate Social Media Use

    Inappropriate use of social media in the context of family law matters can have serious repercussions. It is important to be aware of the potential consequences that can arise from sharing sensitive information, such as:

    Adverse Impact on Legal Proceedings

    Inappropriate social media behaviour can provide evidence against you and adversely affect the outcome of your family law case. Posts, comments, photos, or messages that are derogatory, incriminating, or inconsistent with your claims can be used by the other party to challenge your credibility, parenting abilities, or financial position.

    Criminal Prosecution

    Breaching Section 121 can lead to criminal prosecution by the Australian Federal Police. If found guilty, individuals can face penalties, including fines and imprisonment for up to 12 months.

    Impact on Parenting Arrangements

    Inappropriate social media use can influence parenting arrangements and custody decisions. Posts or photos depicting irresponsible behaviour, substance abuse, or a lack of commitment to parenting responsibilities can diminish your chances of obtaining favourable custody or visitation arrangements.

    Financial Implications

    Social media activity revealing a lavish lifestyle, extravagant spending, or undisclosed assets can impact property settlements and financial support decisions. Inappropriate posts that contradict financial claims or demonstrate hidden income or assets can undermine your credibility and affect the division of assets or spousal/child maintenance awards.

    Reputation and Relationships

    Inappropriate social media use during family law matters can harm your reputation and relationships. Negative or offensive posts about your ex-partner, the legal process, or others involved can damage your public image, strain relationships with family and friends, and complicate future interactions.

    The Power of Discretion: Mitigating Legal Consequences in Social Media Use

    To safeguard yourself and prevent legal consequences, it is essential to exercise caution regarding what you post on social media. Remember that anything you put out online can be used as evidence, so it is important to think before you post and consider how it may be interpreted in a legal context.

    If you find yourself facing family law matters, it is highly recommended to seek professional legal advice. Our expert team of family lawyers and mediators at Dorter Family Lawyers can provide guidance tailored to your specific situation and help you navigate the complexities of social media use during legal proceedings.

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    What is a Gett? 1024 683 Dorter

    What is a Gett?

    When a couple who practise their Jewish faith separate and wish to “divorce”, there are only two ways to end their status as a married couple – by death or the grant of a Gett.  The issuing of the Gett effects the divorce between the Jewish couple according to Jewish Law.

    Pursuant to Jewish law (“Halakha”), a “divorce” can be accomplished only by the parties. It is effected by the formal delivery by the husband and the acceptance of the wife of the bill of divorcement (“Gett”) under the supervision of the Rabbinical Court, namely the Beth Din. The parties are divorced and free to marry again once the Gett has been delivered and accepted.

    However, outside of Israel, the Beth Din lacks judicial power, therefore, should one spouse seek a Gett and the other refuse, the Beth Din in Australia is unable to assist them. They may however apply to the Family Court for assistance.  

    What happens if I do not get a Gett?

    Without a Gett, a woman will be unable to remarry under Halakha and for a man it is extremely difficult to do so.

    Without a Gett, a woman is termed “agunah”, literally meaning one who is “chained” to a man from whom she is unable to procure a Gett. Any child or children born to an “agunah” will bear the stigma and burdens of being illegitimate. It may have consequences that flow through the descendants who forever may be unable to rectify their situation.

    Requirements of a Gett

    Halakha requires the following specific formalities to be complied with in order for a Gett to be considered valid:

    1. A divorce document must be written; this is usually done by a professional religious scribe (“sofer”).
    2. It must have been written on the explicit instruction and with the free-willed approval of the husband, with the specific intention that it is to be used by the man and the wife to that marriage.
    3. It cannot be initially written with “blanks” to be filled in later.
    4. It must be delivered to the wife, whose physical acceptance of the Gett is required to complete and validate the “divorce” process.

    Can the Family Court of Australia order my ex-partner to grant me a Gett?

    The Family Court must consider two factors in determining whether an order should be made.

    Firstly, it must be consonant with the requirements of the Jewish Law or otherwise a Gett may be void (for unlawful duress) and the Court’s actions therefore futile.

    Secondly, from a public policy perspective, if not a constitutional one, civil courts should not be seen to become involved in religious matters.

    Getting a Gett

    Where does this leave us?

    The Family Court of Australia has been hesitant to assist separating Jewish Parties obtain a Gett.

    The Court has entertained applications in relation to Getts in some circumstances but is yet to make a finding that on a final basis that the court has the power to Order parties to attend a Beth Din and do “all acts and things necessary” to obtain a Gett.   

    Gett Assistance

    For many Jewish Couples who separate it is important to obtain a Gett following the breakdown of a marriage. If securing a Gett is important to you, we can assist you by:

    • Negotiating this element or ‘limb’ of your final settlement through mediation or a round table conference outside of court proceedings and document the agreement reached as a consent order; or
    • Seeking Orders from the court, to the effect that you and your ex-partner are to attend “when called upon” and declare that such order “not be construed as in any way inhibiting, directing, influencing, or controlling any deliberation, decision, order, decree, direction or recommendation of the said Religious court or in any way inhibiting the Respondent or Applicant in making any application”.

    If you would like any assistance with the above, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact us on (02) 9929 8840.

    Rebekah Dorter
    Principal

    Maeve Cooper
    Solicitor

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

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    Financial Abuse 1024 683 Dorter

    Financial Abuse

    When it comes to domestic and family violence verbal and physical abuse usually come to mind. However, a further widespread form of domestic and family abuse is ‘financial or economic abuse’.

    What is Financial Abuse?

    Financial abuse occurs when one party uses money to control, coerce or to restrict the other person in a domestic relationship. This type of abuse frequently occurs hand-in-hand with other forms of abuse, such as physical or emotional abuse.

    Am I Being Financially Abused?

    It can be difficult to recognise financial abuse. Perpetrators may often ‘excuse’ their behaviour as a consequence of the victim’s financial illiteracy or being due to “traditional roles” in the family.  A pattern of behaviour is usually exhibited and unfortunately, the abuse may escalate over time.

    Financially abusive behaviour can include but is not limited to:

    • taking control of someone else’s finances (e.g. being in charge of all the household income and paying the other person an allowance);
    • controlling how all of the household income is spent;
    • forcing a family member to claim social security benefits like Centrelink;
    • insisting that a family member apply for a second credit card;
    • preventing a family member from working;
    • preventing a family member from studying;
    • refusing to give access to bank accounts;
    • denying a family member access to money so they cannot afford basic expenses such as food or medicine.

    The Effects of Financial Abuse

    The effect of financial abuse can be far-reaching and usually includes suffering from emotional trauma and homelessness.

    Financial abuse affects the victim’s financial independence preventing them from accessing education, healthcare and in some cases basic personal items which can leave them with no alternative but to remain in the abusive relationship.

    In many cases, financial abuse continues post-separation. This includes perpetrators engaging in prolonged litigation, hiding assets or defaulting on financial responsibility such as a mortgage leaving the victim with poor credit score, thus exacerbating their financial stress and vulnerability.

    What Support is Available for Financial Abuse?

    Any form of abuse is unacceptable. We all have a right to live life without fear of abuse or violence. Support services are available on both state and federal levels and can assist you if you are experiencing domestic or family violence, including financial abuse.

    Some support services which are available include:

    • Financial Abuse Legal Service (Redfern Legal Centre)
    • NSW Domestic Violence Helpline;
    • Women’s Legal Services NSW;
    • Domestic Violence NSW;
    • Legal Aid;
    • 1800Respect;
    • National Aboriginal and Torres Strait Islander Legal Services.

    Do You Need Legal Help?

    Dorter Family Lawyers and Mediators offer specialist family law advice in Milsons Point on Sydney’s Lower North Shore, and are available to assist you with any questions you may have about financial abuse. 

    Please get in touch with us on (02) 9929 8840 or hello@dorterfamilylawyers.com

    Rebekah Dorter
    Principal

    Tim Russell
    Solicitor

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

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    The Duty of Disclosure 1024 575 Dorter

    The Duty of Disclosure

    Do I have to Disclose?

    The answer is… Yes!

    We are often asked by our clients what they must disclose in their family law matter after they have separated from their partner and what their former partner is obligated to disclose.

    Both parties to a marriage or de-facto relationship are required to provide full and frank disclosure of information relevant to their financial circumstances. This means parties must provide each other with all information relevant to an issue in their case, including information recorded in a paper document or stored by some other means such as a computer storage device and also includes documents that the other party may not know about.

    This duty of disclosure is a positive duty imposed by the Family Law Rules and the Federal Circuit Court Rules and is quite different to the obligations parties may have in a commercial dispute.

    What does disclosure involve?

    As part of your disclosure obligations, common documents required are those that evidence the following: –

    1. All income or earnings (whether paid directly to the party or not);
    2. Any interests in any ‘property’ or entity fully or partially owned or controlled by the party;
    3. All financial resources, including interests in a trust;
    4. Any disposal by the party that may affect, defeat or deplete a party’s claim; and
    5. All liabilities of the party or of any relevant entity.

    ‘Property’ for the purpose of a family law settlement is not just real property but is a much broader concept and means all assets, including superannuation.

    When does your duty to disclose begin?

    Your duty to disclose begins once you separate (with the pre-action procedures) which means before a case starts, and this duty continues until the case is finished. The duty of disclosure is an ongoing obligation and extends to all documents in your possession, power or control.

    Your duty to disclose continues until your matter is finalised which means that you must continue to provide such information as your circumstances change or more documents are created or come into your possession, power or control.

    What happens if a party to a case does not disclose?

    There are a number of consequences which may follow if a party to a case fails to disclose, including but not limited to cost orders, and if a matter has been finalised the settlement may be re-opened if the non-disclosure resulted in a detriment to the other party.

    It is important to provide disclosure in a timely matter, and to be honest and forthcoming with your disclosure documents. Non-disclosure contributes to significant delays in resolving a family law matter and significantly increases costs.

    We can help you

    Dorter Family Lawyers and Mediators offer specialist family law advice in Milsons Point on Sydney’s Lower North Shore, and are available to assist you with any questions you may have about child support.  Please get in touch with us on (02) 9929 8840 or hello@dorterfamilylawyers.com

    Rebekah Dorter
    Principal

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.