What Is a Prenuptial Agreement and Is It Legally Binding?

Did you know that currently, some 30% of Australian marriages end in divorce? That’s a pretty scary statistic, but that’s the reality. When people get married they don’t go into the relationship thinking it’s going to end in a few years. Most view the commitment to being for life at the time. As unromantic as it sounds, it’s wise to be prepared for the big day where you sign those legally binding documents. If you are entering into the marriage with considerable assets already, as a safeguard it’s a good idea to consider a prenuptial agreement.

This is by no means a prophecy that you’re certain your marriage will fail, or even that you’re viewing it in a negative light. It’s simply a sound business decision of sorts. In every other facet of life you would be ensuring you protect yourself, so why should a romantic relationship be any different?

Not only is a prenup a good idea prior to marriage, but it’s also something to seriously consider before entering into a de facto relationship as well. These days de facto relationship is viewed the same way as a marriage by law, if you’ve been living in a domestic cohabitation for 2 years or more, so your assets could be at the mercy of your partner without a prenup should the relationship fail at some point.

Give Yourself Peace of Mind

Negotiating and signing a prenuptial agreement before the marriage takes place, or before entering into a serious domestic relationship, will alleviate a lot of the uncertainty regarding the distribution of assets should the relationship end in separation or divorce.

Not only that, the settlement after separation or divorce will be simplified and expedited as a result of having a clear and concise prenup in place. The legalities regarding finances and division of property and assets have already been worked out and agreed upon.

This takes a lot of stress, debate, and confusion out of the divorce process, leaving you free to work on getting over the failed relationship and being able to move on with your life.

A Prenuptial Agreement Is Legally Binding

A prenup is definitely a legally binding document, or it would serve no useful purpose. It is signed prior to entering into marriage or a serious cohabitation relationship. When the agreement has been worked out, the signature of each party signifies that they understand the contents of the document and agree to the document’s stipulations regarding the distribution of assets in the event of a divorce or relationship separation. The document will often include liability for debts and leaves very little confusion for either party.

Your Family Law Experts

Aylward Game Solicitors in Brisbane fully understand there may be a need for a prenuptial agreement, and our team has the experience to help negotiate a prenup that both parties are happy with. If you feel you need a prenuptial agreement, talk to us first before the big day and we’ll assist you in the process of safeguarding your assets.

Article Source: Prenuptial Agreements

My Ex Won’t Let Me See My Children

Separation and divorce is a stressful and very confusing period of life. Stress levels are exacerbated even further when children are involved. Many marriages and de facto relationships that break down will have children in the equation, and it certainly makes a clean separation that much more complicated. And divorce is difficult enough without one parent refusing visitation rights to the other. If you think a child has been, is being, or is at risk of being harmed you can: report it to the police; report your concerns to Child Safety or call 000 in an emergency. But can anyone stop you?

Can’t see your kids? What can you do?

Unless one parent is legally deemed unfit for one of a number of reasons, then both parents have the right to spend quality time with their children, whether it be a joint custody arrangement or a parenting agreement.

In a perfect world, the separation or divorce will be amicable and an agreement regarding the children will easily be reached and adhered to. However, the reality is rarely ever that neat, tidy, and simple.

Let’s take a brief look at your options when it comes to child custody or visitation rights so you can spend quality time with your children.

Joint Custody or Shared Custody

In this instance the divorce has gone to the courts and child custody will be decided during legal proceedings. The result could be an even 50/50 split, where the child or children spend an equal amount of time with each parent each week or month.

Other examples of a joint custody split could see the children living with their mother from Monday through Friday, and spending their weekends with their dad, or vice versa. Or it could be one full week with the father, followed by a full week with the mother.

Often these arrangements will be dependent on a number of factors and the circumstances of each parent, such as who has the most time to spend with the children.

Parenting Plan

A parenting plan is a more informal and congenial “negotiation” between both parties. Usually mediated through a solicitor, the agreed-upon parenting arrangement may or may not be lodged with the courts.

If your parenting plan was not lodged with the courts, then it’s not legally binding.

Does that mean you have no legal recourse?

No, it does not. In conjunction with your family law firm, you can still start legal proceedings for joint custody or visitation rights if one parent won’t honor the parenting plan.

If the parenting plan was lodged with the courts, and one parent refuses access to the children, then that parent is in direct violation of the legal agreement and can be forced to comply.

The same applies to joint custody or shared custody arrangement. By law, unless there are serious mitigating circumstances such as incidences of domestic violence, both parents have to comply with the parenting agreement.

The Takeaway

Even if your split with your partner is mutual and amicable and you both want to negotiate a parenting plan, it’s always wise to have a Brisbane solicitor who specializes in family law involved to negotiate the agreement and lodge it with the courts.

In Brisbane, the law firm you can count on is Aylward Game Solicitors – your local family law specialists.

Article Source: Child Custody Brisbane

Australia Takes on Migration Again Highlights of 2021-2022 Federal Budget Review

Whether it can be treated in the midst of COVID-19 recovery or post-COVID-19 recovery, Australia’s 2021- 2022 Federal budget Review includes a range of economic and social outcomes touching on the migration program in order to address skill shortages in the labour market and attract overseas businesses. This synopsis aims to highlight the latest government plans to boost various sectors connected to, or affected by, the migration program.

Highlight 1 – Migration Program Ceiling

• The Ceiling will be maintained at 160,000 places. This includes 79,600 Skill and 77,300 Family stream places.

Highlight 2 – Incentives to hospitality and tourism sector

• The Government will increase flexibility for student visa holders to work beyond the current 40 hours per fortnight limit in the hospitality and tourism sectors.

Highlight 3 – Incentives for Sponsored Parent (Temporary) visas

• The Government will extend the validity period for Sponsored Parent (Temporary) visas by 18 months for individuals who are unable to use their visas due to COVID-19 travel restrictions.

Highlight 4 – Migrant Worker Protection

• The Government will strengthen migrant worker protection in response to recommendations of the Report of the Migrant Workers’ Taskforce.

Highlight 5- Enhancing Migration Litigation Merits Review

• The Government will enhance migration litigation and merits review by funding additional finalizations in the Migration and Refugee Division of the Administrative Appeals Tribunal and providing an additional judge in the Federal Circuit Court in 2021-2022, and a second judge in 2022-2023.

Highlight 6- Australia’s Humanitarian Program 

• The Humanitarian Program for resettlement will have 13,750 places in 2021-2022 to maintain Australia’s long-term commitment to humanitarian resettlement.

Having considered the above, and as general guidelines only, we make the following observations about Parent visas—

• Parent visas

Based on the Government’s announcement, Australia’s international border is likely to be closed until sometime in the middle of 2022. Considering the estimate provided for processing new eligible Contributory Parent visa applications (i.e. approximately 58 months), we recommend that such application be lodged now. You may contact us to see if you are eligible to apply for this visa category. When the border opens, you may then apply for a temporary 3 or 5-year temporary parent visa to remain onshore while the other application is processing.

Aylward Game Solicitors, Brisbane Lawyers, keeping you ahead of the Game with offices now in Brisbane, Gold Coast & Sunshine Coast.

We would be happy to assist you.

Source excluding the Parent visas observations: Funding a safer Australia to secure our future – Department of Home Affairs 

Article Source: Australian Federal Budget

Understanding Your Vendor Finance Options

Understanding Your Vendor Finance Options

If the traditional approach to selling your property is not working for you or you are having difficulty obtaining bank finance to buy your home or investment property then we may have another way to assist your sale to happen oder your purchase to proceed, known as vendor finance.
Vendor finance, sometimes called seller vendor finance or owner vendor finance is nothing new and has in fact been around for many years, and is often used in one form or another in commercial transactions.

For a comprehensive overview of how to buy without banks, please download our free vendor finance ebook or make a booking to speak with a property law expert.

 

download the vendor finance ebook

About Vendor Finance

What is relatively new in Australia (from our experience at Aylward Game Solicitors over the last 10 plus years) is the application of vendor finance methods to buy and sell residential property.
DOWNLOAD THE VENDOR FINANCE EBOOK HERE

Over that period the use of these methods has grown in popularity and is particularly popular now due to the current economic environment with a depressed property market and the extremely tight and inflexible credit policies of many banks and financial institutions.

If you are a seller and want relief from mortgage stress or a buyer wanting to leverage finance, permanent new home can be secured using this.

Mark Game has over 10 years of experience in preparing Installment Sales Contracts and Lease Options in relation to both residential and commercial property and vendor finance.

Ease Stress, Maximize Leverage

Vendor finance is ideal for someone trying to sell a property because it helps them deal with and ease the stress of mortgage payments. This can help them sell their property sooner rather than later and even get the price they have always wanted. Buyers are able to benefit a great deal from this as well.

Using the system, they are able to leverage their finances so then they have a higher chance of being able to find that property that they have always wanted.

It is also ideal for anyone who is having difficulty with their bank. Because the property market has been going through a period of depression, banks are tightening their credit policies further and further still. This means that people who are looking for help from their bank so they can buy or sell a residential property are being rejected.

It is now widely considered to be the solution to that problem, which is why it has become so popular over the last 10 years.

It could even hold the key to improving the residential property market in the future, and this method of finance could stick around even after the market has picked up such that people who are struggling are now able to get a helping hand when they need it most.

Vendor Finance Lawyers

Individuals and corporations that intend to start, sell or purchase a business have to deal with the different aspects of commercial business law.

When you start a new enterprise, it is an absolute necessity to obtain the correct advice early on to steer clear of any consequence that may cause you much expense or restrict the development and growth of your business venture. At Aylward Game Solicitors, you can obtain the appropriate assistance and advice you need to address these legal matters. From different large-scale enterprises to sole proprietors of small local businesses, Mark Game has the extensive knowledge and skills to assist clients in undertaking diversified businesses inside and outside of the state within trust, joint or corporate business structures.

Article Source: Vendor finance

The Best Review Of Property Law Act In Queensland

Property defines a legal relationship between a sure thing and a person, the owner. In contrast, possession or owner means the actual property control,  who can deal directly with it. For example, a resident is regularly the rental property owner while the landlord remains the owner. In the Property law act 1974, the so-called presumption of ownership applies to movable objects. It is rebuttable, assuming that the owner of a thing is also its owner. Liability under s179 of the Property Law Act (Qld) is strict.

Property is protected by the constitution, together with the right of inheritance of the Basic Law. In principle, an owner has the right to deal with his property at will. However, the content and limitations of property are regulated in numerous laws. For example, a property owner cannot develop or convert his property at will. Instead, he must observe public building law with planning law and building regulations or, for example, monument protection. In animal law, the owner of an animal must have rules on animal welfare and the animal welfare law note. The owner must also respect the resident’s right of ownership of the rented apartment and so, bound by a rental agreement, cannot exercise his right of ownership without restrictions.

Property ownership can be owned by one owner alone or by several people jointly as joint ownership. The so-called collective right applies to joint ownership. There are also special features when it comes to homeownership. In an apartment owners association, there is ownership of the individual apartments according to a division plan. Also,  there are regularly unique ownership relationships, such as personal property or joint property.

Property ownership is transferred to a new owner, for example, after a purchase or a gift. Ownership does not pass with the conclusion of a contract, such as a sales contract. The requirement for the so-called transfer of ownership is usually the agreement on the transfer of ownership between the old and the new owner and the handover of the thing. When buying land or a house, instead of handing over the property, it is entered in the land register. After the death of a person, inheritance law determines who, as the heir, becomes the new owner of the former property of the deceased, the so-called property.

Negotiating property contracts does not always go through the hands of a property lawyer. This work is usually carried out by property managers – from the point of view of the seller or lessor. But in large-scale operations, for builders or developers, it is or should be the norm. On the buyer or tenant side, this rarely happens. Individuals usually review their property contracts themselves. However, the legal profession has to be there if problems arise that are also considered severe. We talk about the claim about constructive defects or evictions. In these cases, the figure of the Queensland property lawyer can be crucial for a good outcome.

This branch of property law is aimed at the solemnity of operations. Those affected must know precisely the legal importance of a specific property agreement. One of the aspects that give meaning to the property law act is advertising: the Property Registry if we refer to the property’s purchase. In short, a property lawyer specializing in property law act must offer the best advice on registry issues.

The most “conventional” work of the property lawyer is to do complete diligence to check all the legal (and technical) aspects related to the property. Its registration situation, its charges, limitations, the construction status, the construction’s stability, the urban condition, etc. When the sale of a  property is going to be carried out, the property lawyer must conduct his clients’ actions so that the acquisition is carried out with total legal certainty. However, in this sense, we can find situations that try to violate the law, either due to ignorance or to commit a crime. The role of the property lawyer must be a guide at all times so as not to violate the law.

Suppose you want to claim construction defects that violate the Technical Building Code. When this happens, it is usually problems that affect the habitability, security, or functionality of the home or premises. Many property lawyers will have lived, in these circumstances, and after communicating the complaint to those responsible.

In the lead of property, various situations may arise involving property lawyers Brisbane specialized in property law act QLD. Let’s look at a possible problem: income claims and other breaches derived from the lease. Or, a more particular case: when a home has several owners, some wanting to rent it and others not. It is not usually known that the lease is valid if you sign it, even if you are one of the co-owners. Even if it is not known that he is acting on behalf of the community, likewise, recalling the property law act here, any of the property owners can urge an eviction or terminate the lease.

And conclude this article, where we review the property lawyer’s work, we cannot forget property leasing. Within this property operation format, let’s stop at the curiosity of the capital gain in this kind of transaction. It should be remembered that the General Directorate of Taxes allows the buyer to claim if the bank affects the payment on him. However, the property leasing deed indicates that it will be the client who must assume this tax payment. These and other everyday matters of a real estate lawyer demonstrate the differential key that our work can suppose.

In the case of retention of title property,  property law acts when the buyer of an item only becomes the owner when he has paid the purchase price in full. Until then, he only has a so-called expectant right. As a result, the seller must transfer ownership of the purchased item after the purchase price has been paid in full. The expectancy, as a so-called “identical minus,” is less than the property itself, but at least means that the seller can no longer withdraw from the contract without reason.

There are also various particular forms of retention of title. Extended reservation of title, vast reservation of title, or forwarded reservation of title often occur. It is regularly a matter of the buyer, for example, a small commercial trader, allowing to resell or transfer ownership of the goods purchased from his supplier under retention of title, even though he is not yet the owner. From the purchase prices paid to him, the dealer then regularly pays his supplier’s statements.

When selling or buying property, litigation, and litigation can arise. If necessary, it is recommended to use the services of a  property lawyer. This property lawyers Gold Coast may be called upon for advice or as a defense lawyer in the event of legal recourse. The defendant may choose it. The fees of this lawyer are fixed with the client and depend on the difficulty of the case. They are determined in a lawyer’s fee agreement signed by both parties. 

Property Law Act Qld

As its name suggests, the property lawyer is a specialist in the property law act. This lawyer must have a perfect mastery of the Construction and Housing Code. It is possible to find this lawyer online or with justice institutions. Like lawyers in foreigners’ law, lawyers in family law, or lawyers in labor law, this professional is established in different Brisbane areas.

The lawyer specializing in the property must master the elements of private and public property law and the property law act, and the Town Planning Code. Moreover, property law is a branch of law that deals with the sector relating to the property.

The property lawyer is a professional who settles cases related to property. His intervention is essential when his client’s rights are threatened or faced with a tricky situation.

A  property lawyer is often used in the event of a property dispute, particularly in the division of an inheritance. The field of intervention of this lawyer is not limited to conflict resolution but can extend to various areas related to property law.

The best property lawyer can, in some instances, play the role of mediator so that the parties in conflict resolve the case amicably and avoid legal recourse.

Here at Aylward Game Solicitors out the team is ready to assist you with any property law or legal situations on 1800 217 217.

Frequently Ask Questions:

What is property law?

The lawyer specializing in the property must master the elements of private and public real estate law and the Civil Code and the Town Planning Code.

What is a property lawyer?

The property lawyer is a professional who settles cases related to property. His intervention is essential when his client’s rights are threatened or when he is faced with a complicated situation. As its name suggests, the property lawyer is a specialist in property law. This lawyer must have a perfect mastery of the Construction and Housing Code.

When to call a property lawyer?

It is possible and even recommended to use a property lawyer in several situations relating to the use of a property.

What are the missions of a lawyer in property law?

The property lawyer has several missions: a role of assistance and advice, a role in drafting acts, and a role of representing his client’s interests before the judge in the event of legal proceedings.

What are the average fees for a property lawyer?

No regulation or scale fixing the number of a lawyer’s fees in property law.

Article Source: Property Law Act Qld

Early Super Access! How to exercise your rights during COVID-19

Needing early super access? You’re not alone.

In the wake of the recent COVID-19 pandemic, the Government has allowed early access to superannuation funds for a certain group of people and traders. Although the early access prescription appears easy to follow, there can be cases that fall on the eligibility borderline. The scales weigh more on the side of eligibility rather than the ineligibility side of early access for the applicant. The simple consequence of this misinterpretation could risk an eligible applicant becoming an ineligible one.

What did the Government say?

The Government would allow early access to the super funds by those affected by the COVID-19 crisis. Basically, an eligible super funds member can withdraw $10,000.00 this financial year which ends on 30 June 2020, and another $10,000.00 next financial year which starts as of 1 July 2020. This is tax-free the Government said.  The measure is designed to address the existing hardship on the eligible individuals and traders to whom this new ruling would apply.

I am currently employed but my wife has been made redundant. Can we both apply for early access to our super funds?

If you are still working and it is only your wife who has been made redundant after 1 January 2020, then your wife can only exercise her right of early access to her super funds. To become eligible, she needs to show that either:

• As an individual, she was made redundant by her employer, or her working hours reduced by 20% or more; or
• As a sole trader, her business has suffered a 20% or more reduction in her turnover.

I am unemployed but receive a job seeker payment. Can I still apply for early access to my super funds? 

Yes, you can.

I receive a youth allowance for job seekers. I have not many funds left in my super. Can I still apply for the early access, or do I need to have a minimum available in my super funds?

Yes, you can. So far the Government has not set a benchmark for the available funds in a super account. The Government has however defined the maximum that can be withdrawn from the super funds in this and next financial year.

I currently receive parenting and some other special payments from Centrelink, can I still apply for early access to my super funds?

Providing you meet the individual, or, the sole trader tests above, yes you can.

Having read your article here, I now know that I am eligible to have early access to my super funds, how do I do it?

Applications are to the ATO via the My Gov website. The process is pretty simple. The ATO will verify the applicant, assess the application, record the bank account details, and make a decision. The ATO will then direct the nominated fund to release the requested amount to the bank account specified by the member. It is essential to know is that the member does not need to contact his/her super funds at all in the process.

Just so I could educate myself, what is the total amount that this scheme will allow to be accessed from the super funds, and how much more will be left in the super after?

According to the Government, it is estimated that around $27 billion funds might be taken out via early release, however, this is less than 1% of a circa $3 trillion superannuation in the system owned by the Australian members.

Article Source: Early Super Access

What is defective building work & can you sue for consequential damage?

Suffered From Effects Of Defective Building Work in QLD?

You can sue for consequential damage.

This article aims to provide general guidelines for consumers in relation to their defective building work and to shed light on the circumstances scenario where a cause of action may be available to claim consequential damage from the contractor who attended to the work. The guidelines are not meant to be a substitute for legal advice and may not apply to individual circumstances. Please, call our office and discuss your individual case.

The Queensland Building and Construction Commission (QBCC) has been empowered by s 72 of the Queensland Building and Construction Commission Act 1991 (the Act)  to direct a contractor, whether licensed or unlicensed, to rectify building work that is either defective or incomplete or to remedy consequential damage caused by or as a consequence of carrying out building work. The direction is commonly referred to as a direction to rectify (DTR).

What is consequential damage?

Consequential damage at law refers to indirect damages or losses not flowing immediately from an act, but rather from the consequences of the act. For instance, loss of business as a result of a fire. In Queensland and in the context of s 71H of the Act, consequential damage is a damage

• Caused by, or as a consequence of, carrying out building work at a building site (the relevant site), regardless of any intention, negligence, or recklessness of the person carrying out the work; and
• To a residential property at the relevant site, containing the relevant site or adjacent to the relevant site.

What is building work?

The legislative definition of building work includes —

• Any work personally carried out whether directly or indirectly;
• Providing administration, advisor, management or supervisory services for building work, including:
  • Entering into a contract or submitting a tender for building work;
  • Offering (quoting and tendering) to carry out building work;
  • Taking payment or arranging payment of subcontractors;
  • Arranging labor or arranging and conducting on-site meetings and inspections;
  • Preparing plans and specification;
  • Coordinating the scheduling of work for building contractors even as an agent for another person;
  • Obtaining engineering or soil reports, or arranging for certificates from local government to be issued, etc;
  • Supervising building work;
  • Providing advice or a report for a building;
  • Contracting for work as a subcontractor to a builder.

What is defective work?

The QBCC Act describes defective building work to include work that is faulty or unsatisfactory. The words faulty and unsatisfactory are to be given their ordinary and natural meaning. In considering whether the work is defective or not, the following may be called in assistance. Any building work which has the characteristics of the following may be considered defective work—

• The work does not comply with the Building Act 1975, Building Code of Australia or an applicable Australian Standard; and
• The work involves the use of a manufactured product, and that product has been used, constructed, or installed in a way that does not comply with the product manufacturer’s instructions.

In Gemini Homes (QLD) Pty Ltd v QBCC [2014] QCAT 481. The Tribunal opined that—

“… The QBCC is not required to identify a non-compliance with the Building Act 1975, National Construction Code or manufacturer’s instruction, in establishing that the building work is defective. Where defects are evident, yet the cause is unclear, the building work may be determined to be defective and may be the subject of a DTR.”

Where to lodge a complaint about defective and incomplete work?

For information in relation to lodging a complaint with the QBCC for defective or incomplete work, please visit the QBCC website via the following link:

http://www.qbcc.qld.gov.au/building-complaints/complaints-about-defective-building-work

What obligations do I have prior to lodging a complaint?

You need to lodge your complaint as soon as possible. The following timeframe must be adhered to:

• A claim under the Queensland Home Warranty Scheme for structural defects must be made within 3 months of noticing the defect;
• A claim under the Queensland Home Warranty Scheme for non-structural defects must be made within 7 months of the completion of the work (and the non-structural defect must have come to light within 6 months of substantial completion); and
• A request for DTR should be made within 12 months of becoming aware of the defects/incomplete work or consequential damage.

What are structural defects examples?

• Leaking roof;
• Leaking shower to internal walls; and
• Major cracking of walls.

What are non-structural defects examples?

• Chipped internal paintwork;
• Sticking drawers; and
• Minor cracking of plasterboard.

Legal Help.

Aylward Game Solicitors have assisted a number of clients in relation to building defect cases that include mediation to resolution and litigation as possible pathways. We look forward to discussing your options and protecting your rights. Our experienced team can be reached on 1800 217 217.

Article Source: Defective Building Work