Buying a house with your de facto

Buying Real Estate with your partner, particularly if it’s your first home, can be an exciting time. However, it is also a very large commitment and comes with significant financial and legal ramifications. It also raises a number of questions for you as a couple that not everyone takes the time to sit down and discuss. If you want to avoid ending up in Family Court fighting over the house, you need to get advice before you buy.

Some of the things you should be considering and discussing with your partner include:

• how much money are you each putting in?
• who is paying the legal fees, stamp duty and other expenses?
• will the house be in both your names or just one name?
• if you both own it, do you want it to be as joint tenants or tenants in common?
• In what shares will you pay the mortgage?
• Are either of you entitled to concessions?
• How will you share other costs like rates, water, repairs, body corporate fees, insurance, utilities etc?
• If one of you becomes ill and can’t work, how will the mortgage be paid?
• What will happen to the property if one of you dies?
• What will happen if you separate? How do you decide who keeps the house and who will move out?
• What happens if you separate and then sell the home? How do you decide how the proceeds of sale are divided? Should you divide the profit (or loss) equally? Should you be reimbursed for what you contributed?
• What if you separate and you want to keep the house? How much will you have to pay the other person?
• Do you plan to have children? And if so, does that change how you think the property should be treated in the event of separation?

Your conveyancing solicitor will usually not be able to cover all of these areas, particularly if they are representing both you and your partner in relation to the purchase.

You need to seek expert advice from a family lawyer regarding your circumstances and such advice needs to be given independently from your partner. In particular, you should explore whether a Binding Financial Agreement (pre-nup) would be appropriate. These agreements set out what happens if you separate in the future.

You should also discuss your will and estate plan with your lawyer to determine what would happen in the event of your death. It is also highly recommended to seek advice from financial experts, including regarding your borrowing capacity and adequate income protection insurance.

Buying property is a significant decision and one of the biggest financial investment decisions most people will make. The information can seem overwhelming, but it is well worth putting in the time to do your research before you bid at auction or make an offer.

Before you take the plunge, make sure you:

1. obtain all of the information and expert advice you can so that you are making an informed decision; and
2. discuss these issues in depth with your partner so that you are both on the same page.

Shared from the Farrar Gesini Dunn Blog - originally posted at: http://www.fgd.com.au/blog/buying-real-estate-with-your-partner/ 
Contact Farrar Gesini Dunn for an appointment with one of our solicitors to discuss how we can help you. 

The future of same sex marriage in Australia

The High Court has found that the ACT Marriage Equality (Same Sex) Act 2013 is of no effect. 

Although some groups who are anti gay marriage are treating this as a win, the better view of the ruling is that it actually helps the case for marriage equality. 

The High Court have ruled that under the Constitution, '"marriage" is a term which includes a marriage between persons of the same sex.' You can see the full judgment here. This now clears the way for the Commonwealth to make legislation allowing for same sex marriage, without requiring a referendum or reconsideration of the Constitution. 

So although it is a very disappointing result for same sex couples in the short term, particularly those who were married and now have had the marriage declared invalid, in the long term, having same sex marriage legislated at a federal level is a far preferable outcome.

Having Commonwealth Legislation rather than state or territory laws means that marriage really will be equal, rather than having one set of laws for heterosexual couples and another for same sex couples. 

As set out in my previous blog post on ACT same sex marriage, if the High Court had declared the legislation valid, although that would have meant that same sex couples could be "married" in the ACT, it would not be the same as a marriage under the Marriage Act and would therefore still be separate. It would have also created difficulties for those couples from a Family Law and Estate Planning point of view. In particular, divorce and property settlement could have become a much more complex and costly exercise for these couples. 

There would have been different definitions of "marriage" and separate laws and systems for divorce. As a family lawyer, I was concerned that the ACT system would have created unnecessary cost for separating couples,  confusion regarding the applicable law and may have resulted in substantial (and costly) litigation. It may have also created problems in the event of the death of either partner and what would happen to that person's estate, will and superannuation. 

The Greens have now proposed the Marriage Equality Amendment Bill into the Senate, which provides for amendment to the commonwealth Marriage Act to remove discrimination on the basis of sexuality and gender identity.

Amending the Marriage Act really is the best way forward for true marriage equality and for equal treatment under the Family Law Act.

If you are a same sex couple and want advice about your current circumstances, contact Farrar Gesini Dunn Family & Collaborative Law for advice.

High Court to deliver judgment on same sex marriage this week

Driving through Canberra on the weekend I saw a happy sight - multiple wedding parties posing for photos and celebrating their marriage. But the question remains, will their marriages be valid?

This coming Thursday, the High Court will deliver judgment on 2 key questions:

- is the ACT Marriage Equality (Same Sex) Act 2013 inconsistent with the Commonwealth Marriage Act and/or the Commonwealth Family Law Act? and 

- if the ACT Legislation is inconsistent, does that cause the ACT Legislation to be of no effect or void?

In total approximately 46 couples have registered to marry under the ACT Legislation. So what affect will the High Court ruling have on them? 

If the High Court finds that the ACT legislation is inconsistent, then the likely effect is that the marriages will be deemed invalid. From a Family Law point of view, the parties would then likely be treated as de facto couples (subject to meeting the criteria under the Family Law Act) if they ever separate. 

If however the High Court declares the legislation valid, although this will mean that same sex couples can be "married" in the ACT, it does create some difficulties for these couples from a Family Law and Estate Planning point of view. In particular, divorce and property settlement could become a much more complex and costly exercise for these couples.

More on this coming soon...

How to reduce your legal fees

Most lawyers charge primarily on a “time costing” basis.  This can mean that something as simple as calling your lawyer a few times when you forget to mention something in an earlier call can quickly increase your costs.

Here are some tips our firm, Farrar GesiniDunn Family & Collaborative Law, developed that may help you limit your fees and make your matter more cost effective:

• Rather than playing “telephone-tag” with your lawyer, ask their assistant to make a telephone appointment
• Prepare a list of questions to ask your lawyer before your meetings 
• Send  one  email  that  deals  with  a  number  of  issues rather  than  numerous  short  emails 
• Consider a  regular  telephone  appointment  once  a  week  with your solicitor  rather than multiple telephone calls during the week.
• If you only require minor changes to a proposed document, speak to the solicitor’s assistant instead of your solicitor.  
• When  documents  have  to  be  drafted,  provide  clear, concise  notes  on  the  topic  the  solicitor  has requested
• If documents from another source are required, discuss with your solicitor who will obtain the documents.  
• When providing documents to your solicitor try to bring in one bundle of documents rather than delivering one document at a time unless it is urgent.  
• If you provide your solicitor with a large bundle of documents, keep it mind that the more organised the documents are, the less time it will take (and less money it will cost) for your solicitor to review them 
•  Discuss  with  your  lawyer  the  option  of  copies  of  either  letters  being sent to you in bundles of three (if not urgent) 
• Ask your lawyer if they practice Collaborative Law, this process can be more cost effective than Court 
• Ask your lawyer if they offer fixed fees
  

At Farrar GesiniDunn Family & Collaborative Law, we invite our clients to choose how we charge. For Canberra Family Law matters, contact our Canberra office today. For all your Melbourne Family Law needs, contact our Melbourne office.

By Kasey Fox

Director

Farrar Gesini Dunn