FEATURED ITEMS

Separated Under The One Roof

Some married couples separate but continue to live in the same house under the one roof. This may be for a few weeks or even years following separation.

Living under the one roof can be very stressful but can also be a practical solution if it is difficult to find alternative accommodation.

Parties separated under the one roof should live independent lives, although there maybe some shared duties, for example taking out the rubbish bin.

If you or your spouse have lived under the one roof for all or part of the required 12 months separation period and are seeking a divorce then you will need to provide extra information at the Court at the time of the Hearing for the Divorce. This information is usually presented in the form of an Affidavit.

Some of the matters that you may need to explain in the Affidavit:

1. Changed sleeping arrangements
2. A reduction in shared activities or family outings
3. Lack of performing household duties for each other
4. Division of finances; i.e. separate bank accounts
5. Why you continue to live in the same home 
6. Living arrangements made for any child of the marriage
7. If you have received Government benefits
 

Each situation has separate facts and circumstances and you should consult a Lawyer to properly prepare the application.

However, if living under the one roof causes extreme stress, friction and domestic violence then it is wise to leave immediately and seek legal advice about your entitlements.

 Ross Brown - Accredited Specialist in Family Law
 

Will Challenges

Many people are concerned about protecting their Will from challenge.

Increasing land valuations and superannuation mean that people are dying with assets that are more valuable than may have been anticipated.

Factors such as second and subsequent relationships, step-children and children from multiple relationships can also create difficulties. As a result, more people are challenging the provisions of Wills.

The law in Victoria currently provides that your Will can be challenged if you do not make proper provision for someone you ought to have provided for.

Merely leaving a token gift does not prevent a person from making a claim against your Estate.

Any person is able to make a claim against your Estate if they can show that you had a responsibility to provide for them, and they are in need.

The Courts have found people to be in need notwithstanding that a person has a job and a home.

A challenge to your Will results in delay, stress and anguish, and increased costs, which are usually borne by your Estate. The costs of a challenge can be substantial. The Estate often pays the claimant’s costs, as well as the Estate’s.

Implementing Estate Planning early can assist in protecting your Will from a challenge. It can help identify potential risks, and can assist you in dealing with your assets in a way that can protect them from challenge.

Estate Planning also ensures that you have control over who is in charge of your Estate, and can help minimise the impact of taxation.

Deborah Anderson - Accredited Specialist in Wills & Estates

Taxing Issues

Since its introduction in Australia in 1985, Capital Gains Tax has had a big impact on the conduct of many aspects of property and business affairs.

You will know that the keeping of accurate records regarding the acquisition and disposal of real and personal property is vitally important, but understanding whether the sale or transfer of your property has any CGT consequences requires a careful analysis of the circumstances.

Apart from the basic question of whether or not the sale or transfer of your property has CGT consequences, some or all of the following questions might arise:

• How do I work out my capital gain or loss?

• Does CGT apply if I transfer my property to a family member for no consideration or for less than its market value?

• Is the contract date or the settlement date relevant to determining whether, for CGT purposes, I have purchased or sold a property?

• Am I entitled to a full main residence exemption?

• Are there any concessions that might apply to reduce any capital gains I make on the sale of my small business?

• Will I make a capital gain or a capital loss if I subdivide or amalgamate the titles of property that I own?

• How does CGT apply to assets I leave to the beneficiaries of my Will?

• I plan to transfer property to my former spouse as a result of the breakdown of our marriage. Will there be any CGT consequences
 

Capital Gains Tax Issues are complex and it's important to ask the right questions and obtain the right answers. Our team of property, commercial, estate and family lawyers have the expertise to assist you.

Peter Spear 
 

Check The Section 32 BEFORE You Buy

Checking the Section 32 and contract for a property you propose buying is important because:

• It gives you peace of mind. Whilst solicitors will not spot latent building defects, (you need to do a building inspection for that), a comprehensive set of searches will indicate whether there is anything of concern regarding the property.

• Your proposed use of the property must be permitted under its zoning.

• The cooling off period is not always available. Agents do not always manage to distribute contracts to the solicitors within three business days of the contract being signed.

• A solicitor may find a number of issues of importance to you. Building, planning, easement and restrictive covenant issues, proposals with Government authorities which have not yet been finalised, (and which may affect you), and whether services are connected are some of the things which may come to light. Also, its a good idea to check the boundaries of the property with a measuring tape.

• If a property is leased, there may be unusual lease terms. If the land is affected by an Owner's Corporation, check its rules and determine whether appropriate insurance is held.

• The contract needs to reflect your agreement. Sometimes verbal deals are done between parties that are not included in the contract.

Buying real estate is a major investment and requires a major investigation before committing. It's far easier to sort difficulties out before you sign the contract!

Matthew Kinross-Smith - Accredited Business Law Specialist

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