Divorce & Separation
In Australia, a marriage is legal if it is in accordance with the Marriage Act 1961. On 8 December 2017 the Marriage Act was amended to allow for marriage between same-sex partners.
Under Australian Law, you do not need to prove fault, only that the relationship is “irreconcilable”. Parties who agree, may apply by way of a Joint Application for Divorce however, if the other party does not agree, you can still apply by way of a Sole Application for Divorce. If you intend to apply on your own, you will need to serve the Divorce Application on your ex-partner.
There are strict requirements around service and it is important you get this right otherwise the granting of your Divorce may be delayed further.
If there are children under the age of 18 years, the court will only grant a divorce if proper arrangements have been made for the welfare of those children. This does not mean that you must have a formal agreement in place, however, evidence must be provided that advises the court on the current living and well-being of the children.
Although it is true that you do not need a lawyer to apply for a divorce, there are advantages in doing so.
At Sapphire Legal, we know what is required by the Court before it will grant a Divorce.
If you only wish to settle property and financial issues and/or child arrangements, you do not need to apply for a Divorce first however once a Divorce order is granted, you have 12 months to apply for property settlement.
A Divorce Order, once granted by the Court, will become effective 1 month and 1 day after the Divorce Hearing.
At Sapphire Legal, we offer fixed professional fee’s for both Joint and Sole Divorce Applications. For further advice, please contact us.
Can I do my own power of attorney in NSW?If you'd like Sapphire Legal to make your Power of Attorney document, you can begin the process, online. After you've filled out and submitted the online form, we’ll contact you, and arrange a time to finalise the documentation.
Does my attorney override my will?No. Your attorney can not change an existing will, or give instructions to make a will on your behalf. Therefore it is so important that you prepare your Last Will and Testament whilst you still have mental capacity to do so. Once done, you can include a condition in your power of attorney that requires your attorney to acquaint themselves with your Will and Testament and request that, to the extent practicable, they do not make any decisions that may cause a gift under your will to fail.
What is the difference between power of attorney and Enduring Power of Attorney in NSW?A General Power of Attorney can no longer be used once a person loses capacity such that they are unable to make decisions or act on their own. This is where an Enduring Power of Attorney comes in. An Enduring Power of Attorney can be used when a person has 'lost capacity’ but this document must be prepared before the appointer loses capacity.
Can I revoke a power of attorney?Your power of attorney appoints one or more individuals to have the authority to make financial and legal decisions on your behalf. Your attorney can continue to act until they are made aware of the termination of their appointment. To do this, you revocation must be in writing, signed by you and witnessed. If you have an enduring power of attorney, it continues once you lose capacity which is why it is important that in the event you wish to revoke this document, you do so whilst you still have mental capacity otherwise this opportunity will be lost. If you have registered your Power of Attorney with NSW Land Registry Services, you must also register the revocation with the Registry.
Can a power of attorney still be made after I lose capacity?Unfortunately, no. Once a person has lost their mental capacity, they will lose their ability to instruct a solicitor to prepare legal documents on their behalf. If you are a resident of NSW, your family or loved ones will need to apply to the NSW Civil and Administrative Tribunal (NCAT) to apply for a guardianship order. This can be stressful and time-consuming. NCAT will then decide whether or not the person who is applying should be allowed to manage your affairs. There is no guarantee that they will agree and may make an order appointing someone else including the NSW Public Trustee & Guardian.
Who should I appoint as my Attorney?Generally speaking, while it is good to include your spouse or siblings, consider the fact that they may not be around or have the mental capacity themselves to manage your financial affairs. You need to ensure that whomever you appoint, you trust that they will act in your best interests. Ideally, wherever possible, you should appoint two attorney’s and a substitute attorney should one or both of your primary attorneys be unable or unwilling to act.
Do I need to register a power of attorney in NSW?If your power of attorney will require your attorney to deal with property, yes, it must be registered with NSW Lands and Titles Office.
Can someone with power of attorney withdraw money?Yes. A power of attorney is a legal document that allows you to appoint a person or people (your attorney’s) to manage your financial and legal affairs. This means withdrawing and depositing money in your bank accounts and any income you receive. If you appoint more than one attorney to act jointly and severally, you can include a condition such that any withdrawals above a certain amount requires your attorneys to act jointly.
What are the disadvantages of power of attorney?One major downfall of a POA is the agent may act in ways or do things that the principal had not intended. There is no direct oversight of the agent's activities by anyone other than you, the principal. This can lend a hand to situations such as elder financial abuse and/or fraud.
Is it worth having power of attorney?Indeed, a power of attorney forms a vital part of your estate preparation along with your Will and Testament and Enduring Guardianship. Unlike a Will however which only comes into effect once you die, your enduring power of attorney and enduring guardianship are effective whilst you are still alive but have lost mental capacity to take care of your own financial, legal and lifestyle/health decisions. Once you lose capacity however, you also lose your ability to instruct a solicitor to prepare your documents which is why it is so important to do this whilst you still have the mental capacity to do so.