Family Law: Things to consider before you say “I do” for the second (or third!) time around
Do half of marriages really end in divorce?
Following the introduction of the Family Law Act 1975 which came into effect in January 1976 and allowed couples to divorce without alleging or proving fault, divorces in Australia rose to approximately 4.6 per 1,000 residents. The divorce rate has progressively declined to just 2.0 per 1000 residents as at 2017. In 2017, 27% of these marriages ending in divorce were couples who had been married for longer than 20 years (Australian Institute of Family Studies).
So what do you need to consider if you are planning on getting married for the second (or a subsequent) time?
Have you cut the cord from your last marriage?
The first of our five tips may seem like a simple one, but in the haste of organising a wedding can often be forgotten. Prior to re-marrying, you must ensure that you have obtained a divorce order in relation to your previous marriage. In order to obtain a divorce, the couple must be able to give evidence that the relationship has broken down, and that they have been separated for a period greater than twelve months. Special conditions apply for marriages with a duration of less than two years.
Prior to making your wedding plans, ensure that you have organised your divorce application. The time from filing your application to receiving your divorce order will be around three to four months dependant on Court availability. In the event that you cannot locate you ex-spouse or your ex-spouse disputes the date that you separated, the process may take significantly longer. We recommend that you look at obtaining a divorce as soon as possible, so as to prevent the added stress leading up to your big day.
Increasingly, we find a number of clients are entering into a subsequent marriage without obtaining a final and binding property settlement for the assets from the previous marriage, which can substantially complicate the process.
Have you reviewed your estate planning documents?
Divorce and marriage are two events which invalidate your Will. That is, unless your Will has express provision allowing it to continue subsequent to these events occurring it is automatically invalidated. We strongly recommend reviewing your Will and other estate planning documents such as your Enduring Power of Attorney and Enduring Power of Guardianship to ensure that your ex-spouse is removed. If your ex-spouse has been nominated under an Enduring Power of Attorney, it is likely that they will have a copy of this document, and may be able to access your finances. We strongly recommend that you seek legal advice so as to revoke these documents upon your separation, if not before your next marriage.
Have you considered your assets which fall outside of your estate?
In most circumstances your life insurance and superannuation will not form part of you estate when you pass away. Usually these assets require you to make a beneficiary nomination. We strongly recommend that you contact your life insurance and superannuation providers to ensure that you update your nominated beneficiaries.
Have you protected your previously acquired assets?
When entering into second marriages later in life, couples often have individual wealth that has been built up and acquired in what they may consider to be their “past life”. Ensuring that these assets are securely protected may be a background thought for the newly loved-up couple, but it is likely to be at the forefront of the adult children’s minds as they watch their future inheritance fall into risky territory.
Couples faced with this issue can enter into a Binding Financial Agreement (“BFA”) to protect their assets brought into the relationship. A BFA is essentially a contractual agreement between the couple as to how their assets will be dealt with in the event that the relationship breaks down. Given that a BFA is essentially both members of the couple agreeing to forgo any legal entitlements they may have against the other parties’ assets, both members of the couple are required to obtain independent legal advice in order for the agreement to be binding.
Have you considered how you will own property together?
When purchasing real property (i.e. House/land) with another person, you may choose to own it as joint tenants or tenants in common. Where one proprietor dies and the property is owned as joint tenants, the surviving proprietor will essentially receive the entirety of the property. Where one proprietor dies and the property is owned as tenants in common, each proprietor can dispose of their share as they wish pursuant to their Will.
Traditionally couples to a first marriage will own property as joint tenants, as this will ensure that the surviving spouse will automatically receive the family home. For second and subsequent marriages, it is sometimes more appropriate to consider owning property as tenants in common, particularly in circumstances where both spouses have children from previous marriages. This ensures that both spouses are able to dispose of their interests as they desire, whilst possibly preventing complicated family disputes down the track.
So before you put your wedding plans into action, ensure that your legal affairs are structured to best protect your assets and ensure that your estate can be distributed pursuant to your wishes when you pass away. Many of the above-mentioned considerations also apply to couples entering into new de-facto relationships. We recommend that you seek legal advice to assess your personal circumstances. Should you require further advice, we strongly recommend contacting one of our Perth estate planning and/or family lawyers for a confidential discussion about how we can best assist you.
If you enjoyed this article, you may be interested in more family law news.
About the authors:
Zoe Rosman is a Perth lawyer and was admitted as a solicitor of the Supreme Court of Western Australia in 2018 and specialises in Family Law and Wills & Estate Planning matters. Jacqui Brown is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning. Jacqui is also a Nationally Accredited Mediator and a Notary Public.