Have you heard of the movie, "The Green Prince"? I hadn't until friends invited us to a Saturday showing at the Schonell Theatre yesterday.
The film is a scripted documentary. The main "characters" are Palestinian, Mosab Hassan Yousef and Israeli, Gonen. Mosab is the eldest and most dutiful son of a senior and influential figure in the zealously anti-Israeli Hamas. Gonen, on the other hand, is an Israeli secret service operative in the ruthless anti-Palestinian Shin Bet, with a background including psychology.
Under the carefully manipulative influence of Gonen, Mosab is transformed. At 17 he is angry and hell bent on avenging what he perceives to be the unjust and cruel targeting and repetitive jailing of his much loved and respected father by Israeli forces. A stint in prison, however, showed him first hand how Hamas members in prison committed greater atrocities on their own with less justification in his view than the Israelis. Over time he came to see the basis of Hamas's terror tactics in Israel as flawed and even his father as one-eyed and not amenable to reason.
Not only did Mosab become a highly prized informant for the Israelis by virtue of his close association with his father as his trusted advisor and assistant, but he and Gonen developed a relationship based on genuine trust and affection - to the extent that they demonstrated extreme loyalty towards each other in the face of great risk of harm or even death at the hands of zealously single-minded individuals in both Shin Bet and Hamas.
Was Mosab a selfish person who worked for the Israelis to save his own skin or did he undergo a true moral awakening in the face of the deaths of so many Israeli citizens at the hands of suicide bombings and other violent tactics orchestrated by Hamas?
How is it he was able to betray (according to his upbringing and his nationality) his father and his kinsmen? Was it in fact betrayal or did he believe that if he could help stop the violence perpetrated by Hamas then there might be a better world for Israeli and Palestinian alike?
What about Gonen? Did he really connect with Mosab at a human level, or was Mosab no more than a much valued prize pawn in the fight against Hamas?
Talk about 50 shades of grey: I'm thinking that in this situation 50 might be an underestimation!
Are there any similarities or learnings here for us to take into dispute resolution for separating couples, disputing workers, extended families in crisis?
Methinks there is always more than one story to hear and that there are also many ways to view each story. When in doubt, don't judge. Listen, listen and keep listening and potential solutions will usually emerge under the guidance of a skilled and sensitive mediator.
Showing posts with label property division. Show all posts
Showing posts with label property division. Show all posts
Sunday, February 15, 2015
Monday, December 22, 2014
It's NOT "The Most Wonderful Time of the Year" for some
It's NOT "The Most Wonderful Time of the Year" for some.
While most of us are caught up in last minute gift shopping and wrapping, planning food for Christmas Day and packing for time away at the beach or other haunts, others are doing it tough.Some have been given notice that their jobs will not be continuing in the new year, some are feeling dread at the prospect of unimpeded time "relaxing" with a partner they scarcely have time to chat to most of the year and yet others are dealing with recent losses or reliving past ones.
At Brisbane Mediations, we know that all is not always as it seems in people's lives. In keeping with the generous spirit of Christmas, we should all spare a moment to check on the people next door, ring the relative who lives alone and has not been in touch for a while, reach out to friends and above all else appreciate and hug our loved ones.
We hope all our followers have a wonderful, safe and restorative Christmas and New Year and that you share your good things. If you are one of those who is struggling, hang in there. In dark times, Christmas is like that moment just before the dawn. If you see it out, a fresh new year will make things look very different and, with the right support, you can start making the changes needed in your life.
Merry Christmas!
Denise, Mike, Krystina, Joanne and the Mediation Team
Wednesday, June 4, 2014
Special Contributions to Property
For an interesting and recent discussion of the notion of "special contributions" see the Full Court decision of Hoffman & Hoffman [2014] FamCAFC 92.
FM Brewster as he then was ordered an equal division of property in a pool of about $10m after the parties' 36 year cohabitation.
In so doing, His Honour declined to accept any principle of special contributions.
The husband had asserted that his special skills and entrepreneurial flair were instrumental in the parties having the property they did at trial.
In dismissing the appeal the Full Court bench of Faulks DCJ, Murphy J and Watts J rejected the notion that there was a binding principle of law relating to "special contributions" or that there was any legitimate guideline in respect of such contributions.
Further that the nature of the category of contributions asserted by the husband was not of itself relevant but must be considered as with all other contributions made by each of the parties.
The Full Court held that "Read as a whole his Honour's reasons reflect a proper consideration of all matters relevant to the exercise of his Honour's wide discretion insofar as it specifically relates to contributions ".
Friday, November 9, 2012
Our new website has gone live!!
Our sleeves have been rolled up over the last couple of months whilst
developing the new Brisbane Mediations website.
We are very proud and excited to advise the time has now come and we
are running live.
Please accept our invitation to click on the following link and discover
all that Brisbane Mediations encompasses and offers: www.brisbanemediations.com.au
Let us know what you think and if there are any areas that particularly
interest you. We would love to receive your feedback either by email on
resolve@brisbanemediations.com.au or by phone 07 3839 7400.
Brisbane Mediations has over 30
specialist mediators including many registered Family Dispute Resolution
Practitioners on its panel ready to help your clients discuss issues, look at
options and work out how best to reach agreement in disputes relating to
relationships, financial, workplace, organisational and child-inclusive
mediations. Unlike some other agencies, at Brisbane Mediations
we welcome the participation of lawyers in our process.
Our purpose built rooms allow mediations to be conducted in a relaxed
non-threatening environment.
Let Brisbane Mediations do all the footwork for you- call us on 07
3839 7400 or email resolve@brisbanemediations.com.au
Tuesday, October 16, 2012
Gifts/Loans During Relationship
Issues often arise as to how gifts or loans made to the parties during a
relationship are to be treated on separation.
It is quite common for parents to advance funds to the parties to assist them during the relationship. Often the advance is made without documentation and although there may be some expectation that the monies may be repaid, if needed at some stage, it is often unclear as to whether the advance is intended as a loan or as a gift to the parties or one of them.
Even in circumstances where there is some form of written agreement, often there is no provision for interest to be paid and no immediate expectation for repayment on the part of the lender.
While the nature of the advance may not be clear at the time, it is common that on separation the parties have very definite views regarding the advance, with one contending it was a gift to the parties and the other claiming it to be a loan.
The Court has a discretion as to how it will treat the advance and often how to exercise this discretion is very difficult.
The Court might look for written evidence or look at what discussions took place at the time of the advance and whether any part of the monies has been repaid or any interest paid.
Even if there is something in writing, that might not be the end of it, as the court may look at how long ago the advance was made and what, if any, repayments have been made.
If the Court considers it is a loan, it still has to look at whether in all the circumstances it is likely to be enforced and this may involve some consideration of the circumstances of the parties who advanced it.
Ultimately it is a matter of the Court weighing up all of the evidence and assessing where the balance lies.
It is not necessary for the lender to intervene in the proceedings between the parties.
Each case is different and the issue of whether an advance is ultimately regarded as a gift or a loan is one for the Court to determine in the particular circumstances of the case.
The Courts have held that in some cases it is appropriate not to take the liability into account or to discount it. This could include a liability that is vague or uncertain or unlikely to be enforced or which was unreasonably incurred or deliberately incurred in disregard of the other party’s entitlement to property settlement.
Family Law however does not operate in a vacuum and the legitimate interests of third parties are not ignored when the court determines the respective rights to property between the parties.
If an advance is not treated as a loan, then it can be regarded as a contribution by one party but this is not a mathematical exercise and will be just another factor to be taken into account in negotiations between the parties or in the exercise of the Court’s discretion, if a Court determination is required.
The surest way to protect an advance is to enter into a written agreement and to register a mortgage but even this may not provide an answer as ultimately the determination of the nature or character of any advance made is a matter for the Court.
The position in relation to gifts is that the party on whose behalf or to whom the gift is made is usually given credit for a greater contribution because of that gift.
However, whilst the advance may be seen as a contribution by one party, parties and indeed the Court often adopt a broad brush approach to contributions and the advance or gift may be submerged by other factors.
The critical area of contention is in determining the intention of the donor.
Mike Emerson,
Co-principal Brisbane Mediations
It is quite common for parents to advance funds to the parties to assist them during the relationship. Often the advance is made without documentation and although there may be some expectation that the monies may be repaid, if needed at some stage, it is often unclear as to whether the advance is intended as a loan or as a gift to the parties or one of them.
Even in circumstances where there is some form of written agreement, often there is no provision for interest to be paid and no immediate expectation for repayment on the part of the lender.
While the nature of the advance may not be clear at the time, it is common that on separation the parties have very definite views regarding the advance, with one contending it was a gift to the parties and the other claiming it to be a loan.
The Court has a discretion as to how it will treat the advance and often how to exercise this discretion is very difficult.
The Court might look for written evidence or look at what discussions took place at the time of the advance and whether any part of the monies has been repaid or any interest paid.
Even if there is something in writing, that might not be the end of it, as the court may look at how long ago the advance was made and what, if any, repayments have been made.
If the Court considers it is a loan, it still has to look at whether in all the circumstances it is likely to be enforced and this may involve some consideration of the circumstances of the parties who advanced it.
Ultimately it is a matter of the Court weighing up all of the evidence and assessing where the balance lies.
It is not necessary for the lender to intervene in the proceedings between the parties.
Each case is different and the issue of whether an advance is ultimately regarded as a gift or a loan is one for the Court to determine in the particular circumstances of the case.
The Courts have held that in some cases it is appropriate not to take the liability into account or to discount it. This could include a liability that is vague or uncertain or unlikely to be enforced or which was unreasonably incurred or deliberately incurred in disregard of the other party’s entitlement to property settlement.
Family Law however does not operate in a vacuum and the legitimate interests of third parties are not ignored when the court determines the respective rights to property between the parties.
If an advance is not treated as a loan, then it can be regarded as a contribution by one party but this is not a mathematical exercise and will be just another factor to be taken into account in negotiations between the parties or in the exercise of the Court’s discretion, if a Court determination is required.
The surest way to protect an advance is to enter into a written agreement and to register a mortgage but even this may not provide an answer as ultimately the determination of the nature or character of any advance made is a matter for the Court.
The position in relation to gifts is that the party on whose behalf or to whom the gift is made is usually given credit for a greater contribution because of that gift.
However, whilst the advance may be seen as a contribution by one party, parties and indeed the Court often adopt a broad brush approach to contributions and the advance or gift may be submerged by other factors.
The critical area of contention is in determining the intention of the donor.
Mike Emerson,
Co-principal Brisbane Mediations
Friday, September 28, 2012
Mediating relationship disputes involving small property pools
Property settlements involving small pools are often among the hardest disputes
to mediate.
The "pool" is the term lawyers use to describe the net value of the property arising from the relationship after deducting the liabilities.
The mediator must of course recognise that even a very modest pool is important to the parties.A problem that can arise is the proportion that the legal costs of the parties bears to the total size of the pool if the dispute is not resolved at mediation and has to go to court.
Regardless of the small size of the pool, the emotional issues between the parties can be just as intense and sometimes more so, with an additional layer of anger arising from a party having to move on from a low asset base.
If the matter has to proceed to court, then it must go through the same steps and stages as a more complex dispute and consequently the legal costs will still be significant, further depleting the already small pool.
The difficulty for the mediator is that he or she may know that it does not make sense for the matter to go to court, however unfortunately the disputing parties may be driven by emotion rather than logic.Regardless of the legal costs that may flow from proceeding to court, pride, emotional pain or wanting to rectify a past wrong may come between a party and settlement, with one or other or both parties refusing to compromise.This is not of course to suggest that one party should compromise for the sake of it where the other party is being totally unreasonable, however if the gap between them narrows to the point where settlement is possible then potential costs should become an issue.
The mediator can only point out the importance of trying to reach a resolution to preserve as much as possible of the pool for the parties.The mediator can feel additional pressure in these circumstances to help the parties achieve a resolution in their own interest, and feel disappointment if not successful.
Sometimes where parties are clearly acting emotionally rather than logically, the answer may lie in referring them to counselling to deal with their emotional issues before attending or returning to mediation and sense may eventually prevail with a settlement being reached before significant costs accrue.
Ultimately however it is the parties' dispute and if a resolution is not achievable then court with consequent costs may unfortunately result.
Mike Emerson
The "pool" is the term lawyers use to describe the net value of the property arising from the relationship after deducting the liabilities.
The mediator must of course recognise that even a very modest pool is important to the parties.A problem that can arise is the proportion that the legal costs of the parties bears to the total size of the pool if the dispute is not resolved at mediation and has to go to court.
Regardless of the small size of the pool, the emotional issues between the parties can be just as intense and sometimes more so, with an additional layer of anger arising from a party having to move on from a low asset base.
If the matter has to proceed to court, then it must go through the same steps and stages as a more complex dispute and consequently the legal costs will still be significant, further depleting the already small pool.
The difficulty for the mediator is that he or she may know that it does not make sense for the matter to go to court, however unfortunately the disputing parties may be driven by emotion rather than logic.Regardless of the legal costs that may flow from proceeding to court, pride, emotional pain or wanting to rectify a past wrong may come between a party and settlement, with one or other or both parties refusing to compromise.This is not of course to suggest that one party should compromise for the sake of it where the other party is being totally unreasonable, however if the gap between them narrows to the point where settlement is possible then potential costs should become an issue.
The mediator can only point out the importance of trying to reach a resolution to preserve as much as possible of the pool for the parties.The mediator can feel additional pressure in these circumstances to help the parties achieve a resolution in their own interest, and feel disappointment if not successful.
Sometimes where parties are clearly acting emotionally rather than logically, the answer may lie in referring them to counselling to deal with their emotional issues before attending or returning to mediation and sense may eventually prevail with a settlement being reached before significant costs accrue.
Ultimately however it is the parties' dispute and if a resolution is not achievable then court with consequent costs may unfortunately result.
Mike Emerson
Wednesday, February 22, 2012
De Facto Property Jurisdiction
De Facto Property Jurisdiction
In 2008 the Family Law Act 1975 was amended to provide opposite sex and same sex de facto couples access to the federal family law courts in relation to financial matters.
The new jurisdiction was only to commence after the date of proclamation of the legislation by the Governor General.
It has recently been discovered that the proclamation of the amending Act had been overlooked and accordingly on 9 February 2012 the Governor-General made a proclamation fixing 11 February 2012 as the date from which the legislation would take effect.
The problem that this gives rise to is that there is a gap in the jurisdiction between the date of commencement of the legislation on 1 March 2009(1 July 2010 in South Australia) and 11 February 2012 being the date the proclamation takes effect.
The effect of all this is that orders made during the gap by both the Family Court and the Federal Magistrates Court would seem to have been made without jurisdiction and applications made to the courts in that period not validly issued.
Questions of validity will remain until the Government rectifies the matter by retrospective legislation, the possibility of which is apparently presently being considered.
Until the problem is rectified, any orders made during the relevant period are potentially invalid and this creates uncertainty for separated parties who entered into settlements on the basis that they would be valid.
The issue shows how a simple mistake can give rise to extensive and very significant consequences.Hopefully the matter can be resolved as quickly as possible with the co-operation of all involved
In 2008 the Family Law Act 1975 was amended to provide opposite sex and same sex de facto couples access to the federal family law courts in relation to financial matters.
The new jurisdiction was only to commence after the date of proclamation of the legislation by the Governor General.
It has recently been discovered that the proclamation of the amending Act had been overlooked and accordingly on 9 February 2012 the Governor-General made a proclamation fixing 11 February 2012 as the date from which the legislation would take effect.
The problem that this gives rise to is that there is a gap in the jurisdiction between the date of commencement of the legislation on 1 March 2009(1 July 2010 in South Australia) and 11 February 2012 being the date the proclamation takes effect.
The effect of all this is that orders made during the gap by both the Family Court and the Federal Magistrates Court would seem to have been made without jurisdiction and applications made to the courts in that period not validly issued.
Questions of validity will remain until the Government rectifies the matter by retrospective legislation, the possibility of which is apparently presently being considered.
Until the problem is rectified, any orders made during the relevant period are potentially invalid and this creates uncertainty for separated parties who entered into settlements on the basis that they would be valid.
The issue shows how a simple mistake can give rise to extensive and very significant consequences.Hopefully the matter can be resolved as quickly as possible with the co-operation of all involved
Tuesday, June 14, 2011
Mediation - around the table or in separate rooms?
People attending mediations often say they are nervous about sitting in the same room as the other party and ask about mediating from separate rooms or via a "shuttle" process.
In the majority of cases, even where there is considerable tension between the parties, I encourage them to at least commence their mediation around the one table.
The reasons include the following:
In my experience, it is generally beneficial to the mediation process for the parties to hear each other's concerns and issues directly;
They can each be more confident that the other party has in fact heard them;
They each hear an unabridged version of the other's views and not what the mediator has paraphrased;
By "breaking the ice" between parties who may not have spoken directly to each other for some time, the opportunity arises in many instances for some helpful discussion;
Brainstorming of options can be facilitated more effectively when the parties are in the same room;
Having a mediator or mediators present provides a safe environment in which to set the scene for an ongoing relationship between the parties (for example, when co-parenting after separation or divorce or needing to continue as colleagues in the workplace);
Some release of negative emotion is more likely if both parties are in the same room and when managed by a skilled and sensitive mediator this will often clear the way for more helpful and productive negotiation of solutions;
There is less chance of parties becoming suspicious about an alliance forming between the mediator and the other party;
The mediator's time is saved as he or she does not need to run between rooms and parties from the outset of the mediation;
If either party finds it too difficult to remain in the same room as the other party then it is a simple matter to change to shuttle mode at any time;
Parties are often most grateful for the opportunity to deal directly with the other party, whilst being supported by an even handed process.
Denise Britton
Co-Principal Brisbane Mediations
In the majority of cases, even where there is considerable tension between the parties, I encourage them to at least commence their mediation around the one table.
The reasons include the following:
In my experience, it is generally beneficial to the mediation process for the parties to hear each other's concerns and issues directly;
They can each be more confident that the other party has in fact heard them;
They each hear an unabridged version of the other's views and not what the mediator has paraphrased;
By "breaking the ice" between parties who may not have spoken directly to each other for some time, the opportunity arises in many instances for some helpful discussion;
Brainstorming of options can be facilitated more effectively when the parties are in the same room;
Having a mediator or mediators present provides a safe environment in which to set the scene for an ongoing relationship between the parties (for example, when co-parenting after separation or divorce or needing to continue as colleagues in the workplace);
Some release of negative emotion is more likely if both parties are in the same room and when managed by a skilled and sensitive mediator this will often clear the way for more helpful and productive negotiation of solutions;
There is less chance of parties becoming suspicious about an alliance forming between the mediator and the other party;
The mediator's time is saved as he or she does not need to run between rooms and parties from the outset of the mediation;
If either party finds it too difficult to remain in the same room as the other party then it is a simple matter to change to shuttle mode at any time;
Parties are often most grateful for the opportunity to deal directly with the other party, whilst being supported by an even handed process.
Denise Britton
Co-Principal Brisbane Mediations
Tuesday, May 10, 2011
Binding Financial Agreements
Latest developments in Binding Financial Agreements for marriages and de facto relationships.
http://bit.ly/mAdWyA
http://bit.ly/mAdWyA
Saturday, April 16, 2011
Five reasons to make prenuptial and cohabitation agreements
Couples planning to marry or to live together are usually caught up in the romance of the moment and the wondrous prospect of a life together. This is what makes the world go round and should not be discouraged or diminished.
Statistics tell us, however, that approximately 50% of first marriages and significantly higher percentages of second and subsequent marriages end in divorce. The figures for marriage like or de-facto relationships are less reliable, but there is every reason to believe that the incidence of breakdown is at least as high as for marriages.
There are very good reasons for certain couples about to move to a new stage of togetherness to consider making a prenuptial or cohabitation agreement.
1. With the average age to marry increasing and with many partners having previously been married or in marriage like relationships, it is common for one or both to bring significant property assets into the relationship. A properly prepared agreement can protect these assets.
2. Many partners need to consider children from previous relationships. An agreement may protect the financial interests of these children well into the future.
3. It makes sense to negotiate financial matters at a time when trust is high and arguments rational and logical rather than tinged with the illogicality, intransigence, grief, loss, guilt and bitterness that often accompany relationship breakdown.
4. Discussing financial matters before making a major commitment into the future can be enlightening as to each partner's attitudes and values. In the course of negotiating an agreement, there will either be a resolution which takes the pressure off the relationship or a decision that this union might not have been the best idea after all. There is a lot of truth in the old adage, "Better now than later".
5. Preparation and planning in the form of a prenuptial or a cohabitation agreement may, through clarification of where each partner stands financially, reduce unrealistic expectations and increase the sustainability of the relationship. In the unfortunate event that the relationship does end, however, such agreements can significantly reduce the emotional anguish, financial uncertainty and cost of a property settlement.
Because negotiation of prenuptial or cohabitation agreements occurs in a unique romantic context, mediation provides an ideal process. Mediation is less divisive and more user friendly, placing significantly less stress on fledgling relationships.
Legal advice remains vital and opinions on the implications of the agreement for each should be sought from suitably trained and experienced lawyers before the mediated agreement is signed.
Denise Britton - Co-Principal Brisbane Mediations
Statistics tell us, however, that approximately 50% of first marriages and significantly higher percentages of second and subsequent marriages end in divorce. The figures for marriage like or de-facto relationships are less reliable, but there is every reason to believe that the incidence of breakdown is at least as high as for marriages.
There are very good reasons for certain couples about to move to a new stage of togetherness to consider making a prenuptial or cohabitation agreement.
1. With the average age to marry increasing and with many partners having previously been married or in marriage like relationships, it is common for one or both to bring significant property assets into the relationship. A properly prepared agreement can protect these assets.
2. Many partners need to consider children from previous relationships. An agreement may protect the financial interests of these children well into the future.
3. It makes sense to negotiate financial matters at a time when trust is high and arguments rational and logical rather than tinged with the illogicality, intransigence, grief, loss, guilt and bitterness that often accompany relationship breakdown.
4. Discussing financial matters before making a major commitment into the future can be enlightening as to each partner's attitudes and values. In the course of negotiating an agreement, there will either be a resolution which takes the pressure off the relationship or a decision that this union might not have been the best idea after all. There is a lot of truth in the old adage, "Better now than later".
5. Preparation and planning in the form of a prenuptial or a cohabitation agreement may, through clarification of where each partner stands financially, reduce unrealistic expectations and increase the sustainability of the relationship. In the unfortunate event that the relationship does end, however, such agreements can significantly reduce the emotional anguish, financial uncertainty and cost of a property settlement.
Because negotiation of prenuptial or cohabitation agreements occurs in a unique romantic context, mediation provides an ideal process. Mediation is less divisive and more user friendly, placing significantly less stress on fledgling relationships.
Legal advice remains vital and opinions on the implications of the agreement for each should be sought from suitably trained and experienced lawyers before the mediated agreement is signed.
Denise Britton - Co-Principal Brisbane Mediations
Friday, April 8, 2011
Gifts/Loans During Relationship
GIFTS / LOANS DURING RELATIONSHIP
Issues often arise as to how gifts or loans made to the parties during a relationship are to be treated on separation.
It is quite common for parents to advance funds to the parties to assist them during the relationship. Often the advance is made without documentation and although there may be some expectation that the monies may be repaid, if needed at some stage, it is often unclear as to whether the advance is intended as a loan or as a gift to the parties or one of them.
Even in circumstances where there is some form of written agreement, often there is no provision for interest to be paid and no immediate expectation for repayment on the part of the lender.
While the nature of the advance may not be clear at the time, it is common that on separation the parties have very definite views regarding the advance, with one contending it was a gift to the parties and the other claiming it to be a loan.
The Court has a discretion as to how it will treat the advance and often how to exercise this discretion is very difficult.
The Court might look for written evidence or look at what discussions took place at the time of the advance and whether any part of the monies has been repaid or any interest paid.
Even if there is something in writing, that might not be the end of it, as the court may look at how long ago the advance was made and what, if any, repayments have been made.
If the Court considers it is a loan, it still has to look at whether in all the circumstances it is likely to be enforced and this may involve some consideration of the circumstances of the parties who advanced it.
Ultimately it is a matter of the Court weighing up all of the evidence and assessing where the balance lies.
It is not necessary for the lender to intervene in the proceedings between the parties.
Each case is different and the issue of whether an advance is ultimately regarded as a gift or a loan is one for the Court to determine in the particular circumstances of the case.
The Courts have held that in some cases it is appropriate not to take the liability into account or to discount it. This could include a liability that is vague or uncertain or unlikely to be enforced or which was unreasonably incurred or deliberately incurred in disregard of the other party’s entitlement to property settlement.
Family Law however does not operate in a vacuum and the legitimate interests of third parties are not ignored when the court determines the respective rights to property between the parties.
If an advance is not treated as a loan, then it can be regarded as a contribution by one party but this is not a mathematical exercise and will be just another factor to be taken into account in negotiations between the parties or in the exercise of the Court’s discretion, if a Court determination is required.
The surest way to protect an advance is to enter into a written agreement and to register a mortgage but even this may not provide an answer as ultimately the determination of the nature or character of any advance made is a matter for the Court.
The position in relation to gifts is that the party on whose behalf or to whom the gift is made is usually given credit for a greater contribution because of that gift.
However, whilst the advance may be seen as a contribution by one party, parties and indeed the Court often adopt a broad brush approach to contributions and the advance or gift may be submerged by other factors.
The critical area of contention is in determining the intention of the donor.
Mike Emerson,
Co-principal Brisbane Mediations
Issues often arise as to how gifts or loans made to the parties during a relationship are to be treated on separation.
It is quite common for parents to advance funds to the parties to assist them during the relationship. Often the advance is made without documentation and although there may be some expectation that the monies may be repaid, if needed at some stage, it is often unclear as to whether the advance is intended as a loan or as a gift to the parties or one of them.
Even in circumstances where there is some form of written agreement, often there is no provision for interest to be paid and no immediate expectation for repayment on the part of the lender.
While the nature of the advance may not be clear at the time, it is common that on separation the parties have very definite views regarding the advance, with one contending it was a gift to the parties and the other claiming it to be a loan.
The Court has a discretion as to how it will treat the advance and often how to exercise this discretion is very difficult.
The Court might look for written evidence or look at what discussions took place at the time of the advance and whether any part of the monies has been repaid or any interest paid.
Even if there is something in writing, that might not be the end of it, as the court may look at how long ago the advance was made and what, if any, repayments have been made.
If the Court considers it is a loan, it still has to look at whether in all the circumstances it is likely to be enforced and this may involve some consideration of the circumstances of the parties who advanced it.
Ultimately it is a matter of the Court weighing up all of the evidence and assessing where the balance lies.
It is not necessary for the lender to intervene in the proceedings between the parties.
Each case is different and the issue of whether an advance is ultimately regarded as a gift or a loan is one for the Court to determine in the particular circumstances of the case.
The Courts have held that in some cases it is appropriate not to take the liability into account or to discount it. This could include a liability that is vague or uncertain or unlikely to be enforced or which was unreasonably incurred or deliberately incurred in disregard of the other party’s entitlement to property settlement.
Family Law however does not operate in a vacuum and the legitimate interests of third parties are not ignored when the court determines the respective rights to property between the parties.
If an advance is not treated as a loan, then it can be regarded as a contribution by one party but this is not a mathematical exercise and will be just another factor to be taken into account in negotiations between the parties or in the exercise of the Court’s discretion, if a Court determination is required.
The surest way to protect an advance is to enter into a written agreement and to register a mortgage but even this may not provide an answer as ultimately the determination of the nature or character of any advance made is a matter for the Court.
The position in relation to gifts is that the party on whose behalf or to whom the gift is made is usually given credit for a greater contribution because of that gift.
However, whilst the advance may be seen as a contribution by one party, parties and indeed the Court often adopt a broad brush approach to contributions and the advance or gift may be submerged by other factors.
The critical area of contention is in determining the intention of the donor.
Mike Emerson,
Co-principal Brisbane Mediations
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