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Understanding Property Settlements in Family Law: Can my ex keep the family home after separation?

Sat, 21 Mar 2026 03:52:52 GMT

There is no automatic rule about who gets the house after separation in New South Wales (NSW), including in Sydney and Wollongong. This is the case even if the property is held in one party’s name or was purchased before the relationship. Instead, the family home forms part of the overall property settlement after separation and is divided based on individual circumstances and established legal principles under Australian family law.

Is the Family Home Always Included in Property Settlement?

Under Australian family law, the family home forms part of the property pool, regardless of:

Whose name is on the title; or
Whether it was purchased before the relationship.

This applies equally to property located in Sydney, Wollongong, or anywhere in NSW.

Ownership alone does not determine who keeps the house.

How Does the Court Decide Who Gets the House?

If you cannot reach agreement, the court will determine the outcome based on what is just and equitable, considering:

1. The Asset Pool

The matrimonial pool is all assets and liabilities of a marriage, including:

The family home
Mortgages
Superannuation
Savings and investments
Debts

5. Overall Fairness

The final outcome must be fair in all circumstances. For families housing needs, particularly where children are involved, can be a significant consideration to the equity in the division of assets.

Divorce vs Property Settlement: What’s the Difference?

A common misconception for separating couples in Sydney, Wollongong, and across NSW is that divorce determines who gets the house. In reality:

A divorce legally ends your marriage;
A property settlement determines how assets (including the family home), liabilities, and superannuation are divided.

You can be divorced without finalising your property settlement, but doing so can create significant legal and financial risks.

Time Limits for Property Settlement in NSW

Strict time limits apply under Australian family law:

Married couples: 12 months from the date your divorce becomes final

De facto couples: 2 years from the date of separation

If you miss these deadlines, you must seek the court’s permission to proceed, which is not guaranteed.

For clients in Wollongong, Sydney, and surrounding NSW regions, obtaining early legal advice is critical to preserving your entitlements.

Why it is Important to Finalise your Property Settlement

Delaying your property settlement can expose you to ongoing legal and financial risks:

You may remain financially tied to your former partner
Your ex-partner may bring a future claim against your assets
You could remain liable for joint debts or mortgages
It may affect your ability to buy property in Sydney, Wollongong, or elsewhere
There can be tax implications, including capital gains and stamp duty considerations
Your superannuation entitlements remain unresolved

Finalising your property settlement provides certainty, finality, and legal protection, particularly in competitive property markets like Sydney and the Illawarra and Wollongong region.

Disclaimer: This article is for general informational purposes only and should not be considered legal advice. If you’re dealing with a legal issue, it’s recommended that you seek advice from a qualified lawyer to understand your specific circumstances.

2. Financial Contributions

3. Non-Financial Contributions

Consideration is given to the future needs of the parties, including:

Age and health
Income-earning capacity
Responsibility for children

4. Future Needs

Non-financial contributions are the non-monetary efforts made to a relationship that improve, conserve, or acquire property, or support the family's welfare. These include homemaking, child-rearing, DIY renovations, or providing support that allows a partner to earn income. The Courts weigh these equally to financial contributions during property settlements.

Financial contributions are the direct and indirect monetary inputs made by partners to acquire, maintain, or improve relationship assets, such as income, initial property, savings, inheritances, or gifts.

Common Outcomes for the Family Home

✔ One Partner Keeps the Home

This may occur where:

They refinance the mortgage;
They offset the value by giving up other assets; or
They have greater future needs (for example, primary care of children).

✔ The Home Is Sold

This is common where:

Neither party can afford to retain the property; or
Selling provides a clean financial break.

✔ Property “Swap” Arrangement

One party retains the home while the other receives:

Superannuation
Cash or investments
Other assets of similar value

Practical Tips for Property Settlement in NSW

Do not assume legal title determines ownership
Seek legal advice early—particularly if you own property in Sydney or Wollongong
Keep records of financial and non-financial contributions
Formalise any agreement through consent orders or a binding financial agreement

Conclusion

There is no automatic rule about who gets the family home after separation in NSW, Sydney, or Wollongong. Instead:

The home forms part of the overall property settlement;
Divorce and property division are separate processes; and
Outcomes depend on contributions, future needs, and fairness.

Finalising your property settlement as early as possible is essential to protect your financial future and avoid ongoing disputes.

If you’re unsure about how these laws apply to your situation, please contact Hanna Lawyers for assistance from a qualified family lawyer to guide you through the property settlement who can advise on your rights, timelines, and options.

Tips for purchasing property in NSW

Fri, 20 Mar 2026 20:20:13 GMT

Buying property in New South Wales is one of the biggest financial decisions most people will ever make. Whether you are a first home buyer, an investor, or purchasing your next family home, understanding the property buying process in Wollongong, NSW can help you avoid costly mistakes and unnecessary stress.

This guide outlines key tips to help purchasers navigate the process with confidence — and explains why obtaining advice from an experienced NSW property lawyer early is critical.

Arrange Building and Pest Inspections and Strata Reports Early

Building and pest inspections, as well as strata reports when purchasing a unit/townhouse, should ideally be completed before contracts are exchanged.

A building and pest inspection can reveal:

Structural defects
Termite damage
Water ingress
Safety hazards
Costly maintenance issues

A strata report can provide information on:

The strata levies (including administration and maintenance expenses) payable per quarter
Any “special levies” which have been or may be raised in future to address specific issues
The possible future levy increases purchasers may have to deal with over time
Any outstanding or past repair issues, including how frequently repairs are required
Any legal or administrative proceedings the strata complex may be involved in
Any disputes arising between owners or occupants of the strata complex

If inspections are left until after exchange, purchasers may have limited rights to withdraw or renegotiate.

Understand Stamp Duty and Purchase Costs

In addition to the purchase price, purchasers should budget for other costs, including:

Stamp duty (transfer duty)
Legal or conveyancing fees
Search and registration fees
Lender and mortgage costs (if applicable)

Eligible first home buyers in NSW may qualify for stamp duty concessions or exemptions, depending on the property value and circumstances.

Choosing a Property Lawyer or Conveyancer in NSW

Engaging an experienced property lawyer early in the process can protect your interests and provide peace of mind.

A property lawyer can:

Review and negotiate contracts
Advise on cooling-off rights and risks
Conduct searches and due diligence
Manage the process from exchange through to settlement
Provide legal advice if issues arise

While conveyancers handle many transactions, a lawyer can offer broader legal protection where complications occur.

Settlement and Final Inspection

“Settlement” is the last event in the purchasing process. It is when the purchaser pays the balance of the agreed price and any other expenses related to the purchase, and the vendor hands possession of the property over to the purchaser (usually through the real estate agent).

Before settlement, your lawyer will:

Conduct final council searches and checks on the Title of the property
Calculate adjustments for rates and levies
Liaise with lenders and the vendor’s solicitor
Ensure documents are correctly registered

Purchasers should also conduct a final inspection to ensure the property is in the same condition as at exchange, so that any final adjustments or requests for repair can be made before settlement.

For further guidance on buying property in NSW, you can jump on the NSW Government site here .

Understand the Property Buying Process in Wollongong, NSW

The process of buying property in NSW differs from other states and often moves quickly. In many cases, contracts are “exchanged” shortly after an offer is accepted, sometimes before finance approval or inspections are finalised.

The typical steps include:

Making an offer
Reviewing the contract for sale
Conducting property searches and inspections
Negotiating amendments and making enquiries with the vendor (the party that owns and is selling the property)
Exchange of contracts
Payment of the deposit (usually 10%)
Adjustment of rates (e.g. Council, Water) and levies related to the property being purchased
Settlement

“Exchange” of contracts takes place once both the vendor and the purchaser each sign a copy of the contract, and the purchaser provides their signed copy to the vendor’s solicitor (or, in some cases, the real estate agent). Both copies are checked to confirm that they are identical, and that any changes the parties to the contract have agreed upon are properly made in both documents. Once this is verified, the vendor’s solicitor, or the real estate agent where applicable, writes the date on the front page of both signed contracts, which completes the process of exchange.

Once contracts are exchanged you are locked into a legally enforceable agreement. For this reason, legal advice should be obtained before you sign a contract or pay any deposit.

Have the Contract Reviewed Before Exchange

One of the most important tips when buying property in NSW is to have the contract for sale reviewed by a property lawyer before exchange.

A contract review (and subsequent negotiations and queries) can uncover:

Unfavourable or unusual special conditions
Planning and zoning restrictions
Easements, covenants, restrictions on the use of the land or dwelling, or rights of way
Unapproved building works, where enquiries are made with the vendor or with Council
Additional and unfavourable payments you may be obliged to make, such as towards the Vendor’s land tax liability if they own investment properties
Strata by-laws affecting apartments or townhouses, which may create additional obligations or restrictions on your use of the property

Once contracts are exchanged, the purchaser’s rights are significantly limited. Early legal advice can prevent serious issues from arising later.

Cooling-Off Periods in NSW: What Purchasers Need to Know

In most residential property purchases in NSW, buyers are entitled to a 5-business day cooling-off period after contracts are exchanged.

During the cooling-off period:

The purchaser can rescind (cancel) the contract
A penalty of 0.25% of the purchase price is payable to the vendor
The deposit (less the penalty) is refunded

However, there are important exceptions and risks purchasers should understand:

Auctions: There is no cooling-off period when buying at auction.
Section 66W Certificate: A cooling-off period can be waived if the purchaser signs a Section 66W certificate, often requested by vendors to secure a quick sale and dissuade purchasers from withdrawing.
Limited protection: A cooling-off period is not a substitute for proper legal advice or inspections, as the loss of a 0.25% “holding deposit” can still cost the purchaser thousands of dollars. Once the period expires, the contract becomes “unconditional”, and withdrawing from the contract can result in the purchaser forfeiting the full deposit (usually 10%) to the vendor.

Many purchasers mistakenly rely on the cooling-off period as a safety net, without appreciating its limitations. A property lawyer can explain whether cooling-off applies and whether waiving it is in your best interests.

Purchasing at auction involves additional risk including that there are no cooling-off periods applicable to the contract, as exchange occurs immediately upon a successful bid. For this reason, before bidding, purchasers should ensure:

The contract has been reviewed
Finance is approved
Building and pest inspections are complete
Deposit funds are readily available
Any amendments the purchaser desires are raised ahead of the auction

Legal preparation before auction is essential.

Conclusion

Buying property in NSW involves significant legal and financial risk if not handled correctly. Obtaining legal advice early, preferably before contracts are exchanged, can help you avoid costly mistakes and protect your investment.

Contact our office today to arrange a contract review or to discuss your property purchase with an experienced NSW property lawyer.

Pets in Family Law separation: Who gets to keep the family dog in a divorce?

Tue, 24 Jun 2025 05:43:28 GMT

A relationship breakdown can be an emotionally challenging time, especially when it comes to deciding who gets to keep the family pet. For many couples, pets are considered part of the family, making pet “custody” disputes a significant issue in family law proceedings. With recent amendments to the Family Law Act, the Court can now take a more nuanced approach to determining pet ownership following separation.

What to do before applying to Court for an Order relating to your pet?

There are several things you must consider before making an application to the Court, including:

Each party must demonstrate that they have attempted to resolve the matter outside of Court before any application is made, unless an application is urgent.
There is a time limitation period of 2 years from the date of separation for de facto couples and 12 months from the date of Divorce for marred couple, in which an application must be made.
There are several factors to consider in relation to companion animals, though be mindful that as pets are “property”, any discussion around ownership will usually follow a wider discourse about an overall property settlement.

How to strengthen your claim to keep your pet

If you are concerned about losing your pet in a family law separation, consider gathering evidence to prove you are the primary caregiver. This could include:

Veterinary records in your name
Pet insurance policies listing you as the owner
Receipts for food, grooming, and medical expenses
Witness statements from neighbours or friends who can confirm your role in caring for the pet

Final Thoughts

If you’re facing a divorce and are worried about losing your pet, seek legal advice to understand your rights and options. For professional assistance with pet “custody” disputes, family law agreements, and divorce settlements, contact Hanna Lawyers to speak to our family law legal experts today.

How the law views pets in divorce cases

The recent amendments to the Family Law Act confirm that companion animals are property, and the Court can make the following Orders in respect of companion animals:

That one party is to have ownership of the companion animal, or
That the companion animal is to be transferred to another person who has consented to the transfer, or
That the companion animal be sold.

While Australian family law continues to consider pets as property, there is also increasing recognition of the emotional bond between pets and their owners and, as such, courts are now considering additional factors when resolving pet custody disputes. You can find some further information about how the Court deals with family law cases involving pets on their website .

Can you share "custody" of a pet?

Under the new amendments to the Family Law Act, parties cannot share “custody” of a pet. If this arrangement is one that you wish to consider, any agreement later made to this effect will be informal and not-binding.

What happens if you cannot agree?

If both parties want to keep the pet and cannot reach an agreement, the Family Court may make the final decision. Either party can make an application to the Federal Circuit and Family Court of Australia (FCFCOA) in relation to the pet. In considering what orders are appropriate in respect of the companion animal, the Court must take into account the following:

The circumstances of how the companion animal was acquired. For example, which party purchased the pet or which party went to the breeder or pound to collect the pet.
Who has ownership or possession of the companion animal. This can include consideration of which party is listed on the microchip or which party is caring for the pet.
The extent to which each party cared for and paid for the maintenance of the companion animal. Several factors are relevant to this point, including, which party fed, walked and took the pet to the vet, which party paid for vet bills or pet insurance, who purchased food for the pet etc.
Any family violence to which one party has subjected or exposed the other party. This consideration is not only be considered in relation to the determination about companion animals but also the parties’ overall property settlement.
Any history of actual or threatened cruelty or abuse by a party towards the companion animal.
The demonstrated ability of each party to care for and maintain the companion animal in the future.
Any other fact or circumstance for example, if children are involved, the Court may prefer that the pet stays with them to provide continuity and stability.

The requirements for a Divorce in Australia

Mon, 14 Apr 2025 03:27:29 GMT

Divorce is a significant life event and navigating the legal process can be complex. Whether you are seeking a divorce or need expert advice on family law, it is important to understand the key requirements, especially regarding the concept of separation. In this article, we will break down the legalities surrounding divorce in NSW, with a focus on the necessary steps for separation.

Other considerations in Divorce

Divorce does not automatically divide property. The division of property will be decided separately and can be finalised before you are divorced. Keeping in mind that if you receive a divorce order, then you have a 12 month time limit running from the date of the divorce to bring any claim for family law property orders. You should also give consideration to the need to severe any property interests while you are negotiating division of your joint property, as well as the preparation of a new Will . When children are involved, arrangements for the children including child support are a separate issue to divorce also.

A qualified family lawyer will help you understand your rights, guide you through the legal process, and advocate for your interests, whether it involves divorce, child custody, property division, or other family-related legal matters.

For expert legal advice and support, contact Hanna Lawyers to speak to an experienced wollongong family lawyer to guide you through the family law divorce process with confidence.

Requirements for Divorce

You need to be married to be able to seek a divorce, being a legal dissolution of marriage. You will be requirement to provide evidence of the marriage to the Court i.e. marriage certificate. The Court will accept a copy of the certificate issued by the Births, Deaths and Marriages Registry of the State or Territory where you were married. However, the Court may also accept a religious certificate able to show the spouses’ full names, date, and place of marriage. If you were married overseas, the Court will usually accept a copy of either the government or religious certificate. If your marriage certificate is not in English, you need to provide the Court an English translation of the certificate alongside an affidavit from the translator confirming the translation as correct.

What Does "Living Separately and Apart" Mean?

One of the fundamental requirements for obtaining a divorce in Australia is proving that you and your spouse have been living "separately and apart" for at least 12 months. This period of separation is crucial in the eyes of the law, as it demonstrates that the relationship has broken down irretrievably.

Living separately and apart means that both parties have ceased to live together as a married couple, even if they still occupy the same residence. However, it’s important to note that living in the same home doesn’t necessarily mean you are living together as a couple. You can still meet the 12-month separation requirement if you maintain separate bedrooms, do not engage in marital activities, are emotionally and physically distant from each other, have separate finances and attend social events separately.

In this modern economic climate, it is not uncommon that you will find parties that will continue to cohabit under the same roof following separation, where it is safe to do so. This decision is usually made jointly and until a division of property is finalised, to mitigate the financial hardship that is associated with having one party relocate, especially where the family home is encumbered in both parties names and neither party can afford to maintain the repayments on the home by themselves.

Also, separation does not end a couple’s parenting responsibilities. For couples with children, it may feel less disruptive to the children for the couple to remain in the same household temporarily while navigating separation.

You can find more information about being separated under the same roof on the Court website . If you find yourself overwhelmed by the idea of separation/relocation, contact us for some complimentary advice* about your options.

Application for Divorce

You can apply for divorce individually or jointly. Applications can be submitted online through the Australian Government website or through the Federal Circuit and Family Court of Australia.

If no issues arise, your divorce application will be processed without a court hearing. Under recent amendments, no appearance for sole applicants, whether or not there are children will be necessary, as long as the respondent does not object.

Once the court grants the divorce, you will receive a divorce order. The divorce becomes final one month after the order is made.

The Family Law Amendment Act which comes into force in June 2025, removes the requirement for couples married less than two years to seek leave from the court before filing for divorce. Previously, if your marriage lasted less than two years, you would need to go through counselling and get approval from the court before you can divorce.

1. Proof of marriage

2. Married for at least 2 Years

3. Jurisdiction

You or your spouse must be an Australian citizen, permanent resident or you must have been living in Australia for at least 12 months before applying for divorce.

You can apply for Divorce in Australia if you and your spouse are not citizens or permanent residents, but you need to provide the Court a copy of your Visa Entitlement Verification Check to show that you or your spouse have been living in Australia for at least 12 months.

4. Living Separately and Apart for 12 Months

You and your spouse must have been separated for at least 12 months. You do not have to live in different homes. You can still live under the same roof, but you must be living separate lives (e.g., no shared bedroom, separate finances, no romantic relationship). You must prove this separation to the court. We discuss this requirement further below.

5. Service

Where you are not applying jointly with your spouse for Divorce, you must prove to the Court that you have properly serve the Application for Divorce on your spouse.

If applying solely for a Divorce, you need to serve various divorce documents on your spouse by post including an Acknowledgement of Service. If the signed Acknowledgement of Service is not returned to you, or you think your spouse will not respond at all, you can serve the documents by hand. You cannot serve the documents on your spouse yourself. Most people applying for a Divorce engage a process server – a third-party organisation who sends an agent to serve documents on your behalf. If you do not know where your spouse is, and you have made all attempts you can to find them, you can apply for Substituted Service. If applying jointly, you do not need to serve the Divorce Application on your spouse.

Also, if you have children under 18, the court will also request confirmation that you have made appropriate arrangements for their care and welfare. This does not mean you need to have parenting orders in place before applying for divorce, but the court needs to know that the children’s needs have been considered.

How to Sell Property in NSW: A Comprehensive Legal Guide

Tue, 01 Apr 2025 03:39:40 GMT

Selling property in NSW can be an exciting yet complex process, particularly if you're unfamiliar with the legal requirements. Whether you're selling your first home or an investment property, it’s important to understand the steps involved and comply with NSW real estate and conveyancing laws. This guide outlines everything you need to know about selling property in NSW, including key legal considerations and tips for a successful sale.

Before listing your property for sale, it's essential to understand the legal framework governing property transactions in NSW. The sale of property in NSW is primarily regulated by the Real Property Act 1900 , Conveyancing Act 1919 and Conveyancing (Sale of Land) Regulation 2022 , which outline the processes for transferring property ownership.

3. Comprehensive Legal Support:

Solicitors can provide support for all aspects of your sale, including ensuring that you comply with all legal obligations and offering advice on property law, contract law, and taxation. If you’re concerned about things like Capital Gains Tax (CGT) , your solicitor can help you navigate these complex matters, while a conveyancer may not be able to provide the same level of advice.

4. Representing You in Legal Disputes:

In the unlikely event of a legal dispute arising during the property sale process (such as a buyer backing out after the cooling-off period, breach of contract, or termination of contract), a solicitor is qualified to represent you at arbitration or in court if necessary. Conveyancers are not lawyers and cannot represent you in legal proceedings should they arise.

How to Prepare Your Property for Sale

A key legal requirement in NSW is the Contract for Sale of Land, which must be prepared before your property can be marketed or sold. This Contract sets out the terms of the sale, including the price, settlement date, and any relevant conditions that apply to the property sale.

In NSW, it’s mandatory to provide a Contract to the buyer before you list your property. The Contract must contain crucial details, such as:

Property description - location, boundaries, and any structures on the property.
Title information - the ownership status of the property, confirming your right to sell the property.
Disclosure documents – dealings, plans, relevant details on zoning, diagrams, restrictions, and any unpaid land tax.

Marketing Your Property for Sale

Once your Contract is ready, you are able to list and start marketing your property. When you start receiving offers for your property, it’s important to evaluate each one carefully. If you’ve listed your property through an Agent, they will handle the negotiations. Whether you're selling by private treaty or auction, it’s essential to communicate with potential buyers and negotiate the best possible price for your property.

In NSW, when you accept an offer, a cooling-off period typically applies (5 business days). During this time, the buyer can withdraw their offer, but they may forfeit part of their deposit if they decide not to proceed.

Should I use a qualified Solicitor or Conveyancer to sell my house?

While not a legal requirement, hiring a solicitor or conveyancer in NSW is strongly recommended when selling or buying property. These professionals help you:

Draft and review the Contract for Sale of Land.
Ensure that all necessary disclosure documents (e.g. dealings, zoning certificates, diagrams, property certificates) are included.
Handle the legal process of property settlement.

Working with an experienced solicitor or conveyancer ensures that you comply with legal obligations and reduces the risk of costly mistakes during the sale of your property. While both solicitors and conveyancers handle the legal process of property transactions, there are some important differences between the two professions. Here’s why a solicitor might be the better choice for your property sale:

1. Broader Legal Expertise:

Solicitors are fully qualified lawyers, meaning they have extensive legal training that allows them to offer comprehensive legal advice, not just for the sale of property, but for other legal issues that may arise. For example, if there are complexities surrounding the ownership of the property, tax issues, or disputes that could affect the sale, a solicitor can provide expert legal advice and representation. Conveyancers, on the other hand, typically specialize in property transactions and may not have the legal expertise to handle more complicated issues.

2. Handling Complex Transactions:

If your property sale involves unique circumstances, such as disputes with co-owners, unusual title issues, or the need to navigate through complicated conditions or deeds, a solicitor’s broader legal knowledge and experience can be invaluable. They can help interpret contracts, mediate disputes, and provide a higher level of legal insight than a conveyancer might be able to offer.

Executing the Contract for Sale of Land

Once both you and the buyer have agreed on the terms of the sale, the Contract for Sale of Land is signed and dated, which is known as “exchanged”. In NSW, this is a legally binding agreement that outlines the sale’s terms, including the price and settlement date.

If the buyer requires finance for the purchase, they will need to secure loan approval before the Contract becomes unconditional. This approval must be obtained within the timeframe specified in the Contract, typically before the cooling-off period expires. The standard cooling-off period is 5 business days after the date of exchange, however, parties can agreed to 10 business days or they can extend the cooling-off period if the buyer requires more time to obtain finance approval.

If a buyer does not require a cooling-off period, a solicitor or conveyancer may sign a document known as a Section 66W Certificate waiving the cooling-off period, which makes the Contract unconditional and binding on both parties.

Settlement of the Sale

The settlement is the final stage in selling your property. It’s when the buyer transfers the agreed amount to you, and ownership is officially transferred. In NSW, settlements typically occur 42 days after the Contract is signed, but this can be adjusted depending on the agreement.

Your solicitor or conveyancer will handle the legal aspects of the settlement, ensuring the title transfer is registered with NSW Land Registry Services (NSW LRS).

Capital Gains Tax (CGT) Considerations

As a seller, you may be required to pay Capital Gains Tax (CGT) on the sale of your property, especially if the property isn’t your principal place of residence (ie. home). The tax rate depends on various factors, including whether the property was an investment property or a second home.

You should consult your Accountant to understand your CGT obligations and explore strategies for reducing your tax liability.

Final Steps and Moving Out

Once settlement is completed, the buyer will take legal ownership of the property, and you’ll need to vacate the premises. Ensure that any outstanding bills (utilities) and insurances are settled up until the settlement date.

Conclusion

Selling property in NSW requires careful planning and adherence to legal obligations. By working with professionals like solicitors, conveyancers, and real estate agents, you can ensure that the sale process is efficient and legally compliant.

If you are considering selling property in NSW, consulting with a qualified legal professional at Hanna Lawyers will help you navigate the process and protect your interests every step of the way. Check out our fixed fees for sale of property and contact us today to start the process.

How to Contest a Will in Australia

Tue, 01 Apr 2025 01:52:03 GMT

When a loved one passes away, the distribution of their estate can sometimes lead to conflict among family members or other beneficiaries. One of the most contentious issues is when someone decides to challenge a Will. Understanding how to challenge a Will in Australia is crucial for anyone who believes they have been unfairly left out of an inheritance or suspect that the Will doesn't reflect the deceased’s true intentions. In this article, we will explain the legal grounds for challenging a Will, the process involved, and what you can expect along the way.

1. Obtain Legal Advice

The first step in challenging a Will is to consult a qualified lawyer who specialises in Wills and estates. They will assess the facts of your case, provide advice on the strength of your claim, and guide you through the legal process.

2. Gather Evidence

To strengthen your case, you will need to provide evidence supporting your claim. This might include medical records, witness statements, or evidence of the deceased's intentions, among other things. Your lawyer will help you gather the necessary documentation.

3. Mediation

At Hanna Lawyers, we are able to assist you with mediation to try and bring your matter to an early resolution. In some cases, mediation can help resolve the dispute without going to Court. Many estates are successfully settled at this stage, which can save both time and money.

4. File a Claim to Commence Proceedings

If the dispute is not resolved through mediation or settlement, the matter may proceed to Court. It is best to file your claim as soon as possible after the deceased has passed away and no later than within 12 months of the deceased person’s death. If you fail to file within this time period, you will need to apply to the Court for an extension of the limitation period. Once files, the court will hear each side’s arguments and make a determination about the validity of the Will or the appropriate distribution of the estate.

What Does it Mean to Challenge a Will in Australia?

Challenging a Will refers to the process of disputing the validity of a deceased person’s Will or the way their estate is distributed. There are several reasons why a Will may be contested, including doubts about the deceased’s capacity, undue influence, or the presence of a newer Will that overrides the one being submitted for probate. In Australia, the right to challenge a Will is governed by state and territory laws. In NSW the applicable legislation are:

Key Grounds for Contesting a Will in Australia

There are several legal grounds for contesting a Will. Common reasons include:

How to Challenge a Will or make a Family Provision Claim

If you believe you have grounds to challenge a Will, there are several steps you can take. The process can be complex, and having the guidance of an experienced Wills lawyer can help.

1. Lack of Testamentary Capacity

A Will may be challenged if the deceased person was not mentally capable at the time they made the Will. For a Will to be valid, the testator must be of sound mind, memory, and understanding when executing it. If it can be proven that the testator lacked capacity, the Will may be considered invalid.

2. Undue Influence

If a person can prove that the testator was coerced or unduly influenced into making the Will, this can be grounds for a challenge. Undue influence means that the Will was made under pressure from someone who manipulated the testator’s wishes.

3. Family Provision Claims

Under Australian law, certain people (such as spouses, children, or dependent relatives) have the right to make a claim for a greater share of the estate if they believe they have been inadequately provided for. These are known as family provision claims, and they can be made regardless of the testator’s wishes.

There are several factors that the Court takes into consideration when determining a claim for family provision including the relationship of the parties, the value of the estate and the financial circumstances and need of the applicant compared to other competing interests.

4. No Proper Execution

A Will must be executed in compliance with the relevant legal formalities in order to be valid. For example, the Will must be signed by the testator in the presence of two witnesses. If these formalities are not followed, the Will may be contested.

Seek Expert Legal Advice on Challenging a Will in Australia

Challenging a Will can be a complicated and emotional process, but with the right legal support, you can navigate the system and protect your rights. Whether you’re contesting a Will due to concerns about the testator’s mental capacity or making a family provision claim, it is important to act quickly and seek advice from a skilled lawyer.

If you need assistance with challenging a Will or making a Family Provision claim in Australia, Hanna Lawyers expert team of Wills and Estates lawyers is here to help. You can find more information about Wills and Estate on our website . Contact us today to discuss your case and explore your legal options.

Parenting and Children in Family Law

Wed, 12 Mar 2025 10:15:03 GMT

Navigating parenting arrangements after separation can be challenging. In Australia, family law parenting is governed by the Family Law Act 1975 (Cth), which prioritises the best interests of the child. Whether you are dealing with child custody, parenting plans or parental responsibility, understanding your legal rights and responsibilities is essential.

What is family law parenting?

Family law parenting refers to legal matters concerning who a child lives with, how much time they spend with each parent, and how parental responsibilities are shared. The law encourages parents to work together to make decisions about their children, but if disputes arise, the courts may step in to make legally binding decisions.

Parental responsibility: who makes decisions for the child?

Under Australian family law, both parents automatically have equal shared parental responsibility unless a court orders otherwise. This means they must jointly make major decisions about the child’s:

Education
Healthcare
Religious and cultural upbringing
Living arrangements

However, in cases involving family violence, abuse, or neglect, the court may grant sole parental responsibility to one parent.

Parenting Plans v Parenting Orders

A parenting plan is a written agreement between parents that outlines parenting arrangements and decision-making responsibilities. It is:

Flexible and can be changed by mutual agreement
Not legally enforceable
Useful for co-parents who can communicate effectively

If parents cannot agree, they may apply to the Federal Circuit and Family Court of Australia (FCFCOA) for parenting orders, which are legally enforceable. Parenting orders may cover:

Where the child lives (previously called “child custody”)
Time spent with each parent (formerly visitation rights)
Parental responsibility and decision-making
Communication between parents and children

Once made, breaching a parenting order can result in legal penalties, including changes to parenting arrangements.

Child Custody and Visitation in Australia

Australia no longer uses the term "child custody" or “visitation”, instead, the law refers to "lives with" and "spends time with" arrangements. The court may order:

Equal shared time – If it is in the child’s best interests and practical for both parents.
Primary residence with one parent – The child lives mainly with one parent and spends scheduled time with the other.
Supervised time – If there are concerns about the child’s safety, visits may be supervised by a professional or family member.

Does the Court Automatically Order 50/50 Custody?

No. While the court must consider equal shared time, it is only granted if it is in the child's best interests and reasonably practical. The focus is always on ensuring the child's safety, stability, and emotional well-being.

Changing parenting arrangements

Parenting arrangements may need to be changed if:

A parent relocates to a different city or state
The child’s needs significantly change (e.g., schooling, health issues)
A parent consistently fails to follow parenting orders

To modify an order, you must show that there has been a significant change in circumstances. If both parents agree, they can update the parenting plan. If not, they may need to return to court to seek new parenting orders.

Do I need a lawyer for parenting disputes?

Before engaging a lawyer, where appropriate, we encourage parties to participate in counselling and mediation to reach an mutually suitable agreement that promotes the best interests of the child/ren. You can find ifnormation about government funded family relationship services at Family Relationships Online.

While parents are encouraged to reach agreements through mediation and dispute resolution, taking legal action may be necessary in urgent cases, where mediation is not suitable or if disputes become complex. A family lawyer can help with:

Legally assisted mediation
Negotiating parenting arrangements
Applying for parenting orders
Enforcing or modifying existing orders

You can find more information about family law parenting issues on our website . If you are dealing with a family law parenting issue and need expert family law advice, contact Hanna Lawyers for assistance from a qualified family lawyer.

Disclaimer: This article is for general informational purposes only and should not be considered legal advice. If you’re dealing with a parenting issue, it’s recommended that you seek advice from a qualified lawyer to understand your specific circumstances.

Understanding Property Settlements in Family Law

Tue, 21 Jan 2025 00:58:56 GMT

When a relationship ends, dividing assets can be one of the most challenging aspects of separation or divorce. In Australia, property settlement is governed by the Family Law Act 1975 (Cth), ensuring a fair and equitable division of property, assets, and debts.

If you are wondering “Who gets what in a divorce?” , this article covers the basics of property settlement in family law, including how assets are divided, the property settlement process, and your legal rights.

What is a Property Settlement?

A property settlement is the formal division of property and financial resources between two parties following the breakdown of their relationship, whether they were married or in a de facto relationship. Property includes:

Real estate (homes, investment properties)
Superannuation
Bank accounts
Investments and businesses
Debts (loans, credit cards, mortgages)

How are Property Settlements Determined?

In Australia family law property settlements are guided by the principles set out in the Family Law Act 1975 (Cth) . The law aims to ensure that property is divided in a way that is just and equitable, and this is done through the following four-step process:

Factors that may influence family law property settlements

The following factors can influence the court’s approach to property settlements:

Length of the relationship: Longer relationships may result in a more equal distribution of assets, due to the weight of any initial contributions eroding over time.
Care of children: The party primarily responsible for the care of children may receive an adjustment in their favour due to the need to support dependents.
Health and age of the parties: The court may adjust settlements to reflect any disparities in health or age, particularly if one party has a greater need for financial support
Financial resources and earning capacities: Differences in income potential and financial resources between the parties can influence the division.

Is there a time limit for bringing a family law property settlement?

Yes, if you are unable to settle without the Courts assistance, then you must file your family law property settlement in Court within:

12 months after divorce (for married couples)
2 years after separation (for de facto couples)

You may commence a claim for family law property settlement any time after separation (and before your Divorce is granted).

Do I have to go to Court for a family law property settlement?

No, most property settlements are resolved through negotiation, mediation, or agreements. The options include:

Informal Agreement – A private arrangement between parties (not legally binding)
Binding Financial Agreement (BFA) – A legally enforceable contract
Consent Orders – A formal agreement approved by the Family Court
Court Proceedings – If an agreement can’t be reached, the court will decide based on fairness

It is always our preference at Hanna Lawyers to settle a matter out of Court, where it is appropriate to do so.

Do I need a lawyer for family law property settlement?

At Hanna Lawyers we encourage seperating couples and families to utilise low cost family dispute resolution services such as Uniting and Relationships Australia to attempt to reach an agreement. Where dispute resolution is not suitable or unsuccessful, or even when it results in an agreement being reached, a family lawyer can help negotiate terms of an agreement, formalise any agreement eached during mediation, and represent you in court, if necessary. Getting legal advice ensures you understand your rights and receive a fair share of the assets.

If you are facing separation and need expert family law advice, contact a Hanna Lawyers for assistance from a qualified family lawyer to guide you through the property settlement process. In the meantime, you cna find more information about family law property on our website .

Disclaimer: This article is for general informational purposes only and should not be considered legal advice. If you’re dealing with a property settlement, it’s recommended that you seek advice from a qualified lawyer to understand your specific circumstances.

1. Identifying and valuing the assets:

2. Assessing contributions:

This includes all assets, liabilities, and superannuation in existence at the time that the agreement is reached or the property Orders are made. This can be tricky is parties have been separated for an extended period of time and the nature of the parties assets have changed since separation. For this reason, it is important to finalise property division soon after separation.

Accurate valuations are also important, particularly where parties are wishing to retain assets following the separation. We are able to asist you obtain business and real estate valuations, if necessary.

A contribution in family law property matters refers to acts or efforts carried out by a party towards the acquisition, conservation or improvement of any of the property referred to in the asset pool. This covers both financial and non-financial contributions made by each party during the relationship.

A financia l contributions includes such things as earnings, monetary gifts , and inheritances . While a non-financial contribution refers to the efforts and roles that a spouse or partner has contributed to a relationship that do not directly involve financial input and does not immediately present a financial reward. Non-financial contributions involve conducting renovations on the family home, homemaker duties and parenting contributions.

3. Considering future needs:

When considering property division, the Court makes adjustments to account for either parties greater future needs. When determining whether an adjustment for future needs is appropriate the Court may consider the age and health of the parties, the income earning capacity of the parties, whether either party is caring for a child of the relationship, and many other factors.

4. Reaching a just and equitable outcome:

Based on the above factors, the court determines a fair division of assets, which may not necessarily be an equal division but one that reflects fairness.

A property settlement is about dividing assets and debts fairly, not necessarily equally. There is no automatic 50/50 split—the court considers various factors, some of which have been explored in this article.

hanna-lawyers

Understanding Property Settlements in Family Law: Can my ex keep the family home after separation?

Is the Family Home Always Included in Property Settlement?

How Does the Court Decide Who Gets the House?

1. The Asset Pool

5. Overall Fairness ﻿

Divorce vs Property Settlement: What’s the Difference?

Time Limits for Property Settlement in NSW

Why it is Important to Finalise your Property Settlement ﻿

2. Financial Contributions

3. Non-Financial Contributions

4. Future Needs

Common Outcomes for the Family Home

✔ One Partner Keeps the Home

✔ The Home Is Sold

✔ Property “Swap” Arrangement

Practical Tips for Property Settlement in NSW

Conclusion

Tips for purchasing property in NSW

Arrange Building and Pest Inspections and Strata Reports Early

Understand Stamp Duty and Purchase Costs

Choosing a Property Lawyer or Conveyancer in NSW

Settlement and Final Inspection

Understand the Property Buying Process in Wollongong, NSW

Have the Contract Reviewed Before Exchange

Cooling-Off Periods in NSW: What Purchasers Need to Know

Conclusion

Pets in Family Law separation: Who gets to keep the family dog in a divorce?

What to do before applying to Court for an Order relating to your pet?

How to strengthen your claim to keep your pet

Final Thoughts

How the law views pets in divorce cases

Can you share "custody" of a pet?

What happens if you cannot agree?

The requirements for a Divorce in Australia

Other considerations in Divorce

Requirements for Divorce

What Does "Living Separately and Apart" Mean?

Application for Divorce

1. Proof of marriage

2. Married for at least 2 Years

3. Jurisdiction

4. Living Separately and Apart for 12 Months

5. Service

How to Sell Property in NSW: A Comprehensive Legal Guide

3. Comprehensive Legal Support:

4. Representing You in Legal Disputes:

How to Prepare Your Property for Sale

Marketing Your Property for Sale

Should I use a qualified Solicitor or Conveyancer to sell my house?

1. Broader Legal Expertise:

2. Handling Complex Transactions:

Executing the Contract for Sale of Land

Settlement of the Sale

Capital Gains Tax (CGT) Considerations

Final Steps and Moving Out

Conclusion

How to Contest a Will in Australia

1. Obtain Legal Advice

2. Gather Evidence

3. Mediation

4. File a Claim to Commence Proceedings

What Does it Mean to Challenge a Will in Australia?

Key Grounds for Contesting a Will in Australia

How to Challenge a Will or make a Family Provision Claim

1. Lack of Testamentary Capacity

2. Undue Influence

3. Family Provision Claims

4. No Proper Execution

Seek Expert Legal Advice on Challenging a Will in Australia

Parenting and Children in Family Law

What is family law parenting?

Parental responsibility: who makes decisions for the child?

Parenting Plans v Parenting Orders

Child Custody and Visitation in Australia

Does the Court Automatically Order 50/50 Custody?

Changing parenting arrangements

Do I need a lawyer for parenting disputes?

Understanding Property Settlements in Family Law

What is a Property Settlement?

5. Overall Fairness

Why it is Important to Finalise your Property Settlement