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Tag Archive: marriage

  1. Sexually Transmitted Debt

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    Sexually Transmitted Debt

    New relationships often carry the excitement and anticipation of discovering what hopefully will be rich mix of many common interests and values combined with admirable differences. However sometimes, along with all of the positives, comes the shock discovery that the new man or woman is riddled with debt! Whether the new partner’s financial troubles are sourced from a one-off past misadventure or a healthy (and ongoing) appetite for overspending, resolution of the debt situation will obviously become a shared problem if the relationship is to continue.

    For the partner who is asset positive, there is an understandable trepidation, about how they might protect themselves for the other partner’s liabilities, particularly if the relationship was to eventually breakdown and the couple choose to separate.

    Here there is a combination of good and bad news.

    The good news, is that the mere formation of a relationship (even a formal marriage) does not automatically result in the debts of one spouse becoming a joint liability between the couple. Consequently even if the couple stay together, the creditors of one spouse cannot pursue the other spouse’s assets for repayment of the debts*. Also, if the couple do separate at some time after the original debts are paid off, the past asset negative position of the debt ridden spouse may result in the other spouse (who was originally asset positive) being able to retain a much greater share of the present day asset pool.

    The bad news however is that if the couple were to separate before the asset negative spouse’s liabilities have been paid off and the couple have subsequently acquired some other assets, the Family Law System prohibits the division of the other assets in any way that might result in creditors being left unpaid. Consequently, if one spouse puts $50,000.00 of his/her own cash into the purchase of a jointly owned home but the other spouse still has a personal credit card debt of $20,000.00, the  Court might order the credit card to be paid off out of the $50,000.00, with the result that the debt riddled spouse leaves the relationship debt free and the asset positive spouse leaves $20,000.00 the poorer! Orders of this sort are not automatic and there are other ways to defend against the threat   but it is definitely a risk to bear in mind for anyone taking on a partner with heavy liabilities in tow.

    * this assumes the asset positive partner has not subsequently refinanced  the debt into joint names or given a personal guarantee for the debt. 

  2. Same-Sex Marriage

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    5 Things To Think About with Same-Sex Marriage

    The Australia wide plebiscite vote on same-sex marriage is set to close on 27 October. None of us are obligated to vote and the government is free to ignore the result. Many however consider the issue to be very important and if that is you, here are some things you may wish to consider:

    • Despite 10 years of law reform, same-sex couples still today do not have the same rights as married couples. In a same-sex separation, any person who doesn’t have some control of the money is still very vulnerable to exploitation from the person who does. We have laws to guard against this abuse of power but these laws are only available to “married” couples.
    • In a nutshell, the “no” campaign states that granting marriage rights to same-sex couples forces people who believe that marriage should only be between a man and a woman to abandon those beliefs, or face legal persecution if they do not. The “no” vote therefore claims that approving same-sex marriages offends constitutional rights of freedom to religious and social beliefs.
    • The Australian Constitution specifically states that the Government cannot pass any law which discriminates against persons upon the basis of religion. The Government can, and has, made equal opportunity laws prohibiting discrimination on grounds including religion, race, gender and sexual orientation but this is largely restricted to commerce and employment and is not ingrained in the Constitution in the way religion is.
    • In many ways this debate is analogous to debates on other hot topics such as climate change. Governments are often required to make decisions which potentially impact unfairly on either people or the environment.
    • Interestingly, the decision for the small country of Slovakia (5 million people) to separate and become independent from the former Czechoslovakia was made peacefully in 1993 on a Friday afternoon in parliament without any consultation of the people at all. In the following 20 years, the country has grown to become an economic powerhouse and the envy of many of its neighbours.

    One has to wonder what all the fuss is about. The reality is that our community and indeed the whole world are never in balance. Consequently, the goal can never be equality for absolutely everyone, but rather the choice which promises to work best for the community as a whole.

    Michael Zande is a Queensland Law Society accredited family law specialist with over 25 years experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes.  To contact Michael for advice, phone 3385 0999.

    The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.

  3. Anulling a Marriage

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    Henry VIII petitioned Pope Clement VII for one in the 16th Century.  He was refused but eventually circumvented the problem by establishing the Church of England.  Basketball royalty, Dennis Rodman, successfully obtained one in 1998 on the grounds “he was too drunk to understand the wedding ceremony”.  Six years later, pop diva, Britney Spears, repeated the same feat on exactly the same grounds only with no alcohol involved!!  But what is an annulment and why would people want one?

    An annulment is a determination made by a Court that a legal marriage in compliance with the requirements of Australian law did not occur.  It will only be granted if a Court can be satisfied of either:

    1. Bigamy – that is either party was at the time already married to another person.
    2. The parties were within a prohibited relationship – for example a brother marrying a sister.
    3. A defective ceremony for example, not performed by a registered Marriage Celebrant or without two witnesses.
    4. Where the consent to the marriage was obtained by duress or fraud or the party is mistaken as to the identity of the other person or the nature of the ceremony or a person who is mentally incapable of understanding the nature of the ceremony.
    5. A person is too young to be of marital age.

    Grounds 1, 2, 3 and 5 are all relatively straight forward and self determinative.  Applications to the Courts under ground 4 however, have produced some interesting rulings.  In 1995 a husband sought annulment of his marriage to a women born overseas on the grounds of fraud for immigration purposes.  He alleged the marriage followed four months of long distance communication with only nine days spent physically together.  There was no physical intimacy, they never slept in the same room and the women in fact had a five year old child to one of her fellow countrymen.  In the days before the wedding, the wife insisted the husband prepare a Will naming her as sole executor and beneficiary and required him to submit to a medical examination for issue of life insurance.  Four days after the wedding, the wife left the husband and returned to live with her former de facto partner interstate and, according to the husband, had made tentative arrangements to have him killed so as to claim the insurance.  Despite all of this however, the Family Court ruled that the husband could not obtain an annulment because “fraud” had to relate either to the nature of the ceremony or the identity of the person and in this case the wife had been truthful about both of these things.

    Whilst the drive to obtain an annulment might in some cases be understandable, the legal effect of an annulment is only marginally different from a divorce.  Couples to an annulled marriage are free to immediately remarry without having to wait the 12 months prior separation required for a divorce.  Beyond this feature however, rights and responsibilities such as property settlement and spousal maintenance are unaffected by an annulment.

    Michael Zande is a Queensland Law Society accredited family law specialist with over 20 years experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes.  To contact Michael for advice phone 3385 0999.

    The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information.  When making decisions that could affect your legal rights, please contact us for professional advice.