We act in and provide advice on family law issues including:
Separation & Relationship property
The Property (Relationships) Act 1976 applies to couples in a de facto relationship, including same sex couples as well as married couples and those in civil unions.
The general rule is that after three years of being together, you and your partner are each entitled to half of all the relationship property – which is all the assets acquired together during your relationship. There are however special rules about;
· Relationships shorter than the three years;
· The situation if children are involved;
· What is separate property (e.g. inheritances) and how separate property is excluded from the Act;
· When separate property can become relationship property;
· Rights when one partner dies;
· Contracting out of the provisions of the Act (“contracting out agreements”);
· Special rules relating to Trusts and companies;
· Economic disparity.
Usually most people are able to agree how they should divide their property between them, taking into account the Act. While you can decide these things together, only a written agreement prepared, witnessed and certified by a lawyer will be a valid agreement under the Act. Each party must have independent legal advice before signing an agreement and each party must be advised of the effects and implications of the agreement before signing it. This is an area of law in which you will ultimately need legal advice because of the rules and special rules about division and signing an agreement under the Act.
If you cannot decide on how your property should be divided, either party can apply to the Family Court for orders for division of relationship property.
Contracting out Agreements
If you do not want the Property (Relationships) Act 1976 to apply to you, you can contract out of the Act’s provisions by written agreement. People usually seek this type of agreement if they already own property prior to a new relationship (such as a holiday home or business) or they have inherited or likely to inherit property. The agreement can specify how property should be divided if the relationship ends, what property is considered relationship property to be shared and also what property would be considered the separate property of either party. You will need to seek legal advice on these types of agreements as an agreement must be fair to both parties and if you are contracting out of the Act’s provisions, you must be advised about what provisions would not apply to you in the event of a separation. A contracting out agreement will not be a legally valid agreement unless each party has had independent legal advice on the provisions of the agreement and the agreement is witnessed and certified by a lawyer.
Spousal Maintenance or Maintenance
Maintenance law applies to married couples, civil union couples and those in a de facto relationships. However, the rules in which maintenance applies to de facto differ to married and civil union couples. For the purposes of maintenance it is irrelevant if you are on a Work & Income benefit. The law encourages each party to become financially independent at the end of a relationship however sometimes this is not immediately possible once a relationship has ended. At the end of a relationship, if you cannot meet your reasonable day to day needs because of one more qualifying circumstances set out in section 63 and 64 of the Family Proceedings Act 1980, then you may be able to apply for maintenance (financial support) from your partner. As there are special rules which apply in respect of maintenance under the Family Proceedings Act 1980, it is best to discuss this with your lawyer at your first appointment if you think maintenance might apply to your situation.
Wills & Power Of Attorney
Your Will contains your instructions about what you want done with your property when you die and how you want your dependants (spouse, civil union partner, de facto partner, children etc.) to be looked after. A Will can relieve financial and emotional strain on your family after your death and help minimise the likelihood of dispute about your estate. Remember, it is not just money you have to think of, but all your possessions and debt.
Even if you do not own major assets, you can quite quickly build up possessions that can have monetary or sentimental value to you and to others. A Will allows you to decide what will go to whom, even if your possessions have sentimental rather than financial value.
If you die intestate (without a Will), the Administration Act specifies how your property will be distributed - usually a surviving spouse/partner and immediate family or to near living relatives in set proportions. This may not be what you would have wished or what your family wants and it could involve them and your estate in the cost and effort of making a claim. If there are no relatives in the categories listed in the Administration Act, then your estate goes to the State.
Because of the importance of your Will, the law says it must be made in a prescribed manner. Do it yourself kits do not always cover all aspects you need to consider so you should get legal advice about how to make your Will.
The team here at Williams Law can assist you in suggesting how to best draft your will so your wishes are expressed to the extent that they have legal effect and ensure that your will is properly drawn up and valid.
Powers of Attorney
An enduring power of attorney (“EPA”) is a document in which you name a person (called your attorney) who is to have power to act on your behalf and make decisions for you. In some cases, two or more people may be appointed. You are known as the donor, the person giving the power of attorney. The person who you appoint to act on your behalf is the attorney. An attorney does not need to be a lawyer but should be someone you trust to do the right thing for you.
At any time in the future an unexpected accident or illness might mean you are unable – possibly for some months or even permanently – to make decisions for yourself. Someone needs to make sure you are being properly cared for and your loved ones and property are also being taken care of. If you become incapacitated and have not signed and EPA then the alternative is to get an order from the Family Court. The judge will not necessarily know who you rely on and who you trust to look after things for you. The judge will be reliant on the information provided to the court and will not know who among your family and friends is most able to be trusted.
You should not try to create your own EPA’s/ signing an EPA is an important decision and you need good independent advice before you do so. It is important to have up to date EPA’s. The team at Williams Law would be happy to assist you and guide you through the process of making valid Enduring Powers of Attorney.
The team at Williams Law is also able to provide independent legal advice if required on Enduring Power of Attorney matters.
Care of Children & Guardianship Matters
Care of Children (Urgent Applications)
If there is domestic violence or you believe your children are at risk you can apply to the court for an urgent (without notice) decision. A judge will decide if they will make an urgent Order (usually only Interim or Temporary) based only on what you say in your application. If they make an urgent order, they’ll then give the other persona chance to ask the court not to make the order or to make an order on different terms. You can use a lawyer to help you make a without notice application and to represent you in court. Our lawyers here at Williams Law can assist you in applying to the Court for these urgent orders and represent you in the family court as the case progresses.
If you can’t afford a lawyer you may be able to get legal aid.
Care of children – when you cannot agree on care (non urgent)
If you need help to reach agreement about how you’ll care for your children, there a range of services to help, such as Parenting Through Separation, Family Dispute Resolution and the Family Legal Advice Service.
Parenting through Separation
Parenting through Separation is a free 4 hour course to help you understand and manage the effects of separation on your children. It includes tips for talking with your children and your ex-partner and how to manage shared care. You and your ex-partner attend separately. In the Franklin region this course is provided by Plunket and the courses are run in Pukekohe.
Family Dispute Resolution
Family Dispute Resolution can help you and the other parent or family members involved in the care of your children work through any disagreements about your care arrangements. An impartial mediator meets with you, runs the session/s and makes sure each person gets time to put forward their point of view. The mediator will help you focus on what is best for your children but will not force you to agree to anything or make a decision for you.
Family Dispute Resolution is free if you’re on a low income. If you do not qualify for government funding, you can still use a funded mediator and you will pay no more than $448.50 for your share of the cost. Private or non-funded mediators can set their own prices.
Care of children (when you agree)
If you are able to agree on care arrangements for your children, you do not have to do anything else. It is a good idea to write your arrangements down as a parenting plan so there’s no misunderstanding about what you’ve agreed.
You can ask the court to make your agreement into a Consent Order. That means the parenting agreement can be enforced by the court if one person isn’t sticking to the arrangements.
Domestic Violence Proceedings
People at risk of domestic violence can get a Police Safety Order form the Police or a Protection Order from the Court (with or without a lawyers help).
A Protection Order protects the person who applied (called the applicant) and any children who regularly live with them from the violent person (called the respondent).
The Protection Order can also protect other people, like a new partner but the person who applies for the Order must ask for these people to be protected in the Order.
If the violent person might encourage other people to be violent towards anyone named in the Protection Order, these other people can become associated respondents and the Protection Order will cover them a well.
The Police can enforce a Protection Order and make sure the violent person does not break the conditions.
Our lawyers here at Williams Law can assist you in applying for these orders on an urgent basis and guide you through the legal process or help you file a defence against a protection order if one has been made against you or is in the Court process of being made against you.
Williams Law provides legal aid for care of children and domestic violence proceedings. Legal Aid is government funding to pay for legal help for people who cannot afford a lawyer. Legal aid is considered a loan. You may have to repay some or all of your legal aid, depending on how much you earn, what property you own and whether you receive any money or property as a result of your case.
There is a user charge fee when you apply for and are granted legal aid. The user charge fee is $50 (including GST) and you pay the charge directly to your lawyer. This is the only payment that your lawyer can receive directly from you when you have been granted legal aid for a specified matter.
Family Legal Advice Service
A service provided by Williams law
If you are separated, or about to separate, you can get a family lawyer’s advice at any time. You may be able to get some initial advice and help for free if you are on a low income and qualify for government funding. If you do not qualify for funding, you will need to pay for any legal advice yourself.
What does the funded family legal advice cover?
A Family Legal Advice Service lawyer can help by:
- Talking to you about your legal rights and responsibilities and the options involved with the parenting arraignments you want
- Talking to you about what’s involved in going to court with parenting or guardianship matters
- Helping you fill out court entry forms, if your case goes to court
If you need more legal advice than what the Family Legal Advice Service provides, you will need to meet the costs of your lawyer to provide this extra advice. Legal costs can be discussed with you upfront and before we carry out the work for you if your require extra advice.
You can find out if you qualify by:
If you would like to speak to a Family Legal Advice Service Lawyer please contact the office to be put in touch with our provider of those services, lawyer Janine Williams.
If you still can’t agree after trying these services, you can ask the Family Court to make a decision for you by applying for parenting orders on a non-urgent basis. Help with this court entry forms can be given in the second session as part of the family legal advice service that Williams Law offers.