Frequently Asked Questions

FAQs

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Here’s a list of questions we’re frequently asked, with some helpful answers.

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Conveyancing

This allows either party to obtain a short extension to settlement if the party is unable to settle due to the inaction or delay of a financier for any other circumstance where buyers are potentially unfairly affected by delays outside of their control. This clause can cause issues for parties, particularly if the parties have already made arrangements, such as hiring removalists. Before signing a contract of sale, it is important that you are fully informed of the potential consequences of such extensions.

Who qualifies for the first home concession?

When purchasing a property in Queensland, an amount of Transfer Duty, also known as stamp duty, must be paid to the Government. This amount is determined based on the purchase price on the contract. However, if you are a First Home Buyer and meet the following criteria, a First Home Concession will apply.

• You have never claimed the First Home Concession;
• You have never held an interest in any residential property both within Australia and/or overseas;
• You are at least 18 years of age;
• You must be paying market value if the property is valued between $500,001 and $549,999;
• You must move into and reside at the property within 1 year of settlement; and reside there for at least 12 months consecutively;
• You must not dispose (sell, transfer, lease or otherwise grant exclusive possession) of all or part of the property prior to moving in;
• You must not demolish the home without living in it first
• You must ensure any existing tenants move out when their lease expires or within 6 months of settlement, which ever is prior. Further, previous owners who continue to reside in the property must vacate within 6 months.

If you meet the above criteria, the following concessions apply depending on the value of your home.

• $500,000 or less: you will receive a full concession, meaning you will NOT have to pay any transfer duty.
• $500,001 - $549,999: you will receive a partial First Home Concession.
• $550,000 or more: you will not be eligible for a First Home Concession, however a Home Concession will apply.

Please contact us to discuss your eligibility today.

What is Joint Tenancy?

Joint tenancy is a method of owning property where two or more parties own equal share of the property. The parties’ names are recorded on the title as co-owners and they have equal rights and must agree on any decisions made about the property.

If one of the joint tenants is to pass away the survivorship rule will apply. This means that the remaining joint tenant(s) will automatically inherit the share of the party who has passed.

Joint tenancy is most suitable for couples that intend to live permanently together and who want their share of the property to go automatically to their partner upon their death.

What is Tenants in Common?

An alternative to property ownership is Tenants in common. This is where parties can own a property in equal or unequal shares. Each buyer has a fraction share in a property equal to the amount of money they have contributed towards the purchase price. For example, if you contribute $300,000 to a property with a purchase price of $1,000,000 your share
will be 30% or 30/70.

When a party who holds property as a tenant in common passes away their share does not automatically transfer to the surviving tenants, it forms part of their estate and is distributed according to their Will.

In some cases, the property owned is sold and the percentage owned by the deceased is distributed accordingly. Alternatively, the remaining owners can provide funds to buy the deceased’s share and have the title transfer to the surviving parties. If the party who holds property as a tenant in common passes away without a Will the fraction share will be distributed by the rules that apply upon intestacy.

Family Law

How do you formalise an arrangement for children?

When can you apply for divorce?

You can apply for divorce in Australia if you have been separated from your former spouse and have lived separately and apart for 12 months and 1 day, and either you or your former spouse:

Are an Australian citizen by birth, descent, or grant of Australian citizenship;
Regard Australia as home and intend to live in Australia indefinitely;
Live in Australia and have done so for 12 months immediately before filing the divorce.

Are Pre-nuptial agreements legally binding?

Under Australian Family Law, pre-nuptial agreements are commonly referred to as ‘Prenups’, ‘Binding Financial Agreements’ or ‘BFA’s’. They are private agreements stipulating in advance how the assets and liabilities of a couple will be split up if their relationship breaks down. These types of agreement can be entered into before, during or after the relationship – whether it’s a formal marriage or just a de facto relationship. But there are strict requirements that apply to all prenuptial agreements, and you need to get them right, because any such agreement can be overturned by the Family Court if it’s not absolutely watertight. Firstly, and perhaps most importantly, to make a Binding Financial Agreement truly binding, both parties must be absolutely honest and upfront about all of their financial circumstances. Each party needs to make full disclosure of such circumstances, by providing full and correct detail concerning the whereabouts and true value of their assets, liabilities, superannuation entitlements and other financial resources. The parties must enter into the agreement freely and without any undue influence or pressure, and each should obtain their own independent legal advice regarding its terms. The Family Law Act sets out various provisions regarding prenuptial agreements, and any agreement concluded must comply strictly with the legislation in order to be binding on the parties.

If the agreement is not properly done and the love affair ends in a bust-up, there's every chance the Family Court will take a long, close look at precisely what each of the parties knew and didn’t know before they signed up to the agreement, and how much was disclosed, and what was concealed. Provided the parties received proper legal advice in the first place, they were both fully informed of their respective rights and liabilities from the start, and they followed their advice and made full disclosure of all of their interests, a prenuptial agreement will provide a very useful and cost-effective blueprint for the distribution of property, not only providing a welcome level of certainty, but hopefully saving everyone a lot of financial and emotional cost in ongoing litigation. In short, provided it's done right, a prenuptial agreement is legally binding, and can be a very good thing.

Is superannuation considered part of the property settlement if I separate from my spouse?

Superannuation funds are held in trust, and therefore they can’t generally be attacked by creditors, even a bankruptcy situation. But that doesn’t mean they are unassailable. Many of my Family Law clients facing matrimonial property settlements wrongly assume their superannuation is locked away and can’t be carved up as part of the property settlement. I’m afraid it’s just not true. In the event of a relationship breakdown, all assets owned by both parties, including money held in super, must be identified and valued as part of the joint property pool, to be divided up between the parties, regardless of when it was acquired. For the purposes of a property settlement, spouses have the option of taking their respective superannuation entitlements into account in the property settlement, by leaving them untouched and accounting to their spouse for their value from other assets, or alternatively by splitting the superannuation interest via a ‘payment split’. The most appropriate option will depend on the particular circumstances of each case. If it is convenient to make use of a payment split to effect property settlement then the superannuation of one spouse will be split so as to transfer part of that spouse’s superannuation into a superannuation fund in the name of the other spouse. Before assessing whether or not you will be required to share your superannuation with your spouse for the purposes of a property settlement, it is essential to identify the nature and type of the superannuation interest you have, and its value. Once this is done, you are able to examine the effect of any proposed settlement and the likely consequences of any superannuation split, and decide whether or not it is in your best interest to make a payment split.

What is Mediation?

How do I formalise the care arrangements for my children?

If you are able to reach an agreement with your former spouse regarding the care arrangements for your children, you have two options available to formalise it, that is, by way of a Parenting Plan or obtaining Consent Orders approved by the Court.

A Parenting Plan is a written agreement which outlines parenting arrangements for children. The plan can be varied between the parents at any time. However is not a legally enforceable document. So there is no protection if the plan is not complied with by one of the parents.

A Consent Order is a written agreement approved by the Court and it may cover parenting arrangements for children as well as financial arrangements such as property and maintenance. Consent Orders are enforceable and there are consequences if not complied with.

Unfortunately not all parents are able to agree upon any form of care arrangement for their children. Depending on the circumstances of the case, the stress and tension involved in making this decision may affect the children and may make the process even more difficult.

If you are unable to reach an agreement with your former spouse, then you are required to attend Family Dispute Resolution to try and resolve the matter before going to Court. Unless you are to show that you are exempt from attending Family Dispute Resolution in circumstances where: (1) your matter is urgent, or (2) one of the parties are unable to participate effectively or (3) there are reasonable grounds to believe that there has been or there is a risk of family violence and/or child abuse.

Migration Law

How do I bring parents to Australia permanently?

There are currently six types of Parent visas which fall into two categories (contributory and non-contributory). There are a limited number of parent visas grant each year, and this number is reviewed annually. Contact us to discuss all the different types of parent visas and their requirements to determine if you and your parent(s) are eligible. We specialize in migration law, and we are here to hear your story and explore all possibilities available to your circumstance.

What happens if you are on a partner visa?

The Partner Visa allows a couple based on a de facto marital relationship or a de jure marital relationship to apply for permanent residency in Australia. You will be assessed for the second stage visa after two years from application. At that time, your relationship must be continuing, with some exceptions referred to below. However, if your relationship ceases within the two-year temporary period there are exceptions / ways you could proceed to the second stage Partner Visa and attain permanent residency.

What is a Health Waiver?

Most applicants who have applied for a temporary or permanent visa are required to undertake health examinations.

To meet the health requirement to be granted a visa an applicant must undergo a health examination and be granted a health clearance. If a Medical Officer of the Commonwealth assesses you as unable to meet the health requirement, your visa application will be refused unless a “Health Waiver” is available and exercised.

Ultimately, a health waiver may be considered where you satisfy the Department of Immigration and Border Protection that the granting of the visa would be unlikely to result in undue cost or prejudice to access of an Australian citizen or permanent resident to health care or community services.

It is important to note that you do not need to apply for a Health Waiver. If you are eligible to be considered for a Health Waiver, the Department will send you can “Invitation to Comment” advising that you have failed to meet the health requirement and that a Health Waiver is going to be considered. The Invitation to Comment will invite you to put forward claims and information in support of a Health Waiver being exercised.

If you have been issued an Invitation to Comment in relation to a Health Waiver, or have been refused a visa on health ground, contact us immediately so we can assist you in formulating your response to the Invitation to Comment or prepare you application for review to the AAT.

What is character requirement?

Applications for visas are always subject to the good character requirements set out in s 501 of the Migration Act 1958. A visa may be refused or subsequently cancelled if a person does not satisfy the decision-maker that they pass the character test.

You may not pass the character requirements in some circumstances. These include if:

you have a substantial criminal record (see below)
you have been convicted of escaping from immigration detention, or convicted for an offence that you committed:
- while you were in immigration detention
- during an escape from immigration detention
- after an escape, but before you were taken into immigration detention again
you are or have been a member of a group or organisation, or had or have an association with a person, group or organisation that the Minister reasonably suspects of being involved in criminal conduct
the Minister reasonably suspects that you have been involved in people smuggling, people trafficking, genocide, a war crime, a crime against humanity, a crime involving torture or slavery, or a crime that is of serious international concern, whether or not you have been convicted of such an offence
your past and present criminal or general conduct shows that you are not of good character
there is a risk that while you are in Australia you would:
- engage in criminal conduct
- harass, molest, intimidate or stalk another person
- vilify a segment of the Australian community
- incite discord in the Australian community or in a part of it
- be a danger to the Australian community or a part of it
you have been convicted, found guilty or had a charge proven for, one or more sexually based offences involving a child
you are subject to an adverse security assessment by the Australian Security Intelligence Organisation
you are subject to an Interpol notice, from which it is reasonable to infer that you are a direct or indirect risk to the Australian community, or a segment of the Australian community
you are or have been convicted of a domestic violence offence or have ever been subject to a domestic violence order

What is a substantial criminal record?

condemned to death or life imprisonment; or
condemned to imprisonment of 12 months or more; or
sentenced to two or more terms of imprisonment, totalling to 12 months or more (even if served together); or
found by a court to not be qualified to plead regarding an offence committed which resulted in detention in an institution or facility.

After you apply, you might be asked to:

provide a police certificate
complete Form 80 Personal particulars for character assessment
complete a character statutory declaration
provide a military certificate
provide a letter of good conduct from an employer

Please contact us for more information regarding the character test and to discuss your migration matter further.

Wills and Estates

Do I need a new will after separation or divorce?

Did you know your former spouse may still inherit your assets if you pass away after you separate and before the Court issues a Divorce Order? It happens if you separate and does not change your Will. In the eyes of the law, death is not considered a form of divorce. Separation itself does not invalidate the laws of intestacy and will not affect the Will you make during your relationship or marriage. It is only after the Court issues a Divorce Order that you may prevent your former spouse from inheriting your assets. It can be avoided if you take the necessary steps after separation to change your Will and other documents. It is crucial that you seek qualified legal advice before drafting your Will and that you review your Will regularly. We can help you with that!

What is a Power of attorney?

Who will look after my children if I pass away?

It is important to nominate someone in your Will as a guardian of your children. This person will be able to make decisions about your children's long-term care, such as education or religion. Appointing someone you trust as a guardian doesn't mean that your children will live with that person, unless the other parent is deceased and there is no other family court or federal circuit court orders in place saying who your children are to live with.

What is an Advance health directive?

How do I formalise the care arrangements for my children

What happens if I die without a Will?

In this instance, you are said to have died ‘intestate’. This happens if you have not made a Will or if you have an invalid Will. Examples of invalid Wills are:

1) If the Will has not been properly signed; or

2) If the Will was made by a person of unsound mind at the time of making his/her Will; or

3) If the Will was damaged to the extent that it cannot be read or interpreted.

The laws of intestacy will determine how your Estate will be distributed if you die without a Will or without a valid Will. All Australian states have their own intestacy legislation. In Queensland, the laws of intestacy set out the entitlements of the next of kin of an Intestate person such as the spouse, de facto, children and grandchildren.

If you have no spouse, children or grandchildren and you die intestate, then provision is made for your parents, brothers and sisters, nephews and nieces, then grandparents, uncles, aunts and cousins. Your in-laws and/ or step-parents are not included in the rules for the distribution of your Estate. The best way to ensure that your Estate is distributed in accordance with your wishes is to make a valid Will. Wills are relatively simple and cheap instruments and they are extremely beneficial to you if properly drafted.

Retail and Commercial Leases

What is the difference between retail and commercial leases?

What are some key differences between a Retail and Commercial Lease?

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Thank you Reid Legal for helping us with our first house purchase'Being first home owners, we had very little knowledge of what needs to be done but Gisele provided us with detailed instructions every step of the way. She was always quick to respond whenever we had any concerns/questions and is a delight to deal with! Everything went smoothly and we never had anything to worry about as Gisele was very professional and always on top of things. Thank you so much and we are loving our new home. I absolutely recommend Conveyancing with Reid Legal Group.
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Gisele helped me in reviewing and setting up a financial binding agreement during my divorce. 'I am so grateful to have had Gisele “in my corner” for this difficult and lengthy process. Gisele is efficient, very thorough and knowledgeable. Can not recommend her highly enough.

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Gisele and her group have been assisting us for more than a year now, and since our first meeting, 'We felt very confident to put her plan in action and now we feel closer to our Permanent Residency! Thank you very much to the Reid Group, we really appreciate all the care and attention with us.

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