Busting Nine Common Myths About Law
A Legal Lesson With Southern Waters Legal
Southern Waters Legal, Cronulla
If you’ve ever thought signing on the dotted line seals your fate or that you can’t have a pet in a rental, think again. Today, thanks to the team at Southern Waters Legal, we will be equipping you with nine legal lessons you need in your life. Now, we might not be the next Elle Woods but we know this information must be shared. We’re taking you on a Scout Lesson, debunking the common myths about law, covering wills, property and family law.
Misconceptions about Wills
1. My situation is basic so I can use a DIY kit to complete my Will
Too familiar with the curse of a DIY Will, Southern Waters Legal strongly advises seeking proper legal advice to ensure your assets are distributed and protected in line with your wishes. Strict formalities must be met to ensure a Will is validly executed and if those formalities are not met, the Will may be ruled invalid.
“Too often we see clients begin with the phrase “my situation is basic” for them to then state factors that may complicate their estate. Homemade Wills often cause significant delays in beneficiaries receiving their inheritance, drawn-out expensive litigation and family disputes.”
To summarise, it’s important to seek Estate Planning advice from an experienced Estate Planning Solicitor together with a professionally drafted Will to ensure peace of mind in the validity of your Will and wishes.
2. Superannuation is not automatically covered by your Will
It’s no surprise that Superannuation is becoming one of the largest, if not the largest, asset a person holds at the time of their death, however, this is not automatically covered by your Will. Southern Waters Legal tells us it’s important to include how your superannuation will be dealt with in your broader estate plan.
“Most super funds allow you to nominate a person or persons to be paid your super in the event of your death. You are only legally able to nominate a certain class of people to receive your super. The class of people include:
Your spouse
Your child or children
Any person with whom you have an interdependency relationship
Your legal personal representative (also known as the executor under your will)
Any combination of the above
“Some super funds have specific rules around who your super can be paid to and in what order. Therefore, it’s important to check your super fund’s rules to ensure your super is dealt with and paid in accordance with your wishes.”
3. I don’t have enough money or assets to make a Will worthwhile
If you think you don’t have enough money or assets to make a will worthwhile, think again.“The conflict and uncertainty prevented by proper estate planning is important regardless of the size of the estate.”
Ultimately, obtaining legal advice can ensure that whatever assets you do have are distributed and protected exactly the way you wish them to be. Without proper estate planning, the distribution of your estate can cost your family both more time and more money.
“Estate Planning can involve a number of documents including a Power of Attorney and Appointment of Enduring Guardian. These documents provide families with certainty in dealing with important life decisions, which do not depend on the size of the estate.
Fun fact:
Only certain people can bring a claim against a person’s Will - these eligible people include a spouse, former spouse, child or a person who was wholly or partly dependent on the deceased and was a grandchild or member of the deceased person’s household.
Misconceptions about Property and Strata
4. You can’t have a pet if you live in a unit or townhouse
Good news Animal lovers: Pet Laws are now part of the Strata Schemes Management Act. “A recent appeal confirmed that blanket bans on pets were harsh, unethical and oppressive, so new legislation has now come into effect.”
5. A vendor has accepted your offer, so they have to sell
“An offer is not binding until a Contract of Sale with the relevant offer has been signed and dated by both the vendor and purchaser. Once dated, the Contract of Sale is formally exchanged and is now binding on the vendor.”
Southern Waters share the disappointment many purchasers face when their offer, initially accepted, is later “gazumped” by another purchaser. To ensure you’re not left heartbroken, have your finances ready and the contract reviewed by your solicitor or conveyancer as soon as possible to ensure contracts are exchanged.
Misconceptions about Family Law
6. To be a de facto couple means to be living with someone for over 12 months
Often it is believed that to be considered in a de facto relationship, you need to have lived with your partner for 12 months. We were surprised to hear that this was in fact not true at all!
“According to the Family Law Act, two people must have had a relationship as a couple living together on a genuine domestic basis for at least 2 years to be considered a de facto relationship. The Court will also consider you to be in a de facto relationship if you have lived with your partner for less than 2 years if there is a child of the de facto relationship.”
7. That property settlements means you divide things equally
When two people go through a separation, they negotiate what is called a property settlement. It is often assumed that the couple divides all of their property equally, such as any real estate, money, superannuation and the like, they both may hold. However, this is not the case.
“There are 5 steps the Court takes to determine a property settlement that results in a just and equitable division of property, taking into account both parties’ contributions to the marriage and relationship, as well as their future needs moving forward. This means that one party may actually receive more than the other.”
Fun fact:
The rights in family law actually lie with the children, not the parents. Parents do not have any rights to their children but rather, responsibilities. Children have the right to enjoy a meaningful relationship with each of their parents and to know and be cared for by both their parents, as well as the right to be protected from harm.
Other Misconceptions
8. I am bound by any contract I sign, in any and all circumstances
Contracts are important legal documents and should always be carefully considered, however, Southern Waters Legal states that you’re not always trapped after signing on the dotted line. “There are many avenues to explore and consider in the event that you are suffering a negative impact from a contract that you have already entered. Even if you have already agreed to a contract, you can always obtain legal advice about your rights and any potential options.”
9. My only option is to go to court to resolve my dispute
Think again! There are many avenues available to resolve a dispute. “Whether you are going through a business dispute, a strata complication, an issue with an employer or employee, or a separation from your partner, the law is increasingly encouraging parties to resolve disputes informally.” Alternatives include:
Negotiation - this is a common tool used in resolving disputes. Negotiation can be conducted informally between the parties directly or through lawyers. Negotiation often leads to quick and cost-effective resolutions.
Mediation - this involves the parties agreeing to hold a formal round table conference with lawyers present. A mediator is appointed to oversee the negotiations and facilitate the parties to reach a settlement.
Settlement conference - this is often a more informal type of round table conference where each party can put forward their position with the assistance of lawyers to attempt to reach a settlement. There is no mediator appointed which provides more flexibility to the parties as to how the conference is run.
Collaborative practice - involves the parties coming together with their lawyers and any other relevant advisers (commonly accountants and financial advisers) in an attempt to reach a settlement. All the parties in attendance can offer their perspective on the dispute and propose options to assist in resolving the dispute.
Tribunals - in some matters, there is a requirement or option to go to a Tribunal. A Tribunal is less formal than a Court and does not necessarily require legal representation. A Tribunal can be a cost-effective way to resolve a dispute if some of the other avenues above have been unsuccessful.
Simon and Leona Bennett, Founders of Southern Waters Legal
Established by Simon and Leona Bennett in 2009, Southern Waters Legal works to make law as simple and stress-free as possible. They have a young and unique team that go above and beyond for their clients, always working with their values at the forefront: Integrity, Excellence, Empathy, Can Do Attitude, Communication and Team-Work.
Southern Waters pride themselves on the relationships they form locally to provide a distinctive approach to legal services in the area. Confident in their ability to think ‘out of the box’, Southern Waters works to offer different solutions to client's legal challenges.
Practice areas:
Estate planning and probate,
Litigation and debt recovery
Family law
Property law/conveyancing
Taxation and business
Commercial litigation
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