My ex and I have very different ideas about how we want our children educated.  Even when we were together we couldn’t agree and it was one of the reasons why our marriage ended.  With our eldest child starting school next year we need to make some important decisions.  I really want both our children to attend the small Catholic school around the corner, but my ex was always adamant that the local State school was ‘good enough’ for him and that his children ‘would never grow up to be entitled brats’.  Since he only has them alternate weekends anyway, can I just enrol them at the school of my choice and send him the bill later?

The Answer is NO.

The Family Law Act presumes that both parents should have shared parental responsibility when making long term decisions about the care, welfare and development of their children.  Education falls within this category.  There is a positive obligation on both parents to make this important decision.

Indeed, some parents don’t see the need in sending their child or children to private schools.  Some parent’s look at the fees they charge, and simply will not entertain sending their children there.  It is not uncommon to hear one parent claim that since they are already paying child support, they should not be expected to ‘cough up more cash’ to fund the cost of expensive school fees.  Obviously, this becomes a major source of discontent if the parent receiving child support wants to send the child to a private school, and doesn’t understand the other parent’s rationale.  It’s about the child isn’t it.

In the first instance, your primary aim should be to work with your ex to share your ideas about the type of education you want for your child.  Ideally, through this discussion you may come to an agreement, or a compromise.  It may be that both parents agree to contribute to the costs of education.  In some situations, you may achieve consent to enrol your child in the school of your choosing, albeit with the proviso that this expense is borne by you entirely.

Where these discussions fail, or are not possible, such negotiations may take place through mediation or with the assistance of a Family Solicitor.  In this manner, as with other Family Law disputes, your lawyer will negotiate with your exes’ lawyer until a suitable compromise can be reached.  Should this negotiation fail the matter can be brought to the Federal Circuit Court with the Judge ultimately deciding what is in the best interests of the child.

While there are no simple answers to your dilemma, it is critical that separated parents with children work to find solutions that are ultimately in the best interests of the child.  Too often, I observe situations where parents lose sight of their parenting responsibilities and this situation is used as an opportunity to ‘get one over’ their ex.  Children should never be used as pawns in this game.  Sometimes, the best solution is to be open to compromising some of your dreams so as to move forward and ensure your child greater stability in the long term.

There are times in my job that I feel more like a relationship counsellor than a Lawyer. Family Law is one where these roles work hand in hand.  It is to be expected.  I work closely with people as they struggle through the life challenges that separation and divorce bring.  I aim to make the transition for my clients, their children and at times extended families, as stress free as possible.

But sometimes, my client’s emotional needs and internal struggles go beyond giving them helpful and beneficial legal advice.  They need more than an ear to bend and some kind words to get them through this difficult period.  I know I am not trained in psychology, nor do I have a qualification in counselling; but I can appreciate when a client needs to seek the help of formal counselling.

I wish to highlight the important role that professional counselling has in the legal process.  In some situations it is wise to consider employing a professional relationship counsellor (psychologist, psychiatrist or other mental health professional) to work with the client’s through some issues that may emerge as a result of their separation or divorce.  This approach can often assist clients to effectively overcome a range of mental blocks or challenges that may be preventing them from reaching a satisfactory legal solution.

I want the very best for my clients and sometimes doing this means ensuring my client’s get any help they need from not just from me, but other professionals that can guide them through this life challenge at a faster pace, enduring less pain than might otherwise occur.

I have been married for several years but have recently separated from my spouse. We have finalised a property settlement, but are yet to get around to being officially divorced.. I don’t have a Will, does this mean my former spouse will still have access to my estate when I die?

The simple answer is yes. Whilst you may be separated, you are still legally married and have a legal ‘spouse’ in the eyes of the law. Under the Administration and Probate Act 1919 (SA) if a person dies without a Will, having a legal spouse and no children, then the partner would be entitled to the whole of the estate.  Alternatively if there were children, and the estate was worth over $100,000.00 then the legal spouse would receive the first $100,000.00 and anything over $100,000.00 will be divided equally between the legal spouse and the children of the deceased.

In a recent case, the Supreme Court of South Australia heard the case of a young couple who had been married and undergone a messy break-up. A property settlement was entered into and they began to move in separate directions. The wife had served divorce papers on the husband, but he hadn’t yet signed them.   Legally speaking, the divorce was never finalised. Approximately 15 months later the husband died in a tragic accident. The husband left no Will which resulted in the former spouse being entitled to the estate in its entirety.  This included a house and a significant superannuation benefit. The deceased’s grieving family were left with nothing.

Whilst the family of the deceased might, in certain circumstances, be entitled to make a claim for an interest in the estate under the Inheritance (Family Provision) Act 1972 (SA), the exercise would be costly and possibly detrimental to the family.  This could easily have been avoided, either by finalising the divorce or by having a Will in place.

In the matter described above, if the deceased had been divorced or had left a Will, then his estranged wife would have no claim or entitlement to the estate.

It is prudent to seek advice from a solicitor in the event of a relationship break down. A solicitor is best equipped to provide you with appropriate advice related to the effects and long term implications a previous relationship may have on your estate and how to best to structure your affairs in order to minimise any ex-partner from making a claim to your estate. For advice on Wills and Estate matter contact the dedicated and experienced team at Welden & Coluccio Lawyers.