Do I Have To Return My Engagement Ring?

In the event of a marital break up the property of the parties needs to be divided according to the principles which are set out in the Family  Law Act. A question which arises from time to time is whether or not an engagement ring is part of the property pool or whether it is excluded.

The matter is being considered by the Family Court of Australia in the marriage of Beneke. In that matter the husband and wife were aged 77 and 42 respectively. They  met  in 1992 while the husband was a patient of the hospital where the wife worked as a nurse. They were engaged two months later and married a few months after that. Separation occurred in less than a year. There were no children of the marriage and the husband had assets of approximately one million dollars.

In that matter the Court considered that the evidence suggested that certain gifts including the engagement ring were gifts made without any  preconditions  and in those circumstances the Court did not consider it would be just and equitable for the wife to return the gifts including the engagement ring.

Other findings were made by the majority of the Court including gifts which could also be treated as property within the meaning of the Family Law Act and in circumstances where gifts made prior to marriage were often not  included in a judgement due to their comparatively small value.

In the case of Jackson v Jackson the issue of returning the engagement ring was also considered. In that case the circumstances were slightly different due to the fact that the parties had parted during their honeymoon. The Court held that in those circumstances it was just and equitable for the wife to return not only the home but the engagement ring given the fact that the marriage ended after such a short duration.

I Want To Have My Dead Husband’s Baby

 

Ms Jocelyn Edwards approached us in August last year to assist her being able to get access to her late husband’s frozen sperm for the purposes of being able to undergo an IVF program.   Jocelyn’s husband Mark died as a consequence of a work place accident on the day before the couple were to sign the final documents to commence an IVF program. This extraordinary lady hours after being told the horrible news that her beloved husband had died, had the strength of character and intelligence to enquire as to what could be done to preserve his sperm and on her own was able to convince a Senior Supreme Court Judge to issue an Injunction empowering Doctors to extract the sperm from her husband’s body and to keep it preserved. Notwithstanding what would seem to be a clear process to put into effect what the parties had obviously been planning for quite some time they were now faced with a legal document entitled and known as the Assisted Reproductive Technology Act of 2007(ART Act).  This Act not only prohibited the use of Mark’s semen (referred to as a gamete) without his written consent but also did not even allow a Court of Law to exercise discretion in unusual situations.  The evidence was clear that Jocelyn and Mark had even contemplated being able to use his sperm and proceed with the IVF program in the event of his death, after he became concerned that he might have been suffering from some illness.  Advice from Senior Counsel was still to the effect that although there clearly was an intention to be able to proceed with the program after one party’s death, there was no document in writing. The law in this area is unusual in that different States and Territories have different pieces of legislation.  An IVF program could not be undertaken in NSW in the absence of Mark’s written consent.  The firm proceeded with the Court action and was able to persuade the presiding Supreme Court Judge to simply allow the sperm to be given to Jocelyn who was the Executrix of her husband’s Estate. This will allow Jocelyn to consider entering into an IVF program outside NSW.  Needless to say after many months of grieving and anxiety, we have assisted a remarkable woman in being able to choosea path, which will offer the possibility of fulfilling a long held dream. This case has many consequences for all in the community.  It is important that it was recognised not only by the legal establishment and by the media as well, since it received extensive coverage. As a consequence we are recommending many of our clients who may find themselves in a situation where the possibility of offering parts of their body for use to spouses and members of family, should now be incorporated in their Wills.  If you can perceive such a possibility in your own circumstances, your Will ought to be amended so as to be able to clearly provide the written consent that is necessary in being able to offer the use of parts of your body following your death. As always, please feel free to contact MBBF to discuss the matter.

Personal Guarantees - Do you ask for them or only get asked for them?

Do you have an SME (small to medium enterprise)? Do you have an extensive list of companies to whom you supply goods and/or services? Is your credit application satisfactory and does it cover your current business needs? 

In today’s often-volatile commercial environment getting new business and customers is tough. Getting those customers to pay overdue bills could be even tougher. A good credit application including  terms and conditions is essential for the smooth functioning of recoveries for your business. What you may not know is that a personal guarantee obtained for a trading account is an extremely valuable tool in recovering outstanding debts. You may deal with a company but often extracting money from a company can be an expensive and lengthy exercise. Experienced individuals are able to cover their tracks so that they are rarely personally liable. 

Ensuring a personal guarantee is in place signed by an individual, whether they be a director of the company with whom you deal or another individual, ensures that if the debt requires collection you are at liberty to pursue not only the company but the guarantors as well. You may not know that a personal guarantee outlives the resignation of a director and in fact even if the company is placed in liquidation or deregistered you can still rely on the guarantee to commence legal proceedings for the recovery of the debt. 

Your business is too important not to consider implementing this strategy. MBBF drafts agreements, terms and conditions including personal guarantees on a regular basis .

High Court Ruling on Malaysia Immigration Plan Announced.

See article in Sydney Morning Herald http://www.smh.com.au/national/high-court-sinks-asylum-strategy