Family

by Jacqui Brauman Jacqui Brauman No Comments

How to tell your kids about your divorce

Children grow up surrounded by notions of what is “happily ever after” and what their family should look like and how they should behave. When parents fight or just don’t get along, although the child is sad, in most cases, they don’t conceptualise their parents getting divorced. 

So how do you tell them?

Remember, it is not about you! You have made the decision to change your life and that is an empowering and brave decision – telling your child is not about that – it is about their world and their fears and aspirations.

There is a plethora of articles’ on the web that give noteworthy tips on what you should do, but life is not a planned event and not everything can be controlled. So a fail safe way on how to tell your children that you are getting divorced is to be mindful of what not to do. 

Pick your moment

Telling them when they are tired, angry or sleepy is standard poor communications if you were presenting something to a seasoned adult but to do that to a child is just plain cruel. Be mindful of how your child is feeling at the time and what is happening in their lives. In other words, telling your 13year old that you are getting divorced just as she is sitting for an important assessment is sub optimal. 

Plan your moment

There is no need to choreograph your news like a wedding but there is merit in having a plan of what you want to say. Have an agenda in mind and a general flow of things that you should cover. Again, remember, it’s not about you – it’s about them. Yes, you can start with the statement that you are getting divorced but then shift the focus on issues that will affect the child, for example how it will affect their living arrangements and how often they will see the other parent. Redefine the perception of the family unit i.e. just because you are no longer going to be living together does not mean that they are no longer part of a healthy and functioning family. Remind them that this is your decision and not a reflection of anything that they may have done. 

Managing responses

Your children may surprise you and say that they knew that it was coming or they may burst into tears. Whatever the response is, a good way of keeping communications flowing is to be respectful that there is no right or wrong way to react. The right or wrong way is in how you respond. Children are vulnerable as well as ego centric and as such, their responses are clues on underlying concerns or fears. The news you are giving has many implications – know the implications to your child and you can prepare for the reactions. Tune into what they are saying, ask questions and respond to their underlying issues. You know your child best and you will have an idea if they are not satisfied with your responses. 

Keep an open dialogue

So you have told your children that you are getting divorced and it went well – at the time. After the talk about getting divorced, comes the reality of the divorce i.e. the change in living arrangements, dinner times, family get together, to name a few. Each change in event will come with a new set of challenges the child has never faced before. Let them know that the discussion of “we are getting divorced” is never over and if need be, they can talk about it and raise questions as they arise. Most of all, if you don’t know and don’t have an answer to something, be brave enough to be honest and say you don’t know. You were in a family together – you can deal with the implications of a divorce together. 

by Jacqui Brauman Jacqui Brauman No Comments

Superannuation succession for blended families

Mark and Jenny are married. Both of them had previous marriages, and Mark has no children from his previous marriage, Cara and Chris who are now both adults. Jenny has a son, Lachlan, who is 12 years old and lives with her and Mark. They have no children together.

After his first divorce, Mark has very few assets. He was able to retain his superannuation with AustralianSuper, an industry super fund. He and Jenny have bought a house together, jointly owned, and mortgaged up to 70% of its value.

Mark has $600,000 in his superannuation fund, and has life and total permanent disability insurance cover for a further $750,000. He would like to divide his superannuation benefit between Jenny 60%, Cara 20% and Chris 20%. Remember, superannuation is not an estate asset that can be dealt with under a Will, unless Mark makes a binding nomination that all his death benefit goes to his estate.

Without a binding nomination to AustralianSuper, the trustee of the super fund is likely to determine to leave the majority of the superannuation (if not all) to Jenny and Lachlan (as a financial dependent and step-child). If Mark wants to ensure Cara and Chris get some of the benefit, he will need to make a binding death benefit nomination. It is important to find out from AustralianSuper whether the binding nomination can be non-lapsing, or whether it lapses every 3 years and Mark needs to remember to redo it. There is a risk that the binding nomination would lapse if Mark forgets to redo the nomination, and his own children could miss out. 

Out of Jenny, Cara and Chris, only Jenny would be within the definition of a death benefit dependent for tax purposes. Cara and Chris would need to pay part of the benefit that they receive as tax, at the income tax rate that they otherwise earn. They may not each receive an equal amount after tax. 

If Jenny died before Mark, Mark would like to have Lachlan receive part of the superannuation. But if Jenny was dead, then Lachlan would no longer be a ‘child’ of Mark (as he was only a step-child under the definition whilst his mother was alive). However, if Lachlan is still a minor and still living with Mark, then Lachlan would likely fall within the definition of a financial dependent instead, so Mark could nomination Lachlan in that situation.

Mark has given Jenny a power of attorney if he loses capacity. If he loses capacity, he could be entitled to the insurance cover associated with his benefit. Jenny, as his attorney, could withdraw from his fund on his behalf prior to his death. This would render the binding nomination either useless (depending on how much was withdrawn), or would significantly deplete the amount of money that his children would inherit. This would either be a risk that Mark would have to take, or he could prepare a Will with a specific gift clause that tracks any superannuation and ensures it is equalised between his children.

For more on money or estate planning.

by Jacqui Brauman Jacqui Brauman No Comments

Common parenting mistakes to avoid following a separation

Parenting is challenging for those that enjoy a successful relationship and there is an added level of complexity when parents are separated. Whilst a separation brings with it emotional turmoil and adjustment, if not mindful, parents can make mistakes which can end up causing their children significant distress. These are some of the most common mistakes separated parents make and we hope that recognising them will assist you in avoiding them. 


  1. Showcasing the worst of the worst conflict to the children 

Children that have to witness the awful scenes where spouses insult, threaten, belittle, and even resort to physical violence can suffer from a lack of security. Criticising the other parent can cause the child to feel guilty for loving that parent. Children also may start to believe that there is something wrong with them, since they are related to the person being criticised. Moving forward, children may have anxiety disorders, sleep issues, and even problems forming stable relationships themselves. Parents should also be mindful that such emotional abuse constitutes child abuse and when reported, the Department of Human Services is duty bound to investigate. 


  1. Using the Children like ‘MSN’

A common follow on from a separation is the unwillingness to communicate with your ex-partner. The alternative of asking your children to act as go between for messages translates to asking your child to do something you and your partner could not handle doing yourselves. 

Using your child as a quasi ‘MSN’ is a mistake, frankly, and it can lead to the alienation of the other parent over time. Partners should instead use email or text messages, and these can serve as record in case where one party is not complying with court orders.  


  1. Your Child is NOT a ‘Stand-in’ for your ex-partner 

A separation of partners does not mean that now the boy becomes the man of the house and the girl does not turn into the woman of the house. The responsibilities of parenthood are not a child’s burden to bear. It is important that parents don’t cheat their children of their childhood by making them the ‘man of the house’/woman of the house. 


  1. A Spanish Inquisition post weekend with the other parent

When your children return home after their weekend with your partner, they should never be interrogated. It is not a child’s role to act as an umpire whilst parents are engaged in mortal combat. Such a burden is another example of emotional abuse and can lead to long term emotional damage. The opposite of the Spanish inquisition is to prevent a child from mentioning their time with their other parent. So, don’t interrogate your children and don’t pretend like the time with their other parent is a taboo discussion. Instead focus on asking fun questions and restrain yourself from giving a commentary on their experiences. 


  1. Your child is not part of the asset pool nor are they part of a contract

Don’t discuss property settlements, parenting time and primary care in front of your children. If you are discussing such matters, be mindful of the ‘little ears’. To you its just a discussion about the ‘nitty gritty’ of property and parenting but to a child it feels like they are just part of a business deal and that they are a burden on one or both parents. 

What if I have already made these mistakes?

If you recognise that you have made any of these mistakes, you can repair the damage caused by doing the following:

  1. Identify your mistake in detail and have a conversation about why it was wrong;
  2. Say sorry;
  3. Commit to changing your behaviour from that moment on.
  4. Permit your child to tell you if and when you inadvertently make that mistake again.

For more information on family and separation click here.

by Jacqui Brauman Jacqui Brauman No Comments

Homemade Wills and Will-kits

Another homemade will has just cost a family tens of thousands of dollars in Western Australia, with the family having to work out what the Will actually says in the Supreme Court. 

The will-maker must have thought they were very smart, but the language used in Wills has been developed over hundreds of years, for a reason. There are phrases that create trusts, and gifts, and duties and instructions that are in-built, not having to be spelt out. 

This Will was a 14 page will, without numbered paragraphs, but headings on each page dealing with different assets. Despite thinking he was thorough, the will-maker left out instructions as to what was to happen to the proceeds of the sale of many of the assets. He put time into giving instructions that he didn’t need to do, about how assets were to be sold, and about opening special purpose bank accounts, but then failed to direct who they were to be left to!

This case caused a flurry of comments from lawyers around the country on LinkedIn, and I was directed to a fantastic article written about a year ago by Darryl Browne. He succinctly confirms that will-making is not like filling in a form, although will-kits and online wills try to fill this gap. 

Darryl’s article highlight a few priceless comments by Supreme Court judges over the years:

‘Homemade wills are a curse”

“All of this could have been avoided if the testator had consulted a lawyer and signed off on a will which reflected his wishes. There is no question but that engaging the services of a properly qualified and experienced lawyer to draft a will is money well spent”

“But way [this will-kit will] has been drafted is difficult, and the parties have been put to the trouble and expense of coming to the court seeking directions as to its proper interpretation. If the will had been drafted by a competent legal practitioner, this problem would not have arisen, and the parties would have been speared a great deal of trouble and expense”

The finest being about a ‘friend’ who helped prepare a will: “The deceased either was offered, or sought, the assistance of an entirely unqualified person to prepare these three documents. That person would no doubt protest that she was just trying to help a friend. She was no help at all. A claim of good intentions is no defence. The fact is that unqualified people who intermeddle in the preparation of documents that have legal operation cause great harm. The defence for such officiousness is often one of trying to save the will maker money. That is sterile. This deceased could have had several wills professionally prepared for a fraction of the cost that has been imposed on her estate by this application. The legal system should not be blamed for that expense”

It will be interesting to see in the future whether friends who ‘intermeddle’ with the creation of wills could actually be charged with providing legal advice without the proper qualification, or at the very least be legally liable for the cost the estate incurs in having to get a badly drafted will interpreted by the Supreme Court. 

We do offer an online will service, for very simple situations, but we also offer a review service so that you can have your draft professionally reviewed, so that the cost of the online will and review costs less than a properly drafted will. This small cost saving might make you sleep at night, but with the cost of a will starting from $350, it’s a very cheap solution to preventing your hard-earned assets disappearing in legal fees later. 

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