How to Divorce your missing spouse

Wednesday, 11 March, 2026

Post Separation Counselling

Tuesday, 3 February, 2026

The end of a relationship is one of the most stressful events in life a person can experience. Lawyers can provide advice about family law. Parties should make a genuine effort to resolve issues.

The Role of the Independent Children’s Lawyer

Wednesday, 28 January, 2026

Understanding Family Violence in Family Law

Tuesday, 23 December, 2025

The existence of family violence is a key consideration in family law property matters and parenting matters. What is Family Violence For the purposes of the Family Law Act 1975 (‘the Act’), family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. The Act provides a non-exhaustive list of what may constitute family violence: • an assault; or • a sexual assault or other sexually abusive behaviour; or • stalking; or • repeated derogatory taunts; or • intentionally damaging or destroying property; or • intentionally causing death or injury to an animal; or • economic or financial abuse; or • preventing the family member from making or keeping connections with his or her family, friends or culture; or • unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty. Family Violence in Parenting Matters The Federal Circuit and Family Court of Australia (‘the Court’) must prioritise the best interests of the children in parenting matters with a heightened emphasis on the safety of the child(ren) and each caregiver. Allegations or findings of family violence may result in an order that the parent perpetrating family violence has reduced parental responsibility, supervised time spending with the child(ren) and tailored safeguards mitigating the risk of further family violence, or no time spending at all. These are just some of the orders the Court may make. Family Violence in Property Matters In property proceedings, family violence may be relevant in determining what contributions each party made to the relationship. Where family violence has had a detrimental impact on a party’s contributions, the Court may adjust the division of property in that party’s favour. If you wish to remain in the family home after separation, the existence of family violence may be sufficient for the Court to order injunctions against the perpetrator residing or visiting the family home. If you have any queries in relation to family violence in Family Law, contact Swan Family Lawyers on 8227 1970 and we will be happy to assist you. If you are experiencing family violence the following resources are available for you to access: • 1800RESPECT(external site) | 1800 737 732 (24 hours) National sexual assault, domestic and family violence counselling service. Available 24/7. • Kids Helpline(external site) | 1800 551 800 (24 hours) Confidential online and phone counselling service for young people aged 5 to 25. Available 24/7. • Women’s Safety Services South Australia(external site) |1800 800 098 (24 hours) A statewide service offering assistance to women experiencing domestic violence in South Australia by providing information, counselling and safe accommodation options. Available 24/7. If you are in immediate danger, call 000.

Mediating the Moment

Wednesday, 1 October, 2025

Mediation is best conducted in the present moment. The challenge for the mediator and the parties is to remain in the present as each moment unfolds rather than rush to find a solution.

I am an Executor and I Have Been Asked to Provide the Beneficiaries of the Deceased Estate with Information and Copies of Documents. What Should I Do?

Friday, 26 September, 2025

Requests for copy documents in relation to a deceased estate usually occur when a beneficiary or a potential claimant against an estate want information about a will and the value of an estate. There are statutory requirements in SA in relation to the provision of ‘formal disclosure’ but outside of the Court processes principles of relevance, best and current practice, and the duty owed by the executor to the beneficiaries and creditors of the estate are relevant. Requests are often made for: • A copy of the Will; • A list of the deceased’s assets and liabilities; • Copies of valuations of assets; • Updates as to the progress of administration. An executor is not required to provide copies of all documents in relation to a deceased estate to the beneficiaries but is required to provide sufficient information to enable the beneficiaries to understand their interests and the progress of the estate. An executor should provide timely responses to requests for information. If a request is unreasonably refused, the Court can intervene and make orders ensuring a resolution to the dispute and may make costs orders against an executor unreasonably refusing to respond and provide information. Sometimes requests are made to inspect the file of the solicitor who prepared the will on the will maker’s instructions, attendance notes and correspondence. Consideration should be given to whether it is beneficial to allow inspection. It may help to resolve a dispute, saving time and therefore be cost effective. Whether to agree to a request to provide information or copy documents to beneficiaries or other interested parties in relation to a deceased estate can be a difficult question for an executor and it may be wise to seek legal advice.

When Wills and Relationships Collide: Navigating the Overlap of Estate Administration and Family Law

Tuesday, 19 August, 2025

In family law property settlements, the Federal Circuit and Family Court of Australia (‘FCFCOA’) often considers whether an inheritance under a will should be treated as the property of a party or as a potential financial resource. A key factor in this determination is the timing of the inheritance—whether it was received before, during, or after the separation. The Court also considers whether there is knowledge of a future inheritance, either imminent or distant. The increasing use of Discretionary Testamentary Trusts in wills has added complexity to these considerations. Testamentary Trusts can aim to keep inherited assets separate from a marital asset pool, however the FCFCOA has broad powers to interpret whether they are property of the parties or financial resources. In the case of Bernard v Bernard [2019] FamCA 421, the Court held that the husband’s interest in his late father’s estate, held via a discretionary testamentary trust, constituted a financial resource. The husband was neither the settlor nor the trustee of the trust established pursuant to his late father’s will. He was classified as a discretionary beneficiary, and the trust assets were not considered matrimonial property, as they were not acquired during the marriage. This matter illustrates how such trusts can influence the outcome of property settlements and the importance of the terms of the trust deed and how it operates. While estate administration and family law obligations overlap in some areas, the duty of disclosure differs between them. Family lawyers may request estate documents from estate solicitors to support property settlement matters. Beneficiaries or interested parties often make informal requests for documents such as: • A copy of the Will • A statement of assets and liabilities • Updates on the progress of estate administration • Financial information relevant to family provision claims When inheritance is not imminent, and such requests are made informally, the rules around disclosure and discovery can be ambiguous. If the FCFCOA issues a subpoena, compliance is generally mandatory. However, if the request is made informally, such as through solicitor correspondence, it is prudent to seek clarification before providing information. Conversely, if an inheritance is imminent, full disclosure is required in the context of property settlement. This includes providing the Grant of Probate and other relevant financial documents. Understanding the interaction between estate planning and family law is crucial in navigating the complex issues of inheritance and property division. For more information on how this is relevant to your matter, and what it means for you, please contact us at Swan Family Lawyers on (08) 8227 1970.

What is the difference between an appraisal of real estate and a valuation for the purpose of agreeing a division of property between separating parties?

Wednesday, 28 May, 2025

An initial step in negotiating a settlement of the division of property is to agree the value of all assets owned. If values cannot be agreed, it may be necessary to obtain independent appraisals or valuations. The family home is usually the most valuable of the parties’ assets and agreeing its value is crucial in negotiating an agreement, particularly when one party seeks to retain the family home. An appraisal of real estate usually provides a value range based on comparable sales in the same area. They are usually provided by real estate agents free of charge and it is often sensible to obtain 2 or 3 appraisals to compare. Appraisals of property often result in a higher range in value than valuations as real estate agents are keen to encourage a listing of the property for sale. If parties cannot agree on a value based on the appraisals obtained, it may be necessary to obtain a valuation. Valuation reports are detailed and obtained from qualified valuers who charge for the service. It is usual for parties to agree to appoint a valuer who is engaged jointly by the parties to provide the valuation. In providing the valuation, the valuer must adhere to strict single expert witness rules. They will not communicate with a party directly, unless the party is self-represented and act independently and objectively. Valuations are generally preferred by the Court over appraisals. If you require assistance please contact us at Swan Family Lawyers on (08) 8227 1970.

My Partner Needs Therapy

Thursday, 1 May, 2025

Can I get an Order for my partner to participate in therapy or take medication? No!

Changes in Succession Law

Wednesday, 2 April, 2025

On 1 January 2025, the South Australian legislation relating to Wills and Estates changed, with the commencement of the Succession Act 2023 (‘The Act’). Previously in South Australia, Wills and Estates were legislated by the Wills Act 1936, the Administration and Probate Act 1919 and the Inheritance (Family Provision) Act 1972. These have been repealed and replaced by the Act. The key changes in relation to the new legislation include: • Greater emphasis on the wishes of the will-maker (‘testator’), • The ability for stepchildren to make a claim; • The class of people entitled to inspect a Will; and • Amounts received under Intestacy (when there is no Will). Inheritance Claims There are significant changes in relation to family provision orders and who is eligible to apply to the Court to contest a Will. This has been done in an attempt to eliminate claims lacking merit, and to better reflect the wishes of the testator. There is likely to be a greater limitation on the Court to intervene in cases where the testator has not provided for a family member. There are now greater restrictions for former spouses and partners, grandchildren, siblings and parents, when seeking a portion, or greater portion of the estate. The Court must consider any evidence of the testator’s reasons for making the dispositions in their will. This may include a statutory declaration or letter of wishes. The Court will also consider the applicant and their vulnerability and dependence on the deceased, their contribution to the estate and their character and conduct. It is yet to be seen and tested how the Court will balance a family member’s claims for a legitimate need, and the wishes of the testator. Stepchildren The Act increases the ability of stepchildren to make claims against their stepparent’s estate. While the testator’s wishes remain the primary consideration, there are now five main grounds on which a stepchild can make a claim. 1. The stepchild has a disability and is vulnerable as a result; 2. The stepchild was dependant on the stepparent when they died; 3. The stepchild cared for, or contributed to the maintenance of the stepparent when they died; 4. The stepchild substantially contributed to the stepparent’s estate; 5. The stepchild’s parent contributed substantially to the stepparent’s estate. People Entitled to Inspect a Will Previously there was no legal right for a person, other than an executor, to view a Will of the deceased prior to the Grant of Probate being issued. The new law has broadened the class of people who have the right to inspect a Will. Now the people entitled to inspect the document are: • Any person named or referred to in the Will (regardless of whether they are a beneficiary); • Any person named as a beneficiary in an earlier Will; • A surviving spouse, domestic partner, child or step-child of the deceased; • A former spouse or domestic partner of the deceased person; • A parent or guardian of the deceased person; • A person who would be entitled to a share of the estate of the deceased died without a Will (“intestate”); • A parent or guardian of a minor referred to in the deceased’s Will or who would be entitled to a share of the deceased’s estate if they died intestate; • A person committed with the management of the deceased’s estate under an Administration Order immediately before the death of the deceased person; and • Any other party who has a claim against the estate, as long as they can demonstrate a “proper interest in the matter” and obtain permission from the Court to inspect the Will. Changes to Intestacy If you pass away without a Will, the legacy amount for your spouse has increased from $100,000 to $120,000. If you leave behind a spouse and children, your spouse receives the first $120,000 of your estate, with your spouse entitled to half of the remainder and your children share equally the other half. Children of first cousins have now been added as a class of people entitled to inherit if someone has died without a valid Will. They will only inherit if the deceased partner had no living partner, children, parents or siblings or other close family at the time of death. Previously, the estate would have passed to the Government. For more information on the Succession Act, and what the changes mean for you, please contact us at Swan Family Lawyers on (08) 8227 1970.