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家庭法

韩国流行歌星具荷拉遗产争夺战提醒人们有效遗嘱的重要性

熟悉韩国流行音乐新闻的人一定听说过韩国女团Kara的前成员,歌手具荷拉去世的消息。在具荷拉去世后,随着她的母亲根据韩国继承法提出分割遗产的主张,她悲伤童年经历逐渐被大众知晓。   据报道,在具荷拉八岁时,她的母亲抛弃了她和她的哥哥,自那之后从未照顾或联系过他们。具荷拉的母亲后在2006年放弃了对具荷拉和她哥哥的有关的法定监护权。具荷拉后来由哥哥和祖父母照顾,而她的父亲大部分时间都在建筑工地工作,为孩子们提供财力支持。   具荷拉去世时年仅 28岁,没有配偶或孩子。根据韩国继承法,如果逝者没有有效的遗嘱,那么逝者的遗产将按以下顺序分割: 1. 子女(或孙子女) 2. 父母(或祖父母) 3. 兄弟姊妹 4. 有第4级血缘关系的亲属   如果有多个亲属属于以上同一级别,那么他们就平等地分割遗产。   自从具荷拉去世后,她的父亲将分给他的具荷拉遗产份额交给了具荷拉的哥哥,他说他总是因长期在外工作感到内疚,没有为孩子们提供情感上的支持,孩子们在他不在的时候相互依赖。   目前,具荷拉的母亲已经指定了一名律师,并根据韩国继承法提起诉讼,要求作为母亲获得她一半的遗产份额。具荷拉哥哥表示,他对给妹妹的生活带来如此多痛苦的人现在将从她的死亡中受益感到难过,并发誓要保护妹妹的遗产。   有人可能会认为,如果韩国司法系统允许具荷拉的母亲分享她遗产,那么法律就导致了一个不公正的结果。但根据韩国现行继承法的规定,除非韩国继承法对“母亲”的定义有不同的方式,将在逝者生前未履行母亲职责的母亲排除在外,否则法院必须将具荷拉遗产的一半份额判给她的母亲。   相似地,在新南威尔士州,当一个人在没有有效遗嘱的情况下去世时,《新南威尔士州继承法2006》(Succession Act 2006 (NSW),下称‘《继承法》’)将决定逝者的遗产如何分配。在新南威尔士州,遗产通常会先分配给逝者尚在世的配偶,如果没有尚在世的配偶,则按以下顺序分割: 1. 子女 2. 父母 3. 兄弟姊妹 4. 祖父母 5. 姑姑、姨母、叔叔、伯伯 6. 堂/表兄弟姊妹   法律在分配遗产时不考虑逝者与家人的个人关系;法庭唯一会考虑的是可能的继承人与逝者在法律上的关系。   在新南威尔士州有很多类似的案例。以近期发生的一起案件为例,为了确保孩子的安全,法庭向一名有虐待和家庭暴力史的父亲发出了限制令(Apprehensive Violence Order, 下称“AVO”),以阻止他接近年幼的儿子。在法院发布AVO后不久,孩子的母亲就与这位父亲离婚,搬到了悉尼。孩子快三十岁的时候,经过努力工作,他已经积累了自己的财富。他与母亲保持着密切的关系,但与父亲没有任何形式的关系。他的父亲从来没有联系过家人,他们过着不同的生活。   后来,这个20多岁的孩子不幸突然死于一场事故。他去世时还没有结婚,也没有孩子。这个孩子从来没有想过要做好遗产规划,因此在他去世时没有有效的遗嘱。这位母亲为了最终确定她儿子的遗产,向法院提交了文件,成为其儿子遗产的管理人和唯一受益人。法院告知这位母亲,如果一个人在没有遗嘱的情况下去世,那么法律将决定谁是遗产的受益人。根据《继承法》,由于逝者没有配偶或子女在世,接受逝者遗产的是逝者的父母。因此,父亲和母亲必须平分已故儿子的遗产。   这位母亲感到悲痛的是,这位虐待儿子的父亲,在她儿子的一生中没有参与抚养他,对于她的儿子来说几乎是个陌生人,但现在将从她儿子的死亡中受益。然而,法律在这件事上是明确的,无遗嘱者的遗产分配必须依法进行,法律规定,如果一个人去世时没有任何配偶或子女在世,那么逝者的父母就是下一个分享遗产的人。《继承法》不探究父母与子女之间的个人关系,其本人是孩子的父母这一事实即是唯一需要的资格。   每个家庭都有不同的故事和不同的关系,这对每个家庭来说都是独一无二的。不过,法律在分配没有有效遗嘱的逝者的遗产时,并不考虑这些因素。一个人能够确定和控制去世后发生的事情的唯一方法就是制定一份有效的遗嘱。   人们会同意并认识到制定有效遗嘱的重要性,但对大多数人来说,这很容易被推到他们的“待办事项”清单的底部。然而,由于我们目前正经历着一段不确定的时期,在这次新冠病毒大流行期间,我们有更多的空闲时间,也许是时候考虑一下遗产规划,以避免给家人带来不确定性和心痛。  


家庭法

Separation - Division of matrimonial property and inheritance

Q: I have been living in Australia for almost 20 years. I have been married with my husband for 5 years but have hardly contacted with him. I had considered starting procedures for divorce and marriage property distribution because that our relationship collapsed. However, I was recently informed that he was given six moths to live due to his final state lung cancer. He has never written a will that would leave inheritance to me. So, what would be my rights to marriage property if he dies? And do I have any right to receive inheritance? A: Divorce and distribution of marital property in Australia are subject to the Family Law Act. If a marriage property proceeding has commenced pursuant to section 79(8) of the Act, even if one of them died in the middle, it shall be continued by the executor or the estate administrator as the agent of the deceased. Importantly, the lawsuit must be initiated while the spouse is alive. If the proceeding has not begun before your husband dies, your right to claim for sharing marital property has been expired. Therefore, if you choose the marriage property distribution method, you need to start a legal action immediately. If your marriage distribution proceeding cannot begin before your husband dies, your rights will become the right as an inheritance. In this regard, if your husband wrote a will that would leave you with no property or only an inadequate inheritance, you would still be granted a family provision (similar to a Japanese claim for retention). The amount of inheritance under family provision is at the discretion of the court in light of your situation and other factors. The most important factor is whether you a dependent of your husband have relied on him. On the other hand, in the case of seeking marriage property distribution, the family court is mainly concerned with the situation during the past marriage period, for example, the court takes into account how much each couple has contributed to acquire the marriage property to be distributed. The contribution of a full-time housewife to the family, such as childcare and housework, is of course an important factor to be considered.  


家庭法

Divorce - Who is entitle to keep the family pet

Q: I have been divorced with my husband without any children, but I have a family dog. This dog is like a child to my husband and me, and we both are disputing over ownership of the dog. How does the law treat pets at divorce? A: In recent years, many pets (especially dogs and cats) have lived as members of a family, and there has been cases before the courts as to who the owner of the pet would be at divorce. The Australian Family Law Act 1975 (Cth) (‘Act’) has no direct reference to pets owned by couples in divorce proceedings. However, in previous cases before the Family court, it was decided that pets are personal properties. Based on the reason, the Family court, pursuant to section 79 of the Act, considers pets as part of the property of a divorced party and issue an order as to who owns it. While pets has generally no financial value due to its purposes, there are cases where pets have a monetary value by reason of its unique pedigree. If there is a dispute between the parties over the ownership of the pet, the Family court will, as with any property, take into account each party's case and make its determination. The following situations are advantageous for claiming that you own the pet. You are registered as the owner of the pet in the local council; A microchip was embedded in the pet, containing your information; There are receipts to prove that you are always bringing your pet to the vet; You regularly bring your pet to a training school. You live in a house that has enough spaces for pets (especially for large dogs, it is important to live in a house with a large garden). Your pet recognizes you as the best owner, often by feeding or taking walks. In any case, pet ownership should also be determined through mediation or negotiations, rather than a court proceeding. Just like the case of a child custody dispute, what is important is what makes the pet happy.  


家庭法

Post Separation Inheritances

Can an ex-spouse claim against an inheritance received by the other spouse after separation? Naturally, you may think that an inheritance received after separation should be excluded from the rest of the parties’ pooled assets. However, the Court has to consider all of the parties’ assets which were acquired before the commencement of the relationship, during the relationship and after separation as well as the parties’ contributions (both financial and non-financial). Having considered all of the assets and the contributions, the Court has the discretion to do one of the following: Treat certain assets received after separation differently in the above determination; or Include assets acquired after separation in the asset pool for division between the parties. These issues were recently considered by the High Court and the Full Court of the Family Court of Australia.   Singerson & Joans [2015] The Husband inherited about $3,000,000.00 shortly after separation. The wife made significantly more financial and non-financial contributions as a homemaker, child-carer, and bread winner. The Family Court noted that not only the 4 years of contributions between separation and trial but also across the entire 15-year relationship should be considered. It also acknowledged the initial contributions made by the husband and his post-separation inheritance. The Court determined that the wife is entitled to 47.5% of all the property including the inheritance. The High Court declined to provide guidelines for Family Law Courts in respect of post-separation “windfalls” and supported that family court judges’ discretion be exercised in every individual set of circumstance.   Holland & Holland [2017] This case involved a 17-year marriage with two teenage children. The parties separated in 2007 and were divorced in 2012. 3.5 years after separation, the husband received an inheritance from his deceased brother worth approximately $715,000.00. The inheritance was excluded from the asset pool available for division and was regarded as a “financial resource”. On appeal, the Full Court of the Family Court of Australia held that as a matter of principal, an asset should not be excluded from being considered altogether in the overall property settlement. However, the Court stated that it may, in some cases, be appropriate to treat certain assets separately depending on the parties’ differing interests to such assets or the degree of contributions made by the parties to such assets.   Calvin v McTier [2017] This case involved an 8-year marriage with one child. 4 years after separation, the Husband received an inheritance of $430,000 from his late father. The inheritance was equated about 32% of the total asset pool which was about $1,340,000. The Husband argued that the inheritance should be excluded from the asset pool available for division as it has no connection to the parties’ marriage. However, the Court held that the inheritance be included and that the Husband made substantial financial contribution after separation because of the inheritance which was assessed to be 75% and the Wife’s as being 25%. The Court then made an adjustment of 10% in favour of the Wife taking into account the disparity of the parties’ income earning capacities. The final division was made in 65% to the Husband and 35% to the Wife.   The above cases demonstrate that all of the parties’ assets must be identified before the Court can make orders for property settlement and that the Court retains discretion as to how each asset is to be treated in each case. If assets are received after separation, the Court has the discretion to place them separately from the rest of the asset pool depending on the facts of each individual case.


家庭法

Property Settlement - Loan or Gift from Parents

When buying a home after marriage, there are many cases where the purchase is made with the support of parents. If the marriage breaks down in such a situation, how does the court treat the funds received from the parent in the distribution of property? If there is any evidence such as a loan agreement that states that a fund is required to be repaid under certain conditions, a security deed or a record of a discussion between the parties that identifies the loan, the fund received from the parent is considered as a loan. If the money received is a gift from the parent, there is no obligation to repay it, and therefore, it is very likely that the money given to a couple in the long-term marriage will be regarded as a part of the common property. Considering whether the parent's funding was a loan or a gift, when calculating the total value of the parties' shared assets and determining their respective share, the court takes into account various factors stipulated in the Family Law Act.  In many cases, it is not clear whether the parent's funding was a loan or a gift, and it often gives rise to a major problem during a divorce proceeding. For example, if a couple purchased a house for $800,000 with $400,000 in funding paid by their parents and has already paid out the loan, whether $400,000 was a loan or a gift is an important point in determining the total amount of common property. This becomes a more important issue if the amount of funding received by their parents accounts for a larger proportion in the total value. Accordingly, when considering funding a child, it is necessary to hire a lawyer in advance and to make the intent of the funding clear. Otherwise, the parents may be called upon their child’s divorce proceeding as a witness or required to submit an affidavit, which causes severe stress over a long period of time. Further, such proceedings will give rise to significant legal costs. In order not to spend too much money on legal fees during a divorce proceeding, it is recommended that parties start appropriate negotiations at an early stage for the settlement, so that things do not progress to the court due to property distribution issues.  


家庭法

Valuation of Assets - Property Settlement

Under family law, an initial step for parties in a divorce or separation who are seeking a distribution of matrimonial property, must clarify the assets owned by the parties and obtain a valuation of each asset. In the event that the parties cannot come to a mutual agreement on the division of property, a party may apply to the court for a decision. In such case, the court will base its decision on the value of the asset at the time of the trial rather than the value at the time of separation. This is because a considerable number of years may have passed from the date on which the separation began to the date of the trial, and a decision made based on the value of the asset at the time of separation may not be a valid (or fair) decision.   There are many cases where one party continues to live in a house that is a shared property even after separation, and either one continues to pay the loan. The value of real estate is usually on an upward trend, and the amount of net assets will increase according to the repayment of the loan. The court will issue a judgment taking into consideration what each party contributed to improve the value, such as maintenance of the marriage property, renovation, etc. after the separation. In this regard, in order to obtain a judgment that properly reflects each party’s contribution in the final judgment of property distribution, a party who continues to pay the loan after separation and strives to improve the value of the property should clearly record the details of his/her contribution which can be submitted as evidence at trial. Also, if one party contributes to the improvement of the value of matrimonial property after separation, he/she should also obtain an historical valuation so that the court can take into consideration the degree and importance of such contribution.