Category: Blog

Are you wanting to know more about Surrogacy? Ask us, we are here to help.

Surrogacy is certainly on the rise, both locally and on a global scale. In Australia adoption is heavily regulated, which makes helping a child in need difficult. Surrogacy is now becoming a more acceptable option for intended parents.

Sadly, some women are unable to conceive or maintain a pregnancy. It could be devastating. The reasons are plentiful; you could have a medical issue, be without a partner, be in a same sex relationship. Whatever the reason, you need to know the facts and the law surrounding surrogacy.

Surrogacy, what is it?

Surrogacy is an arrangement where a woman becomes pregnant with, and gives birth to, a child for another individual or couple without an intent of having any legal rights to that child after its birth. Surrogacy is lifechanging for those who desperately want a baby but have been unable to use traditional methods.

Surrogacy laws in Australia

There are two different types of surrogacies:

• Traditional surrogate – involving the surrogate providing their own egg.; and
• Gestational surrogacy – where the sperm and egg (genetic material) are provided by the intended parent or a third party.

Surrogacy arrangements have been known to be either altruistic or monetary/commercial.

Altruistic surrogacy does not involve any financial profit or reward. However, usually the surrogate’s medical bills and other costs associated with the pregnancy are paid by the intended parents.

Commercial surrogacy involves the surrogate receiving a financial gain from the intended parents in addition to the other costs associated with the pregnancy.

The Australian laws regulating surrogacy are not uniform across the States, meaning, that they can be quite different.

For instance, currently, the Northern Territory has no regulations at all. Lack of regulation contrary to what one may believe can actually further complicate things. This is because the surrogate and intended parents do not know their rights and obligations.

Regulation is protective, particularly to the birth mother.

For all states and territories excluding the Northern Territory, there are some general uniform Laws that apply:

• Commercial Surrogacy is illegal in Australia.
• A surrogate must be at least 25 years old before being allowed to act as a surrogate. However, in the Australian Capital Territory they must be over 18 years old.
• Generally, a medical need for surrogacy is required. In New South Wales, Tasmania, Queensland and Victoria social reasons are considered such as being in a same sex relationship. The Australian Capital Territory does not have medical or social requirements.
• In the states of Victoria, Tasmania and the Australian Capital Territory, surrogates must have already given birth to a child prior to becoming a surrogate.
• Surrogacy is open to same-sex couples in all States and Territories excluding Western Australia.
• A written surrogacy agreement setting out conditions is required except in Victoria and the Australian Capital Territory.
• Traditional surrogacy is not permitted in the Australian Capital Territory.
• Intended parents cannot advertise or publish on social platforms their intent to find a surrogate. You are not allowed to advertise (whether seeking a surrogate or wishing to be a surrogate) in the Australian Capital Territory, Queensland and Victoria.

Surrogacy laws change from place to place. Intended parents, and those considering becoming a surrogate, should speak to an experienced family lawyer.

Surrogacy options overseas

Overseas surrogacy has had disastrous consequences on surrogates and intended parents.

During the Covid19 travel bans, dozens of babies born through cross border surrogacy were stranded in temporary overseas accommodation. Babies were placed in danger and there was a risk of being sent to orphanages or even being abandoned.

Many intended parents were placed in a dire economic position and unable to assist the surrogate. Surrogates whom had high levels of vulnerability due to poverty were unable to attend medical appointments. The consequences were far reaching.

It would be exceptionally difficult to understand which law applies in the particular country selected and what laws will impact your child upon a return to Australia.

Some countries allow commercial surrogacies.

When considering whether to enter into an overseas surrogacy arrangement it is imperative that you obtain advice from an experienced family lawyer.

You need to know about the laws around international surrogacy in both your State or Territory and in the country where the surrogate mother is located or lives.

Is some States such as the Australian Capital Territory New South Wales and Queensland it is illegal to make a commercial surrogacy arrangement outside of Australia. Parents who do this face serious consequences upon their return.

With minimal provision for regulating surrogacy facilitators in Australia, there are risks of utilising illegal intermediaries. These intermediaries may or may not be participating in the trafficking of children and women. It is a very real human rights issue.

There can also be implications for the citizenship of the child. Citizenship of such children is not an automatic right and certain applications must be made.

It may be necessary to create a complex surrogacy arrangement that incorporates elements about Family Law both in Australia and the Country of the Surrogacy.

Parentage Orders and Surrogacy

The legal complexities of surrogacy do not end there.

Further complexity arises as consideration must be had for Parentage Orders. Parentage Orders are an Order by the Court to amend the Birth Certificate of a child to reflect the intended parents of a surrogacy agreement as to the child’s parents.

Laws on Parentage Orders may be governed by statutory time limitations.

Before embarking on the thought of overseas Surrogacy, we highly encourage you to reach out and have a consultation with us.

Obtaining proper advice from an Experience Family Lawyer will help keep you and your family safe during what should be an amazing new chapter of your life.

South Australian analysis of the law:

Eligibility:

The law in South Australia requires intended parent(s) to have a medical or social need for surrogacy. Surrogacy may be one of the only options available to intended parents. To enter into an agreement, you must be over 25 years old, an Australian Citizen or Permanent resident and have at least one intended parent domiciled in South Australia.

Locating a woman prepared to be your surrogate?

Often family or friends are utilised for surrogacy. If not, finding a surrogate may prove quite difficult. We recommend looking at community groups on social media specific to this issue. This can provide you with some insight from those who may have been through the journey.

In South Australia, you are allowed by law to advertise for your surrogacy but this is contingent upon the surrogacy being altruistic. To be very clear, you cannot advertise a commercial surrogacy.

Is a Surrogacy Agreements Pivotal? Yes!

A Lawful Surrogacy Agreement is essential for those utilising surrogacy in South Australia. Our state has specific pre-conditions to ensure the integrity of ethical and legal considerations.

All parties to a Lawful Surrogacy Agreement in South Australia must have been provided with independent legal advice.

That advice ought to be obtained by an experienced family lawyer to avoid any potential complications with the agreement. A lawyer experienced in surrogacy will be able to explain the legal process and the eligibility criterion to be met under the Surrogacy Act 2019 (SA).

In a bizarre twist, a Lawful Surrogacy Agreement is not enforceable, but it is still none the less required to be in place prior to the conception of the child.

The intended parent(s) are required to make an application in the Youth Court for Parentage Orders after the child’s birth. That process is to transfer parentage from the facilitating the transfer of parentage from the birth parents to the intended parent(s). If the parents neglect to do this, they will likely need to explore alternative legal options to be recognised as the child’s legal parents.

A requirement of Surrogacy Counselling

The intended parents and surrogate must have counselling prior to the finalisation of the Surrogacy Agreement.

The law makes it clear that this counselling service must be accredited to providing provide counselling, consistent with the guidelines published by the Australian and New Zealand Infertility Counsellors Association (ANZICA) and any relevant guidelines published by the National Health and Medical Research Council.

The counselling aspect assesses the suitability of all parties in this process. The goal here is to ensure or reduce the risk that the intended parents and surrogate understand any psychological and social implications associated with the agreement.

Pre-signing counselling is also required to ensure parties interest align with the most paramount consideration, the best interests of the child. The other pivotal role of counselling is to inform the parties and make them prepared for this journey.

Contact us, we can help

If you have any questions about the surrogacy process or are considering surrogacy you can contact Elena Leonardos on 08 8312 6440 or email us on info@alslaw.com.au.

Divorce and separation are challenging life events, even when families manage to agree on a sensible separation plan.

This is because the ending of this stage in your life could elicit feelings of grief, anger, guilt, loneliness, regret, sadness and more.

There is nothing wrong with feeling these emotions, and it is entirely normal to feel this.

Unfortunately, such emotions may cause separating couples to make the wrong decisions.

These decisions can have a lasting negative impact on the lives of the people you love and even your children, friends and family.

It can impact the people you love, both financially and emotionally.

The decision to separate or divorce can change the course of your life.

Even if you and your former partner are ending the relationship on good terms, there are issues to resolve such as – time spending with the children, division of your property and superannuation.

If you proceed with the correct process, you can avoid divorce mistakes that increase stress and waste your time, energy and money.

Safeguarding yourself against mistakes in the process of divorce is critical to an efficient solution. Any decision taken in the heat of the moment or with incomplete information can turn all the major aspects of your life upside down.

If you are considering a divorce in Australia, here are 6 most common divorce mistakes you should avoid:

Mistake 1: Letting Emotions drive the process

It is often difficult to detach yourself emotionally during separation.

This makes it hard to understand what is happening and see your divorce and separation clearly.

Family and friends can be supportive, but your heightened emotions can prevent objective decisions.

Make sure your decisions are rational and try to keep your emotions separate.

There might come a time, like during litigation, when you have to be logical and fully in control, but intense feelings will want to take over.

Ensure that any legal decision you take is thought through with a stable mindset before reaching any conclusion.

Make sure that you have a solid support system in place.

Mistake 2: Unrealistic Expectations about divorce

Separating families should have realistic expectations about what the law can and cannot do for them.

Remember if you are not ready to compromise, the matter will be handled by the court and a Judge or Senior Registrar, will take away your right to make a decision.

They will decide for you. The objective of negotiations should be to reach a common ground that works for both parties.

While you are discussing legal and settlement terms, try to be reasonable and realistic.

Empower yourself with knowledge on your rights, obligations and options.

Mistake 3: Taking advice from random people rather than your lawyer

While you are going through the process of divorce, there will be different friends and relatives who might have gone through the same and would like to help.

They chime in and despite wanting to genuinely help you (or not) the advice is not always good.

Your friends, family, school parents or the like who have gone through a divorce are unlikely to be legally trained.

They will not be able to give you legal advice based on expertise and knowledge.

At best you will likely get a rant or opinion based on their experiences. It is wholly unlikely that they know what is right for you.

So, you should not listen to well meaning opinions of the layperson and look to the paid professionals.

Be practical and sensible, follow the advice of your lawyer.

If you do not think your lawyer is doing the right thing, discuss this with them and see if you can resolve any confusion or issues.

Mistake 4: Being unable to identify, value or separate your property

Another common mistake in divorce and separation is that parties fail to identify their assets and the true value of those assets.

This mistake can cost you tens, if not hundreds of thousands of dollars.

The parties should negotiate and reach an informed decision on how the property will be divided.

The division should be such that both parties’ contributions and future needs are considered.

The property division must comply with the legislative requirements of the act and be fair and reasonable.

If investing in an expert to value property such as a home is necessary, we can direct you to a cost effective expert.

When you try to resolve your dispute without proper knowledge of the value of your assets, what you do is create a larger disparity in the actual division of your assets.

Paying a few hundred dollars to have your home valued is essential for peace of mind.

Mistake 5: Assuming that issues will be resolved with time

You and your former partner are going to play the main role in determining the outcome of your divorce and settlement. People tend to forget this.

Divorce is indeed not a passive process and issues are not going to be resolved with time if you delay them.

Therefore, keep your long-term key interests in mind to make rational decisions.

Remember that delaying the key steps in divorce and separation can further complicate the process and make it more stressful, costly and time consuming.

When parties cannot agree, ask your lawyer for the option of least resistance.

For instance, some negotiations can go on for years without resolution.

You may have spent $10,000 on that process with no result.

A good lawyer knows when to start litigation, when to mediate and when to negotiate.

Where expectations of one party are not realistic, you can chat to your lawyer about options available to you so that there may potentially be a recovery of legal costs.

Mistake 6: Posting personal information online

No matter what relationship you share with your former partner, divorce is an emotionally draining life event.

In this phase of life, it is obvious that you would like to connect with your family and friends and let them know what you are going through.

Keep in mind it is that it is not a good idea to post your thoughts, feelings, and experiences on online platforms.

It also breaches the Act and you could be penalised by the Court.

Resist the urge to post anything about your divorce or separation online, make sure you refrain from using social media until the divorce is finalised.

What now?

Before planning a divorce in Australia, a well-thought-out strategy is a must.

Your first step starts with meeting the right lawyer who will handle the entire process for you.

A good family lawyer will help you understand the law and you’ll refrain from making the mistakes that can complicate your divorce.

If you are looking for an experienced lawyer to help you navigate this next phase, please call us on (08) 8312 6440 or email us at info@alslaw.com.au to make an appointment.

Elena and the team look forward to helping you resolve your matter.

If you or your spouse have assets located outside of Australia, you may be wondering how these assets will be divided in the event of a divorce. The process can be complex, and it is important to seek professional legal advice to ensure that your interests are protected.

Australian courts have jurisdiction to divide overseas assets in certain circumstances.

The first step is to determine whether the overseas asset is ‘matrimonial property’.

Once it has been established that the asset is matrimonial property, the court will then consider what order would be just and equitable in all the circumstances of the case.

A number of factors will be taken into account when making this determination, including but not limited to:

• the financial contribution made by each party towards the acquisition, conservation or improvement of the asset;
• the non-financial contribution made by each party;
• the future needs of each party; and
• the value of any other property owned by either party.

In some cases, it may be possible to reach an agreement with your spouse regarding the division of overseas assets without having to go to court. However, if you are unable to reach an agreement, you may need to commence proceedings in an overseas court.

It is important to seek legal advice from a lawyer who is experienced in dealing with international family law matters before taking any action.

Dividing assets located outside of Australia can be a complex process. If you or your spouse have overseas assets, it is important to seek professional legal advice to ensure that your interests are protected.

To take a step toward protecting what is rightfully yours, email us at info@alslaw.com.au to organise an initial consultation for the fixed fee of $330 inclusive of GST.

When separating from a spouse the property is divided, but does that include contributions from your parents, should your former partner benefit from that gift?

It is not unusual for parents to financially assist their child to give them a head start in life. This may look like a sum of money, land, or even a property! The gift can be an enormous head start to their child.

Often this type of generosity is informal and undocumented. Most parents do not anticipate the breakdown their child’s relationship and do not consider the affect a separation may have on the property gifted to their child.

What happens to a parent’s contribution?

When the relationship breaks down, there must be consideration of how the contribution would be dealt with in a property settlement.

The Court may treat the contribution in two separate ways:

• Firstly, the Court may view the contribution as a loan that is to be repaid to the parents; or
• Alternatively, the Court could consider that the contribution was made by the parents without the expectation of repayment.

It must be noted that the other side will often assert that the contribution is a gift. In doing so, the contribution will form part of the asset pool.

How do you establish the contribution is a loan?

You will need to consider if there were any written or oral terms agreed upon regarding the contribution. It may be a loan agreement if there is record of loan repayments, or if there is security taken for the loan.

The Court may find a contribution to be a loan in circumstances that there is a formal loan document.

However, in circumstances where there is little evidence to establish that the contribution was a loan, and no repayments had been previously made, it will be challenging to satisfy the Court that the contribution was a loan and it will likely be considered as a gift.

We recognise that it can be confusing to determine if a contribution from your parents is a loan or a gift. Please call us to make an appointment, Elena and the team look forward to helping you resolve your dispute.

Separation requires the division of property between the parties.

Why? Because if you do not legally formalise your agreement, you run the risk that one party may change their mind. This can be expensive.

There are two options to settle property matters: a Financial Agreement or Consent Orders. Both documents are a formal agreement regarding the division of your property, but are drafted and enforced in different ways.

Financial Agreements

A Financial Agreement is a private agreement between parties, so it is not subject to the Court’s review. However, Financial Agreements can be more complex and expensive to prepare.

A Financial Agreement includes background information about the relationship, identification of the assets and itemisation of what each party shall retain.

This agreement does not need to satisfy the ‘Just and Equitable’ test, therefore there is risk that the agreement may benefit one party more than the other. As a result, there is a larger risk that the document may be challenged by a party later if they decide to no longer be bound by it.

As there is a risk the Financial Agreement may not be just and equitable for both parties, each must obtain independent legal advice regarding the document. A Solicitor must sign a certificate that they have given the required advice.

Consent Orders

Unlike Financial Agreements, Consent Orders are filed with the Family Court. Consent Orders require two documents, those being an application for consent orders and a minute of order.

Consent orders form a written agreement that identifies both parties, liabilities, superannuation entitlements and contributions that were made to the relationship. The proposed orders will outline the orders you wish the Court to make regarding the division of property between the parties.

The Court must be satisfied that the proposed orders are just and equitable to both parties before they are approved. Once the orders are approved by the Court they are binding on both parties and cannot be amended.

It is important to note that parties must file the application for consent orders within a year of their divorce. This period is 2 years for the separation of de facto couples.

Which approach do I choose?

Both options offer advantages and suffer disadvantages. We recommend that you take a moment to consider the current circumstances and your relationship with your former partner to evaluate the best option for you. It is important that you receive proper advice as to which option is most beneficial to you. It is important to get your strategy in place.

Please call us to make an appointment, Elena and the team look forward to helping you resolve your matter.

Article published 09 February 2023 by The College of Law – view here

For almost 15 years, Solicitor, Barrister and Business Owner Elena Leonardos has run her own law firm, Adelaide Legal Solutions – promptly resolving complex disputes for her clients.

However, when it came to putting her ‘business hat’ on, Elena welcomed help to boost her brand.

So when South Australia’s regulation rules changed, Elena had two options. She could apply for an exemption, or she could continue to expand her knowledge by completing the Legal Practice Management Course (LPMC).

She made her choice, and her vision for the firm’s future has never looked brighter.

Our thanks to Elena for sharing her story.

Starting my legal career was exhilarating, yet somewhat daunting. There was an expectation that I dive headfirst into serious litigious matters.

Fortunately, I was mentored by one of South Australia’s leading criminal lawyers. So I managed many complex criminal law cases very early in my career.

After three insightful years, and a two-month New York trip where I considered sitting the BAR, I decided to open my own firm back in South Australia.

I opened Adelaide Legal Solutions in 2011 where I predominantly practise family law. But I’m also kept busy with deceased estates, wills, criminal law and commercial dispute resolution.

In 2021, when South Australia’s regulation rules changed, I thought about seeking an exemption from the LPMC. But I never shy away from learning. The law is constantly evolving – so I should, too.

I enrolled in the College’s LPMC, excited by the opportunity to take my firm to the next level.

Building a network – and new business opportunities

I love to learn, but after 11 years working in business – and a Bachelor’s Degree in Business and Economics – I questioned what could be taught that I didn’t already know. Yet I went into the course with an open mind.

With the accelerated nature of the course, I was expecting it to be very content-heavy – with the potential to get dry. Contrary to my initial expectations, I found the content interesting and relevant.

And from the first day, I met all kinds of people – from principals of top-tier international law firms to local sole practitioners about to embark on their business journey. I was fascinated to learn how they ran their practice and their stories of working abroad.

I still keep in touch with the networks I made during the LPMC. I’ve received referrals from them and have sent matters their way when I felt their skillset was more suited to the client.

After putting our skills to the test during the course, we remain confident in each other’s abilities.

A course that cares

During the LPMC, we had three online assignments. Fortunately, the College was flexible when it came to deadlines.

As a busy full-time single mum, balancing a busy practice, staff, family and extra-curricular activities with study can be challenging – and there were times when I needed extra support from the College.

When I was late submitting an assignment, Graham Jobling – SA’s Executive Director – reached out to discuss the course’s requirements, and to make sure nothing was wrong.

Is everything okay? Do you need more time? How can we help?

I valued the College’s focus on wellbeing and achievable deadlines. The teaching team was always conscious of delivering the content as effectively yet efficiently as possible – because they understood time is a limited resource for lawyers.

And I’m glad they did, because the course content was invaluable to me and my business.

Analysing practice profitability

As a lawyer and business owner, learning on the job is part of the job. Even after 15 years, I’m still growing and aiming higher.

And the LPMC helped me achieve more of my goals.

During the course, I gained a range of alternative best-practice standards and strategies. As a result, I’ve made improvements to my business model. And the improvement in efficiency for my business and my clients is undeniable.

There was a focus on data analysis, which helped me look at the big picture. I can effectively analyse how much a longer lunch or an early finish impacts the growth of my business.

If I were to negate charging 12 minutes a day, for example, the overall cost to me would be profound. Now, I make sure my time in my workday counts.

The College also inspired me to engage a business strategist to analyse Adelaide Legal Solutions – and that alone was impactful and inspiring.

Because who knows? You could be running a practice that’s just a wage to you. Or you could be running a life-changing business that assists the community – while still making a comfortable living.

Mitigating business risks

The LPMC homed in on the day-to-day of running a business. It reminded me that while we strive for efficiencies for clients, rushing to finalise a matter is risky.

Family law is a high-risk category for complaints. Often, lawyers get in trouble because they’re so busy that they rush through matters to save on the client’s bottom line.

But in doing so, they’re just opening themselves up to complaints down the track. They’re also doing their clients a disservice – we’re paid to think, not to run.

Proper and considered advice is so important. I’m here to help my clients make informed decisions.

The LPMC reiterated this – and reminded me how important risk management and constant consideration of your policies and procedures are for taking care of client needs.

Expanding my business – and my impact

I opened Adelaide Legal Solutions to find legal solutions for people who have been entrenched in a dispute, or those who already have an agreement.

To me, the law should be about fairness and resolution – not retribution. I want to resolve matters swiftly but properly so people can get on with their lives with minimal damage.

And thanks to the valuable information I learned throughout the LPMC, I have developed a 12-month plan to expand the business.

I’m on my way to purchasing a second commercial premise. Our offices are comfortable and inviting.

I’m showing people that lawyers aren’t intimidating. We can create real solutions to help them achieve a fair resolution. I’m attracting the client base that I enjoy working with.

So to anyone considering this course: don’t hesitate. Completing your LPMC will expand your vision for your legal career and introduce you to impressive, inspiring professionals along the way.