The Ex-Files: Jeremy Sutton on leaving your wealth to your children through estate planning

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Opinion

OPINION:

Q: I have been in a volatile relationship for a number of years.

My spouse wants our child to go to a private boarding school. Can that decision be forced on me? I want him to stay with me on some school nights, and I'd rather he grow up in a public school environment.

My spouse has two children from a previous relationship and she is paying large amounts of child support. Is that debt separate or joint, involving me too? The children don't live with us, and I didn't know about the children until one year into the relationship.

I am 20 years older than my partner and have an adult son from a prior relationship. I want to leave my wealth to my son. How can I ensure that happens, and will my separation change his entitlement?

A: These concerns are reasonable and often raised by my clients when they are deciding on whether to separate with their spouse or partner.

Schooling decision

What school your children attend is a guardianship decision which must be made jointly. I suggest you explore all of the options and talk with your spouse.

If you cannot reach an agreement, then there are several avenues to resolution.

You could go to see a counsellor or therapist together to discuss the various issues. You could also ask a family member or third party to facilitate a discussion.

If that fails, you could look at mediation through the Family Dispute Resolution service.

As a final resort, you could file an application in the Family Court to resolve the dispute. Litigation should be your last resort as it would be a lengthy and expensive process, which is likely to further aggravate your relationship.

There would also be a lawyer appointed for the children to ascertain their view on the issue.

The Judge will take a number of different factors into account. There have been cases where the deciding factor was the risk of the father-child relationship deteriorating further, and the father being alienated from the child's life.

Child support

Whether child support debts for your partner's children are joint can be very difficult.

Usually, debts paid during your relationship cannot be reversed. However, if you were not informed of the liability before the relationship started, then you could argue that it is not your debt, and should not be shared jointly.

You would want to raise this issue straight away with your spouse, and you could try to come to an agreement.

Estate planning

If you would like to leave your estate to your adult son, then it is important to organise your affairs now.

The first step would be to examine your estate ownership and understand what would happen if you were to pass away.

The assets that you owned prior to the present relationship may be classified as separate property. You would have to establish that these assets were kept separate throughout the duration of the relationship.

Joint property ownership

Do you and your partner own property together? Is that property owned as joint tenants or tenants in common?

Property owned jointly would automatically go to your partner via survivorship regardless of any relationship property division.

Wills

Do you have a Will? If not, it is important to make one.

If you pass away without a Will, the intestacy rules would apply, meaning a large portion of your estate would automatically go to your partner. The remainder of the estate would be divided between your children.

It may also be necessary to enter into a contracting out agreement with your partner to protect your assets from any future claims from her, and to have a clear understanding of what is to happen in the event of your death. Of course, this would require your partner's agreement.

In either case, you will need to seek advice and assistance from a lawyer.

- Jeremy Sutton is a senior family lawyer, specialising in divorce cases where there are significant assets, including family trusts and complex business structures.