In Western Australia people wishing to practice obtain a practicing certificate entitling to practice as a legal practitioner. However, people commonly refer to legal practitioner as either “solicitors” or “lawyers”. There are some historical references that have separate usage for these terms which are no longer relevant in Western Australia.
To maintain their practising certificate, which allows a lawyer to practice, a lawyer must complete at least 10 hours of continuing professional development (CPD) each year. Each year a lawyer’s CPD hours must cover topics in legal skills and practice, ethics and professional responsibilities. Most lawyers will also undertake CPD in substantive law.
Although many states permit interstate lawyers to represent their clients in their jurisdiction (subject to meeting the requirements set out in that states legislation), lawyers will rarely do this due to cost and unfamiliarity with the particular state laws (depending upon the experience of the lawyer). In such situations your WA lawyer will engage a lawyer on your behave as their agent to appear for them in Court in another state.
Whilst Kroon Legal’s lawyers will work as efficiently as possible, here are 6 tips for how you can assist and reduce your cost:
- Be honest with your lawyer – it is best they know your situation as sometimes dealing with the unexpected can be costly;
- Ask questions if you do not understand the advice you have been given, this will assist your lawyer as you will be better placed to make decisions and provide instructions to your lawyer;
- Be clear about what you expect your lawyer to do for you – For example: Are you just seeking advice or do you want your lawyer to negotiate on your behalf or represent you? Do you want to get out of your lease or do you just want the leaky roof fixed? You want to be working towards your goal.
- Be prepared before you meet with your lawyer – For example, prepare a list of questions you want to ask when you at your appointment, be prepared to explain all the facts of your matter in a concise manner and come with all necessary documentation.
- Use your lawyer’s time wisely.
For minor matters which don’t need immediate attention, collect these issues up and email or call your lawyer when you have a number of things to discuss so they can be dealt with together; saving you time and money.
- If your lawyer asks for information or documentation, provide the information promptly as requested (to avoid them having to follow you up and therefore incurring additional costs) and in an organised manner. For example, providing a box of invoices in no particular order, however, if you provide them in some sort of order (eg chronological or by supplier) this will mean your lawyer will be able to deal with them more efficiently.
A Cost Agreement (or Retainer Agreement) sets out the terms of your agreement with your law firm. In Western Australia it is required that the law firm provide disclose of certain matters relating to their costs in the event legal costs are likely to exceed $1,500 plus GST. Kroon Legal’s disclosure of these cost matters are included in our Cost Agreement.
Generally, law firms require clients to put money on trust up front of doing work to go towards paying your legal fees and other associated expenses. However, we understand that some client’s will have difficulty doing that.
In such circumstances the law firm may be able to assist you by entering into a cost agreement which provides for you to pay your fees a payment plan. Unfortunately, this option cannot be provided to everyone and you will usually have to show you have the means to pay and be able to provide some security. Generally, you will be required to pay interest on outstanding fees. (The maximum amount of interest payable is prescribed by the Legal Profession Act 2008).
You should discuss this when you meet with your lawyer.
Many lawyers will charge clients on have an hourly rate, which is billed on a pro rata basis to clients in 6 minutes units.
There may be some standard matters which are charged at fixed fees, such property conveyancing and preparation of Simple Wills, Simple Grants of Probate, Letters of Administration, and for some Family Law matters (Divorce, Consent Orders).
We will charge you for any disbursements & office costs incurred on your behalf. Examples include photocopying, faxing, email, telephone, postage, delivery fees, courier fees, filing fees, searches, and counsel fees (if instructed).
We charge you for office costs based upon your usage. If these expenses were not allocated to the clients that incurred the cost, then these costs would likely have to be incorporated into solicitor’s hourly rate. In essence, it is a user pays system.
An Accredited Family Law Specialist has demonstrated a high standard of ability and experience in Family Law as follows:
- He or she has been a practising lawyer for at least five years with more than 25 per cent of his or her practice being in Family Law.
- He or she has passed a three-part exam, which tests his or her knowledge of Family Law.
- This exam covers:
- Divorce procedures;
- De Facto relationships;
- Property settlement;
- Financial Agreements;
- Children’s living with and spend time with arrangements (previously known as residence and contact);
- Jurisdiction of the Court;
- Court practice and procedures;
- Spousal maintenance;
- Child Support;
- Child welfare matters;
- Restraining Orders;
- Specialised Areas including Adoptions, Surrogacy;
- Some knowledge of pensions, social security and legal aid requirements are also covered.
- References from other Solicitors or Barristers are provided to confirm the ability and experience of the applicant in Family Law.
- Each year, he or she must prove that they have continued to keep up-to-date with developments in the Law and has maintained the required high level of involvement in the jurisdiction by attending professional development in Family Law. This is a separate requirement to the professional development that applies to all Lawyers.
Accredited Specialists obtain certificates, which you are entitled to see to confirm they have current qualifications as an Accredited Family Law Specialist. These certificates may be on display in the Lawyer’s office.
A list of Accredited Family Law Specialists in WA is available on the Law Society of Western Australia website – www.lawsocietywa.asn.au
My spouse and I have separated, and we have reached an agreement between us, can I transfer the house to him/her and not pay Duty (previously known as Stamp Duty)?
If you obtain Family Court Orders or the transfer is pursuant to a Binding Financial Agreement then you will only have to pay nominal Duty (currently $20.00). You do not have to have a dispute and commence proceedings to get Family Court Orders. If you and your spouse have reached an agreement, you can apply for Family Court Order by Consent. We recommend you seek legal advice in preparing consent orders. Even factoring in the legal cost for obtaining consent orders you will usually save several thousand dollars.
Before an application for a divorce can be made, the married couple must have been separated for at least 12 months. It will then be listed for a divorce hearing (usually a relatively short hearing that depends upon on whether or not you have children under 18 years of age, you may not even need to attend). If the divorce is granted at that hearing then it will be final one month after the hearing date.
Note: you can be separated but continue to reside under the same roof. If this is your situation we recommend you obtain legal advice before applying as there are additional requirements to complete.
There are also additional requirements if you have been married for less than 2 years.
Amendments to the Family Law Act in 2006 provided greater recognition of the important role of grandparents and other relatives play in a child’s life.
In any decision relating to the children made by the Family Court they must consider what is in the best interests of the children. In many cases, the Family Court will consider that a child having a relationship with their grandparents is in their best interests. The Family Court has the power to make orders providing for the children to spend time with their grandparents.
An Independent Children’s Lawyer is a lawyer that is appointed pursuant to a Court Order to represent and promote the best interests of a child in family law proceedings usually when the child is at risk of abuse.
The ICL does not take instructions from the child but will act impartially and in a manner which is unfettered by considerations other than the best interests of the child. Where possible, the ICL shall ensure the Court is fully informed about the child’s views.
Neither party can directly engage an ICL, although they can request the Court make an order to direct Legal Aid to appoint an ICL. However, although the Court may make an order to direct Legal Aid to appoint an ICL, the decision on whether to appoint in a particular case will be made by Legal Aid given their funding restrictions. Legal Aid has guidelines which govern which cases they appoint ICL’s for.
I am getting married or divorced. Is my Will I made prior to my marriage or divorce will still be valid?
When you get married, unless you made your Will in contemplation of your marriage it will automatically be revoked upon your marriage.
If you divorce on or after 9 February 2008, your Will is automatically revoked upon your divorce, unless the Will was made in contemplation of your divorce. If you were divorced before 9 February 2008, your divorce did not revoke your Will.
Generally, you will be required to state in the Will that it is being made in contemplation of marriage or divorce.
If you do not make a Will, when you die the Public Trustee might become the Administrator of your Estate, instead of someone you want. Importantly, your assets and belongings may not be distributed the way you would have liked. Making a Will gives you control over who gets what and when.
An Executor must be at least 18 years of age and be of sound mind at the time he/she is required to administer the estate of a dead person contrary to common belief. The Executor can be a beneficiary of the Will.
There is no legal requirement for a formal reading of a will after death in WA. Whilst films and TV programmes often show a solicitor reading a will to the family and other beneficiaries after a death, this is not necessary. The executor may arrange to read the will in this manner, but they can contact the beneficiaries by mail as it is often impossible to arrange for everyone involved to meet at the same time.
This means a person has died without making a Will. Adult persons entitled to share in the Estate can apply to the Supreme Court to administer/distribute the Estate.
Will my superannuation will be paid to my estate and distributed in accordance with my Will when I die?
The Superannuation funds have their own rules when it comes to distributing superannuation death benefits. The Superannuation fund may distribute benefits to your dependant directly or may distribute benefits to your estate. Some Superannuation funds allow you to make a binding nomination directing where a death benefit is to be paid.
Whilst the laws in Australia are largely similar, the laws in each state and territory concerning Wills and inheritance vary and the information in this article relates to Western Australia only.
A Lawyer can do your settlement.
A settlement agent can take care of your settlement, but is not qualified to give you any legal advice on the contract; only a Solicitor can do that.
You need to know if all the right enquiries have been made to ensure there are no caveats or special conditions that may affect your plans for the property. Getting legal advice before you sign a contract is the best course of action.
Lawyers can prepare Contracts of Sale and you don’t need to use a real estate or settlement agent in a private sale, or in a transfer of land between family members.
No, you can privately sell your house. A lawyer can assist you with preparation of the Contract for Sale.