The breakdown of a relationship has a significant impact on most people’s lives. At a particularly emotional and challenging time, you may need to make decisions about many issues including separation or divorce, parenting arrangements, child support, spousal maintenance and property settlements. We can assist in all these areas.
Our services extend to married couples and domestic partnerships which include de facto and same sex relationships. Our objective is to give practical advice and to resolve issues as smoothly and as quickly as possible to allow you to move on with your life.
Tips after first separating
- Prioritise personal safety. If you fear for the wellbeing of yourself or your children, contact your local police. If necessary, obtain advice about applying for a restraining order.
- If you have children, try to make interim arrangements in their best interests that provide for minimal disruption and foster a meaningful relationship with both parents.
- See a lawyer – getting legal advice early can assist to clarify your legal rights, protect your interests and explore options for a reasonable outcome aimed at avoiding lengthy and costly family law proceedings.
- Prepare a list of assets, loans, bank accounts, credit cards, and obtain originals or copies of important documents such as passports, marriage certificates, birth certificates and insurance policies.
- Update passwords and login details for email accounts and online banking.
- Review or make a Will to take into account your new personal circumstances and obtain advice, particularly about jointly held property.
Getting a divorce
In Australia we have a ‘no fault’ system. This means that when granting a divorce, the court does not consider whether one party is to blame for the breakdown of the marriage. All you need to show is that:
- the marriage must have broken down with no likelihood of reconciliation; and
- the parties must have lived separately and apart for a continuous period of 12 months; and
- appropriate arrangements must be in place for the care and wellbeing of any children under 18 years.
In determining whether a couple has lived apart for 12 months, the court recognises that there may be reasons why a couple live under the same roof despite their decision to separate. This may be for practical, financial, religious, cultural or other reasons. In such cases an affidavit, explaining these circumstances, is filed with the application for divorce.
Obtaining a property settlement
Property settlement is about dividing up the property of the marriage/de facto relationship and is separate to the divorce proceedings. Property refers to all assets, liabilities and the financial and non-financial contributions of each party to the relationship.
Property settlement is different for every couple. Any kind of private settlement agreement that does not involve the provision of legal advice is inherently risky.
The law does not require spouses to be divorced to apply to a court for a property settlement – once separated, either spouse can apply for an order. Separating couples however are encouraged to settle their property issues through negotiation with full disclosure. This is usually conducted between the parties’ respective lawyers to ensure that each receives independent and appropriate legal advice.
During these negotiations, similar steps that a court would apply in dividing property are generally taken into consideration. These are:
- identifying the parties’ assets, liabilities and financial resources;
- assessing the parties’ respective financial and non-financial contributions;
- evaluating the parties’ future needs including their relative earning capacities, state of health, education and responsibilities as primary carer of any children;
- making just and equitable orders in consideration of all circumstances.
Once an agreement is reached, the division of assets may be legally documented in a binding financial agreement or consent orders.
Although many family law property settlements are finalised through negotiation, it may sometimes be necessary to make an urgent application or to commence proceedings to have your property matter determined in court.
It is important to know that an application for property settlement must be made within 12 months of the date of divorce for married couples, or 12 months from the date of separation for domestic partners.
The amount of time each parent spends with their children is understandably a primary concern when a family unit breaks down. When the court is asked to consider this question, its paramount consideration is always what is in the best interests of the child. We will need to talk to you about your family circumstances to provide proper advice regarding children’s matters.
In most cases, parties are required to make reasonable attempts to resolve disputes about children through dispute resolution. Agreements reached may be documented in parenting plans or consent orders without having to go to court.
If agreement cannot be reached on parenting issues it may be necessary to apply to court for the appropriate orders. The overriding principles considered by the Family Court are that the best interests of the child are paramount. Essentially, this means that children:
- should have the benefit of a meaningful relationship with both parents;
- be protected from physical and psychological harm;
- receive parenting that allows them to reach their full potential;
- unless there are issues of risk, have the right to spend time on a regular basis with both parents.
All families are unique, and property and children’s matters are often driven by emotion – this can cause conflict and unnecessarily delay the parties reaching a settlement. Obtaining independent advice as soon as possible can ensure your legal rights are explained and the correct processes followed to resolve your matter.
We work with a senior consultant with over 30 years’ expertise in family law to assist you with personal advice tailored to your specific situation and needs. Our transparent pricing policy means that our fees are discussed during your initial appointment and an estimate of legal fees given for the services you have engaged us to provide.