FAMILY LAW
Family law matters can be challenging, particularly when the parties are at their most vulnerable. It is important to understand your legal rights, the issues involved, and your options, so you can make decisions that are in the best interests of you and your family. We can provide clear, concise, and common-sense family law advice if you have separated from your partner or spouse. We can help with.
- Separation and divorce
- De facto relationships
- Prenuptial agreements (prenups)
- Property settlement / financial agreements / consent orders
- Superannuation splitting
- Parenting matters
- Child support and maintenance
- Guardianship / adoption
- Representation at the Federal Circuit and Family Court of Australia
- Representation in Children’s Court for care and protection and criminal matters
Getting a Divorce
An application for divorce can be filed with the Federal Circuit and Family Court of Australia if your marriage has irretrievably broken down, and after you have been separated for 12 months. A divorce application does not require the consent of both partners and separation does not necessarily mean you have been living in separate residences. If you have minor children, the Court must be satisfied that proper arrangements are in place for their care.
A divorce order is not required before settling your financial affairs, however, once a divorce has been granted, there is a 12-month limitation period within which to bring Court proceedings for a property settlement or spousal maintenance.
De Facto Relationships
Family law legislation also applies to de facto couples who may access remedies under family law. A de facto relationship is determined by factors such as:
- the length and nature of the relationship
- financial dependence or interdependence
- the care and support of children
- whether the relationship is registered under state law
If you have separated from your partner, we can advise if your circumstances meet the criteria of having been in a de facto relationship and help you reach a property settlement. For de facto partners, any Court proceedings for a property settlement must be commenced within two years of separating.
What is a Family Law Property Settlement?
A property settlement concerns the division of assets, liabilities, and financial resources between a separated couple to legally finalise their financial affairs. The conclusion of a legal property settlement enables the parties to move on with their respective financial activities and may facilitate stamp duty concessions when transferring certain assets such as real estate.
Steps Involved in Dividing Property
The division of assets after separating can be achieved through a financial agreement, consent orders or Court proceedings. Many family law property settlements are finalised without going to Court which in most cases, should be considered a last resort.
Family law legislation encourages separating couples to settle property issues with the assistance of mediation, and other dispute resolution processes. When negotiating how property should be divided after a break-up the same steps that a Court would take are generally applied. 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
A superannuation split may form part of your proposed property settlement and it is important to evaluate the net result of this. The splitting of superannuation does not convert its value into cash as it is still governed by superannuation laws and will generally only be accessible at retirement age.
Parenting Arrangements
Parenting arrangements address issues such as where children will live, how much time they spend with each parent and other significant matters like education and healthcare. Arrangements can be documented in a parenting plan or formalised in consent orders which are filed with the Court. Consent orders are legally binding however parenting plans are not. Both consent orders and parenting plans can include people in addition to the children’s parents.
Of course, it is in everybody’s interests to work out arrangements for their children without going to Court, however if you cannot agree, Court proceedings might be the only option. Unless exceptional circumstances exist, you will need to attend family dispute resolution before taking this path.
The focus of the parenting rules in the Australian family law system is the “best interests” of the children. The law starts from the presumption that it is best for children to have an active relationship with both parents and that both parents have equal and shared responsibility for their child. This means that each parent is equally responsible for the care and support of the child. As such, it may be reasonable to start from the presumption that a child will spend half of their time with each parent. While this may not be practical for every family, there is an expectation that each parent will spend at least “significant” time with their child.
Deciding who will primarily raise and care for the children is often disputed when a relationship breaks down. Each case presents different facts and circumstances. We can help you negotiate and document parenting plans and parenting orders that take into account the benefit of your children having a meaningful relationship with both parents, as well as protecting them from physical or psychological harm or neglect.
If you need assistance, contact Sally at [email protected] or call 03 5872 1966.