Our experienced family law team advises clients in relation to both simple and complex family law separations, which involve the separation from a spouse or partner, and regularly assist our clients in determining:
- what steps need to be taken in order to separate from their spouse or partner;
- whether I can continue to live under the same roof as my spouse or partner;
- who will be responsible for making mortgage repayments on joint property;
- who will have primary care of their children;
- what steps should be taken if their spouse or partner refuses to return children to their care;
- what proportion of the joint assets they are entitled to receive from a property settlement; and
- whether I am entitled to my partner’s superannuation.
Our family law team understands that separating is a financially and emotionally difficult process. It is important that you speak to a lawyer you can trust at the earliest opportunity to protect yourself and your family.
Friends and family may give you well-intended ”advice” or opinions about how to deal with your assets and parenting arrangements, following which may inadvertently compromise your legal position. It is essential that you obtain legal advice from a qualified legal professional to protect your rights, even if your separation is amicable.
Our family law team provides practical legal advice in relation to all areas of family law, including but not limited to:
- property settlements;
- binding financial agreements (commonly known as a prenuptial agreement, or “prenup”);
- spousal maintenance;
- children; and
- child support.
A divorce is the legal process of ending a marriage, and is different to a property settlement. An application for divorce must be filed in the Federal Circuit and Family Court of Australia (Court) and will be assessed using the following criteria:
- either you or your former spouse confirm that the marriage has irretrievably broken down; and
- you have lived separately for a continuous period of 12 months (which may, in some circumstances, include a period where you and your ex-partner have lived under the same roof).
Unless special grounds exist, if the marriage lasted for less than two (2) years, a certificate from a family counsellor confirming that you and your former spouse have considered reconciliation must be provided.
Where the Court grants an application for divorce, there will be a 12-month timeframe within which you and your former spouse must finalise the formal division of the assets of the marriage. If property settlement proceedings are not commenced within this 12-month timeframe, there are additional processes in place which will require legal expertise to navigate, which in turn will increase the costs incurred. This is called a property settlement. If you file a divorce application or are served with a divorce application before the parties have agreed a property settlement, you should urgently contact our family law team for advice. We advise that all of our clients who are going through the divorce process immediately formalise their estate planning.
You can seek to divide the assets of your relationship from the day you separate. A property settlement can be resolved by consent orders, a financial agreement, or by determination of the Court. The Court encourages separated individuals to settle a property dispute between themselves by mediation to avoid incurring the time and expense associated with litigation.
If you and your former partner have already reached an agreement as to how your property will be divided, then those arrangements can be formalised either by way of financial agreement, or consent orders filed with the Court. If you have reached such an agreement with your former partner, we firmly advise that you contact our family law team as soon as possible to have the agreement formalised. This is very important to achieve the protection that the formal orders afford a party from any further claim your former partner may have in relation to your assets, including your superannuation.
If you are unable to reach an agreement as to how the property will be divided, we can negotiate a property settlement on your behalf. In order to minimise the time and expense incurred in the course of these negotiations, our experienced family law team will consider the standard which will be applied by the Court, and will provide professional assistance in:
- establishing what assets, liabilities and financial resources of the relationship (whether held individually or jointly) form the net asset pool;
- determining the financial and non-financial contributions made by the parties throughout the course of the relationship;
- determining the future needs of the parties by taking into consideration their relative earning capacities, their health and wellbeing, and the needs of any children; and
- ensuring that the settlement reached is ‘just and equitable’ pursuant to the Family Law Act 1975 (Cth).
The primary consideration of the Court with respect to parenting arrangements is ensuring that any such arrangement is in the best interests of the child, and that:
- children should have the benefit of a meaningful relationship with each of their parents;
- children should be protected from risk or harm;
- children should receive parenting conducive to them achieving their full potential; and
- unless a child is at risk, there is a presumption that parental responsibility is equally shared between the parents, and that children have the right to spend time on a regular basis with both parents and other people significant in their lives (such as other family members like grandparents). Significant people can include stepparents or step-grandparents.
A parenting plan is an agreement made between parents regarding the ongoing and future care arrangements for children. Parenting plans are not legally enforceable, however may be taken into consideration where one of the parties subsequently issues proceedings in the Court for a formal parenting order.
A consent order is a legally binding agreement with respect to parenting arrangements and may also include terms or conditions relating to the division of property. Consent orders are made by agreement between the parties without the need to attend Court, however have the same legal effect as an order made after a Court hearing.
Parents, grandparents, or other persons concerned with the welfare of a child or children may be included in a parenting order.
If you have recently separated, or are considering separation, our experienced family law team can advise you in relation to your legal rights and obligations and will work together with you to implement fair and workable arrangements for your children and the division of your property.