Divorce Applications

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:

1. either you or your former spouse confirm that the marriage has irretrievably broken down; and

2. 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.

Property Settlement

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 should 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.  Any informal agreement reached between you and your former partner (even if recorded in writing) is otherwise not legally enforceable and so is fraught with risk.

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:

1. establishing what assets, liabilities and financial resources of the relationship (whether held individually or jointly) form the net asset pool;

2. determining the financial and non-financial contributions made by the parties throughout the course of the relationship;

3. 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

4. ensuring that the settlement reached is ‘just and equitable’ pursuant to the Family Law Act 1975 (Cth).

Children

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.

The following are the matters which the Court is required to consider to determine what is in a child’s best interests:

1. what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and each person who has care of the child;

2. any views expressed by the child;

3. the developmental, psychological, emotional and cultural needs of the child;

4. the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;

5. the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where safe to do so; and

6.  anything else that is relevant to the particular circumstances of the child.

Parenting Plans

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.

Consent Orders

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.