FAMILY LAW

FREQUENTLY ASKED QUESTIONS

 
 
 
 
 

On this page you will find some frequently asked questions and answers about family law matters.  This information is general in nature only and does not consider your personal circumstances and should not be taken as legal advice.  Family law matters are important and can have a major impact on your future and that of your loved ones.  Speak to one of our experienced family lawyers today on 1800 572 417.

Page Index

Separation and Divorce Frequently Asked Questions

Property Settlement Frequently Asked Questions

Same Sex relationship Frequently Asked Questions

Parenting and Children's Matters Frequently Asked Questions

Alternatives to Court Frequently Asked Questions

General Family Law Frequently Asked Questions

Separation and Divorce

Frequently Asked Questions

Q: What does the law consider to be 'separation'?

Separation occurs where one partner has communicated to the other partner whether by action or conduct, that the relationship has ended and the parties act accordingly.  Alternatively, separation occurs when both parties have agreed and consented that the relationship is over.

 

You do not need to live separately to have separated.   You can live separated "under the same roof".

Q: How and when can I apply for Divorce?

To apply for a divorce, the marriage must have broken down irretrievably.  This means that one or both parties believe the marital relationship has ended permanently.  In addition to this requirement, before an application for divorce can be made you must be separated for at least 12 months.

Q: Do time limits apply to property settlement court proceedings?

Marriages

If you are married you can commence property settlement court proceedings at any time before you divorce.  After you divorce, you can only commence property settlement Court proceedings within 12 months of the date of divorce or apply to the Court for permission to commence proceedings out of time but your application may be refused.

De Facto Relationships

Either party can commence property settlement court proceedings within 2 years of separating.  You can apply to the Court for permission to commence proceedings after 2 years but your application may be refused.

Q: What if we separated and then got back together and then separated again?

If you separated and then resumed your relationship for less than 3 months before separating again, you can ignore the period when you resumed your relationship.  This only applies if the period of resuming the relationship was less than 3 months.

 

If you got back together multiple times or for more than 3 months, you can only count the period from your last separation as the date of separation.

Property Division & Property Settlement

Frequently Asked Questions

Q: How are Bank Accounts, Property and Assets Divided?

See the following diagram which shows the three methods in Australia to legally separate property.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

There are 3 legal ways and 1 informal way that you can settle the division of property between you and your ex partner which are explained below.

Informal Agreement

An informal agreement between you both.  An informal agreement is not legal binding on you both and provides no legal protection.  In some cases, your ex-partner could come back later for a larger slice of the property.  We always recommend getting legal advice from a qualified family law lawyer for your peace of mind and protection.

Binding Financial Agreement

A Binding Financial Agreement is a private agreement between you and your ex-partner that must meet the requirements of the Family Law Act 1975.  Each party must have independent legal advice.

Consent Orders

Consent Orders allow parties to get Court orders by agreement for the separation of property without having to actually go to Court.  Consent orders must be fair and equitable in the circumstances.  Our family law lawyers are experienced at obtaining consent orders successfully and ensuring that our client's property rights are protected and that they receive their fair share of the property.

 

Going to Court  

Court proceedings involve commencing family law proceedings and having a Court determine a fair and equitable division of property.  The parties can agree to settle proceedings at any time by consent, approved by the Court.

Q: What happens if one party doesn't agree?

It is not uncommon for parties to have many disagreements at the outset of a property settlement.  Our property settlement lawyers provide strategic negotiations to help bring about resolution of disagreements and help you move toward property settlement.  If the parties do not agree, and Alternative Dispute Resolution avenues have been exhausted, then it is usually the right time to have one of our family law lawyers commence family law proceedings on your behalf.

Almost 95% of family law court cases are finalised without having to go through to a final trial.  Even after a Court case has commenced there are interim hearings and stages long before the final trial.  Our lawyers continue negotiations to bring about an agreed resolution to Court proceedings in which case the parties can jointly agree to end Court proceedings if the Court agrees.

A Court will consider many factors in making a determination and these are often unique to the facts of each relationship and the parties' situation.  The main factors the Court will consider are:

  • The contributions the parties brought into the relationship

  • The financial and non-financial contributions of the parties during the relationship

  • The financial and non-financial contributions made by the parties after the relationship ended

  • The future needs of each party

While family law can be complex, with straightforward legal advice we will help you separate your property and move forward with your life.

Q: What is spousal maintenance?

Spousal maintenance is separate from child support, and can be a one off payment or an ongoing regular payment made from one party to the other party for living expenses.

There is no automatic entitlement to spousal maintenance.  Spousal maintenance must be obtained by an agreement between the parties or made by a Court order.  A court will only make an order for spousal maintenance if the Court can be satisfied that:

  • The party to provide spousal maintenance has the income capacity to allow them to meet their reasonable living expenses; and

  • The party to receive spousal maintenance is in hardship or is in need of support.

Q: What does ‘de facto relationship’ mean?

If you and your partner have a relationship and are living together on a genuine domestic basis, it is more than likely that you are in a de facto relationship.  Usually a de facto relationship commences when a couple in a relationship start living together, however this is not always the case.  A couple can be considered to be in a de facto relationship if they have separate residences.

If there is a dispute about whether a de facto relationship existed and the Court is asked to decide this point, the Court will consider various factors to determine the existence of a relationship, including:

  • If there is a common residence;

  • If a sexual relationship exists;

  • If there are joint finances;

  • If one party is financially supporting the other; and

  • if the couple present themselves publicly as a de facto couple.

Q: FAQ-How are Bank Accounts, Property and Assets Divided in De Facto Relationships?

De facto couples who separated before 1 March 2009 have the right to apply to the Family Court for a property settlement if both parties agree.  De facto couples who separated after 1 March 2009 have the right to apply to the Family Court for a property settlement, without the other party’s consent, provided that the application is made within the required time limits.

  • The Court will only make Orders for a property settlement if:

    • The de facto relationship has lasted 2 years or more; or

    • There is a child of the de facto relationship; or

    • One party made a significant contribution during the relationship and there would be injustice if the Court did not make an Order for property settlement; or

    • The de facto relationship is or was registered under a law of a State or Territory.

If you need legal help with property separation call us

today on 1800 572 417

Same Sex Relationships

Frequently Asked Questions

Q: Same Sex Relationships & Separations

If you have been in a gay or lesbian de facto relationship you can undertake property settlement with your ex partner.  My Legal Crunch support love in all it's fantastic forms.  Call one of our lawyers today on 1800 572 417 for a discussion about your property settlement rights

Q: How are Bank Accounts, Property and Assets Divided in Same Sex Relationship?

In 2009 amendments were made to the Family Law Act 1975 which gave same sex couples access to the family court system.

There are two ways assets (i.e. bank accounts, personal property and real property) and liabilities (i.e. mortgages and car loans) can be divided.  First, you and your ex-partner could reach a mutual agreement.  Alternatively, if an agreement cannot be reached, the assets and liabilities of the relationship can be divided by a determination of the Court.

Importantly, a division of the assets and liabilities is not simply a matter of an equal split.  As a starting point, the asset and liability position of each party at the start of the relationship should be identified.  Our experienced lawyers will ensure that this is carried our correctly.  It is then important to consider all of the financial and non-financial contributions which were made during the course of the relationship and the future needs of each party in order to determine what is an equitable division.

 

Non-financial contributions include:

  • Being the primary care-giver for any children of the relationship; and/or

  • Being the primary house-keeper during the relationship.

Non-financial contributions can carry just as much weight as financial contributions.  They should therefore be taken into consideration when determining the manner in which the asset pool is to be divided.  If possible, attempt to reach an amicable solution with your ex-partner.  If a fair and amicable solution is reached, then we can put in place a legally binding agreement to legally divide the property.  Our solicitors will prepare a document known as a Binding Financial Agreement or Consent Orders which legally formalises the agreement reached so that any breaches of the agreed terms can be enforced in a Court of law if need be.

We can assist with gay and lesbian relationship issues and help you get a fair and equitable division of the property. 

 

If you need help with a same-sex de facto relationship property settlement, call lawyers who respect you and protect your rights on 1800 572 417

Parenting and Children's Matters

Frequently Asked Questions

Q: What happens to the children now we are separated?

Separation involving children can be a difficult time for everyone involved.  It's important that the parents and everyone involved act in the best interests of the children first and foremost.  This can be difficult during a separation where there are hurt emotions, financial stress and claims of family violence.

When a relationship breaks-down, the Courts will focus on what is in the best interests of the children of that relationship first and foremost.  Some of the matters a Court’s can consider include:

  • Can the children have a meaningful relationships with both their parents, to the extent that this does not compromise the children’s best interests?

  • The need to protect the children from physical and psychological harm, neglect and violence.

  • Ensure the children receive proper and adequate parenting.

  • Ensure the parents fulfil their duties and responsibilities.

  • Look at any allegations of family violence and child abuse including:

    • Psychological abuse

    • Physical abuse

    • Sexual abuse

    • Neglect

 

As a parent, unless there are issues of abuse or violence, you can reasonably expect to:

  • Have ongoing involvement in your children’s lives;

  • See your children regularly, including on weekdays, weekends and school holidays; and

  • Be involved in ongoing decision making about your children.

Q: Who gets the children in de facto relationship?

In a de facto relationship where both parties are the biological parents of the children and where there are no existing court orders in place, both parents have equal rights over the children.  In this case, the law provides that unless there is a reason otherwise, that it is in the best interests of the children to spend equal or substantial time with the separated parents.

 

Sometimes, this is not practical due to work commitments, the distance between the parents or other reasons.  In this case, usually the children will live with one parent and spend the weekends, some evenings in the week or every other weekend with the other parent.

 

Q: What is a Parenting Order?

A parenting order is an order made by the court regarding the parental responsibility, living arrangements and/or when the children spend time with each parent.  Parenting orders are binding and enforceable on all parties.

A parenting order can be made:

  • By way of an Application for Consent Orders; or

  • By a Court on an interim basis (pending further hearings or events) or on a final basis.

 

Sometimes circumstances change, so parenting orders may be amended by agreement or if the parties do not agree, amended orders can be made by a Court.

If you need help with parenting matters, call one of our family law lawyers today on 1800 572 417

Q: What happens if one party doesn’t agree?

The Court considers the best interests of the children when making decision relating to the children.  The Court will consider a range of factors including, but not limited to:

  • Enabling the children to have meaningful relationships with both parents, to the extent that this does not compromise the children’s best interests

  • Protecting the children from physical and psychological harm, neglect and violence

  • Ensuring the children receive proper and adequate parenting.

  • Ensuring the parents fulfil their duties and responsibilities

If a Court is required to make a parenting order, in addition to considering the children’s best interests when making a decision, the Court will also make orders about who will have ‘parental responsibility’ for the children.

Parental responsibility relates to decision making about the children.  Generally, the Court will order that parties have equal shared parental responsibility for children, even if the children are mainly living with one party.

If the parties have equal shared parental responsibility, all long term decisions about the children must be made by both parties together, particularly concerning issues such as education, health and religion upbringing.

Q: My partner wants to take our child overseas – how do I stop them?

Before you or the other parent take the children overseas, you should obtain the other parent's or they should obtain your permission.  In the case you think the other parent may abscond overseas with the children, you should take the children's passports.

The Australian Federal Police maintain a watch list for family law matters.  This watch list is designed to alert the Australian Federal Police to the movement of children if they are being taken out of Australia.  You can seek parenting orders from a Court to stop the children from being taken overseas and for them to be placed on the watch list.

Alternatives to Court

Frequently Asked Questions

Q: Do All Family Law Matters Have To Go To Court?

If you can avoid court, you should, however, sometimes Court is entirely necessary.  This is usually the case where:

  • A party refuses to participate in property settlement

  • Property settlement time limits are approaching (1 year after divorce for marriages and 2 years after separation for de facto couples)

  • There is no hope of agreement

  • Full and frank disclosure of assets and property is not being given

  • Assets and property are being hidden

  • Assets and property are being damaged or destroyed

  • Assets and property are at risk such as through gambling, drug use or debts

  • Assets are being sold off without joint agreement about where the funds will go

  • Urgent issues arise

It is important to avoid Court wherever possible, however, if the need arises you should you hesitate to protect your property and your property rights.  While the law around property settlement can be complex, our property settlement lawyers are experienced in dealing with urgent Court applications to protect assets and property.

Q: What is Alternative Dispute Resolution?

Alternative Dispute Resolution, also known as ADR, is the collective term for ways of resolving legal problems without going to Court.  ADR can reduce legal costs and expedite outcomes.

The following are the different types of alternative dispute resolution available:

Arbitration

Arbitration is where a qualified arbitrator (chosen by the parties) decides how the property is to be split.  Other matters can also be decided, such as spousal maintenance or de facto maintenance.

Collaborative Law

Collaborative law is a unique form of ADR.  With Collaborative law, you and your ex partner keep control of negotiations, costs and any outcomes, rather than a third party (the Court) deciding.

There are three main principles:

  1. A pledge not to go to court;

  2. An honest exchange of information; and

  3. A solution through negotiation in good faith, that takes into account the parties’ priorities and where applicable, those of their children.

Collaborative law has a number of benefits, including:

  1. Expedited, cost effective and transparent process;

  2. Control remains in the parties' hands;

  3. The process allows the parties to have control over any restructuring or allocation of assets; and

  4. Is less intrusive and emotionally charged which is beneficial in the case of parenting matters where children are involved.

Early Neutral Evaluation

Early Neutral Evaluation or an “ENE” is a form of ADR whereby an independent person known as an evaluator assesses the case on the information given to them by the parties on an agreed basis.  The evaluator will appraise the case and provide a non binding decision.  The parties can either choose to resolve the matter based on the decision of the evaluator or proceed to court.

In most cases the evaluator’s decision is found to be very similar to the decision of the Court.

Mediation

This method is most common in family law matters (as well as in the majority of civil matters).  Each party attends and presents their version of events and their desired outcomes.  The mediator (who is professionally qualified), independent from each party, assesses the positions of the parties and attempts to “mediate” or assist them to a mutual agreement, known as a settlement.

The mediator does not give advice or determine the case.

General Family Law

Frequently Asked Questions

Q: What is a Financial Agreement?

Parties can enter into a legally enforceable financial agreement also known as a “Binding Financial Agreement” or a “BFA” pursuant to the Family Law Act 1975.  Our family lawyers regularly draft Binding Financial Agreements and provide our client's with strategic legal advice to ensure they know their legal rights and responsibilities and can best implement a Binding Financial Agreement.  Property settlement is a very important event that can affect your financial well-being and that of your loved ones which is why getting it done right is important.

To enter into a Binding Financial Agreement you and the other party will need:

  • To both have independent legal advice

  • Agree to the terms of the agreement

  • Meet the requirements of the Family Law Act 1975

A Binding Financial Agreement directs how the parties will:

  • Separate and divide the property and liabilities between them

  • Divide the superannuation (in most circumstances)

  • Pay of receive spousal maintenance if appropriate

Financial agreements’ can be made:

  1. Before entering a marriage or de facto relationship (also known as a  prenuptial agreement or prenup)

  2. During a marriage or de facto relationship

  3. At the end of a relationship

Binding Financial agreements’ allow parties to resolve property issues between without commencing Court proceedings.

If you believe a Binding Financial Agreement might be the right option for you, call one of our family lawyers today on

1800 572 417

Q: Does Superannuation form part of property settlement?

Superannuation entitlements can be divided as a part of property settlement between married parties, divorced parties and de facto parties (except de facto parties in Western Australia) subject to certain time limits.

Q: What happens to the pets after we separate?

If you separate and you have pets, at law they are considered personal property.  If possible, attempt to reach an amicable agreement with your ex-partner about your pet.  You can use alternative dispute resolution to make decisions about your pets.

If you and your ex-partner cannot agree on what will happen to your pets, a Court can only make an order providing the pets to you or your ex partner as part of the division of the assets.

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Disclaimer - This information has been provided for general information and education purposes only. This information is not intended and should not be taken as legal advice. This information is general in nature only and may not be applicable in all situations and may not, after the date of its presentation, even reflect the most current authority. This information should not be relied upon nor acted upon without the benefit of professional legal advice based upon your particular facts and circumstances.

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