Ending a relationship is a difficult time, however, we can guide you through the legal issues of separation. We can assist with a range of matters relating to family law and de facto relationships.
Divorce & Separation
If you have been separated for at least 12 months and are unlikely to resolve your differences, you can apply for a divorce through the Federal Circuit and Family Court of Australia. We can help with your application, and in most cases, you will not need to attend Court to have your divorce finalised.
A divorce does not deal with the adjustment of property interests or care arrangements for children. These are negotiated between the parties and, if negotiations fail, will be the subject of separate applications to the Court.
De Facto Relationships
De facto couples can access remedies under family law legislation. When a couple have not been legally married, a number of factors will be considered to determine whether they were in a de facto relationship, for example, the length and nature of the relationship, financial dependence or interdependence, the care and support of children, or whether the relationship was registered under state law.
Family Law Property Settlements
A property settlement involves the division of assets and liabilities to finalise the financial affairs of a couple who has separated. This is an important process – it enables the parties to move on with their respective financial lives and helps protect them from future claims.
In most cases, property settlements are reached through negotiation with the assistance of the parties’ respective lawyers, without the need to go to Court. In determining how assets and liabilities should be divided, the law does not only consider ownership or financial contributions, but takes into account the non-financial contributions to a relationship, such as caring for children. Generally, an appropriate division of assets, should have regard to:
- the nature and value of all assets and liabilities, whether held jointly or individually
- the contribution each party has made to the acquisition and improvement of the pool of assets in both financial and non-financial ways
- the future needs of the respective parties
- a “just and equitable” outcome in consideration of all circumstances
The Court may make orders requiring that one party to a prior relationship assists with the financial support of the other. Orders for spousal maintenance may be made in circumstances where:
- one party is unable to adequately provide for their own financial support; and
- the other party has the capacity to continue to support the other.
Spousal maintenance can involve the payment of a periodic sum or, in some circumstances, a lump sum. Orders may be made on an urgent basis if required. The application must be carefully prepared and supported with relevant evidence setting out the financial and circumstances of the claimant and other party.
In determining parenting matters, the best interests of the child is the paramount consideration. Other considerations to which the Court will have regard to include any history of family violence, the children’s wishes, the nature of the relationship between the children and their parents, the capacity of each parent to care for the children and other practical considerations.
Family law starts from the premise that a child should have an active relationship with both parents. Even if equal parenting time is not practical, in most cases, it is still expected that a child will spend significant time with each parent.
Parents may enter orders formalising the care arrangements for their children. Such orders can include matters such as with which parent the children shall live, how much time they spend with the other parent, arrangements for school and extra-curricular activities, medical treatment, and various other matters.
Unfortunately, some people who try to reach a private arrangement for their family law issues may find themselves agreeing to an unfair outcome. This can occur when the former relationship had dysfunctional power dynamics and is especially prevalent when there was domestic or family violence in the relationship. Whether or not you are on good terms with your ex-partner, we recommend that your negotiations be set out in writing and that you obtain independent legal advice. In addition, any agreement reached should be consistent with the Australian family law system so it can be enforced through the Court.
If you have reached an agreement regarding the division of your property and/or parenting arrangements, you can formalise these negotiations by entering into consent orders. Consent orders set out in detail the terms of agreement reached and are accompanied by an application to the Court for their approval. You do not have to attend Court and, if the proposed orders are considered just and equitable, the Court will grant them. Once approved, the orders are legally binding.
Binding Financial Agreements
Parties may enter a financial agreement dealing with the division of assets either:
- before they start living together
- during cohabitation
- after a relationship ends
Financial agreements made before or during a relationship (often referred to as a pre-nup) set out how a couple’s assets will be divided in the event of separation. They may be useful for those who bring significant assets to a new relationship, have previously been married, have children from prior relationships, and/or to protect a child’s inheritance.
Financial agreements remove the entitlement of the parties to approach the Court for orders dealing with a division of assets after they separate. Accordingly, strict legal requirements and formalities must be met for such agreements to be valid.
In some cases, making a financial agreement after separation can be a cost-effective way of finalising your financial affairs, however, consent orders are generally considered a more formal approach.
We can step you through the pros and cons of entering into a binding financial agreement so you can make a decision that is right for you.