Divorce is the legal dissolution of a marriage. It is separate from property settlement proceedings or parenting proceedings.
In order to be eligible to apply for a divorce, you must be separated from your spouse for a period of twelve months. The only grounds for a divorce are irretrievable breakdown of the marriage which is evidenced by twelve months’ separation. It is possible to be legally separated from your spouse while living under the same roof.
An Application for Divorce may be filed with the Court either jointly or solely by one party.
The Court must be satisfied that there are proper arrangements in place for children under the age of 18 years. The Court may refuse to make an order if it considers that there are not proper arrangements in place. However, if there are other reasons that justify the making of the Order, the Court may still grant the divorce even in circumstances where it is not satisfied as to the arrangements regarding the children.
Separation occurs where a party to a marriage or de facto relationship communicates to the other party that they consider the relationship has come to an end. The decision to separate can be unilateral – there is no need for a mutual agreement. Also, it is possible for parties to be legally separated even if they continue to reside under the same roof.
The question of separation is relevant when applying for a divorce and is a necessity for a party to be eligible to apply to the Court for a property settlement.
If, during a Divorce hearing, one party disputes the separation date, the Court will examine a number of factors to determine whether separation has taken place. Factors which are indicative of separation include:
- Whether parties slept in separate rooms or continued to be intimate after the purported separation date;
- Whether it was made publicly known to family and friends that the parties had separated;
- Whether the parties separated their financial affairs;
- Whether the parties continued to perform domestic duties such as cooking and cleaning for each other;
- Whether the parties lodged/signed/informed any Government agencies such as Centrelink or the ATO of the separation.
It is not necessary that all of those factors apply to a party claiming that a separation has taken place and there may be other relevant factors not listed which indicate a separation.
Property Settlement after separation
The Family Court and Federal Circuit Court of Australia both have jurisdiction to declare and alter property interests between the parties to a marriage or de facto relationship. A Family Law property settlement refers to the situation where, after separation, the property interests of both parties to the marriage is finally determined.
The Court has jurisdiction to alter property interests in real property, vehicles, businesses, investments, and superannuation.
You are entitled to, and are obligated to provide to your ex-spouse, full and frank financial disclosure. This enables each party to be in a position to be able to assess their entitlements after the end of a relationship.
The following factors are considered by the Court in determining what orders, if any, to make in respect of matrimonial property:
- Contributions made by either party at the commencement of the relationship;
- Financial contributions of the parties made throughout the relationship. These contributions would include income derived from employment as well as any inheritances or windfall gains;
- Non-financial contributions by the parties;
- Homemaker contributions, such as cooking and cleaning;
- Parenting contributions;
- Financial and non-financial contributions after the separation of the parties;
- The Future needs of the parties based on the parties’ health, ongoing parenting arrangements, income disparity and income-earning capacity.
Property settlements can be obtained after separation, or after divorce. However, leave will be required from the court to file an application in respect of a property settlement where the parties have been divorced for more than 12 months.
There are other options available in giving effect to a property settlement, rather than going to court. If you have reached an agreement with your spouse in relation to your respective entitlements, we are able to draft Consent Orders or a Binding Financial Agreement to finalise your matter.
Arrangements for children (parenting matters)
The Family Court and the Federal Circuit Court of Australia have jurisdiction under the Family Law Act to hear and determine parenting matters. Generally, mediation is a pre-requisite to commencing Court proceedings in relation to parenting matters. However, where there are significant power inequalities between the parties, such as cases involving domestic violence, or where there is a degree of urgency, mediation may not be required.
Where one party commences proceedings in relation to parenting, the Court’s paramount concern is the best interests of the child. In determining the best interests of the child, the Court will consider a number of factors. The primary considerations, though, are the benefit of the child having a meaningful relationship with both of the child’s parents; and the need to protect the child from physical or psychological harm. Views expressed by the child are generally only attributed weight by the Court when it is determined that the child has reached a certain level of maturity with insight into their own best interests.
There is a presumption that parents have equal-shared parental responsibility for their children. Parental responsibility refers to major long term decisions in relation to the child – such as their religion, schooling, medical treatment. This presumption may be rebutted where the Court is satisfied that this would conflict with the best interests of the child.
If you and your partner have reached an agreement as to how your children are to spend time with each of you, we are able to put that agreement into writing under a Parenting Plan. Parenting Plans are written agreements specifying the parenting arrangements for the children – but are not strictly binding. That is, the Court will not consider itself bound by the terms of the Parenting Plan in the event that one of the parties decides to commence proceedings.
There is an obligation on parents to provide financial support for their children after separation. The organisation responsible for overseeing payments of Child Support is part of the Department of Human Services (DHS). However, parents can reach their own agreements regarding the payment of child support and do not have to involve the Child Support Agency. In some instances, it may be appropriate to enter into a Child Support Agreement (CSA). This is an agreement between parents which can be made binding once properly signed and registered with the DHS. The Agreement is then enforceable under the law.
It is important to consider CSAs carefully as they provide for your child’s future. Writing a CSA is often an emotionally driven process and our lawyers can guide you through this by helping you prepare a CSA or provide advice so that you know your rights and obligations. We can also provide options in relation to an existing assessment that you may think is unfair.
If parents do not reach their own agreements, either parent may apply to the DHS which will then make an assessment based on the Child Support (Assessment) Act 1989 to determine an enforceable agreement. This can only be varied if you apply to a child support review officer within the DHS. Child support is calculated on a formula based on:
- The costs of raising a child;
- Parent’s income &;
- Amount of time each parent spends with the child.
De facto relationships
Since 2009 de-facto relationships have been dealt with under the Family Law Act 1975. This means that de-facto couples are afforded the same rights as a married couple. A de-facto relationship may be registered in certain states.
A de-facto relationship can be established between two adults over the age of 18 who are not legally married, not related and living as a couple on a genuine basis. In assessing whether you are living together in a genuine domestic relationship the court may look to:
- The duration of the relationship;
- Whether you shared a common residence;
- Whether a sexual relationship existed;
- Your financial interdependence;
- Acquisition of property;
- Degree of mutual commitment to a shared life &
- Reputation and public aspects of your relationship.
In the event of a breakdown in a de-facto relationship parties may apply to the Family Court or the Federal Circuit Court to have their financial matters determined. This must be done within 2 years of the breakdown of a relationship.
Binding Financial Agreements
Binding Financial Agreements (BFAs) can be entered into by parties before a marriage/de-facto relationship, during or after the breakdown of the relationship. At Sharon Payne Family Lawyers we can help draft a BFA after the breakdown of the relationship.
A BFA deals with property and divides the assets and liabilities of both parties. BFAs are an alternative to binding consent orders and maybe helpful for couples that want to avoid going to court once there is a relationship breakdown.
If you and your partner do not have any legally enforceable agreements between you, it is still possible that after separation you may reach agreement about how your assets should be divided. If you do reach agreement you may file Consent Orders with the Court setting out that agreement, or some couples prefer to enter into a BFA. Both Court orders and a Binding Financial Agreement can be legally enforced but the Agreement does not require Court approval for it to come into force. Your individual circumstances will determine whether one option is preferable to the other. We can provide you with legal advice as to the approach which would best suit your circumstances.
Often a marriage breakdown results in a party being unable to support themselves adequately. If the primary breadwinner is no longer contributing financially the other party may be faced with undue financial burdens and may not be able to continue with the expenses required for daily living. While the property settlement is being resolved ongoing expenses such as mortgages and bills need to be paid. Under the Family Law Act spouses have a duty to support and maintain each other.
Spousal maintenance is provided for a party typically until such time as that party can support themselves. For example, it may be limited to a period of unemployment or while a party retrains for employment. It may be limited to an interim period until the party receives their entitlement under a property settlement. To receive spousal maintenance the party has to prove that they are unable to support themselves due to:
- Reasons that may impede their current ability to work (age, mental/physical disability);
- Having to care for a child of the marriage under the age of 18 or;
- Any other adequate reason.
It is necessary to prove that the other party has a capacity to provide support for the party who is seeking support.
At times it is not possible to reach an agreement on family law matters outside of the courtroom. Our experienced litigators can represent your best interests in court. We are experienced in trials, interim matters, Conciliation Conferences and all stages of the Family Law process. We do our best to ensure positive outcomes for our client as cost effectively as possible.
Family Dispute Resolution
Family Dispute Resolution (“FDR”) is a mediation style process specifically designed to assist parties to resolve their Family Law dispute without the need for a Court process. FDR can assist parties to identify areas of conflict and to reach a resolution in regards to property, parenting and child support matters.
The process involves the parties meeting with a Family Dispute Resolution Practitioner (“FDRP”) either face-to-face or via telephone. The FDRP is an impartial third party who will facilitate a conversation between the parties and assist them to generate options and reach resolutions where possible. The benefits of Family Dispute Resolution include:
- Your matter is resolved by you. This will result in better long-term solutions that are workable for both parties;
- It is a less-expensive and more efficient process; and
- FDR is conducted in an informal, confidential and non-judgmental environment which allows the parties to communicate freely.
Jacqui Minors of our firm is a qualified Family Dispute Resolution Practitioner, registered with the Attorney General’s Department of NSW. She is focused on assisting parties to reach sustainable solutions that are focused on the best interests of their children.
You can contact our firm directly if you wish to initiate FDR with your former partner.
Collaborative law, mediation and alternative dispute resolution
Collaborative family law is aimed at achieving lasting agreements and dealing with conflicts with an interest based approach. This approach is aimed at achieving the best possible outcome for both parties. Our lawyers are dedicated to resolving our clients’ problems without resorting to court action. This ensures that you choose your priorities rather than the law. Collaborative family law favours a teamwork approach with the other party and an open dialogue between both parties. Collaborative practice is best for you if:
- You want to deal with the emotional aspects of your separation as much as the legal and practical ones;
- You want the entire process to be child focused and ensure that your child’s voice gets heard;
- You want to ensure that negotiations are conducted on a confidential and without prejudice basis;
- You want to take charge of your own decision making processes and come up with you own Financial Agreement and Child Support Agreement and;
You want to negotiate in face to face meetings with the help and guidance of your lawyer.
Wills set out how a person would like their estate to be divided upon their death. If there is no Will an estate will be divided up pursuant to the laws and regulations of each state. It is important to note that a Will is revoked by a marriage but not by a separation or divorce therefore Wills may need to be amended to take account of changes accordingly.
Our lawyers can help you prepare a legally binding Will which distributes your estate according to your wishes. We can also help you amend an existing Will when new situations arise such as new children being born. A good Will minimizes taxes and the involvement of the court. Conflicts may arise if a dependant or former dependant is not included in a legal Will and our lawyers can help you determine whether you are eligible to make a claim against an Estate.