Divorce 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 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 … Continue reading Services