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See below for InfoSheets, Articles, and Answers to Frequently Asked Questions.

Don't miss our helpful Separation Checklist and Separation Guide.

SEPARATION CHECKLIST   

This 3 page checklist is a must read if you are recently separated. In these 3 pages, we outline 9 important things you should think about and give you a checklist of  8 practical things to do straight away.

SEPARATION GUIDE   

This 9 page guide contains information that highlights 9 issues you need to consider if you are recently separated or thinking about separation.



FAQs on Family Law

When should I see a solicitor?

You should speak to a Family Law Solicitor as early as possible.

It is a good idea to speak to a lawyer if you are thinking about separating from your partner, and certainly if you have. ‘Legal’ advice from well-meaning friends or family is not always helpful. Everyone’s situation is unique, and an experienced family lawyer should be the only person you take legal advice from.

If you see a solicitor early, you can plan ahead and make excellent decisions. If you leave it too late, you could affect your legal outcomes, miss important dates or incur unnecessary expenses.

When can I apply for a Divorce?

You need to be separated for 12 months and one day before you can apply to the Court for a divorce.

What are the grounds for a Divorce?

There has to be an irretrievable breakdown of the marriage. This is evidenced by separation of 12 months.  This is the only reason for divorce in Australia. ‘Fault’ is irrelevant.

Can I have a property settlement before my divorce is finalised?

Yes. You can begin negotiating as soon as you separate. If you have reached an agreement, you can also apply to the Court for Consent orders to formalise your agreement before you have been divorced.  You can also apply to the court for property orders before you are divorced.

Can I apply for a Parenting Order before my divorce is finalised?

Yes. You can apply to the Court for both Interim and Final Parenting Orders following separation. If you have reached an agreement about arrangements for the children, you can apply to the Court for Consent Orders to formalise your agreement.

We were in a Defacto Relationship. What happens with the children?

All children are treated the same way by the Family Law Act. It does not matter whether their parents were married or not.

I have reached an Agreement with my partner. Do I still need to see a Solicitor?

Yes. If you have already negotiated and reached an Agreement with your partner, you will save legal costs as you don’t need to pay a lawyer to do the negotiating for you. However, you still need to document the Agreement you have reached so that it is binding and enforceable. You should also check with a lawyer to make sure that what you are agreeing to is fair and reasonable and that you are not settling for less than what you are entitled to.

What range of property settlement am I entitled to?

Every case is different. The Court will determine the property division based on financial and non-financial contributions made during the marriage. The Family Law Act takes into account initial contributions as well as contributions made throughout the marriage.

Will I have to go to Court? 

No. There are many dispute resolution processes available including negotiation, mediation, conferences and counselling.

What is a Prenuptial Agreement?

Couples who are about to marry and who wish to detail and regulate their financial relationship during the marriage and in the event of death, separation or divorce, can enter a prenuptial agreement. A prenuptial agreement is a type of Financial Agreement and provided the agreement is completed correctly, it is enforceable in Court.

Parenting

Can my ex leave town with our Child/ren?

No. In order to relocate with the child/ren, your ex-partner needs your consent. If no consent, your ex-partner will need to apply to the Federal Circuit Court of Australia seeking Orders from the Court allowing them to relocate with the child/ren.

What is a Parenting Plan – is it binding?

No – a Parenting Plan is not binding or enforceable.

A Parenting Plan is an agreement in writing, signed and dated by both Parents detailing the care arrangements for the child/ren i.e. where the Child/ren will live and how much time the child/ren will spend with each parent, telephone calls, special occasions and how the parents will communicate and make decisions together about significant parenting issues affecting the child/ren. 

If you want an agreement that is binding and enforceable, you really need a a Consent Order. Consent Orders contain your agreement and become Orders made by the Family Court. The Order is made by Consent (meaning that you and your ex-partner have agreed on care arrangements for your child/ren  and have submitted that agreement to the Court) and the Court makes the 'Consent Orders'.

At what age can my child choose where to live?

There is no specific age where a child can choose where to live. This is because maturity levels and childrens' levels of understanding are different for each child. Section 60CC(3)(a) of the Family Law Act 1975  talks about children expressing views, and refers to considering the child’s maturity and level of understanding as being relevant.

What are my rights as a parent?

None. Under the Family Law Act 1975, parents do not have rights in relation to children. Parents have responsibilities, duties and obligations. It is the Children who have a right to the benefit of a meaningful relationship with both of their parents, and the right to be protected from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.

How does a Judge decide about care arrangements for my child if my ex-partner and I cannot agree?

The Judge's main focus is always 'what is in the best interests of the children'. The Judge/Court will look at the legislation and particularly S60CC of the Family Law Act and will consider many things including - 

  • the benefit to the child of having a meaningful relationship with both parents 
  • the need to protect the child from harm or from being subjected to or exposed to abuse, neglect or family violence
  • any views expressed by the child (taking into account their maturity or level of understanding) that are relevant 
  • the nature of the relationship of the child with each parent and other persons (including grandparents and other relatives) 
  • the willingness and ability of each parent to facilitate and encourage close and continuing relationship between the child and other parent
  • the effect of any changes in the child's circumstances including the likely effect of separation from either parent, another child or other person with whom they have been living
  • practical difficulties, expenses, capacity of the parents to provide for the child's needs
  • the maturity, sex, lifestyle and background of the child and their background that are relevant
  • if the child is Aboriginal or Torres Strait Islander - the child's right to enjoy their culture with others who share that culture 
  • any family violence or family violence orders that are in place
  • other things that may be relevant

Domestic Violence

What does the Court need to know to make a Protection Order?

The Court needs to be satisfied of 3 elements in order to be able to make a Protection Order. The Court assesses the facts on the balance of probabilities – which means, its ‘more likely than not” that a certain event occurred. The Court needs to be satisfied of the following:

          1. That a relevant relationship exists – the other person is a former spouse, current spouse, family member, parent/child etc.
          2. That an act of domestic abuse has occurred – you can allege 10 acts of Domestic Violence.  The Court simply has to be satisfied that one act was likely to have occurred.
          3. That it is necessary or desirable for the Court to make a final protection order.

Help! I've been served with an Application for a Protection Order - What do I do?

It is important, if you are served by the Police with an Application for a Protection Order that you seek legal advice immediately.

If a temporary protection order has been made, and you have been served with that, it is critical that you abide by the terms of that order (even if you do not agree with them). If you do not abide by the terms, you can be breached and charged with a contravention of a Domestic Violence Order.

The first time that you attend Court, you will need to let the Court know what you are doing – ie. Are you consenting without admissions; wanting to contest the Application; or wanting to adjourn (postpone) the matter to obtain legal advice.

Is a Domestic Violence Order a criminal matter?

No. It is a civil order and is not a criminal order.

If you breach the Domestic Violence Order and the breach is established in court and you are charged and convicted of a breach, it is then a criminal matter.

How long does a Protection Order stay in place?

The mandatory period for a Protection Order to stay in place is now 5 years.

Protection Orders can be varied.  They can be shortened but you must make an Application to Vary the Protection Order.

The Aggrieved or the Respondent can apply to vary the Order.  The Magistrate has to be satisfied that the variation will not be to the detriment of the Aggrieved,

 

Property

Is there a time limit for applying for a property settlement?

IF -  you were married, applications for property settlement must be made within 12 months of your divorce becoming final;

IF- you were in a de facto relationship, applications for property settlement MUST be made within 2 years of the breakdown of your relationship.

If you are unable to reach an agreement with your former spouse and you do not apply to the Court within these time limits, you will be out of time to do so.  You would then need to apply to the Court to seek permission to proceed with the Leave of the Court to file an Application for property settlement application 'out of time'. You will only be granted Leave if you can show 'hardship'. 

Do I need to document the agreement that I have reached with my former spouse about property matters? We wrote our agreement down and signed it.

Unless your agreement is documented in a Consent Order or a Binding Financial Agreement, your agreement will not be legally binding or enforceable.

If you do not formalise your property settlement in a way that is binding, your former spouse may not follow the terms of your agreement and/or might change their mind.

It is important to seek legal advice about whether you should document your agreement.  

Do I have to pay child support if I am not actually spending any time with my children?

Yes. Even if you are not spending time with your children you can still be obligated to pay child support if your former spouse has you assessed by the Child Support Agency.

What is a property settlement?

A property settlement is the division of property (assets, debts and superannuation funds) that are owned by the parties to a relationship / marriage after they separate.

What is a Binding Financial Agreement?

A Binding Financial Agreement (also called a Financial Agreement) is a written document that is signed by the parties to a relationship and their independent legal representatives. It addresses how property and financial resources (such as superannuation entitlements) are to be divided when you separate. A Financial Agreement can also address whether spousal maintenance is or isn’t to be paid to a party to a relationship after separation. A Financial Agreement can be entered into by parties to a relationship before they commence living together; during a relationship; and after the relationship ends.

What is Spousal Maintenance and am I entitled to be paid Spousal Maintenance automatically after I separate from my former spouse?

Spousal maintenance is money that is paid by one party of a relationship to the other after the parties separate and / or divorce to provide that person with financial support.

You are not automatically entitled to receive spousal maintenance. Spousal maintenance is paid to the other party from the relationship in circumstances where one party to the relationship needs financial support to help meet their reasonable living expenses, and only when the person paying the maintenance has the financial capacity to do so.

What options do I have if I am not able to reach an agreement with my former spouse about property settlement?

If you are unable to reach an agreement with your former spouse about how to divide your assets you can:

-  engage a solicitor to assist you with negotiations, if you are unable to negotiate yourself;

-  mediate with your former spouse;

- file an Application to Court and ask the Court/Judge to decide how your property pool is to be divided.  Most matters will settle without actually requiring a final hearing; or

- You can arbitrate.

 

Is it important to change my Will after I separate?

It is essential to update your Will after you separate.

If you made Wills prior to separation naming your former spouse as a beneficiary, they will inherit until you are formally divorced. If you don't want this to happen, you should make a new Will.

If you appointed your former spouse as your Executor, you may wish to appoint a new Executor as well.

It is also important to update any Binding Death Nominations that you  made with your superannuation fund.

What if I don't have a Will?

It is important that you do a Will immediately upon separation.

If you don't have a Will, once you separate, if you die, your former spouse is the first in line to apply for Letters of Administration of your Estate.  They may also inherit most of your Estate in accordance with Intestacy laws.  


Jodi Dingwall

Solicitor

Call 07 4772 5155 or use our contact form:

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Emma Donald

Solicitor

Call 07 4772 5155 or use our contact form:

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