Family Law
Relationships can be challenging, even when they are intact. But a breakup, whether you are married or in a de facto relationship, can be extremely difficult with a range of complex issues to navigate. We can steer you through the legal issues of divorce and separation, providing advice and guidance to help resolve your matter and put you in the best position possible to move forward with your life. We can help you with:
- Divorce applications
- Property settlements
- Children’s matters
- Binding financial agreements
- Consent orders
- Spousal maintenance and child support
- Mediation and family dispute resolution
Divorce
An application for divorce can be made to the Federal Circuit and Family Court of Australia if a marriage has irretrievably broken down. It does not require the consent of both partners, although you must have been separated for 12 months before making the application. Separation does not necessarily require you to live in separate residences and the court will take your circumstances into consideration. If you have children under the age of 18, the court will also need to be satisfied that proper arrangements have been put in place for their care.
A divorce order is not required before formalising a property settlement or putting in place parenting arrangements. However, once a divorce is granted there is a twelve-month limitation period within which to bring court proceedings for a property settlement or spousal maintenance.
De Facto Relationships
De facto couples can also 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.
For de facto partners, any court proceedings for a property settlement must be commenced within two years of separating.
Dividing Property after Separation
Many family law matters can be settled without the parties having to go to court which in most cases, should be a last resort.
If you and your ex-partner are on good enough terms to sort out your financial affairs, that’s great. Even so, we recommend that you at least formalise a private agreement by putting it in writing, consistent with the Australian family law system, so it can be enforced through the Federal Circuit and Family Court of Australia. We can help you negotiate and formalise a property settlement with your ex-partner.
What is included in a Property Settlement?
All of a couple’s assets are included in a property pool, including assets that are owned individually by each person. The law supplies a formula for how to fairly divide this property pool. It is important to know that “fair” does not necessarily mean “equal”. The law looks at what each person:
- brought to the relationship;
- contributed during the relationship; and
- will need in the future.
It is important to know that “contributions” to a relationship are not just from paid employment. Family law recognises that domestic contributions (whether this is childcare, household duties, or emotional and social support) are critical to the achievement of financial goals. Your solicitor will be able to give you a good estimate of what percentage of the total property pool you should seek.
Binding Financial Agreements or Consent Orders
It is possible to contract out of some of the rules of the family law system. For instance, you can enter into a financial agreement with your partner (often referred to as a binding financial agreement, BFA, post-nup or pre-nup). As the names suggest, they can be made before or during a relationship or after a relationship breaks down.
A financial agreement made before or during cohabitation may be useful for couples who already have significant assets when they meet or who need to protect the interests of existing children or dependents (from a previous relationship). However, if your agreement is not carefully drafted it may be impossible to enforce.
After a relationship has already broken down, you may be better off having consent orders prepared and filed with the court. Consent orders must be approved by the court and once approved, are legally binding. The application requires full disclosure by both parties and the orders will be granted if the court considers them just and equitable.
Parenting Arrangements
The focus of the parenting rules in the family law system is the “best interests” of the child. The law starts from the presumption that it is best for a child to have an active relationship with both parents. There is no concept in Australian family law of parental “rights”, only of parental “responsibilities”. There is also no such thing as “custody” of a child, only their “care”.
Family law starts from the premise that a child should have an active relationship with both parents. Because both parents have “equal and shared” responsibility for their child, equal time might be spent with each parent. Even if equal parenting time is not practical, it is still expected that a child will spend significant time with each parent.
The presumption that a child should have an active relationship with both parents can be rebutted by circumstances such as significant domestic violence or severe substance abuse in the home. However, it is important to know that even when these circumstances exist, a court is unlikely to make a no contact order. Contact may be supervised or otherwise made safe for the child (such as restricted to telephone), but it is extremely rare for a court to sever all contact between a child and their parent.
If you need assistance, contact one of our lawyers at [email protected] or call 07 4063 5900 for expert legal advice.