All your questions answered - with a little help from our Ambassadors, Franki & Bronti.
In Family Law, there are always some questions which are frequently asked and which we believe the answers to should be readily available to the public. Most importantly - these should be free.
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What time frames should I be aware of in Family Law?
There are many time frames that are many potential time frames which you must be aware of. It is very important that you see a solicitor to ensure you are properly advised as to the time frames which may be relevant in your matter.
The below are only some of the potential time frames which may be relevant to your matter:
De facto relationships – The limitation period for filing an application for property settlement or maintenance arising from a de facto relationship is two (2) years from the date of separation.
Divorce – There is no time limit by which an Application for Divorce must be brought, however, no Application for Divorce can be brought unless there has been a period of 12 months of separation between the parties. That period of separation may be under one (1) roof.
Property settlement – The limitation period for bringing an application for property settlement for couples that have been married is 12 months from the date of divorce, however, an application can be brought at any time prior to this date and after separation.
Spouse maintenance – The limitation period for bringing an application for spouse maintenance is identical to that for property settlement for married couples. Any application should be brought within 12 months of divorce, but maybe brought at any time prior to that date and after separation.
Appeals – The limitation period for bringing an appeal of any Order of the Family Court or Federal Magistrates Court may vary depending upon the type of Order to be appealed or reviewed. Some Orders require an appeal or review to be lodged within seven (7) days and others within twenty eight (28) days of the making of the Order. If you require further information in relation to appeals or reviews please contact us to discuss your situation.
I want to separate – what do I have to do?
There are no formal requirements that you need to satisfy in order to separate.
Essentially separation will occur when you or your spouse intends to end the relationship, that party has communicated their intention to the other party and one of the parties act on that intention i.e. living separate lives under the same roof or moving out of the house.
Do I need a Family Lawyer?
Some families manage their way through the legal process after separation without any formal legal advice. Whether you need a Family Lawyer really depends on how difficult your situation is and what is at stake. However it is always strongly recommended that you should always get independent legal advice about your situation so you can make informed decisions and fully understand the implications of anything you agree to or sign regarding your children or your finances.
The checklist below may help you decide whether you need a lawyer to help you.
Has your former spouse retained a lawyer?
Do you feel that you are may not be emotionally prepared to handle the negotiations yourself?
Is there a power imbalance between you and your former spouse i.e. did they control all the finances whilst you were together? Are you uncertain as to what assets you have?
Are you aware of your rights regarding a property settlement or regarding the time you are to spend with the children?
Are you uncertain as to what you are entitled to?
Has there been domestic violence during the relationship or after separation? Remember domestic violence is not just physical violence; it can be emotional or even financial starvation.
Is there likely to be a disagreement over who is to retain what?
Are there Companies and/or Trusts involved?
Is your former spouse likely to want to move interstate, overseas or far away with the children?
Are you transferring assets between yourselves and require assistance in obtaining exceptions from the payment of stamp duty, capital gains tax or other potential taxation relief?
Are you time poor and just do not want to have to deal with finalising anything?
If you have answered ‘yes’ to any of the above questions, you are likely to benefit from legal advice. Get in touch with us →
I don’t think that I can afford a solicitor – where can I get free legal advice to see what I can do?
If you feel that you cannot afford to see a private practitioner, there are organisations that can provide free legal advice. You can find them over on our Helpful Links & Contacts page, here.
What happens at our first consultation together?
What can I get divorced?
You can only obtain a divorce once you and your former spouse have been separated for 12 months and 1 day.
Do I have to prove that someone did something wrong before I can get Divorced?
No. There is only one ground for divorce, which is that spouses must be separated for 12 months and 1 day. If you have been married for less than two years, counselling is required before the Court will grant a divorce.
Can I apply for a Divorce even though we still live in the same home?
Yes you can. There are however you will need to supply extra information to the Court.
To find out more about divorce and what constituted separation under one roof and what further information you are required to file - Contact Kate and our team to arrange a consultation
Can I date whilst going through a Divorce/property settlement?
It is completely up to you! There is no legal reason or restriction why you cannot. We would however recommend you end your existing relationship before commencing a new one.
What if I move out – does this affect my rights?
No, it does not. You do not forfeight any rights to a property settlement or to your children. However, if you are safe it is suggested that you remain in the same house as long as possible until a property settlement is finalised.
We have separated – What happens to our children?
irstly, there is no automatic rule that the children should live with either the mother or the father following separation.
It is always encouraged for you and your former spouse to try and come to an agreement regarding the care arrangements for your children.
There are community based services that can assist you and your former spouse to reach an agreement, such as Family Relationships Centre and Relationships Australia. Or even private counselling/mediations.
As each family dynamic is different there is ‘one glove fits all’ answer. And the more you and your former spouse can agree on your children’s care arrangements, the better it will be for everyone, especially the children.
However there are occasions when you and your spouse will not be able to come to an agreement and it may be necessary for you each to seek legal advice as to your parental rights when it comes to where the children are to live, who the children are to live with and the time that you are able to spend with the children.
What does the Court take into account when determining what is in our children’s best interests?
There are 14 factors/considerations a Court must take into account when deciding what is in your children’s best interests. Those factors/considerations are found in S60CC (2) and (3) of the Family Law Act and are:
the benefit to the child of having a meaningful relationship with both of the child’s parents;
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
the nature of the relationship of the child with:
each of the child’s parents; and
other persons (including any grandparent or other relative of the child);
the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
either of his or her parents; or
any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
the capacity of:
each of the child’s parents; and
any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
if the child is an Aboriginal child or a Torres Strait Islander child:
the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
the likely impact any proposed parenting order under this Part will have on that right;
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
any family violence involving the child or a member of the child’s family;
any family violence order that applies to the child or a member of the child’s family, if:
the order is a final order; or
the making of the order was contested by a person;
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
any other fact or circumstance that the court thinks is relevant.
Do I automatically receive Child Support now that we have separated?
No. You will need to go to the Child Support Agency (CSA) to seek an assessment to be made. There are other options available if you and your former spouse agree not to go through the CSA, such as a private agreements. However it is always worthwhile contacting the CSA to see what your rights are regarding Child Support.
How much Child Support do I have to pay (or receive)?
The amount of child support that you will have to pay is based on a formula and will depend on certain factors such as your income, the other parents’ income, the ages of the children and the amount of time that they live or spend time with each of the parents.
The Child Support Agency (CSA) has an online calculator that you are able to use to obtain an estimate of the likely amount of Child Support you will have to pay (or receive).
The other parent is the same sex as me – am I still entitled to Child Support payments?
Yes you are. Since 1 July 2009 same sex couples are able to apply to the CSA to obtain a Child Support assessment when they separate, if they are recognised as parents under the Family Law Act 1975 (the Family Law Act).
If you are uncertain as to whether you are recognised as a parent under the Family Law Act, please do not hesitate contacting us to arrange a consultation.
Do I need a prenuptial agreement?
The answer to this question will depend on your individual circumstances.
The checklist below may help you decide whether you need a prenuptial agreement.
Do you have assets such as a home, shares or cash reserves?
Do you own all or part of a business or Company?
Do you anticipate receiving an inheritance?
Do you have children and/or grandchildren from a previous relationship?
Are you much wealthier than your spouse?
Have you or are you obtaining a degree or license in a potentially well paying profession such as medicine?
Do you anticipate a large increase in your income because your business or Company is taking off?
Have you inherited a Family asset, such as a farm or Family run business or Company?
Is your spouse bad with money? (You may want to protect yourself from their debt!)
Are you giving up a career or well paying job to get married?
If you have answered ‘yes’ to any of the above questions, you are likely to benefit from entering into a prenuptial agreement.
Is there a difference between a divorce and a property settlement?
Yes there is.
A Divorce is the legal severance of your marriage. It can only be obtained once you have been separated for 1 year and 1 day.
A property settlement is the financial severance of your relationship. A property settlement can be done at anytime.
Do I have to wait until I am divorced before I can do a property settlement?
No you don’t.
In Australia a divorce and a property settlement are two different separate matters. You can do a property settlement the day you separate – a property settlement is not dependent upon you divorcing.
What does a court look at when making property orders?
The Court adopts a four (4) step process when determining each parties entitlements to a property settlement. The four (4) step process is as follows:
1. Identifying and valuing all assets, liabilities and financial resources
The property that is to be taken into account is all property in existence at the time of agreement – not at the date of separation. This includes such things as bank accounts, houses, investment properties, shares, boats, tools, jewellery, superannuation benefits, credit cards, personal loans, interests in Companies and Trusts.
Once you have identified all the property, you and your former spouse must then agree on a value or if you cannot agree, have valuations obtained so that you are able to determine the proper value of each item of property.
It is important to remember that all interests and types of property must be identified and valued in this first step regardless of when that property came into existence or how it came into existence. For example, even a lottery winning two (2) weeks after separation needs to be still identified and valued and included in this first step.
2. Assessing the contributions of both you and your former spouse
Under this second step, the Court must assess and evaluate both parties’ contributions throughout the relationship towards the acquisition, conservation and improvement of property. Contributions can be both direct and indirect and they can also be financial and non financial. Contributions also include contributions to the welfare of the family and contributions as a homemaker and a parent to children throughout the relationship.
In most cases, the Court takes a very general or broad brush approach to the assessment and evaluation of these contributions. There are exceptions to this, but generally, the Court does not look at the detailed minutia of the contributions by each party throughout a long marriage.
When looking at the contributions of each party, the Court will take into account any period of cohabitation prior to marriage.
3. Assessing the future needs of both you and your former spouse
Here the Court must decide whether there is any future disparity between the parties. The Court in making this decision must examine the various factors as set out in Section 75(2) of the Family Law Act.
Some of these factors in Section 75(2) include factors relating to your current age and health, your current and future income earning potential and capacity and whether either of yourself or your former spouse have the care of any children under the age of 18 years.
Generally, if one party is worse off than the other party when comparing the Section 75(2) factors, then the Court may make an adjustment in that parties favour by giving them a greater percentage of the property pool available for division to assist them in moving forward.
4. The ‘fairness’ test
Under this final step the Court looks at its assessments in Steps two (2) and three (3) above and asks itself the question as to whether the percentage division based on contributions (having regard to the nature and value of the assets identified in Step One) is a just and equitable order – in other words, it is fair.
Please remember that each case is different and the outcome will be dependant on your inidividual and specific facts.
I have substantial superannuation – does my partner automatically receive half of this?
There is no automatic right that your superannuation (or your former spouses for that matter) be divided equally – this is dependant on the facts of your case. Your superannuation is considered an asset and will be taken into account in any property settlement.
All superannuation is considered in a property settlement — not just superannuation that accumulated during a marriage – superannuation accumulated before and after the relationship will also be taken into account.
There are different ways a Court will deal with superannuation and this is a complex area of law. It is recommended that you seek legal advice and obtain appropriate valuations of the superannuation interests, particularly if the superannuation relates to a defined benefit fund such as a Commonwealth or State Public Service superannuation fund.
If your former spouse is the nominated beneficiary of your superannuation entitlements you may want to contact your superannuation fund and change the nomination.