When family disputes or relationship breakdowns occur, it is wise to talk to someone who can advise and guide you through the various processes and legal effects of separation. We can help with all aspects of family law property and parenting cases, including:
- Divorce and annulments
- Property settlements
- Binding Financial Agreements
- Consent orders
- Parenting arrangements
- Changing of names
- Airport Watch List Applications
- Legal Aid matters
In Australia, you can apply for a divorce if your marriage has broken down ‘irretrievably’. Generally, you must have been separated for at least 12 months and, where there are children under the age of 18 years involved, you will need to show the court that proper arrangements have been put in place for their care.
The court recognises that there may be reasons why couples choose to live under the same roof, despite their decision to separate. This could be for practical, financial, religious, cultural, or other reasons. Accordingly, in some circumstances the 12-month requirement may include a period of separation under the one roof.
What is a Family Law Property Settlement?
A property settlement concerns the division of assets, liabilities, and financial resources between a separated couple to legally finalise their financial affairs. Formalising a property settlement enables you and your ex-partner to move on with your respective financial lives and may also allow access to certain stamp duty concessions when transferring assets like real estate. You do not need to be divorced before finalising your property affairs.
What Steps are involved in Dividing Property?
The division of assets after separating can be formalised through a financial agreement, consent orders or court proceedings, with most family law property settlements finalised without having to go to court.
When negotiating how property should be divided after a break-up the same steps that a court would take are generally applied. These are:
- identifying the parties’ assets, liabilities and financial resources;
- assessing the parties’ respective financial and non-financial contributions;
- evaluating the parties’ future needs including their relative earning capacities, health, education and responsibilities as primary carer of any children;
- making just and equitable orders in consideration of all circumstances.
If your relationship has broken down and you and your ex-partner have agreed on how your property should be divided, you may enter into a financial agreement (also known as a binding financial agreement or pre-nuptial agreement). Financial agreements can also be made before or during a marriage or de-facto relationship to determine how property will be divided if the relationship ends.
To be legally enforceable, certain requirements and formalities must be met. Once a verbal agreement has been reached, the parties must each receive independent legal advice from a lawyer and sign an acknowledgement that they are aware of their rights and obligations under the agreement.
Generally, one party’s lawyer will prepare a draft agreement based on the negotiations, which is sent to the other party’s lawyer. Once any amendments are made and the agreement settled, they are signed with the appropriate acknowledgements by each party and their respective legal representatives.
Under the right circumstances and provided the formalities are complied with, financial agreements can be a less formal and cost-effective solution to dividing property.
It may be preferable for separating couples to have an agreement for the division of property endorsed by the court through consent orders. This is more formal than preparing a financial agreement because the court will need to approve the orders proposed.
The application for consent orders must include full financial disclosure by both parties and the court will only approve the order if, on the information provided, it is just and equitable to do so.
Consent orders are only used after a relationship breaks down and, unlike financial agreements, can include parenting matters. Accordingly, if separating couples need to have an agreement in place regarding both financial and children’s matters, consent orders will usually be more appropriate.
We can advise on the most suitable way to finalise your property affairs in your circumstances and prepare the necessary documents for you. We will attempt to make the process as simple and cost-effective as possible whilst ensuring your rights are protected and that you receive a fair and reasonable distribution.
In determining matters relating to children the law requires that the parties attempt to resolve any disputes through dispute resolution services, unless extenuating circumstances apply. The overriding principles considered with respect to parenting arrangements are that the best interests of the child are paramount, and that:
- children should have the benefit of a meaningful relationship with both parents;
- children should be protected from physical and psychological harm and harm resulting from being subjected to family violence;
- children should receive parenting conducive to them achieving their full potential;
- unless a child is at risk, parental responsibility should be equally shared and children should have the right to spend time on a regular basis with both parents;
- parents should co-operate in determining what is best for the children rather than fighting in court.
A parenting plan is an agreement made between parents regarding the ongoing and future arrangements for children, and may be made before or after divorcing. Parenting plans are not legally enforceable however may be taken into account if one of the parties subsequently applies to the court for an order to vary the parenting plan.
Consent Orders – Parenting
A consent order is a legally binding agreement with respect to parenting arrangements and can also include terms regarding the division of property. Consent orders are made after agreement by the parties without the need to attend court, however they have the same force as an order made after a court hearing.
Going to Court
If agreement cannot be reached regarding parenting issues we may need to apply to court for the appropriate orders.
In such cases there are many factors to consider in determining the future care and responsibility for the children. In addition to the principles already outlined, the court may consider the extent to which a parent has or has not fulfilled their responsibility towards a child or embraced the opportunity to do so. The impact that proceedings may have on a child is always considered and cooperation between the parents is fostered with as little formality during proceedings as possible.
Separating from a spouse or partner can be traumatic with many practical and financial considerations. A break-up places stress on the emotional wellbeing of all parties and their decision-making capacity – getting advice early is important to ensure the best possible outcome is reached for you and your family.