Publications – Family Law Divorce

Unfortunately, sometimes, family relationships can have an adverse effect on your wealth position. We work in damage control to limit the effect on your wealth before it gets worse.  For women, this usually means to have financial independence. For men, this means to look at how your assets are structured.

The definition of family relationships includes spouse, de-facto; husband, wife; father, mother and subsequent marriages.  This has consequences for adopted children, half-children, step-children and blended families.

There are 3 areas of family law.

  1. Divorce
  2. Property separation
  3. Parenting

1. DIVORCE

This requires you to have been separated for 12 months, preferably at separate homes.  If during part or all of the required 12 months separation period, you and your spouse continued living under the same roof, you can still file for a divorce, but you will need to provide extra information to the Court to satisfy them that you were in fact separated during that time.

For a divorce, fault, cheating or cause of the marriage beak-down are no longer relevant elements of divorce.  The only ground necessary for divorce in Australia is the “irretrievable breakdown of the relationship” which means that your marriage has broken down and it is not likely that you will get back together.

We can apply to the court for an order that you are divorced.  You are able to re-marry once this has been granted. This also has implications for your Will.

Where both parties agree on the facts and there are no children under the age of 18 years old, there is no need to go to court to obtain a divorce.

2. PROPERTY SEPARATION

This is the most contentious area and the reason why most people end up in court.  We will always attempt to resolve the property separation before it gets to court.

We can begin to help you with getting for you what is ‘Just and equitable’.  This can begin now.  There is no need to wait for 12 months.  However, this must happen before 12 months after divorce.  So, some people file for divorce to exclude the other person from a property separation settlement.

Who gets what?  The ‘asset pool’ is the current market value of all assets and liabilities owned by both parties.  This is split between the parties.

The split begins at the position of 50 – 50 each.  Then, other factors are considered which may increase the percentage of the split.

Properties which were acquired prior to co-habitation may be excluded from the asset pool.  However, details of valuations at the time of co-habitation may be required.

Loaned monies are not considered as part of the asset pool.  Usually, a signed – written loan agreement is required.

The court can take into account money held in companies and family trusts.  It will also consider superannuation held only in one person’s name.

One way to achieve a good outcome is by agreement.  If both parties agree, a proposal for the agreement can be made to the court.  ‘Consent orders’ can be prepared and signed.  It does not have to be heard in open court if everyone – you, the other party and the court – agrees.

If after trying, agreement cannot be readily obtained, a court process will be necessary.  One of the first steps with court is that the court will require mediation.  This is a real opportunity to be able to settle the matter on mutually agreed terms.

Mediation is where you with us and the other party with that person’s lawyer and the mediator are all together in one room and only the lawyers take turns in speaking with the mediator.  The mediator is an experienced person in family law who helps the parties to try to settle the matter to avoid costs and emotion of continuing.

Open court means that you may need to accompany us to the court building maybe 15 times over 18 months for lots of little decisions before the day of the final court hearing.  A little decision or administrative decision may be about how mediation will be conducted or whether you are allowed to see the other party’s medical file or financial documents.  This is the process of ‘discovery’ to find out about and verify the other party’s financial position.

The final court hearing is what less than 5% of people experience.  Most cases are settled at mediation or just prior to the final hearing.

3. PARENTING

Who will have the primary responsibility of the children?  A Father may want to ‘spend some time’ with his children.  Particular schooling and activities will be considered.  What is in the ‘best interests of the children?  The proportion of time spent with the children between the parents will often equate to the proportion of the split of the asset pool.

We know that every situation is different. Call us or email us to organise a phone or video conference so we can discuss your particular circumstances and determine how we can help you achieve what is ‘Just and equitable’.