Family Law FAQ's

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1. What happens at my first consultation?

During your first consultation we will discuss your situation, needs, concerns and answer any questions you may have. We will also talk to you about how we can help you to reach a cost effective and timely resolution of your family law matter. We will aim to provide you with a preliminary advice during your first consultation about what your options are and how best to proceed with the future conduct of your matter.

It is helpful for us if you can bring to your first consultation (where appropriate):

• Your Marriage Certificate or a copy of it.
• Any letters or Court documents that you have received.
• Details of your children including birth dates, schooling, etc.
• Details of your assets and liabilities including supporting documentation such as recent bank statements, superannuation statements and tax returns.
• Your child support assessment.
• Details of any purchase and sale of real estate or other significant asset, during your relationship.

If you have any queries regarding what documentation to bring to your first consultation please contact us prior or alternatively it can be discussed at the first consultation.

2. What is a Divorce?

A divorce is the dissolution of a marriage. Either party to a marriage can apply for a divorce, either separately or jointly if you have been separated for 12 months or longer. This does not necessarily mean that you must have lived at separate locations for the entire 12 month period. It is possible to be separated under the same roof.

Once the Divorce Application is completed, it must be filed with the Federal Magistrates Court and served on your spouse.

If you have children under the age of 18 years the Court requires that proper arrangements have been made for their welfare including details as to the children’s living arrangements, education, health and financial support. One spouse, more commonly the applicant, must be present at the hearing if there is a child under 18 years of age.

Once the Court is satisfied that the grounds for a divorce have been met it will make the Divorce Order. This Order will become absolute after one month and one day and a Divorce Certificate will be issued. Once your Divorce has become absolute you only have one year in which to apply to the Court for an Order for a property settlement.

3. What is a property settlement and how are assets divided?

There is no requirement that you must be divorced before finalising your property settlement. A property settlement can be commenced and indeed finalised at any time after separation. In circumstances where you agree on the terms of the property division with your spouse, your agreement can be formalised by the Court via Consent Orders outlining the terms of the agreement. This means there is no need for you to physically attend the Court.

If you cannot reach an agreement with your spouse an Application for property orders can be made to the Court. There is no presumption that the Court will divide your assets on a 50/50 basis. There are many considerations that the Court takes into account when deciding upon what is in the circumstances a just and equitable property settlement.

In deciding how the Court will distribute the assets between the parties the Court will follow a four step process:

(i) The net value of all assets and liabilities is established. This includes superannuation entitlements.

(ii) Considers contributions that have been made by both spouses during the marriage including not only financial contributions but also those made on a domestic basis.

(iii) Considers any future needs that you or your spouse may have by examining the age and health of each party, who has care of the children and the respective income earning capacities of you and your spouse.

(iv) Finally the Court will attempt to ensure that the decision they reach is just and equitable in the circumstances.

4. What if I have not been married but need a property settlement?

Defacto property laws are dealt with by each State rather than under the Family Law Act 1975. The principal difference between a property settlement in a defacto matter and in a marriage is that in a defacto matter the Court will predominantly consider the financial and non-financial contributions of both you and your defacto spouse. In New South Wales for example it is normally necessary to demonstrate that you and your defacto spouse have lived in a defacto relationship for at least two years.

5. What about my children?

Similarly to property matters, the Family Court strongly encourages parents to reach an agreement in relation to the long term care of their children. Such agreement can be formalised by the Family Court with Consent Orders. Regardless of whether you are married or not the Family Law Act still has jurisdiction over matters relating to children.

If an agreement cannot be reached an Application can be made to the Court for a Parenting Order. Before an Application is made to the Court, both you and your spouse must attend Family Dispute Resolution in order to attempt to resolve disputes concerning the children. The Court recognises that a) both parents should be involved in the decision making process regarding issues that effect their children; and b) that children benefit from having a meaningful relationship with both of their parents.

There are many factors that the Court takes into account when deciding upon who the children will live with and how much time the children will spend with the non-resident parent. However the Court always considers the best interest of the child having regard to a number of factors that are set out in the Family Law Act.

6. Can my children decide who they want to live with?

There is no specified age upon which the Court considers a child is old enough to decide which parent he or she would like to live with. The Court will however give consideration to the age and maturity of the child when the child’s wishes are expressed.

7. Should I change my Will if I separate from my spouse?

Your Will should reflect your current intentions and it is therefore advisable that if you and your spouse do separate that you amend your Will. If you do not have a Will then we recommend that one should be obtained.

8. What is a Financial Agreement?

Financial Agreements (including Prenuptial Agreements) ultimately provide for how assets are to be divided should the relationship breakdown. You can enter into a Financial Agreement either before you are married or during the marriage.

There are many advantages of entering into a Financial Agreement however you must realise that under no circumstances can either party contract out of any liability to pay child support or deal with arrangements for children through the use of a Financial Agreement.

For further information in relation to Financial Agreements or any of the topics raised above, please contact one of our experienced family lawyers.

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