There is much to consider when a relationship breaks down. Even if you separate on reasonable terms, you will need to formalise your financial affairs and arrange for the future care of any children. For some the road ahead is rockier than for others. We are experienced family law professionals providing a full range of family law services. We can support you through this difficult time – helping you sort your legal, property and parenting issues to deliver the best possible outcome for you and your family.
Tips for when you separate
- Keep the best interests of your children in mind and try to put differences aside. If possible, children should benefit from a meaningful relationship with both parents.
- Prepare a list of assets and liabilities – property, shares, investments, bank accounts, superannuation, mortgages, and loans.
- Obtain originals or copies of important documents such as passports, marriage certificates, birth certificates and insurance policies.
- Keep written records of timelines and events, for example, the date of separation, etc.
- Ensure that property (your home, other real estate, motor vehicles, boats, etc.) remains insured.
- Update passwords and login details for email and online accounts, social media platforms, etc.
- Contact your bank to discuss any concerns regarding loan repayments, credit cards and joint accounts or any other aspect of your everyday banking.
- Get legal advice to protect your interests. Even couples who separate on good terms should get independent legal advice to ensure their rights are protected and a reasonable outcome can be obtained. Informal agreements are generally not binding and cannot be enforced.
Settling your financial affairs
If you are married, you do not have to wait until you are divorced to divide your property and facto couples are also eligible for property settlements under family law legislation. Note however, the following time limits:
- for de facto partners, any court proceedings for a property settlement must be commenced within two years of separation;
- after a divorce is finalised, there is a twelve-month limitation period within which to bring proceedings for a property settlement or spousal maintenance.
Most family law property settlements are finalised out of court with the assistance of the parties’ legal representatives. If you and your ex-partner have agreed on how things should be divided between you, negotiations can be finalised through a financial agreement or consent orders.
A financial agreement (known also as a binding financial agreement) is a written contract between the parties that formalises the division of their property without intervention of the court. This document can be entered into at the beginning, during or at the end of a relationship. You may have heard these documents being referred to as “Prenup” at the beginning of relationships. Generally, when a relationship is in the early stages, it’s all roses so to speak. However, if one person has significant assets then it may be worth looking to protect those assets from the beginning of the relationship. This can save stress and legal costs if the relationship breaks down. To be valid, the agreement must comply with certain formal requirements and both parties must receive independent legal advice before signing the agreement.
Consent orders are filed with the court and are generally considered a more formal approach to finalise your property affairs. The parties must make full disclosure in their application and, if the court believes the proposed orders are just and equitable, they will be granted and made legally binding. You do not need to attend court however it is important to receive legal advice before agreeing to consent orders.
Getting a divorce
Australia has a no-fault divorce system. Generally, a divorce order will be granted if you can show that you and your ex-partner have been living separately for twelve months and there is no likelihood that you will get back together. Despite the requirement to be ‘living separately’, it is recognised that for various reasons, separated couples may continue to reside at the same premises. You should discuss any such arrangements with your lawyer when preparing the application for divorce.
If you and your ex-partner have children under the age of 18 years, the court will need to be satisfied those proper arrangements are in place for their care.
Arrangements for your children
Children’s matters cover a range of issues including who a child will live and spend time with, who will have parental responsibility for the child, how a child will communicate with a parent when they are not in their care, and matters relating to health care or education.
It is beneficial if parents can come to an agreement between themselves about the ongoing care of their children. This can be informal, although it may be best to have these arrangements set out in a parenting plan or consent orders which are filed with the Court.
A parenting plan is a written agreement documenting the arrangements agreed between the parties. A parenting plan can be registered with the court but is not legally enforceable.
Parenting orders are legally enforceable. They can be made between the parties by consent and filed with the court. Alternatively, when parties cannot agree on parenting arrangements, the court will determine the parenting orders.
Going to Court
If you are unable to reach an agreement regarding your family law issues or the matter is urgent, an application may be filed with the Federal Circuit and Family Court of Australia. The matter will be set down for hearing and a legally binding decision will be made by the court.
In most cases, the court will need to be satisfied that you have attempted to reach agreement before proceeding and you will need to participate in dispute resolution. For parenting matters, unless extenuating circumstances exist, attending Family Dispute Resolution is compulsory before commencing court proceedings.
When determining property matters the court will consider and weigh a range of factors. The steps involve an assessment of:
- the property pool – the parties’ assets, liabilities, and financial resources
- the parties’ respective direct and indirect financial contributions
- the parties’ non-financial contributions to the relationship
- the parties’ future needs, considering their relative earning capacities, state of health, education, and responsibilities as primary carer of any children
- a just and equitable outcome when considering all the circumstances
Under family law legislation, all decisions about parenting arrangements must be made in the best interests of the child. The primary considerations in deciding what is in the best interests of a child are the benefit of the child having a meaningful relationship with their parents, and the need to protect a child from harm. Greater consideration is given to the need to protect children from harm.
Shared parental responsibility means that parents are required to consult each other regarding long term decisions for the child. There is a presumption that shared parental responsibility is best for the child, but this will not always be the case.
Shared parental responsibility does not necessarily mean that the children will spend equal time with each parent. The law ensures that the best interests of the children are served first, and a range of factors must be considered.
The stress of a relationship breakdown can make it difficult to work through the legal, practical and financial issues that lie ahead. We will listen to your circumstances and deliver clear advice in plain English.