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Divorce & Separation FAQ's

Property Issues

My partner and I have separated. What am I entitled to in the property division?

If a married couple or defacto couple separate, there are a number of steps that must be followed in order to determine a just and equitable property division for both parties.  These steps are as follows:

  • The nature of the property pool must be established.  The pool includes all the parties’ assets, liabilities and financial resources.  This step involves full and frank financial disclosure by each party and obtaining valuations on some assets such as houses, superannuation accounts and businesses;
  • The parties’ financial, non-financial and homemaker contributions to the relationship are assessed. This includes an assessment of inheritances and gifts received by either party from a third party;
  • The parties’ future needs are assessed by comparing. among other considerations, the income disparity between the parties, the primary care of children and medical issues that will affect a parties’ earning capacity;
  • There may be further considerations to ensure a just and equitable division for both parties.  A Court will not make Orders or sanction a parties’ agreement unless the court is satisfied that it will effect a just and equitable property division.

For married couples, applications to the Court for property division must be made within twelve months of the divorce becoming final. For defacto couples, applications to the court for property division must be made within two years of separation. Later applications require special leave from the court which is not always granted.

What is a defacto relationship?  

A “defacto relationship” is defined in the Family Law Act 1975 (Cth) as a couple living together on a genuine domestic basis, who are not related by family and who are not married.  A defacto relationship can exist between a man and a woman and between two people of the same sex.  The Family Law Act 1975 (Cth) recognises that a party could be in multiple defacto relationships or that a person who is married could be a party to defacto property proceedings.

If you were in a defacto relationship and you separated before 1 March 2009, then the parties’ property division would be dealt with under the State legislation (for Queensland - Part 19 of the Property Law Act 1974 (Qld)).  Property division is to be dealt with under the Family Law Act 1975 (Cth) in the instance of any defacto couples who separated after 1 March 2009.

What happens to our supperannuation following separation?

Superannuation is included in the property pool of assets, liabilities and financial resources available for distribution in a property division. As part of your property division, you can obtain a Court Order by which one party’s superannuation is split and placed into the other party’s superannuation fund.  Splitting superannuation does not convert into ready cash as it is still subject to the superannuation laws (e.g. you cannot access the superannuation funds until you reach retirement age). Prior to obtaining a Court Order in relation to superannuation splitting, the trustee of the relevant superannuation fund must be informed of the Order you intend to seek from the Court and the trustee must be given the opportunity to agree or disagree with the proposed Order.

Can I stay in the matrimonial home after separation?

Upon separation, some parties agree to both remain living in the matrimonial home.  They live separately under the same roof so that they can both maintain the mortgage and the other matrimonial expenses and responsibilities until a final property settlement can be determined.

Usually, however, one party will leave the matrimonial home upon separation.  If you are the party leaving the home, it does not mean that you have lost your entitlement to the home or any other matrimonial assets.  Decisions will need to be made with regard to paying the mortgage and other household expenses until property division is finalised. If you decide to leave the home, you should ensure that you take your personal and financial documents, including bank documents, superannuation documents, cheque books, passports, marriage certificate and any other items that have meaning to you.

What if my spouse and I reach agreement in relation to the division of our property?

If parties can reach agreement in relation to property division, we advise that this agreement should be formalised by way of Consent Order or Financial Agreement. 

Consent Orders have the same effect as any other order made by a court. Before the court will sanction a Consent Order, the parties must demonstrate to the court that the agreement is just and equitable (when seeking property Orders) and in the best interests of children (when seeking children’s Orders).  Consent Orders will finalise your property and/or children’s matter.  Since it can be difficult to change final orders, you should always obtain independent legal advice prior to signing any Consent Orders.

Parties to a marriage or defacto relationship can enter into Financial Agreements to formally finalise their property division. A Financial Agreement signed by the parties at the conclusion of a relationship can set out how assets and financial resources are divided and will deal with the spousal maintenance and other relevant issues. Financial Agreements can also be made before and during a relationship (such as a pre-nuptial agreement). Since Financial Agreements are not sanctioned by the court, there are a number of steps that need to be followed to ensure that the document will have legal effect, including the following:

  • Both parties must sign the document;
  • Both parties must obtain independent legal advice on how the agreement will affect their rights and the advantages and disadvantages of entering into such an agreement;
  • Both legal practitioners providing the independent legal advice to the parties must sign a certificate attached to the agreement.

Am I entitled to spousal maintenance?

Under the Family Law Act 1975 (Cth), parties have a duty to support and maintain each other following separation or divorce. Spousal maintenance is the provision of ongoing financial support by one party for their former spouse or defacto partner. Whether spousal maintenance is appropriate in your circumstance will depend on whether one party is unable to adequately meet his or her own reasonable needs and the other party has the capacity to pay. Spousal maintenance can be paid by way of regular payments or lump sum payment.  Spousal maintenance issues should be resolved when finalising your property settlement.

For married couples, applications to the court for spousal maintenance must be made within twelve months of your divorce becoming final. For defacto couples, applications to the court for spousal maintenance must be made within two years of separation. Later applications require leave from the court, but this is not always granted.

 

Children's Issues

My partner and I have separated.  Are we required to participate in mediation in relation to where the children live?

Prior to making an application to the court for the resolution of children’s issues, both parents are required to make a genuine attempt to reach agreement in relation to parenting arrangements. A genuine attempt to reach agreement includes the parties attending dispute resolution with a registered family dispute resolution practitioner.  If the parties reach agreement, then the parties have the opportunity to enter into a parenting plan or Consent Orders.

Should the matter remain unresolved after family dispute resolution, a Section 60I Certificate can be issued.  This Certificate must be filed with any children’s issues application to the court. However, in certain circumstances, the court may grant you an exemption from participating in family dispute resolution.  These circumstances include urgent matters and matters involving child abuse and/or family violence.

What is the difference between a Parenting Plan and a Consent Order?

A Parenting Plan sets out parenting arrangements for the children. It does not cover issues relating to property settlement or spousal maintenance. A Parenting Plan must be in writing, signed and dated by the parents. It is not a court order and is not legally enforceable.  However, if a Parenting Plan is signed by parents after a Consent Order, then the Parenting Plan will take precedence over the earlier dated Consent Order.

A Consent Order is a legally enforceable document and if a party does not comply with terms of a Court Order, there can be serious consequences. A Consent Order must be prepared in a form which is appropriate to the court.  The document must then be signed, dated and filed in the court. 

How does the Court make decisions about parenting arrangements for the children?

When the Court is asked to make a Parenting Order, it must look at what is in the best interests of the children. In order to determine the best interests of the children, the Court will look to Section 60CC of the Family Law Act 1975 (Cth).  This section outlines the primary and then additional considerations the court looks at when determining children’s issues.

The primary consideration for the Court is the benefit of the children having a meaningful relationship with both of their parents and the need to protect children from physical and psychological harm. The additional considerations the court will consider include any of the following:

  • Any views expressed by the child;
  • The nature of the relationship of the child with each parent and other relatives;
  • 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;
  • The practical difficulty and expense of a child spending time with and communicating with a parent;              
  • The capacity of each of the child's parents 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 childparents, and any other characteristics of the child that the court thinks are relevant;
  • If children are Aboriginal or Torres Strait Islander consideration is given to their right to enjoy their culture (including with others of that culture);
  • The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child'parents;
  • Any family violence or family violence order involving the child or the child's family;
  • 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 parents thinks is relevant.

What is equal shared parental responsibility?

There is an assumption in the Family Law Act 1975 (Cth) that it is in the best interests of the children for the parents to have equal shared parental responsibility. This means that both parents have the equal right to make decisions in relation to major long term issues relating to the children. Parents must communicate and make a genuine effort to reach agreement on issues such as children's education, religious and cultural upbringing, health, names and any changes to their living arrangements that make it significantly more difficult for them to spend time with a parent. In some cases, the court may decide that equal shared responsibility is not in the best interests of the child (for example, in matters involving violence and in high conflict matters).

Do the children have to spend equal time with me and my former partner?

If the Court decides that the parents should have equal shared parental responsibility for the children, then the Court must consider if it is in the best interests of the children and reasonably practical for the children to spend equal time with each parent. If a Court does not consider equal time suitable in your matter, then the Court must consider an Order such that the children live primarily with one parent and spend significant and substantial time with the other parent. Significant and substantial time can include weekends, weekdays, holidays and other special events.

What if I want to take my children overseas?

Unless there is a Court Order to stating otherwise, you will require both parents’ consent to obtain passports for the children. The Court can make an Order requiring the other parent to sign a passport application and an order permitting the children to travel overseas. If the Court allows the children to travel, some conditions may be put in place, including payment of security/bond and providing the travel itinerary to the other parent.

Can I move interstate or overseas with children?

If a parent decides to relocate with the children and this move affects the time the other parent spends with the children, then that other parent may apply to the Court for an Order to stop the children from moving or to have the children returned. If you wish to relocate with the children (with or without an existing Court Order), you should firstly seek the consent of the other parent.  If an agreement cannot be reached, then the parent wanting to relocate can also make an application to the court. Notwithstanding which parent makes the application, the Court will consider whether the relocation is in the best interests of the children.

What if I want to change the Court Orders or I decide not to follow the Orders?

Court Orders cannot be changed or amended easily.  They are intended to be in place for a substantial period of time and parents are expected to make every effort to ensure the orders work.  Unless the parties consent, the Court would only consider changing the Orders in very limited circumstances involving a substantial change in the circumstances.

Court Orders must be strictly complied with and there can be very serious consequences of any breach of the orders. If you are in breach, the other party to the orders can make application to the Court to address your breach. The Court will make an Order against you unless you have a reasonable excuse as to why you breached the Orders.  Consequences of a Court finding that you have contravened the Orders include:

  • Providing make up time between the children and the other parent;
  • Changing the Court Orders;
  • Parenting programs and counselling;
  • Paying any expenses incurred by the other party: for example, travel costs and legal costs;
  • A community service Order;
  • A bond for up to two years;
  • A fine;
  • Jail.

 

Divorce

When can I apply for a divorce?

Under the Family Law Act 1975 (Cth), the only ground for divorce is that the marriage has broken down irretrievably. The court does not consider the reasons why the marriage has ended.

You can file an application for divorce in the court when you and your spouse have been living separately for at least twelve months and there is no chance of reconciliation.  It is possible for both parties to remain living in the matrimonial home and be separated.

You can make a sole application or a joint application with your spouse. If you and your spouse have been married for less than two years, there is a requirement that the parties attend counselling prior to seeking divorce (unless the court permits otherwise).

Can my spouse and I divorce in Australia when we were married overseas?

If you married overseas, you can apply for a divorce in Australia if any of the following apply to you or your spouse:

  • That you or your spouse regard Australia as your home and intend to live indefinitely in Australia;
  • That you or your spouse are an Australia citizen by birth or descent;
  • That you or your spouse are an Australia citizen by grant of an Australia citizenship;
  • That you or your spouse ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

If your marriage certificate is not in English, you need to have the document translated in accordance with the rules of the court.

 

Other Issues

What Court do I make application to for property issues, children’s issues or to obtain a divorce?

Childrens and property matters are usually heard in the Family Court of Australia or the Federal Magistrates Court of Australia. Which court you make application to will depend on the issues in dispute. However, there is no need to choose between the courts as both courts use the same application form and use a joint registry to file documents.

Divorce applications are dealt with by the Federal Magistrates Court.

My partner has become very volatile since we separated and I fear for my safety.  What can I do about this?

If there is harassment, violence, risk of violence or a threat made against you or the children by your former partner, you should make contact with the police immediately. You may consider applying for a Protection Order in the Magistrates Court.  In some circumstances, the police will make this application on your behalf.

A Protection Order can restrict or prohibit your former partner from contacting you (and your relatives and friends), restrict contact with children, prohibit the Respondent from having a weapon and remove the Respondent from your home if you have been living together.

A Protection Order is a Civil Order. However, in the event a Respondent to a Protection Order breaches that Order, the breach is a criminal matter.  All breaches should be reported to the police.

What child support should I be receiving or paying?

Both parents are responsible for the financial support of their children. If both parents agree, they can make their own arrangements for child support. The parents can enter into private Child Support Agreements.   These Agreements can outline the parties consent in relation to how much child support should be paid and to which parent.  The Agreements can then be registered with the Child Support Agency.

Alternatively, a parent can make contact with the Child Support Agency and use the Agency’s formula to establish how much child support should be paid and then arrange for payments to be made with or without the assistance of the Child Support Agency. 

Is my Will still valid if I divorce or separate from my spouse?

A divorce revokes a gift made by the Will Maker to his/her spouse if the Will was in existence when the divorce (or even an annulment of a marriage) happens.  A divorce also revokes any appointment in the Will of the former spouse as an Executor or Trustee or Guardian of infants.  It also revokes any grant of a Power of Appointment in favour of the former spouse.  A separation does not have any impact on the Will Makers Will which was in existence at the time the separation occurred.  If you are separated and do not wish your spouse to receive any gifts, to act as an Executor or Trustee or to have any other rights under your Will you should either: (a)    See a Solicitor and make a new Will; or (b)   Get a Divorce fast

I don't think what my ex-spouse is demanding is fair.  What should I do?

Talk to a Family Law Solicitor to get advice.  Be prepared to honestly disclose all of your financial circumstances.  A confident Family Law Solicitor will tell you what is fair and put you right.  If the issue in dispute relates to children the same advice applies.   

We cannot agree on what happens with our children.  What now?

If your children are old enough to say something sensible, listen to what they have to say.  If they do not want to have the sort of relationship with you that you demand, consider changing your opinion.   Children, when they themselves are mature, will appreciate your maturity now.   If all else fails get your Family Solicitor involved.  This becomes costly because each of you must get independent advice.  

My spouse is being very volatile since we separated and I am fearing for my safety.  What can I do?

Speak to your Family Solicitor about the arranging of orders that can be obtained from a court to prevent your spouse from invading your private space.  If your fear is genuinely held, Injunction Orders or other forms of protection are readily available.