- All
- Child Support
- Children's Issues
- De Facto Relationships
- Divorce
- Family Dispute Resolution
- Financial Agreements
- Financial Issues
- Separation
- Spousal Maintenance
- Superannuation
If you were in a relationship which meets the criteria of a de facto relationship (as set out in section 4AA of the Family Law Act), there are provisions in the Act which sets out what can occur upon the breakdown of a de facto relationship. This applies to relationships between de facto partners of the same and opposite sex.
The same legal principles that apply to financial settlements between parties to a marriage are applied to settlements between former de facto partners. Just as with married people, superannuation can be split between de facto partners following their relationship breakdown. The Court can also order that a de facto partner has to pay spousal maintenance to their ex-partner.
Parenting matters are also considered in the same way regardless of whether the parents of the child were married or in a de facto relationship.
Spousal or de facto periodic maintenance may be paid when one party has the financial capacity to pay and when the other party is unable to financially support themselves adequately.
In determining whether or not periodic maintenance is paid, each party’s financial income and expenditure are assessed.
The law requires separated or separating families who have a dispute about parenting arrangements to attend Family Dispute Resolution. The parties must make a genuine effort to resolve their dispute before they can make an application to a Court for orders in relation to their children. The Court also has pre-action procedures which must be followed before someone issues a Court Application.
The requirement to attend Family Dispute Resolution does not apply in certain circumstances, such as where there is urgency, or in cases involving child abuse or violence. If a Family Dispute Resolution Practitioner does not consider it appropriate for a matter to be mediated, they can issue a Section 60I Certificate (to enable a parent to issue a Court Application) without mediation taking place.
This is a process where an independent third party (known as a Family Dispute Resolution Practitioner) assists parties who are going through separation or making arrangements for the care of their children to reach agreement. The matters covered as part of Family Dispute Resolution can include arrangements for the person or persons with whom a child is to live, the person or persons with whom a child is to spend time and communicate, and arrangements for the allocation of decision-making responsibility in relation to children.
If there are no existing Court Orders in place, you can move interstate or overseas if the other parent consents to you relocating. If the other parent does not consent to the move you should seek a Court Order allowing you to move. If you relocate without consent or a Court Order, the Court may order you to return the children back to where you were previously living.
The Court considers a wide range of discretionary factors in deciding where the children will live. The priority of the Court is always to ensure that the best interests of the children are met. The Court may also order independent evidence from a Psychologist or Counsellor to assist them in determining which care arrangements will promote the best interests of the children.
It is possible to seek payments for children who are over the age of 18 under limited circumstances. This is known as Adult Child Maintenance. Examples of when you might be able to obtain adult child maintenance for a child is if they are engaged in tertiary study or if maintenance is necessary because of a mental or physical disability of the child.
If the adult child is engaged in study, the maintenance must be necessary to enable the child to complete his or her education.
Adult Child Maintenance is not dealt with by Services Australia (Child Support) and orders would need to be sought from the Federal Circuit and Family Court of Australia. It is however possible to obtain such Orders by agreement.
The Court would need evidence of the child’s financial circumstances and income in support of an application. It would also consider the contribution that each of the parties should be making to the child.
The Child Support Agency, known as Services Australia (Child Support), calculates the amount of child support payable by one parent to the other using a formula which takes into account both parents’ incomes, the percentage of care of the child(ren) each parent has and the cost of living depending on the age of the child(ren). You can obtain an estimate and further information via the Child Support Agency website.
Child Support is ordinarily payable until the youngest child is 18 years of age. If the child is at school in the year they turn 18, you can apply to the Agency so that payments continue until the end of the school year.
Financial Agreements are binding and enforceable if they are made in strict accordance with the procedures laid down in the Family Law Act. Financial Agreements can be made in a number of different situations as follows:
- Before a de facto relationship (Section 90UB Agreement);
- During a de facto relationship (Section 90UC Agreement);
- After a de facto relationship (Section 90UD Agreement);
- Before a marriage (Section 90B Agreement);
- During a marriage, regardless of whether separation has occurred or not (Section 90C Agreement);
- After a divorce (Section 90D Agreement).
Financial agreements stipulate how property and financial resources are to be divided upon separation. They also deal with the maintenance of either party. They must be in writing and signed by the parties. Each party must have independent legal advice prior to signing. Financial agreements can be terminated by written consent or set aside by a Court.
Yes. Superannuation is treated in a similar way to other property. The value of each party’s superannuation interests is ascertained, contributions to it are assessed, and an adjustment can be made in favour of one party or the other taking into account matters such as the parties’ earning capacities, age and health.
Superannuation belonging to one party can be transferred to the other pursuant to a court order; or a Financial Agreement.
Depending on the amount withdrawn and the account used, there are a number of options available to you:
- if you are on good terms with your partner, you may wish to begin by asking them to provide an explanation for their actions. You might be able to agree that the funds ought to be returned and otherwise reach agreement on how to conduct the account in the future. Alternatively, a lawyer could write to your partner and/or their lawyer on your behalf;
- you could contact your bank or financial institution and enquire about closing the account and/or requiring joint signatures for any transactions;
- you can also seek an injunction from the Court to prevent your partner from withdrawing further funds from the account.
There are a number of alternatives for resolving property/financial disputes.
If you and your partner can agree on how the assets and liabilities are to be divided, you can formalise this agreement by way of Consent Orders or a Financial Agreement.
We will always try to resolve your matter by way of agreement and issue to Court only as a last option. Mediation is often used to assist parties to reach financial settlements in a dignified and cost-effective manner.
If no agreement can be reached on the division of property, you can file a Court Application.
If you are unable to reach an agreement with your spouse or de facto partner in relation to parenting or financial matters, there are a few options available to you:
- you could try mediation or family dispute resolution;
- you could attend a private mediation convened by an accredited mediator;
- you could seek legal advice from a lawyer, who could liaise with your spouse and/or their lawyer on your behalf. You can still pursue family dispute resolution or private mediation, even if you engage a lawyer to act on your behalf.
Once an agreement is reached, it can be documented in Court Orders or a Financial Agreement. A Financial Agreement requires both you and your spouse or de facto partner to obtain independent legal advice from a lawyer.
Determining a reasonable property settlement requires a consideration of:
- the current assets, liabilities and financial resources of each party;
- any contributions made prior to, during or after the relationship, whether such contributions are financial or contributions for the welfare of the family;
- each party’s future needs, including their respective ages, health, income, arrangements for the care of any children etc;
- whether any proposed settlement is just and equitable.
A party wishing to retain the family home may do so provided that an appropriate division of assets can be effected without its sale. For example, one party may be able to keep the home and borrow against the property to pay the other party their entitlement. It is important that you make enquiries to determine your ability to refinance before you attend mediation or Court so that you can make an informed decision about your proposals to resolve the matter.
Yes, if you have assets or a different income earning capacity to your partner it is best to formalise your agreement.
A property settlement is not binding unless it is documented in Court Orders or a Financial Agreement.
Property settlements are usually based on parties’ present assets and financial circumstances, rather than the assets you each had at separation. Therefore, any improvement in your financial circumstances since separation will normally be factored into a settlement. For example, if your property has increased in value or your business has become more profitable, your former spouse or de facto could seek to make a claim against that increased asset.
Reaching agreement on a division of your assets and formally documenting it is the best protection against any future claims.
No, you do not have to wait to be divorced.
You can apply for property or parenting orders at any time. However, once your divorce has been granted, you only have 12 months to issue proceedings for Orders, after which time you will have to apply to obtain the permission of the court to issue proceedings.
The granting of a divorce does not decide issues about property or parenting arrangements. To make arrangements about these issues, you can:
- make an agreement with your former spouse and file it at court (consent orders); or
- in circumstances where you are unable to reach an agreement, seek orders from a court.
In relation to parenting matters, there is also the option to make a parenting plan
It is important to note that if you wish to apply for a division of property and/or maintenance for yourself, you must file a separate application. This must be filed within 12 months of the date that your divorce became final. If you exceed this time limit, you will have to obtain the Court’s permission.
Similarly, in relation to de facto relationships, you must apply to the Court for a property settlement within 2 years of your separation date. If there is a dispute about when the separation occurred, you should get advice from a lawyer as soon as possible. If you issue proceedings more than 2 years after separation, you need to seek permission from the Court to proceed with your application.
When you apply for a divorce, you will be given a court hearing – the time varies for how far in advance your hearing will be scheduled for. Depending on the circumstances, you (or your lawyer) may have to attend the divorce hearing by telephone.
In most cases, the divorce order takes effect one month and one day after the divorce is granted. If you intend to re-marry, you should not make plans until the divorce order is finalised as you cannot always assume that the divorce will be granted at the first court hearing – in some instances, the court may request further information.
This can occur when you and your spouse have been living separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. This establishes the sole ground for divorce in Australia – namely, irretrievable breakdown of marriage.
Yes.
The law recognises that parties can be separated but continue to live in the same house. This is known as ‘separation under the one roof’. If this applies to your situation, you need to prove to the Court that you were separated during this time. There may be difficulties in establishing that separation has occurred in these circumstances. Parties would be expected to sleep in separate rooms and render minimum household services to one another.
More information can be found in this Court publication.
Separation means more than physical separation. Three elements are required:
- Intention on the party of either or both parties to end the relationship;
- Where only one party considers the relationship to be at an end, they must: communicate this to the other party;
- The parties must then act as though the relationship has come to an end.
The law also recognises that parties can live separately under the same roof. There may however be difficulties in establishing that separation has occurred in these circumstances.
Separations are often difficult and emotional and it is not always clear how to begin moving forward. Thankfully, there is a great network of support services available to family members affected by a separation. These include:
- The Family Relationship Advice Line, provides information on a wide range of family issues and can direct you to other services: 1800 050 321.
- Mediation and family dispute resolution services through Relationships Australia, who have centres throughout Victoria. They also provide counselling services at subsidised rates: 1300 364 277.
- More specialised services such as 1800Respect for people affected by family violence and Men’s Help Line (1300 789 978).
It may be prudent to seek legal advice, particularly if you have children or property.
Westminster Lawyers is a full service family law firm and assists with a wide range of matters. Please contact us for further assistance.