FAQs Archive - Page 2 of 3 - Westminster Lawyers

Q: My partner has withdrawn money from our accounts/credit cards, what should I do?

Depending on the amount withdrawn and the account used, there are a number of options available to you: if you are on good terms with your partner, you may wish to begin by asking them to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.

Q: How do I resolve property/financial issues?

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.

Q: I don't want to go to Court, what are my alternatives?

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.

Q: Do we have to sell our home?

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.

Q: We have reached agreement regarding financial issues, do we need to formally document it?

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.

Q: Do I have to be divorced before I can seek a property settlement, financial support or resolve children's issues?

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.

Q: We are getting divorced - but what about our children, property etc?

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.

Q: Once I apply for a divorce, how long will it take?

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.

Q: When can I apply for a divorce?

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.

Q: Can I be separated if we still live together?

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.