Legal basics

When a marriage or a relationship breaks down it is natural that the circumstances of both parties will change. There are also legal rights and responsibilities associated with these changes, such as parenting arrangements and property and financial settlements.

It is important to understand that in Australia, divorce is a completely separate process to resolving these other Family Law considerations or disputes. Australian law also recognises that today relationships take a number of different forms. Accordingly, the law makes provision for the protection of rights for married couples, heterosexual de facto couples, and same sex de facto couples. Divorce simply finalises the end of a marriage. On divorce.com.au you can find comprehensive information on other important family law considerations should your relationship break down and you and your partner separate.

Separation and Divorce Laws

Australian Family Law defines separation as the ending of a marriage or a de facto relationship. This is different from the date of divorce. While there is no need to officially register a separation, it is important to take note of the date of separation for you divorce application (if you were married) and if you want a formal legal settlement of your finances.

According to divorce laws in Australia (which are the same in Sydney/NSW and Canberra/ACT, as marriage is covered by Federal law), married couples that wish to divorce need to be separated for at least 12 months before they can lodge their divorce application. Recent changes to the Family Law Act mean that separating de facto couples (including those in a same-sex relationship) generally enjoy the same rights as married couples in regards to property and financial settlements (excluding Western Australia). However, certain criteria relating to the existence of a de facto relationship must first be proved to cause the law to apply.

Separated de facto couples have a 2 year window from the date of separation in which to initiate legal proceedings to resolve property and financial issues following relationship breakdown.

When a couple separates, it can significantly change both parties’ circumstances. While a separation does not always lead to a divorce, talking to experienced family lawyers as soon as you separate can help you understand your legal rights and obligations and plan your future arrangements.

Property & Financial Settlements

When a marriage or a relationship breaks down, property and financial settlements decide how property, finances and debts are to be divided between former spouses. This includes such items as real estate, cars, jewellery, as well as superannuation and other debts.

The complexity of property and financial settlements will vary greatly between couples. For couples with few assets or no shared finances, it can be simple and straightforward to make such arrangements without having to go before a judge. Couples who can agree on how property and finances are to be divided can formalise those agreements through a binding form of financial agreement or by obtaining consent orders by agreement from the Family Court of Australia.

Couples with more complicated property and financial circumstances – or in cases when a couple cannot agree on how to divide their assets – will apply to the court for court orders. Before commencing court action, however, certain Pre-Action procedures need to be followed aimed at attempting resolution of disputes. Legal representation for complicated matters is advised, commencing in the Pre-Action procedures phase. Experienced family lawyers can advise you of your rights and entitlements and represent you through all stages of the court process.

How does the court decide who gets what?

When property and financial matters go before a judge, the Court must make decisions that are ‘just and equitable’, by considering:

  • How both parties contributed financially to the relationship
  • How both parties contributed non-financially to the relationship (i.e. in the capacity or role of the homemaker and/or parent)
  • The future financial position of both parties, including whether there is a need to provide for children.
  • Experienced family lawyers can help you prepare your application for financial and property orders, and give you realistic advice on the likely outcome of financial and property settlements.

When can I apply for a property settlement?

You do not have to wait to be divorced to apply for property settlement. Following a divorce order taking effect, however, couples must apply within 12 months if they have not already resolved these issues before applying for a divorce. Different time limits apply for de facto couples.

When a marriage or de facto relationship breaks down, property settlements can be emotionally hard to negotiate. Help from experienced family lawyers who are sensitive to the difficulty of the situation can ensure a clean financial break from your partner. For more information and guidance from experienced family lawyers, please contact Watts McCray Family Lawyers.

NB: Property and financial settlements are a completely separate legal process to divorce. You can use our online divorce application or get help from an experienced Watts McCray lawyer for help applying for and finalising your divorce.

The property settlement process

Pre-action Procedures

Before being able to start proceedings in financial cases, parties are required to exchange notices of their intention to claim and comply with the duty of disclosure of assets. The other party is required to respond in a similar manner. Various financial documents are to be exchanged so that each party is familiar with the financial position of the other party.

Filing of Application

The Application which sets out the orders that you seek is filed in the Family Court, together with a Financial Statement and a copy of your Marriage Certificate. A filing fee is also payable at that time. When the Application is filed it will be given a first Court date approximately 28 days later. Sealed copies of the documents are served on the Respondent.

First Court date

The first Court date might be a Directions Hearing or Case Assessment Conference. The Deputy Registrar who will conduct the Directions Hearing or Case Assessment Conference will direct the parties in an attempt to negotiate a settlement and will ensure that pre-action procedures have been complied with. If agreement is not reached at the first Court date then the Deputy Registrar will direct that a Conciliation Conference be held and will make directions that are appropriate for the preparation of that Conference.

Conciliation Conference

This is a Conference conducted by a Deputy Registrar in an office. The parties and their lawyers attend. The Conference is a time when there are detailed negotiations with the assistance of the Registrar to attempt to resolve the proceedings. At the conclusion of the Conference, if an agreement has not been reached, the Registrar will issue a Trial Notice, setting out the directions to prepare the case for hearing. The Registrar will also allocate a date for a Pre-Trial Conference.

Pre-trial Conference

The Pre-Trial Conference is attended by the parties and their lawyers. It is conducted by a Registrar who will ensure that all previous directions have been complied with. The Registrar will allocate a date for hearing of the case before a Judge.

Final Hearing

This is also called a trial. A day or a number of days will have been allocated for the hearing sufficient to allow the parties and their witnesses to give their evidence and for the Judge to hear the submissions made by the lawyers. At the end of the hearing the Judge will give a Judgment and Orders finalising the proceedings.

Parenting Arrangements

When a couple separates or a marriage breaks down, it is important that all decisions are made with the best interests of any children involved in mind. Under the Family Law Act, both parents have responsibility for their children until they are 18 – a responsibility that does not usually change if the parents’ relationship changes. By law, the best interest of the child is always the primary consideration. Following separation, both parents must make certain arrangements and decisions regarding the parenting of a child or children. These arrangements will determine where a child will live, the time they will spend with each parent, the sharing of special event days such as birthdays, Christmas, and school holidays, and how decisions regarding children will be made now their parents are separated.

Parenting arrangements are completely separate to the divorce process and can be initiated immediately after a separation occurs.

De-facto Relationships

Australian law recognises that there are a number of different types of personal relationships. A de facto relationship is between two adults of the same or opposite sex who live together and are not married or related.

Under current laws, those leaving an unsuccessful de facto relationship can pursue property and financial settlements in the same way as married couples following a separation or divorce (except in Western Australia). But many people, who have been in an intimate, domestic relationship with a partner do not know their legal rights.

De facto couples rely on the same laws and Courts as married couples (except in Western Australia) – in most states and territories this also applies to same sex de facto couples. There are also legal implications for unsuccessful de facto relationships when there are children involved.

Domestic Violence

Violence in any home is unacceptable, and Australian law provides mechanisms aimed at protecting the personal safety of any spouse, partner or child.

Domestic violence generally involves controlling behaviour, such as verbal abuse, threats, physical harm, sexual harassment or intimidation. To protect you or your children from domestic violence, experienced lawyers can help you obtain an Apprehended Violence Order (AVO) and help you negotiate parenting orders and other settlements if a matter goes to Court.

When it comes to the sensitive nature of domestic violence it’s important to feel like you can talk openly with a lawyer and get the advice and guidance you need.

Lawyers at Watts McCray are experienced in domestic violence law and can help you organise AVOs and talk to you about how domestic violence is factored into divorce proceedings and other Family Law considerations.

Prenuptial Agreements

Prenuptial agreements (often referred to as pre-nups) allow for couples to plan for and decide how their assets will be divided if the relationship breaks down. Legally, such agreements are known as binding Financial Agreements (BFA), and they can be entered into at a number of different stages of the relationship – before a marriage, during a marriage (or de facto relationship) and after a marriage has ended.

A common reason people enter into a BFA is to avoid the court room and property and financial disputes if a relationship breaks down. A BFA, or a prenuptial agreement, is a legally binding agreement. If the marriage ends, this document dictates how assets and financial resources will be allocated.

BFAs are also a useful legal document for separated couples who can agree on how property and assets are to be settled. Once a marriage has broken down, both parties can enter into a legally binding financial agreement that determines how assets are to be divided.

For a financial agreement to be legally binding, both parties must have signed the agreement and have received independent legal and financial advice before signing.

Child Support

By Australian law, both parents are responsible for the financial support of their child until the age of 18. This responsibility does not change when a couple separates or divorces.

How is child support calculated?

The Child Support Scheme provides a statutory formula to calculate how much both parents must pay in periodic child support when they separate. At the most basic level, the child support formula considers:

  • The income of both parents
  • The costs of raising children
  • The number of children in the family for which the parents are financially responsible
  • The amount of time each parent spends with their children.
  • In general terms the costs of raising children is then apportioned between parents depending on their respective incomes and the matter raised above.

Over time, different variations of the child support formula have emerged to accommodate different family circumstances. As a result, Child Support Laws can be complicated and legal guidance is advised.

Can parents determine their own child support payments?

Yes. Parents can agree on child support payments privately. These agreements can be informal or formal. For couples that want their child support arrangement formalised, a binding form of Child Support Agreement can be prepared, and registered with the Child Support Agency.

Determining child support arrangements can often be emotionally and financially stressful for partners who are going through the separation process. Watts McCray Lawyers have extensive experience dealing with complicated Child Support Laws and can help guide and support you through this process and ensure a fair and feasible outcome.

Spouse Maintenance

The financial consequences when a marriage or de facto relationship breaks down can be significant. While property and financial settlements will determine how assets and finances will be divided between two former partners, spouse maintenance arrangements cover day to day living expenses, particularly when one partner was not the primary breadwinner in the relationship.

To the extent that one partner cannot support himself or herself adequately, and where the other partner has a capacity to pay, the Family Law Act creates an obligation for the partner with the financial capacity to financially support the other person – including upon relationship breakdown.

Spouse maintenance is often considered in overall property and financial settlements, and there is also a 12 month window after a divorce has been finalised in which a spouse maintenance application can be filed with the Court. Both parties must also attempt to come to an agreement outside of the courtroom before the matter goes before a judge.

There are a number of things the court considers when deciding on spouse maintenance. These include but are not limited to both parties’ income and resources, the ability of both parties to earn and which partner any children of the relationship live with.

For any financial advice following the breakdown of a relationship, please speak to an Accredited Specialist from Watts McCray Lawyers. Experienced family lawyers can advise you on your eligibility, or liability, for spouse maintenance.

Same Sex Couples

Australian law recognises that same-sex couples and their children are entitled to receive the same level of protection under the law as heterosexual couples and their families. Reforms to Australian law regarding same-sex couples came into effect in March 2009. The reforms ensure that same-sex couples and their families are recognised and have the same entitlements as opposite-sex de-facto couples when it comes to issues such as health care, child support, workers compensation, veterans’ entitlements and social security.

Current laws allow those leaving an unsuccessful same-sex relationship to pursue property and financial settlements following a separation, using the same laws and Court as a married couple. Same-sex couples can also apply for child support agreements with the Child Support Agency.

If you’re in a same-sex relationship and want more information on your legal rights, or need help negotiating financial, property and parenting issues should your same-sex relationship break down, please contact Watts McCray Lawyers.

Get in touch with Watts McCray today.

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