Family Law
The breakdown of a relationship can be one of the most stressful and traumatic times in a person’s life. As a firm focusing on the practice of family law, we understand the types of challenges faced by our clients and offer legal expertise and sensitivity to help with your matter. We can assist with all aspects of family and de facto law, including:
- Divorce and separation
- Property settlements
- Pre-nuptial agreements
- Binding financial agreements
- De facto relationships
- Same sex relationships
- Representation in court, at mediations and settlement conferences
- Spousal maintenance
- Child support and enforcement of payments
- Children’s living arrangements, parenting plans and visitation
- Parental rights, father’s rights and grandparent’s rights
- Domestic and family violence orders
Applying for a divorce
A divorce is the legal end of a marriage. In Australia a divorce application is a separate process to property or parenting settlements and a finalised divorce is not a prerequisite to initiating property or parenting proceedings.
Divorce orders are made by the Federal Circuit and Family Court of Australia, but in most circumstances the parties to the application do not need to appear in court. The process usually involves the filing of documents with the court and the consent of both parties is not required.
A divorce application can be made when a marriage has broken down irretrievably and there is no reasonable chance of the parties getting back together. To make a divorce application a couple must be separated for 12 months, however, this does not necessarily require you to live in separate residences.
If you and your former spouse have children under 18 years of age, the court will need to be satisfied that proper arrangements have been put in place for the care of those children. Generally, a divorce will be finalised approximately one month after the divorce hearing takes place.
After a divorce has been granted there is a 12-month limitation period within which to bring court proceedings for property settlement or spousal maintenance.
Dividing property after separation
A legal property settlement formalises the division of the parties’ assets and liabilities. You do not have to wait until you are divorced to divide your property and debts between you and your former partner. You can make these arrangements as soon as you separate.
It is important to remember however that any court proceedings for a property settlement must be commenced within 2 years of separating from a de facto partner, and within 12 months after a divorce is granted.
Most family law property settlements are finalised by negotiation between the parties and their legal advisors, without going to court.
If you and your ex-partner agree on how things should be divided, we can prepare a document to finalise your arrangements and get the legal process underway to formally split your assets and liabilities. It is important to note that each partner must have separate legal representation.
Agreed settlements can be documented in a financial agreement or consent orders.
Financial Agreements
Financial agreements (also known as binding financial agreements, pre-nups and post-nups) are agreements made between either married or de facto couples and may cover a range of different circumstances, such as:
- Pre- or post-nuptial
- Cohabitation
- Separation
- Divorce
After separating, a financial agreement can be made to set out how the parties agree to deal with their assets and financial resources. Specific formalities must be complied with for the agreement to be valid and each party must obtain independent legal advice and sign an acknowledgement stating that they are aware of the effect of the agreement.
Generally, an agreement based on the parties’ negotiations is prepared by a lawyer for one of the parties and sent to the other party’s representative for review. After the final terms are settled, the agreements are finalised and signed with the appropriate acknowledgements by each party and their respective lawyers.
Consent Orders
Consent orders are usually considered to be more formal than financial agreements as they need to be approved by the court through an application made by the parties. The application must include full financial disclosure by each party. You do not need to attend court to have the orders granted and the court will make the orders if it considers it is just and equitable to do so.
Parenting arrangements
Parenting arrangements address issues such as where the children live, how much time they spend with each parent and other specific matters in relation to education or healthcare. Under family law legislation parenting arrangements must be made in the best interests of the child. There is a presumption that shared parental responsibility is best for the child, but this will not be the case in all situations. Shared parental responsibility means that parents are required to consult each other regarding long term decisions for the child and does not necessarily mean that the child will spend equal time with each parent.
Parenting arrangements can be achieved through a parenting plan, consent orders or court proceedings.
Family law and Wills
A Will is a legal document that records how your assets will be distributed after your death. It is important to review and update your Will when your family circumstances change, in particular, if you have recently separated or divorced from a partner. In such cases, you may need to revise who is included in your Will, or, if there has been a property settlement, what assets are included. If you remarry, a Will created before your marriage may be revoked. Receiving legal advice about your Will at the time of separation or divorce provides certainty and security for your loved ones after you die.
If you need assistance, contact one of our lawyers at lawyers@elliottstafford.com.au or call 03 9486 7555 for a no-obligation discussion and for expert legal advice.