Separation and divorce can be a confusing time with an abundance of questions about family law. Below are a list of our commonly asked questions to assist you through the process. If you require any further information please contact us on 9793 7888 to discuss your situation.
1How do I apply for a divorce?
Applying for a Divorce
Under Australian Law in the Family Law Act, you do not need to establish fault in order to obtain divorce.
The one and only fact you need for divorce is separation for 12 months which is the definition of an “irretrievable breakdown of the marriage”. We prove this where you have lived “separately and apart” for a period of 12 months. It is possible to live separately and apart under the one roof, provided independent evidence exists of separation by other means.
A Divorce Application can be filed after the 12 month time period has elapsed since separation. But you don’t have to apply if you don’t want to. Sometimes there are strong emotional or legal advantages to apply for divorce earlier. Two examples of an emotional reason – first to do with your sense of independence, or, secondly to send a message to your ex that it really is over.
Of course if you wish to re-marry you must obtain a divorce first.
We have acted in a case where no divorce had been sought 20 years after separation. That worked out to be a huge advantage to the wife and disadvantage to the husband. In the 20 years since the husband had accumulated millions, of which he had to share part of with his wife. In that case the delay applying for a divorce had serious ramifications, good for one, bad for another. Get advice.
…What steps need to be taken to apply for a divorce?
The Application is filed at the Federal Magistrates Court. We will prepare the Divorce for you and serve it on your spouse. The hearing of the divorce usually takes place about six to eight weeks after the Application is filed, and if we attend you may not need to personally attend court.
The Court must be satisfied that proper arrangements have been made for the welfare of the children. This includes housing, education, contact, health and financial support arrangements for the children. We can prove this by an affidavit prepared by a specialist family lawyer and sworn by you.
The Court then grants a provisional divorce, if satisfied of those matters. This becomes final or absolute one month and one day later. You cannot remarry until the divorce decree becomes final.
2How is property divided upon divorce in family law?
Don’t assume it is 50/50. It almost certainly isn’t 50/50. All cases are different. The chances of both in a divorce having similar starting assets, current and past incomes, health, age, inheritances, equal lawyers, equal negotiating tactics etc are astronomically low. Balancing all the factors rarely gives 50/50. But if you have had specialist Family Law advice and know you are on the wrong side of 50/50 you may get lucky if your ex believes wrongly that it is 50/50. The Family Law Act requires orders for a just and equitable division of assets according to the law passed by Parliament.
A specialist Family Lawyer will be guided by the law passed by Parliament and how that has been interpreted by Family Court judges. We don’t need to go to Court for that, we know it and if the other party know it too we will work it out. If they don’t know it we will use that to your advantage. Court is for the difficult or dishonest cases.
You, or we, need to factor in a 3 step process:
Stage 1: Assets and liabilities are identified and valued. This includes the obvious as well as superannuation and assets held in partnership, in trusts, or companies. We have methods to find assets hidden from you. We use valuers to put a value on difficult assets such as businesses, real estate etc.
Stage 2: Assesses the contributions each party made to the assets. This includes:
- financial contributions
- contributions as a parent
- contributions as a homemaker
Stage 3: The Family Court adjusts for the future needs of each party, e.g. matters such as care of children, differences in income earning capacity, health, age, education.
It is also said there is a:
Stage 4: An overall look at the whole process to check if the proposed asset division remains just and equitable. It is for rare cases.
3Are inheritances and gifts excluded?
Gifts and inheritances are not excluded in family law. However they may be so important that significant “credit” is given to the spouse responsible for bringing in the asset into the marriage. We would always try to include or exclude these matters as suits you in negotiations because some people can be persuaded some of the time, and any advantage for you is our goal.
If there was a simple formula it would be on this site as a calculator. We approach each case on an individual basis, using 33 years of experience from the Court’s decisions in thousands of cases. As specialist family lawyers, experience shows that each family situation is different and time needs be taken to understand your specific rights. This is what guarantees you that we do understand how you are feeling and guarantees you the best outcome for your circumstances.
Does size matter ?
Yes the size of the asset pool does matter. We have dealt with family law matters from $450 million to about $20,000. We need to take account of commercial realities when dealing with smaller or average cases. The Courts aren’t perfectly equipped for average people. Negotiation and mediation are important. We won’t use a sledgehammer to crack a walnut. We won’t spend 20% of your asset pool chasing 20%. But we wont give up to bullies or fraudsters either. We can manage a case on an appropriate budget to get the best bottom line result.
The size of the asset pool is relevant in property cases. The approach taken does not vary. But the legal outcome does, based on future needs of the poorer party taking greater importance in smaller cases.
Contact us at Just Family Law and see how we can best approach your case so as to get you the best outcome with the least stress.
4What is the law about children after divorce or separation?
The interests of the children are “paramount” according to the Family law Act. Unfortunately funding for children to have their own lawyer is almost non-existent. So it is up to you as a responsible parent to ask us to fight for the rights of the children.
At Just Family Law we know how difficult separation can be not only for the parties but also the children.
Very often we work together with qualified counsellors, psychologists and specialist child psychologists who can help both with separation counselling and in coming to an agreement about where children live and how much time they spend with each parent.
5What are the recent changes to family law about children?
- equal shared parenting (or a presumption that it is the starting point)
- children spending equal time , or substantial or significant time with each parent (or a presumption that it is the starting point).
- certification of attempted dispute resolution between the parties before they go to Court.
- certification of attempted dispute resolution before litigation;
Further changes in the law are likely. Typically for fathers (or non custodial mothers) there has never been a better time to increase the time children spend with them. On the flip side mothers (or custodial fathers) need to factor in that, if pressed, the current laws might mean they have to relax opposition to shared care arrangements that were a rarity until recently. Watch this space.
6Divorce and potential inheritance in family law?
An expectation to inherit is of little importance if the Testator is alive. If the Will can’t be changed due to loss of mental capacity and if the Testator has low life expectancy it is relevant. How an actual inheritance will be relevant will vary in each individual case as it is important to consider many factors, including:
- How much? In proportion to other assets;
- Did the parties in any way contibute to the “inheritance”?
The Family Court recently considered a case where one of the parties had an expectation of inheriting his parents’ substantial estate. The parties were married for 16 years with two children. The Trial Judge determined that the property pool was valued at $864,000 and that the contributions were equal, but made an adjustment of 40% in favour of the wife, pursuant to the “future needs” requirement of Section 75(2).
The relevant factors in this decision were that the husband had an earning capacity of $150,000 a year and also had superannuation of $112,000 compared to the wife’s $37,000. The husband also had an expectation that he would inherit an estate valued at approximately $2.8 million. The husband appealed against the ruling but the appeal was dismissed.
If inheritances are relevant to your situation please contact Just Family Law for advice specific to your situation.
7``Pre Nups`` - Enforceable under Australian family law?
Yes. Only fairly recently though, so don’t be too hard on someone who says differently. If you are to be married you are able to enter into Prenuptial Agreements (known as Financial Agreements, or Binding Financial Agreements, BFAs) that provide for how property is divided upon separation.The very strict legal requirements of the Law must be followed for a Prenuptial Agreement to be enforceable.
What do they cover?
Prenuptial Agreements can deal with property division and also spousal maintenance. They can take into account anticipated changes such as children being born and the length of a marriage, by providing for different asset splits, depending on how long the marriage lasts, how big the asset pool is, or how many children are born to a couple.
They don’t deal with lifestyle clauses like you might see in Hollywood culture.
Does it have to be fair?
No …and yes. Typical you say, one lawyer and two answers. Anyhow who says what is fair? The agreement can be totally unfair in that it is totally unlike the result a court would arrive at. The court has to be fair, but a Financial Agreement doesn’t have to be fair.
But there’s a catch of course. The Family Law Act requires the process to be fair. Both parties need independent advice. There has to be truthful disclosure. Duress must be absent. A properly advised person can consent to any agreement, but if you are trying to trick a fiancé/fiancée you need to jump through a few hoops, so much so that a very unfair agreement is unlikely to be signed.
Is it too late if we are already married?
No, it is never too late, however it often works in your favour to have the agreement drawn up prior to getting married. Couples who are already married may enter into a Binding Financial Agreement that provides for how assets are to be divided if the marriage later breaks down. The disadvantage of waiting for the wealthy party is that there is a change in bargaining power. Of course that is good if you are the poorer person.
What about De Facto couples and same sex relationships – can they make Binding Financial Agreements about what happens if they separate?
Yes, with virtually the same effect as Prenuptial Agreements do for married couples. Whilst de facto couples in Victoria are not governed by the Family Law Act, there is State law in Victoria that enables them to enter into binding agreements known as Relationship Agreements, which have the same effect as Prenuptial Agreements do for married couples.
Can Prenuptial Agreements and Financial Agreements be set aside?
Definitely. It is expected many will be set aside and some already have in the short time they have been around. The Family Court has powers to set aside Financial Agreements where either they technically don’t comply with the Family Law Act or there has been fraud, undue influence or non-disclosure at the time the Agreement was made.
The Court can also set aside a Financial Agreement if there is a material change in the welfare of the children and it would cause a hardship to enforce the strict terms of a Financial Agreement. For example, a Financial Agreement might provide that on separation, a wife gets no assets and the husband keeps all assets in his name. If, at separation, the wife is caring for several children and has no income or assets, the Court is likely to set aside the Prenuptial Agreement as it would cause hardship to the wife and children.
If a Financial Agreement is set aside, the Law’s power applies. This could obviously result in Court Orders being made, far less favourable to a party than what the Prenuptial Agreement provided for.
8Are De Facto relationships treated the same?
For children’s matters and child support yes. Regardless.For property matters if you separated after March 2009, and had been in a relationship for two years – Yes.
The situation for financial matters for separations before March 2009 is complicated. Sometimes it will make a big difference whether you are married.
Same sex relationships are generally treated the same since 2002.
However this assumes you are in Victoria.
Didn’t find the answer?
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