Family Law FAQ
Will I have to go to court?
In matters involving children, prior to going to court for orders in relation to the children, in most cases a certificate is required to be issued pursuant to section 60 I Family Law Act from an accredited Family Dispute Resolution Practitioner.
In matters involving property, we work with our clients to try and encourage a settlement being reached without the need of going to Court.
In some cases the dispute is intractable and approaching the Family Court for its assistance is required to protect a client’s rights and to bring matters to a head. But we note that the Family Court has several court events along the way to a contested final hearing at which they encourage the parties to reach their own agreement.
Whether you are reaching a negotiated settlement or if you do have to go to court, it is critical for you to have lawyer who is intent on resolving the matter expeditiously and at minimal cost.
What do we do if we reached our own agreement?
We act for clients who have come to their own agreement with their ex and just need our assistance to ensure that it is documented in a legally enforceable manner and this can be done by either:
- A Binding Financial Agreement; or
- An Application for Consent Orders filed at the Family Court.
A Binding Financial Agreement can be entered into at any time before, during or after a relationship.
An Application for Consent Orders will set out the financial position of the parties and describes in detail the agreement they have reached. It is then filed at the court and sealed and legally enforceable court orders ensue.
How does the Court decide to divide the marital assets?
The court follows the so called “four-step process”:
Step 1. It works out the net value of property owned by the parties as at the date of the final hearing.
Step 2. It considers how the parties have contributed to such property, including an assessment of:
– The financial and non-financial contributions made by the parties to any relevant property, including purchase, maintenance and improvement;
– Any contribution made by a party to the marriage to the welfare of the family and any children of the marriage, in particular in the capacity of homemaker or parent; the effect of any proposed order upon the earning capacity of either party.
Step 3. It considers whether there should be an adjustment in favour of either of the parties to take into account their respective future needs, determined by considering factors such as the parties’ relative: age; health; earning capacity; responsibility to house and care for any child or other party; and the availability of financial resources.
Step 4. It then considers whether the proposed order will be ‘just and equitable’.
What do I do if following the separation I am unable to adequately financially support myself?
1) Spousal Maintenance
Following a relationship breakdown, in some circumstances, a party can apply to the court for a periodic; lump sum or urgent payment of spousal maintenance.
2) Adult Child Maintenance
Child Support is not payable to children over 18 years old. It is, however, possible in some cases to seek orders for the payment of adult child financial assistance.
What is the procedure to obtain a divorce?
The grounds for a divorce in Australia is established when the marriage has irretrievably broken down and the husband and wife have separated for at least 12 months immediately before the filing of the application for divorce. In Australia we have “no fault divorce”, meaning the court is not interested in reasons as to why the marriage has broken down.
Separation can be established even where the husband and wife have continued to live under the same roof, noting however that in such circumstances independent third party affidavit evidence could be required verifying these facts.
What do we do about the children?
The best interests of the children is the only consideration.
In most cases, prior to an application to the Family Court being able to be made in relation to children’s issues, parents will be required to seek the assistance of an accredited Dispute Resolution Practitioner. This is encouraged because it is recognised that more often than not the best interests of a child will be satisfied when the parents are able to reach an agreement in relation to the parenting of their children. It is prudent to have such agreements registered with the Family Court.
What are the costs of legal representation?
We strive to keep our costs to a minimum.
Those parties who are able to maintain their communication in spite of all the torrid emotional turmoil which follows a relationship breakdown will be better off financially and emotionally.
As is the practice in the legal services profession, we usually charge by the hour and we will provide you with an estimate of our legal costs, based on your circumstances. Billing is done monthly to allow you to have greater control of your costs.