family law
Divorce
When a relationship with your spouse has irreversibly broken down, you may make an application for a divorce order on the grounds that the marriage has irretrievably broken down. The rules for an application for a divorce order are governed under the Family Law Act 1975.
Applying for a Divorce
To apply for divorce, you or your spouse must:
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Be separated for at least 12 months, and either;
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Be an Australian citizen
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Live in Australia or;
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Usually live in Australia and have done so for a minimum of 12 months before the divorce application
There are two ways to apply for a divorce, either through a joint application or a sole application. A joint application means that you and your spouse file for a divorce together and therefore do not need to go to court. A sole application means that only one party is filing for the divorce, if this is the case and there are children under the age of 18 than you must go to court.
If you need help with filing divorce, please Contact Us and one of our team members will be able to assist you.
Property Division
Property includes all assets such as the family home, land or real estate, cars and jewellery. It is best for both parties if they can come to an agreement themselves on how to best divide their property. However this is not always possible. If you cannot come to an agreement, you may want to consider using dispute resolution or mediation. If still no agreement can be made, you can apply to the court to make orders for a property settlement.
Property Settlement
There is no rule that states that property will be split 50/50. During property settlement proceedings the court will use what is known as the four-step process. The first step is to identify the properties and value them. This includes property that was acquired before the beginning of the relationship or after separation. The next step is for the court to assess and consider the contributions made by both parties, this includes financial and non-financial contributions. The third step is for the court to take into account the future needs of both parties. This would involve consideration of future earning capacity, age, health, and care for children. The final step is for the court to consider whether the proposed property settlement is just and fair, this will be up to the court’s discretion. Once all of these steps are considered, the court will decide how the property should be divided between both parties.
Child Arrangements
The Family law act 1975 encourages the parents of a child to come to an informal agreement between themselves and use the legal system as a last resort to resolving conflict. If the parents of a child can agree on arrangements amongst themselves, then they have the opportunity to construct a written agreement known as a parenting plan, this plan is not however legally enforceable. If parents wish for their agreed upon arrangements to be legally enforceable then they may seek a court order, also known as a consent order.
Parenting Order
If parents cannot agree on arrangements for their child, then a parenting order can be imposed by the court. However, before a parenting order can be put in place, the family law act imposes a requirement that all parties attempt to resolve their dispute by family dispute resolution. If family dispute resolution does not work or is inappropriate than a parenting order can be put in place.
When implementing a parenting order, the courts regard for the child’s best interest is paramount. The parenting order may decide who the child lives with, the time the child is to spend or the communication they are to have with each person, and the amount of parental responsibility.
Child Support
The law states that both parents have a duty to support their child financially. Parents of a child who have separated can form a child support agreement. This is where both parties negotiate and agree on the terms of the child support. A child support agreement can come in one of two forms; a binding agreement or a limited agreement.
A binding agreement requires both parties to seek independent legal advice before signing the written agreement. A limited agreement does not require the parties to seek legal advice, however they must have a child support assessment with Services Australia. A copy of the limited agreement must be sent to Services Australia to be approved.
An alternative avenue is for a party to apply to Services Australia for child support and an assessment of how much that child support will be. A formular is used to assess the amount of child support each party is to pay. It will take into account factors such as the child’s age, the percentage of care each parent provides, and each parents income.