Divorce
Q. When can I get divorced?
A. Before lodging an Application for Divorce, you must have been separated from your spouse for at least 12 months.
Q. I got married overseas. Can I get divorced in Australia?
A. Yes, if you are an Australian citizen or ordinarily live in Australia.
Q. My spouse doesn’t agree to a divorce. What can I do?
A. You do not need the consent of your spouse to get divorced in Australia.
Q. Do I need a lawyer to get divorced?
A. If there are no complications, you might not need a lawyer to get divorced. However, you should obtain legal advice before getting divorced because it might affect your other legal rights and obligations.
Property settlement
Q. It’s 60/40 to me because the kids live with me, right?
A. Not necessarily. There are a number of factors to consider to determine a fair division of assets.
Q. What happens with the house?
A. For most families, the family home is their most valuable asset. For each partner to receive their fair share of the assets, it is sometimes necessary to sell the home. In other cases it will be possible to retain the home as part of your settlement.
Q. What about my super?
A. Superannuation is different to other assets but it will still be taken into account in a property settlement. Super can now be split between separating couples, which provides more options in structuring settlements.
Q. We have already reached an agreement. Do I need to get it legally drawn up?
A. In most cases, it is best to have agreements documented so that they are final and legally binding. However, you should obtain legal advice before signing any binding documents as the agreement you have reached may not in fact be in your best interests.
Q. I signed a Pre-Nup. Am I stuck with it?
A. If you have signed an agreement before you married or began living together, you should obtain legal advice. It may or may not be binding and a Court could set it aside.
Q. I received a substantial inheritance. Will I be able to keep it?
A. Maybe. Inheritances are generally treated under the law as a contributions made by the inheriting party towards the asset pool. How an inheritance is treated usually depends upon the form and value of the assets inherited, when they were received and how they have been used.
Q. My partner has a bank account that is not in joint names. How can I find out how much is in the account?
A. Pressure can often be exerted to obtain full disclosure of bank accounts. A lawyer can assist you in this way. If Court proceedings are started, a subpoena can be served upon the bank to produce documents about the account.
Q. My partner has lost a lot of our money on gambling/drugs/his new girlfriend. Can I get it back?
A. If someone has wasted assets of the parties or spent income on these sorts of activities, it might affect how the overall contributions of each of the parties are assessed so that you may receive more of the remaining assets.
De facto relationships
Q. I have been living with my partner for 6 months. Can I make a claim on his assets?
A. In most cases, a de facto property claim can only be made if the parties have lived together for at least 2 years. However, there are exceptions so you should obtain legal advice.
Q. My former partner and I have had a committed relationship but each of us has kept our own home. Now he says that he can make a de facto property claim against me. Is that right?
A. Possibly. De facto relationships come in all shapes and sizes. However, in most cases they will involve the parties actually living together to some extent.
Q. My former partner and I lived together for 2 years. Is she entitled to half of my assets?
A. Probably not. There is no automatic entitlement to any particular share of assets after being in a relationship for a certain period of time.
Maintenance
Q. I am a full-time mum to two pre-school age children. My husband has started paying child support but his payments don’t cover the mortgage or other living costs. What can I do?
A. If your husband can afford it, you might be able to claim spousal maintenance.
Q. My child has special needs. The child support that I receive doesn’t take into account the high costs involved in caring for him. What can I do?
A. You can apply to the Child Support Agency for a change of assessment on the basis of your child’s high costs of care.
Q. Our children have finished school and are over the age of 18 years. They are studying at uni and still living with me at home. I can’t afford to keep them without some help from their mum. Should she be making a contribution?
A. Maintenance for children does not always stop when they turn 18. If your adult children cannot support themselves and the other parent has the ability to provide some support, you could apply to the Court for an order for adult child maintenance.
Children
Q. I want to have shared care of our children. My wife will only let me have them on alternate weekends and for half of the school holidays. Doesn’t the law now say that children’s care should be shared equally?
A. Not quite. The law in most cases is that the Court must consider a shared care arrangement but any orders made must be in the best interests of the children.
Q. What is Family Dispute Resolution? How and where can it be arranged?
A. Family Dispute Resolution (FDR) is essentially mediation delivered by an accredited provider. Family Relationship Centres (FRC’s) provide FDR services, as do services like Relationships Australia. Private FDR providers are also available.
Q. What is the importance of FDR?
A. FDR is often a productive way of reaching agreement about children’s living arrangements. If you need to go to Court, in most cases FDR is a necessary step prior to starting the case. However, there are some exceptions such as urgent circumstances in which Court proceedings can be started without completing FDR.
Q. I have been offered a promotion at work but the position is interstate/overseas and my former partner won’t agree to me taking our children with me. What can I do?
A. You should obtain legal advice to find out whether the Court is likely to make orders allowing you to relocate with the children to take up the promotion that has been offered.
Q. My son is due to start school next year but his mother and I can’t agree on the school that he should attend. I believe that he should go to his local primary school but she is Catholic and wants him to attend a Catholic school. What can I do?
A. Unless agreement can be reached, you might need to apply to the Court for orders about this specific issue. The Court will make orders that are based upon your son’s best interests and take relevant practicalities into account, such as payment of school fees and location of possible schools in to the area where your son lives.
Intervention Orders
Q. My ex has applied for an Intervention Order against me. All of it is made up. Should I contest the application?
A. You should obtain legal advice about your options and any risks involved in contesting the application.
Q. Is it worth getting an Intervention Order? They’re just a piece of paper aren’t they?
A. Intervention Orders are orders of the Court. Breaching an Intervention Order is a crime that can result in a term of imprisonment.
Financial Agreements
Q. What is a Financial Agreement?
A. Financial Agreements include Pre-Nuptial Agreements and are sometimes referred to as Binding Financial Agreements or BFA’s. They are agreements made under the Family Law Act 1975 either prior to, during or after a marriage or de facto relationship, about property or maintenance issues.
Q. Pre-Nups aren’t worth the paper they’re written on are they?
A. A properly prepared Financial Agreement made before marriage that covers all of the technical requirements, has been agreed to by both parties in a transparent and fair manner and that is workable and equitable, should be legally binding.
Q. I found a website that has a template for a Pre-Nup but apparently I need a lawyer to sign off on it. If I complete it and fill in the blanks can I call in and get you to sign it for me?
A. No. Financial Agreements should not be made without getting detailed legal advice and having an experienced lawyer carefully draft an agreement that suits your specific circumstances.
Other Questions
If you have any family law questions, please contact our office.
