How do I obtain a Divorce?
When you and your spouse have been separated for 12 months, either of you may make an application or you may make a joint application, to the Federal Circuit Court of Australia for a Divorce Order. When the Application is filed, you will be allocated a Court date for your Divorce to be heard by a Registrar of the Court.
At the Divorce Hearing, the Court will require proof of the following:
- Your citizenship or residency status
- Your marriage
- Your separation for at least 12 months
- That your marriage has irretrievably broken down with no likelihood of reconciliation
- That proper arrangements are in place for any children under 18
- That the application has been personally served on your spouse
Once the Court is satisfied as to these matters, a Divorce Order will be made which will become final 1 month and 1 day after the divorce hearing. In some circumstances the Court may agree to shorten the time. You will then have 12 months from that date to make an application for property settlement and/or spouse maintenance.
Edwards Family Lawyers can assist you to obtain a Divorce by compiling the necessary information, drafting the Application and other documents for the Application, arranging service of the Application upon your spouse, and by appearing on your behalf at the Divorce hearing to obtain the Divorce Order.
Do I have to be Divorced before I do my Property Settlement?
No you do not have to be Divorced before you can finalise your property settlement. Divorce proceedings and Property proceedings are two separate proceedings commenced by separate Applications to the Court. You can obtain a Divorce Order by applying to the Federal Circuit Court. An application for property settlement is lodged separately in either the Federal Circuit Court or the Family Court (depending on the nature of your matter).
You can reach an agreement on the division of your asset pool before or after you have divorced and the agreement can be made formal and binding, by way of Consent Orders and/or Financial Agreement. If you are separated, but have not Divorced, an application for property settlement can be made any time after the date of separation.
However, if the party applying for Orders is already divorced, then any such Application must be made within 12 months from the date the Divorce Order became final, otherwise the leave of the Court must first be obtained. Obtaining leave is not guaranteed, can be difficult, and will involve a separate application to the Court. Therefore any person who has obtained a Divorce Order, and subsequently seeks a property order, or other financial Order, should seek legal advice a soon as possible to ensure that any such application is filed within the period specified.
Do De Facto Couples in NSW have the same rights as Married Couples?
De Facto couples (including same sex couples) who separate after 1 March 2009 have the same rights as married couples. The rights and obligations of couples upon the breakdown of a Marriage or De Facto relationship are now all governed by the Family Law Act 1975. De Facto couples who separated prior to 1 March 2009 are still covered by the old State legislation, the Property (Relationships) Act 1984, although the parties to the relationship may agree for the Family Law Act to apply to them (this is called “opting in”).
The changes to the legislation which came into effect on 1 March 2009 mean that De Facto couples have the same entitlement with respect to property settlement, superannuation splitting, parenting matters and spouse maintenance as married couples. However, there are also certain geographical requirements to be met concerning your residence in NSW.
In Family Law matters, the duration of a relationship is an important factor. The duration of a marriage is more easily identifiable from the date of marriage and the date of separation is usually recorded for the purposes of divorce proceedings. For de facto relationships, there may be disputes about whether the De Facto relationship existed at all, when the relationship began, or when it ended.
If you are in a de facto relationship, these matters are important in determining whether you have any entitlement under the Family Law Act. The expert Family Lawyers at Edwards Family Lawyers can provide you with expert legal advice regarding all issues arising from your De Facto relationship.
If we have reached an agreement, do we have to see a lawyer?
If you and your spouse/partner have reached agreement by yourselves, you may wish to simply abide by that agreement in good faith and rely on the other person’s word that he/she will also uphold his/her end of the agreement. However for several reasons, and to protect your future position, it is strongly advisable that you seek legal advice from a Family Law expert in relation to formalising that agreement by way of Consent Orders or a Financial Agreement, although Consent Orders is preferred.
You may wish to seek specialist Legal advice to find out if your agreement is fair and equitable according to your rights under the Family Law Act 1975 and associated legislation. This may equip you with helpful information to enable you to further negotiate with your spouse/partner.
As set out above, you may also wish for your agreement to be made formal and binding so that it provides you with certainty, protects you against your partner or spouse making any claim against you in the future, and provides options for enforcement if the other party defaults under the agreement. Our Family Lawyers are able to advise you on whether it is in your interests to enter into the proposed agreement; draft the relevant settlement documents that are appropriate to reflect your agreement, ensure it is binding; make the necessary approach to the Court or other government agencies to have your agreement made binding and enforceable; as permitted by the law and take steps to implement the terms of the agreement.
How does the Family Court divide Assets in Property Settlement Cases?
If you and your former spouse/partner are unable to reach an agreement about the division of your asset pool, the Court has the power under the Family Law Act 1975 to redistribute the property of the parties to a marriage or a de facto relationship upon application by either party.
In determining how to divide the asset and liabilities between you and your former spouse/partner, the Court takes the following steps:
1. Identify and value the property and financial resources of each of you at the date when you first began living together, at the date of your separation and at the final Hearing. You and your former spouse/partner are each under an obligation to fully disclose your financial circumstances and are required to exchange all relevant financial documentation.
2. Identify and assess the following contributions made by each of you during the Marriage or De Facto relationship:
2.1. Financial Contributions, such as assets owned at the date of commencement of cohabitation, income earned, inheritances, lotto winnings, loans and gifts;
2.2. Non-Financial Contributions includes things such as renovations, maintenance or repairs a party has undertaken to property, which has added value;
2.3. Parenting Contributions, which includes things such as feeding and bathing young children, helping the children with homework, taking the children to sport, caring for them;
2.4. Homemaking Contributions include tasks such as vacuuming, cleaning, shopping, cooking, washing and ironing.
3. Identify and assess relevant future factors, often referred to as “Section 75(2) factors”. This requires an assessment of the respective needs, resources and earning capacities of each of you in the future.
4. The Court will then consider what percentage of the net asset pool each party should receive and whether that proposed property settlement is just and equitable in all of the circumstances.
Once property proceedings have commenced, this does not mean that you have to conduct your matter all the way through to a final hearing; there will still be opportunities for settlement during the Court proceedings. At every stage of your Family Law matter, the expert Family Lawyers at Edwards Family Lawyers will keep you fully informed of the progress of your matter and advise you as to your rights and obligations under the Family Law Act.
Edwards Family Lawyers can assist you to take advantage of settlement opportunities that will save you the expense and stress of going through a Court hearing. If those negotiations fail, our experienced Family Law Experts are there to provide you with expert Family Law advice and representation in your property settlement proceedings.
Who can bring a Parenting Application?
If parents cannot reach agreement about the arrangements for their children after separation, then either parent can make an application for Parenting Orders to the Family Court of Australia or the Federal Circuit Court. A Parenting application can also be made by a child, a grandparent or any other person concerned with the children’s care, welfare and development.
How does the Court make decisions about Children?
Parenting Orders can be sought regarding matters such as who has the decision making responsibility for major long term issues concerning the child; mechanisms for the parents to consult each other regarding the child; who the child will live with; the amount of time the child will spend and communicate with the non-resident parent; child maintenance orders; Child Support Departure Orders and any other aspect concerning the child’s care, welfare and development.
The Court will determine the parenting orders that are the most suitable for your children based on whether they are in the best interests of your children. In considering what Orders to make, the Court will then take into account matters such as the individual relationship each parent has with each child; the parent’s ability to meet the child’s needs; the attitudes to parental responsibility; the attitudes to facilitating the child’s contact with the other parent; the parent’s past involvement in the child’s life; the child’s age and maturity; where appropriate, the child’s wishes; and anything else that the Court considers relevant to the welfare of the child.
You and your former spouse/partner will have the opportunity to put forward your evidence regarding your involvement in the child’s life and your proposed arrangements for the child, for the Court to consider. After considering all the evidence and submissions, along with your competing proposals for the child, the Court will make binding Orders for the future arrangements for the child who is the subject of the dispute.
Edwards Family lawyers have experienced Family Law experts who will advise you and assist you to negotiate with your former spouse/partner to reach an agreement that is in the best interests of your children.
Edwards Family Lawyers also have the expertise to prepare the evidence and submissions to ensure that you have the best possible representation in contested parenting proceedings.
How do I apply for Child Support?
The Child Support Agency is responsible for assessing the amount of child support you are entitled to be paid or are liable to pay and, if necessary, collecting the child support payable. An application for child support is made directly to the Child Support Agency and a Child Support Assessment of how much child support should be paid will be issued. The child support amount is calculated using a formula which takes into account both parent’s annual incomes as at the last financial year; the living expenses of each parent; the percentage of care (based on number of nights) each parent provides to the child; and the costs of raising the child. The Child Support Agency website, www.csa.gov.au, provides an online child support calculator which estimates the amount of child support you are entitled to or may be liable to pay.
If you wish to dispute the child support assessment, you may apply to have the Assessment reviewed by a Senior Case Officer. Edwards Family Lawyers can assist to prepare the material and submissions to assist you with that assessment review.
You and your former spouse/partner may also make private arrangements for the payment of lump sum child support, periodic child support, school fees, medical expenses, and other ancillary expenses for the child.
The Family Lawyers at Edwards Family Lawyers have the expertise and experience to advise and to assist you to negotiate an agreement with your former spouse/partner and to draft the appropriate Child Support Agreement or Departure Orders reflecting any agreement reached.
Edwards Family Lawyers also have expertise in seeking Court Orders departing from the Child Support Agency Assessment in certain circumstances.