The breakdown of a marriage or relationship can be a traumatic and emotionally draining experience. At Sanford Legal we have a team of highly skilled family Lawyers ready to assist you during this difficult time.
We offer specialist legal advice and assistance in the following areas of Family Law:
- Separation and Divorce
- Family Law settlements (property matters)
- Spouse Maintenance
- Child Custody and Parenting Orders
- De facto relationships
- Financial Agreements (Pre-Nuptial Agreements)
Separation
In order to apply for a Divorce the parties to a marriage must be separated for a continuous period of more than 12 months. The parties to the marriage can be separated but still living under the same roof. If this is the case however the Court may require evidence that the parties were separated while living under the same roof when considering an Application for Divorce.
Divorce
The Family Law Act 1975 governs the principles and application of a divorce in Australia. A divorce brings about the formal end to a marriage once the relationship has irretrievably broken down.
Once the parties have been separated for a 12 month period an Application for divorce can be filed in the Family Court of Australia or Federal Circuit Court.
The only ground for obtaining a divorce in Australia is that the marriage has broken down irretrievably and permanently, meaning that there is no prospect of the parties getting back together. It is a ‘no fault’ law, so that the Court will not consider the reasons why the relationship has ended.
Spouse Maintenance
There are financial consequences arising out of the breakdown of a marriage or de facto relationship.
Spouse maintenance issues are relevant when one party to the relationship cannot support himself or herself sufficiently after the relationship has ended. In this instance the provisions of the Family Law Act provides for the partner/spouse with the necessary means to financially support the other person.
If the parties cannot reach agreement on the appropriate maintenance to be provided the Court has the power to determine this issue based on numerous factors including the parties’ income and resources, the ability of either party to earn an income and the need to support any children of the relationship.
Property and Financial Arrangements
An important consideration by the parties at the end of a relationship is the need to attempt to reach agreement as to how the property and assets of the parties are to be divided and allocated. This can include assets such as real estate, superannuation, motor vehicles and jewellery just to name a few.
Depending upon the complexity and extent of the party’s financial arrangements, it is not uncommon for the couples to reach an agreement as to how the assets and finances are to be divided. Such an agreement can be entered into by the parties by way of a financial agreement or filing Consent Orders with the Court.
In the event that agreement cannot be reached then the Court will determine how the property and finances are to be allocated by making financial orders relating to matters including, the division of property and payment of spouse or de facto partner maintenance.
Some of the matters to be taken into account when attempting to determine a property settlement can include:
- How the parties contributed either financially or non-financially to the relationship;
- The value of any assets and debts;
- The likely future position of each of the parties financially; and
- Whether there are children of the relationship that need to be provided for.
There is no need to wait until a divorce is finalised to apply for or negotiate a property settlement. However, the parties have a 12 month time limit after the finalisation of a divorce in which to commence property proceedings in Court. For de facto couples, the time limit is two years from the end of the relationship.
Children
Once separated or divorced, it is crucial that the parties make arrangements for the care, welfare and development of any children to the relationship. The law considers the welfare of the child as being paramount and encourages the parents, where possible, to reach an agreement regarding parenting arrangements including custody issues, rather than proceeding to a Court determination.
An agreement can be reached by the parents through negotiation or a private agreement between themselves. They may also choose to enter into a Parenting Plan which formally sets out the necessary arrangements for the children.
If an agreement cannot be reached, dispute resolution procedures must be attempted before an Accredited Family Dispute Resolution Practitioner, before proceeding to Court.
In the event that dispute resolution fails the parents can apply for Parenting Orders to be made by the Court, which will base its decision on what is in the best interests of the children and their welfare. The Court presumes that it is in the best interests of the children for the parents to have equal shared parental responsibility for the children, unless there is evidence that shared custody isn’t in the best interests of the children – for example in cases of family violence and child abuse.
De Facto Relationships
De facto relationships are defined generally as two adult people not legally married or related by family, but living together in domesticity providing each other domestic support and personal care. This relationship can apply to heterosexual and same sex couples.
The rights of de facto couples at the end of a relationship are outlined in the Family Law Act.
The breakdown of a de facto relationship generally gives rise to the same legal rights as to property and financial settlements and children and parenting matters as married couples following a separation and divorce.
Financial Agreements
Binding Financial Agreements, commonly known as Prenuptial Agreements, enable parties to a marriage or de facto relationship to enter into a written agreement, either before, during or after the end of the relationship to determine how their assets will be divided in the event of a relationship breakdown.
It is a legally binding agreement set up between the parties should a relationship break down. The assets and financial resources of the parties will be distributed in accordance with the terms of this Agreement.
In order for a Binding Financial Agreement to be legally enforceable it must be agreed and signed by both parties once they have received independent legal and financial advice as to the implications of the agreement.
General
Our highly qualified team at Sanford Legal are able to assist and advise you in all areas of Family Law matters and disputes. We appear on your behalf in the Family Court and Federal Circuit Court in relation to these matters.
We are also able to advise you on all aspects of property settlements as well as prepare all necessary Court documents, settlement and financial agreements.
Contact Sanford Legal today for a free case assessment.