FAMILY LAW AND DEFACTO RELATIONSHIPS

Separation

Divorce

Property settlements

Binding Financial Agreements

Spousal Maintenance

Child Support

Children

Defacto Relationships

Domestic Violence

Costs

 

When your marriage has broken down you and your spouse may separate from one another by taking up separate bedrooms or separate homes. In legal terms you are separated when you cease to living together as husband and wife. If you are separated under one roof it can be difficult to prove if your spouse disputes it. The only importance a separation has legally is that you need to be separated for twelve months before you can get a divorce.

When you separate it is sensible to discuss who will live where, who will pay for what, who the children will live with, arrangements for you or your spouse to see the children, issues relating to child support and division of your property.

There is only one ground for divorce that is that the marriage has irretrievably broken down. Our system is not based on any fault of either party but provided you can show the marriage has irretrievably broken down you will be able to obtain a divorce. Showing that a marriage has irretrievably broken down is established by showing the Court that:

1. You have lived apart for at least 12 months.
2. If you have lived apart but under one roof for 12 months you will need to establish that two separate households have been adopted. You will need evidence from a third party who can corroborate that you have lived as a separated couple during this time.

The Court charges a fee to commence the divorce application.

You can bring the application separately or together with your spouse.

If you have children under the age of eighteen years you will need to attend at Court the day your divorce is heard. The Court will need to be satisfied that you have made proper arrangements for the children.

It does not mean that at this time you will have had to enter into a binding agreement relating to where the children will live, when the other parent will have contact to them, who will provide for them financially and so on. As long as you have set up some arrangements that are workable the Court will be satisfied that you have made the necessary arrangements.

Many separated couples do not obtain a divorce as it is not necessary to obtain a divorce in order to bring an application for property settlement or to bring an application relating to the children. Divorce proceedings are brought entirely independently of any other proceedings.

When you file the application for divorce the Court will allocate a hearing date which will normally be about three months after you have filed the forms. If you have children under the age of eighteen you will need to be present on the hearing date. If you do not have children under the age of eighteen you do not have to attend at Court at all.

The Court will grant and order for divorce that is known as a Decree Nisi. The Decree Nisi means that the Court is satisfied that you have met all the legal requirements in order for it to dissolve your marriage. This Decree Nisi becomes absolute, that is becomes final, one month and one day later. Then the Court issues you with a Divorce Certificate.

You will need to keep your Divorce Certificate if you want to prove that you are not married or you want to remarry or change any of your identity documents.

There is no limitation on when you may make an application for divorce but remember that if you bring an application for divorce at a time at when you have not been able to agree on issues relating to children and property matters, then you will only have twelve months within which to commence Court action for those matters. Otherwise you will need to get the court's permission to bring your application outside of that one-year time frame.

The Family Court has the power to make orders relating to separation of the property of people who have been married. The Court's four steps decision making process involves:-

1. The Court will make a list of all the assets and liabilities of both parties. Whether in sole names or jointly held. All these assets are referred to as "the matrimonial asset pool". The Court will want to give each of the assets a value either by way of sworn valuations or else by agreement between the parties.
2. The Court then looks at each party's contributions to the acquisition, conservation and improvement of the asset pool. The types of contributions the Court will look at are as follows:
   • Initial Contributions:
     Here the Court looks at what you and your spouse each had when you commenced the relationship. This may be at the date you started living together or at the date you married one another.
   • Financial Contributions:
     These are the contributions of a monetary nature. They can be direct or indirect, such as salary, investment, gifts, inheritance, income. For example, where one party's income is used to pay the mortgage, this will be seen as a financial contribution.
   • Non Financial Contributions:
     These are the contributions of a non-economic nature such as where a party landscaped the garden or painted the house.
   • Contribution as Homemaker and Parent:
     This is the contribution that a party makes to the welfare of the family and includes, shopping, cooking, laundry, parenting and the like.
   • Third Party Contributions:
     Third party contributions are any contributions made by one of the parties' parents or family members. They will be credited to the party whose family member made the contribution.
3. After the Court has identified the net asset pool and the parties respective contributions, it will then move onto the third step which is looking at the future needs of each of the parties. Here the Court will determine what further adjustment, if any should be made. It will base this part of its decision on the future needs of the parties taking into account issues such as state of health of each party, disparity of income earning capacity the care and control of children under the age of 18, financial resources and the like.
4. The fourth step in the Court's decision making process is to look at whether the result is just and equitable between you and your partner.

An application for a property settlement can be made at any time (after separation). However, if a divorce has been obtained then the application for property settlement must be made within 12 months of the divorce having become final.

Generally, when parties consult with a lawyer regarding property settlement the aim will be to try and have the parties reach an agreement on the settlement without the need to resort to litigation. This not only saves time and money, but will save a huge emotional expense.

If you are able to reach an agreement with your partner as to how your property will be divided you will enter into either Consent Orders or a Binding Financial Agreement. Binding Financial Agreements are discussed under a separate heading. This involves filling out a form and attaching to it the agreement you have reached. This application form together with the agreement is then filed at court. Neither of you need to attend at Court.

The matter will be looked at by a Registrar of the Court, in a closed office, and provided you have reached a just and equitable settlement the Court will stamp the document and they will be returned to you. They then have the effect of Court Orders.

In the event that you are unable to reach agreement on division of property you will need to lodge with the Court an application for a property settlement. You must first show the Court that you have tried to settle the matter by going through the "pre-action procedures".

If you bring an application for a property settlement it does not mean that your matter will have to ultimately be heard by a Judge. Most matters are settled prior to that time.

There have been changes to the Family Law Act resulting in Superannuation now being treated as property. The superannuation can be split between parties or notionally divided or flagged depending on the circumstances.

The law now provides that it is possible for spouse or partners (including same sex partners) may enter into a legally enforceable written agreement as to division of property either before they marry, while they are married or after divorce or separation. These agreements are referred to as "Binding Financial Agreements" or "BFA".

In order for a BFA to be binding it must:-

1. Be in writing and signed by both parties.
2. Specify the extent of any spousal maintenance provided;
3. State that both parties have received independent legal advice;
4. Annex a certificate of the independent lawyers advice; and
5. Copies of the signed document must be given to each party.

By having a BFA you remove the uncertainty of what may happen if your marriage ends.

A BFA can be set aside or varied only in certain special circumstances.

While it might not be the most romantic way to start a relationship, many see entering into a BFA as prior to manage asset protection measure particularly if the parties have children from previous relationships. A BFA made before marriage will be able to regulate your financial affairs. It sets out how the finances will be governed during the relationship and also what will happen if you separate. The document should set out in as much detail as possible what will happen to the property you own separately or jointly.

Even if you do not have a lot of property right now, it may be worthwhile entering into a BFA to protect a future inheritance.

Where parties have separated and want a binding arrangement regarding their property they can choose to make an application for Consent Orders which will be scrutinized by a Court or they have the option to enter into a BFA.

If one party can show that they have a need to be maintained and that the other party has an ability to pay then one partner may be liable to support the other. You must be able to satisfy that the Court of these things then it may grant orders for spousal maintenance. Sometimes parties agree that the spousal maintenance will be payable until their death or re-marriage or for a specified period of time.

Some of the factors that the Court will take into account in determining whether, to make orders for spousal maintenance are:

1. Age and state of health of parties.
2. Either of them has the care of a child of the marriage under 18.
3. The income, property and financial resources of each party and their physical and mental capacity for employment.
4. The financial means and obligations of each of them.
5. Whether they are supporting another person.
6. The standard of living which is reasonable in the circumstances.
7. Whether payment of maintenance would enable the recipient to undertake a course or retraining and enable them to earn an income in the future etc.

An alternative to spousal maintenance is for the parties to agree that a party gets a greater portion of the property in the property settlement in return for agreement not to pursue a claim for spousal maintenance.

Note that an application for spousal maintenance must be made within twelve months of a divorce being granted. If you have not however applied for a divorce then there is no limit on when you can bring a spousal maintenance claim.

If you are separated or one of your children was born on or after 1 October 1989 then the Child Support payable for your child will be assessed and collected by the Child Support Agency.

The Child Support Agency is an arm of the Australian Tax Office.

The parent who has the day to day care and control of the children may apply to the Child Support Agency for an assessment. Assessment involves the application of a formula to the paying parent's gross taxable income.

Once the assessment has been done is made payments must be made on a monthly basis. The money can either by paid to the Child Support Agency and forwarded to the other parent or the parents can choose to collect it themselves.

Often parents do not want to be bound to use the Child Support Agency. They reach their own agreement. This agreement is called a "Child Support Agreement". In order for a Child Support Agreement to be binding and enforceable it must be registered with the Child Support Agency.

An agreement can be reached which will allow parents to tailor their child support needs to their particular circumstances. They may reach agreement whereby the paying parent pays directly to various third parties such as private school, private medical insurance, extra-circular activities and so on.

You should note that it is very difficult to set a Child Support Agreement aside and if you cannot reach agreement to vary it you will need to bring an application in Court to set it aside.

The concept of custody, access and guardianship have been abolished by the Family Law Act and replaced with the concepts of:

1. Residence, i.e. where the child lives and with whom.
2. Contact, i.e. the arrangements that are made for the child and the parent with whom the child does not normally live to have contact either in person, by telephone or letter etc and;
3. Special Issues, i.e. any matter which requires specific mention. It may involve matters relating to the child's education, upbringing, medical treatment and anything else specific to you and your family.

Separation has no effect on a parent's responsibility to their children. However, it is obvious that once parents take up separate residence the child lives with one parent and the other parent loses some contact to the child. You may want to set up some arrangements relating to your children. Most separated parents with children enter into informal arrangements between themselves. For those who are not able to reach an agreement they can commence negotiations and if unable to reach agreement then bring an application to court.

If you do reach agreement and want to have it formalised by way of a Court Order you can proceed by way of an application for Consent Orders relating to parenting. This involves filling out a form stating what the agreement is that you have reached, and lodging it at Court. There is no filing fee for doing this and the Court will in chambers (i.e. in private) without either of you attending, review the agreement. If the Court is satisfied that it is in the best interests of the children they will approve the agreement by stamping it. The agreement will then be sent to you and will have the effect of a Court Order.

We encourage people to try and work out arrangements relating to their children between themselves because they are the one's who are usually best able to do this. But if they cannot do this themselves we would recommend that they see a mediator or counselor to try and reach an agreement prior to instituting court proceedings.

There has been recent press regarding the issue of "shared care arrangements". This is an arrangement whereby both parents will share the care of the children by entering into an arrangement that is suitable to them.

The relevant question at all times when dealing with children's matters is what is in the best interests of the children.

Relocation

Following separation or divorce some parents wish to move on with their lives and this may involve relocating to a new area.

It is expected that you will seek the permission of the other parent prior to relocating. If the other parent does not agree you will need to apply to the Court for the Court's permission to relocate.

We recommend that you think through exactly what will happen in your new proposed place of residence so that you can satisfy the Court that you have made adequate arrangements for the children's housing, education and the like. Also you will need to show the Court that you have made proper arrangements for contact to the other parent so that they are not deprived of time with the children.

As with all parenting matters the court will look at what is in the best interests of the children but the court will also give proper weight to the wishes of the parent and also their circumstances.

Hague Convention

Many children are wrongfully removed from Australia each year. If they are removed to a country that is a party to the "Hague Convention on the International Abduction of Children" there are effective and quick procedures by which parents may ensure that the children are returned to Australia.

The Hague Convention is generally seeks to maintain the status quo. In order to ensure the children are not put in a new unfamiliar environment but rather that they are brought back to where they usually live so that the matter can be dealt with in the usual course.

But if children are wrongfully removed to a country not a party to the Hague Convention it is more complicated to have them returned.

If children are wrongfully removed within Australia you can make an "Application for a Location and Recovery Order" on an urgent basis to the Family Court.

People who have ended a defacto relationship, which is now called a domestic relationship, may, in certain circumstances, be entitled to make an application for a property Adjustment Order from the appropriate Court.

In order to be able to bring the application you will first need to establish that you have been involved in a defacto relationship.

A defacto relationship is defined as where two unmarried people not related by family live together on a genuine domestic basis in a relationship. It does not matter whether they are of the same sex or opposite sex.

In determining this test the relevant factors that the Court takes into account are:

1. Nature and extent of their common residence;
2. Length of their relationship;
3. Whether or not a sexual relationship exists or existed;
4. The degree of financial dependence or interdependence and any arrangements for financial support;
5. Ownership, use and acquisition of property;
6. Degree of mutual commitment to a shared life including the care and support of each other;
7. The care and support of children;
8. The performance of household tasks and;
9. The reputation and public aspects of their relationship.

A Court can only make a "Property Adjustment Order" if the relationship has existed for at least two years in New South Wales. However if there is a child of the relationship under the age of eighteen or where one of the parties has made a substantial contribution the Court may make an adjustment order even if the relationship did not last two years.

An application for a Property Adjustment Order must be made within two years of the relationship having come to an end, unless the Court can be persuaded to grant special leave.

When looking at what adjustment to make the Court will consider the property brought into the relationship by each party and the contributions made by both of them.

If a couple can agree on how the property will be divided, they enter into a "Termination Agreement". This is a type of Financial Agreement that discloses all their assets and specifies all of the terms of their agreement.

It is imperative that both parties sign these agreements and each has obtained independent legal advice.

If agreement cannot be reached people in a defacto relationship need to make their application for property adjustment either in the Local, District or Supreme Court depending on the size of the adjustment you seek.

If persons in a defacto relationship want orders relating to children their application into the Family Court.

The concept of domestic violence does not only relate to physical abuse; it includes:

1. Willful injury e.g. punching, slapping or pushing;
2. Willful damage to another person's property;
3. Intimidation or harassment;
4. Indecent behavior to another person without their consent;
5. A threat to commit an act mentioned above

You are able to apply to the Local Court for a Apprehended Violence Order. These orders can be obtained on an urgent basis. If the other party breaches these orders it can result in them being arrested or even sentenced by the court.

It is not unusual for people who consult a lawyer to be concerned about the expense of being represented by a lawyer.

Our role in advising our clients with regard to their legal rights and obligations is in an attempt for them to enter into an agreement with their spouse so that minimal costs can be incurred.

However, reaching an agreement means that you and your spouse need to agree. Unfortunately this is not always an easy exercise. The costs involved will depend on the length of the negotiations. Sometimes court proceedings can't be avoided where the parties are unable to agree.

Our first meeting with you will last about an hour. We will take full and proper instructions from you relating to you and your marriage. We will the be able to follow up with a letter of advice to you giving you tips on negotiating your way through a property settlement or give you advice on what steps to take prior to separation so that you are placed in the best possible position.

Under the heading "How to Prepare for your First Consultation" are a number of questions which we suggest you try and answer to the best of your ability in order to make the first consultation with us as beneficial as possible.

Thereafter any work that we do we will only be prepared to do once you have signed a Costs Agreement. This agreement sets out the basis of our charges.

Our client's pay us as they go by providing us with a retainer amount that is held in our trust account towards the payment of our fees.

We will advise you each step of the way what the likely costs will be so that you are able to budget for this.

How to Best Prepare for Your First Consultation Regarding Family Law

Prior to seeing us about your matter we recommend that you try to answer these questions. The better prepared you are the more effectively we can advise you.

1. Your full name.
2. Your date of birth.
3. Your residential address.
4. Your postal address.
5. Your spouse's full name.
6. Your spouse's date of birth.
7. Your spouse's address if different from yours.
8. Whether you and your spouse were born in and have always resided in Australia and if not the following further information:
   • If you or your spouse were born outside Australia, when you came to Australia and whether you came to Australia with the intention of residing permanently or merely for some other purpose;
   • If you or your spouse came to Australia with the intention of residing permanently whether that intention has been fulfilled up to the date of the application.
   • If you or your spouse was born outside Australia whether you have become an Australian citizen.
9. Particulars of any orders made in proceedings between the two of you or agreements reached that may still be operative.
10. Date of cohabitation.
11. The place and date of the marriage.
12. The date on which you separated.
13. The date upon which you regard the matrimonial relationship as terminated, that is you formed the intention that the marriage relationship had irretrievably broken down.
14. Details of dates of any period of resumption of cohabitation after any earlier separation.
15. The number of previous marriages of both you and your husband.
16. Details of all assets and liabilities as at the date of cohabitation.
17. List of assets and liabilities as at the date of separation or currently including member's statement of your respective superannuation interests.
18. Details of financial contributions made by either party.
19. Details of any non-financial contributions made by each party to the improvement or acquisition of an asset by the fruits of one's own labour.
20. Details of any third party contributions ie. by way of gift from either of your families.
21. Details of homemaker and parenting contributions ie. Cooking, cleaning, laundry, caring of the children etc.
22. Details of any inheritances received.
23. Details of any health issues of either you or your husband.
24. Details of your occupation.
25. Details of your husband's occupation.
26. Details of your annual earnings.
27. Details of your husband's annual earnings.
28. Details of your respective employment histories during the course of the relationship.
29. Copy of your marriage certificate.
30. Any other documents particularly of a financial nature which may be relevant.
31. Copy of any communications already sent to your husband in relation to a property settlement.

How to Best Prepare for Your First Consultation Regarding De Facto Relationships Matters

Prior to seeing us about your matter we recommend that you try to answer these questions. The better prepared you are the more effectively we can advise you.

1. Your details:
   • full name
   • date of birth
   • present address
   • telephone number
   • present occupation
   • annual income
   • place of birth
   • state of health
2. Your partner's details:
   • full name
   • date of birth
   • present address
   • telephone number
   • present occupation
   • annual income
   • place of birth
   • state of health
3. Details of previous marriages or defacto relationships and details of any children that each of you may have.
4. Relationship details:
   • date co-habitation commenced;
   • where parties first lived together
5. Details of the pool of assets including financial resources such as superannuation of both you and your partner and approximate valuations of the assets at the commencement of your relationship and presently.
6. Details of any liabilities of you or your partner both at the commencement of your relationship and presently.
7. Have either of you made any special contributions to assets and financial resources such as gifts, inheritances, damages awards or entrepreneurial skills?
8. What are the current arrangements concerning the payment of:
   • hospital and medical insurance;
   • car insurance;
   • hire purchase instalments;
   • mortgages;
   • council rates;
   • electricity, gas;
   • school fees if applicable;
   • life insurance;
   • maintenance for children if applicable.
9. Whether you intend to have any children of the relationship.
10. Details of the financial arrangements to be made during co-habitation.
11. Any provisions you and your partner wish to make in the event of the death of either of you.
12. Details of whether you both intend to continue to work in paid employment or business.
13. Details of how you intend to share the household tasks such as shopping, cooking, washing, ironing, cleaning and gardening.
14. How you intend to deal with property:
    • owned at the date of commencement of the relationship;
    • acquired during the relationship; and
    • joint property acquired during the relationship
15. Any future provisions you require to be made for either of you should the relationship terminate.