(07) 3255 6327 [email protected]

Family Law

The breakdown of a relationship can be a stressful experience. We aim to minimise the stress and expense to our clients by negotiating and settling their family law property and children’s matters via consent orders or financial agreements. If court proceedings become necessary, we can provide strong advocacy on your behalf while attempting to reach a workable solution without undue cost and delay.

Separating from your spouse or partner

Separation is when one or both people have decided that their relationship has come to an end. You can separate from your partner even if your partner does not agree, and you do not need anyone’s permission. De facto couples have the same protections as married couples, and the same rules apply to a de facto relationship.

You should advise organisations such as the Department of Human Services (DHS) Centrelink, Child Support and Medicare (whichever is applicable to your situation), that you are separated from your partner. You can also tell your family and friends.

If you have children, we recommend you work together to make arrangements that are in their best interests.

Separated couples also need to determine what will happen with their property and finances, bills, debts, joint bank accounts, superannuation, or insurance, and how these assets will be divided.

Divorce

Divorce is the legal ending of a marriage and once a divorce order is made final, you are able to remarry.

The only requirement in obtaining a divorce is an ‘irretrievable breakdown’ of the marriage and separation for 12 months, with no likelihood of getting back together with your ex-partner.

De facto relationships

If you have entered a de-facto relationship, we can advise you about your rights and draft a co-habitation agreement to help protect your property in the event of a dissolution of the relationship.

A de facto relationship generally exists when a couple are not legally married to each other, not related by family, and having regard to all their circumstances, have a relationship as a couple living together on a genuine domestic basis.

The law has formulated certain factors as general guidelines to determine whether or not a de facto relationship exists. These include:

  • how long the couple has been together in the relationship;
  • the existence of a sexual relationship;
  • the degree of financial dependence between the parties;
  • the degree of a mutual commitment to a shared life;
  • whether the relationship is registered in an Australian state or territory;
  • the use and ownership of property;
  • the care and support of children;
  • the public aspects of the relationship.

Property settlement and children’s care arrangements

You can start negotiating how your assets will be divided as soon as you have separated, however once a divorce is granted, any court proceedings for a property settlement must be commenced within 12 months of the date of the divorce order. For de facto partners, court proceedings must be commenced within 2 years of separating.

When a couple is unable to agree on arrangements for children, they can attempt a settlement through family dispute resolution, otherwise they may have to commence court proceedings. The family court can determine disputes about children from a domestic relationship, including disputes about parenting arrangements and child contact. This also includes issues relating to children from a de facto relationship.

What steps are involved in dividing property?

The division of assets after separating can be achieved through a financial agreement, consent orders or court proceedings. Most family law property settlements however are finalised without going to court.

When negotiating how property should be divided after a break-up the steps that a court would take are generally applied. These are:

  • identifying the parties’ assets, liabilities and financial resources;
  • assessing the parties’ respective financial and non-financial contributions;
  • evaluating the parties’ future needs including their relative earning capacities, state of health, education and responsibilities as primary carer of any children;
  • making just and equitable orders in consideration of all the circumstances.

Parenting Plans

A parenting plan is an agreement made between parents regarding the ongoing and future arrangements for children. Parenting plans are not legally enforceable however may be taken into account if one of the parties subsequently applies to the court for a parenting order. Parenting plans may be made before or after divorcing.

Consent Orders

A consent order is a legally binding agreement regarding parenting arrangements and can also include terms regarding the division of property. Consent orders are made after agreement by the parties without the need to attend court, however they have the same force as an order made after a court hearing.

Separating from your partner can be a traumatic time, and can greatly impact your wellbeing, your family and your financial future. It is a time of uncertainty, but also a time when you need to be aware of your legal rights. We have expertise across all areas of family law and recommend that you reach out as soon as possible so we can help guide you through this difficult time.

If you need any assistance, contact us at [email protected] or call (07) 3255 6327 for expert legal advice.