FAMILY LAW FACT SHEET

LAST UPDATED: 20 November 2013

Taits Legal provides a comprehensive range of family law services for married and de facto couples. Our family lawyers provide advice on all family law related issues including property settlements, spousal maintenance, child contact, child support, divorce settlements and relationship agreements. 

To provide our clients with an understanding of how they personally will be affected by a range of family law related issues we have prepared an easy to read Family Law Fact Sheet summary below.


DIVORCE

Where there is an irretrievable breakdown of a marriage party’s can apply for a divorce. An application for divorce is available 12 months after the date of separation. The Court must be satisfied that you and your partner have lived separately for a continuous period of 12 months and are unlikely to resume cohabitation.

Separation is effectively the breakdown of a marriage, therefore it need not be physical separation in individual premises, but it does mean a significant change to the normal married behaviour of a couple.

There are 3 grounds for contesting a divorce:

  1. There is a reasonable chance that you and your partner will resume married life together.
  2. The required 12 months separation period has not occurred prior to the divorce application.
  3. The marriage was not valid.

If you have been married for less than 2 years, you and your partner must attend counselling with an approved family counsellor and seek a certificate of attendance. Alternatively, you must seek permission from the court to apply for a divorce without a certificate of attendance.  

If there are children under the age of 18 to the relationship, Court Orders must be underway before a divorce application will be approved.

You and your partner can apply for a divorce so long as one of the parties is an Australian citizen, lives in Australia or usually resides in Australia and has been living in Australia for the period preceding the divorce application.

If the court grants a divorce order, the order becomes final 1 month and 1 day after it is made. A certificate of divorce is sent to you and your partner.

We stress to our client that it is important to review your Will once your divorce is finalised.

Please contact our office if you wish to make an appointment with one of our family law lawyers.


DE FACTO RELATIONSHIPS

Since the 1 March 2009 couples that are in a de facto (or domestic) relationship have the same rights as a married couple. Therefore property settlement and spousal maintenance applications can now be made under the Family Law Act 1975.

However, the Court must be satisfied that a de facto relationship is more than 2 years or that there is a child to the relationship before a property settlement or maintenance applications can occur.

A de facto relationship includes same sex partners and can exist if a partner is married to someone else or is in another de facto relationship. Taits Legal lawyers will consider all the circumstances of your relationship to determine whether it is a de facto relationship. These circumstances include:

  • Length of the relationship;
  • The nature and extent of their common residence;
  • Whether a sexual relationship exists;
  • The degree of financial dependence and any financial support;
  • The ownership, use and acquisition of their property;
  • The degree of mutual commitment to a shared life;
  • Whether the relationship is or was registered in a State or Territory;
  • The care and support of children of the relationship;
  • The reputation and public aspect of the relationship.

If a de facto relationship is established, Taits Legal will help you determine any property settlement division to provide a just and equable outcome. Please see property settlement below regarding time limits and additional information for property settlements.

Please contact our office if you wish to make an appointment with one of our family law lawyers.


PROPERTY SETTLEMENT

Following separation, couples (married and de facto) usually wish to become financial independent of each other.  If parties cannot agree on how the property and liabilities should be divided, you should seek legal advice from Taits Legal family lawyers to assist you in applying to the Family Court or the Federal Magistrates Court for an order settling property issues.

Married couples – Applications for property settlements must be made within 12 months from the date of any divorce order. However the property settlement procedure can start at any time (divorce is not a pre-requisite).  

De facto relationships – Applications for property settlements must be made within 2 years from the date of separation. They must also satisfy the de facto relationship definition in the Family Law Act 1975.

Each party has entitlement to a split of all assets accumulated throughout the relationship. Assets of the relationship are generally pooled and then divided with consideration given to each party’s earning capacity, duration of marriage, care and responsibility of children, future needs and health. This includes both parties super.


REACHING AN AGREEMENT

If both parties agree on how the property should be divided, you can finalise your arrangements by mutual agreements, binding agreements or consent orders.

Mediation can be an alternative to settle property disputes than a court proceeding or a non-binding agreement, it is also a more cost-efficient and amicable way for separated parties. A mediator helps parties decide what is in dispute and try and explore possible solutions and draw up agreements. Agreements reached in mediation should be legally formalised.

It is important that you both seek independent legal advice on which method is preferable in your circumstances and how to meet the specific requirements for financial agreements and mediation.


COURT ORDERS

If both parties cannot agree on how the property should be divided, you can let the court decide for you. However we advise client that this is the last resort. The Court must be satisfied when making orders concerning the division of property that it be just and equitable in the circumstances. The court will consider each parties contributions to the asset pool and the future need of each party. The asset pool is valued as at the time of the final hearing.

The Court will consider the following:

  • Contributions made by each party to the asset’s purchase, maintenance and improvement over the history of the relationship. This includes for example whether the asset was inherited or was the result of a windfall. Contributions can be financial and non-financial, direct or indirect.
  • The effect an order has on the future earning capacity of the parties.
  • An assessment of the need of one party to be maintained by the other. The court will consider a person’s age, state of health, income-earning capacity, superannuation, financial circumstances relating to cohabitation with another person and which party is looking after the children of the relationship.

The Court may make the following orders when settling property disputes:

  • A declaration specifying the particular interests of both parties for the assets of the marriage;
  • An order for the property to be sold or for transfer of the registered ownership of property between the parties;
  • An order for the sale of particular assets and a distribution of the proceeds;
  • An order for the payment of money by one party to the other.

If you wish to proceed with Court proceedings, each party must fully disclose and exchange the following:

  1. The 3 most recent individual tax returns;
  2. 12 months of bank statements;
  3. Superannuation statements;
  4. Market valuation of any property;
  5. Copies of any trust deeds;
  6. Financial statements and tax returns of any company’s controlled by any party;
  7. Any partnership agreements;
  8. Annual company returns of directors and shareholders.

Please contact our office if you wish to make an appointment with one of our family law lawyers. Our view is it is often helpful to sever financial relationships as quickly as possible.


SPOUSAL MAINTENANCE

Spousal maintenance is the provision of money in order to provide one party with a sum for what is necessary in a normal life. It is necessary to meet the following conditions:

  1. That one spouse is unable to support themselves adequately (due to care and control of a child of the marriage, physical or mental incapacity to gain employment, no financial resources etc).
  2. The other spouse is reasonably able to maintain the former spouse.

Married couples can apply in the following circumstances:

  • Anytime before divorce
  • Whilst applying for property orders
  • Can reapply even after orders have been made
  • Note: for de facto relationships they can apply within 2 years of separation.

Party’s can ask for lump sum, periodic payments, some property in lieu of money, pension split.

A party to a marriage can neither make nor resist a claim for maintenance simply on the basis that they are income poor or they otherwise has sufficient assets or financial resources to provide for maintenance. However, it is appropriate to retain a reasonable amount of capital in making or resisting a claim.

Variations to maintenance orders can be made to discharged, suspended, reviewed, increased or decreased if payer circumstances, the cost of living or the beneficiary’s circumstances have changed.

Maintenance orders cease upon death of beneficiary or payer, or upon remarriage of beneficiary.

Please contact our office if you wish to make an appointment with one of our family law lawyers.


PARENTING AND CHILDREN

All biological parents have a parental responsibility for their children regardless of marital status. The Family Law Act 1975 (Cth) promotes parental responsibility and encourages parents to reach agreements on parental issues between themselves either directly or with the assistance of counsellors, mediators or lawyers.

If both parents consent, Taits Legal lawyer can draft up the agreements and they can then be formalised by the court as ‘consent orders’.

If parents cannot reach an agreement, Taits Legal family lawyer are happy to assist you in applying to the court to determine parenting orders. Applications can be made anytime after separation (divorce is not a pre-requisite). However parents will need a certificate s60I from a registered family dispute resolution provider that confirms that an attempt at family dispute resolution was made. Taits Legal is happy to help you contact a family dispute resolution provider to make an appointment.

If such a resolution is inappropriate due to history of violence, party’s safety, risk that a child may suffer abuse, emotional, psychological or physical health of the parties, our family lawyers can make an appointment for you to attend the family dispute resolution alone whereby a certificate is likely to be issued.

The paramount consideration of the court is always the best interest of the child. The court does not favour the mother or father.

Any person who has an interest in the care, welfare and development of a child, this includes grandparents, can apply under the Family Law Act 1975 (Cth) for a parenting order.

The Family Law Act 1975 (Cth) is based on the following principles:

  • children have the right to know and be cared for by both parents;
  • children have the right to regular contact with both parents and any other person significant to the care, welfare and development;
  • parents should share the duties and responsibilities of looking after their children;
  • parents should try to agree on future parenting arrangements for their children;
  • children have the right to enjoy their culture.


COURT ORDERS

The court can make one or more of the following orders:

  • Residence order – determining who the child lives with.
  • Contact order – setting out the type and frequency of contact between a child and another person.
  • Child maintenance order – sets out the financial arrangements for the support of a child.
  • Specific issue order – sets out arrangements for other aspects of parental responsibilities to a child such as education or medical needs.

Before granting a parenting order, the court will consider what is in the best interest of the child. The court will presume that it is in the best interests of the child for the child’s parents to have equal shared responsibility for the child. The court must then decide whether it is in the best interest of the child to spend equal time or substantial and significant time with each parent.

The court will consider the following:

  • The expressed wishes of the child;
  • The child’s relationship with each parent and other people;
  • The likely effect changes will have on the child such as separation from a sibling;
  • The practical difficulty and expenses of contact with a parent;
  • Each parent’s capacity to provide for the child;
  • The child’s maturity, sex and background, including any need to maintain a connection with a lifestyle or culture;
  • The need to protect the child from physical or psychological abuse, harm or mistreatment;
  • The parents’ attitude to the child and their parental responsibilities;
  • Any history of family violence;
  • Whether it is preferable to make an order to prevent future legal proceedings.

A party breaches parenting orders if they:

  • Intentionally fail to comply with the orders;
  • Make no reasonable attempt to comply with the orders;
  • Intentionally prevent compliance with an order by a person who is bound by it;
  • Aiding or abetting a contravention of an order by a person bound by the order.

Breach of a parenting order can result in serious sanctions imposed by a court, including a fine, community service order and imprisonment. If a residence or contact order is breached, the court may issue a warrant for the arrest of the person who breached the order. The court can also make a recovery order authorising the recovery of the child, by force if necessary. However, if a court finds a person has a reasonable excuse for contravening an order, then they will be presumed not to have contravened to order.

Please contact our office if you wish to make an appointment with one of our family law lawyers. Our view is it is often helpful to resolve parenting and children matters as quickly as possible.