Family Law - Divorce, Property Settlements and Parenting arrangements
There are many issues following a separation. Family Law is a general term which usually encompasses:
1. Divorce and De-Facto separation:
Divorce is the legal end of a marriage. We have a no fault divorce system in Australia, meaning the law does not take into account the causes of marriage breakdown. The only requirement for a Divorce is that the parties have been separated for 12 months. The separation can be under the same roof in some circumstances.
Divorce is only the legal end of a marriage, it is separate from the resolution of other issues concerning the children and property, etc.
2. Parenting arrangements:
Post separation parenting arrangements can either be resolved informally between the parents, or more formally through a parenting plan or consent orders filed with the Court. Unless an exemption applies, the Family Law Act 1975 and the Family Law Rules 2021 require that you attempt to resolve your parenting disputes using family dispute resolution services (FDR). If these attempts are unsuccessful, you need to exchange written correspondence with your spouse or their lawyers to clearly identify what issues remain in dispute. If the matter is still unresolved at this point, then a Court application may be appropriate.
3. Property settlements:
A property settlement concerns the division of your assets, liabilities and superannuation post separation. If agreement can be reached then it can be put into writing and approved by the Court as court orders or through a binding financial agreement. The parties can reach an agreement through negotiation, counseling or mediation. With consent orders, the Court must ensure that any agreement is fair and equitable before it approves an agreement.
If agreement cannot be reached through negotiation, counseling or mediation then the only alternative is to start Court proceedings. Prior to commencing Court proceedings, the court requires you to make genuine steps to resolve the dispute, unless it is urgent. These steps include -
a. read the pre-action procedures;
b. Make inquiries about, invite the other parties to and where it is safe to do so, participate in dispute resolution services, such as family counselling, negotiation, conciliation or arbitration;
c. If dispute resolution is unsuccessful, write to the other parties, setting out their claim and exploring options for settlement; and
d. Comply, with the duty of disclosure by exchanging relevant documents.
4. Spousal Maintenance:
Either party may be entitled to spousal maintenance from their former spouse, provided they can establish a need for support and the capacity of the other party to pay. A property settlement does not necessarily finalise a spousal maintenace agreement.
5. Child support:
Child support is separate to the divorce/separation, property settlement and parenting arrangements. It is the financial support provided by a parent to assist the other with the costs of raising children.
We understand that the end of your relationship can be one of the most stressful periods of your life. We have a team of supportive and practical lawyers who are experienced in all aspects of family law. The Federal Circuit and Family Court of Australia also have a number of helpful resources on their website.
It is important to remember that limitation periods apply in family law. It is important to speak to an experienced lawyer as soon as possible.
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