Melbourne Family Lawyers

FINANCIAL AGREEMENTS

DIVORCE & PROPERTY

CHILDRENS MATTERS

INTERNATIONAL FAMILY LAW

Divorce & Property

You can only apply for divorce under Australian Law after you have been separated for a period of at least one year. In 1976, the Family Law Act established a "no-fault divorce" system in Australia. This means that only ground required for divorce is that the marriage has broken down irretrievably- who is to blame is irrelevant. If there are children aged under 18 years old, the Court can only grant a Divorce if it is satisfied that proper arrangements have been made for the welfare of those children.

If both parties agree, you may apply for a Joint Application for Divorce. However, if the other party does not "agree" to a Divorce, this does not present a problem as you can still apply for Divorce on your own- but it will be necessary to serve the Divorce Application on the other Spouse prior to the Divorce Hearing. Even if the other party objects to the Divorce, the Court will grant the Divorce as long as there is evidence of a one year separation and proper arrangements having been made for the welfare of the children. Subject to proof of separation, it is sometimes possible to obtain a Divorce if there has been a separation under the one roof.

If you only wish to settle property and financial issues and/or child arrangements, it is not obligatory to apply for a Divorce. You do not have to wait for a year before dealing with property and child issues as a Divorce is a separate independent Court Case.

A Divorce Order, once granted at the Divorce Hearing, does not become final until one month and one day after the Divorce Hearing and you should not finalise any arrangements to remarry until the Court has fixed the date on which the Divorce is to become final.

An Australian Court may have Jurisdiction to grant a Divorce even if the parties no longer live in Australia. Please refer to our International Family Law section of this website for further information.

Maintenance

Maintenance (also called "alimony" in some countries) is payable after separation if your ex-partner does not have the capacity to support himself or herself and you can afford to pay money in support. Maintenance may be paid periodically (e.g. monthly) or it may be capitalised as a lump sum. It is different to child support which is payable solely for the maintenance of children.

Maintenance may be payable if you are:

•separated or divorced from a legal spouse

•separated from a de facto partner after 1 March 2009

You can apply for maintenance after you separate but the time limits should be noted. You must apply for a court order for maintenance and/or property settlement:

•within one year from the date your divorce was finalised

•within two years from the date your de facto relationship ended

In special circumstances, it may be possible to get around these time limits.

Property Settlement

We handle all aspects of problems related to Family Law Property Settlement in a holistic way. We have the knowledge of how to resolve your Family Law problem in the context of your entire circumstances paying particular attention to relationships, finances and taxation.

At the end of a relationship, it is necessary to determine how to divide up your assets and financial resources. A property settlement is the term used to describe who gets what after the end of a marriage. The Family Law Act 1975 covers matters relating to property settlements for married couples and de-facto couples (including same-sex relationships). A financial case can cover such things as property settlement, maintenance, child support or financial enforcement. "Property" covers such things as your home, other real estate, money in the bank or other financial institution, cars, boats, investments, business interests, household contents, and Superannuation.

How do you determine what the Property Settlement should be?

Contrary to urban myths, there is no presumption that the property should be divided 50/50, 60/40 or in any other arbitrary proportion. The Family Law Act sets out the factors which must be taken into account when a Judge has to consider how property is to be divided.

The Family Law Act 1975 sets out the general principles the court considers when deciding financial disputes after the breakdown of a marriage or a de facto relationship. There is no universal formula to apply as a property settlement is based on discretionary criteria. Beware of "advice" received from well-meaning friends or family as a result of their own experiences. Each person's situation is different and should be carefully assessed by a family lawyer qualified to give the right advice.

The factors which the Family Law Act specifies must be taken into account are as follows:

•Assessing the current value of the property concerned and the extent of any liabilities

•Assessing the direct financial contributions by each party, for example, assets and savings owned at the commencement of the relationship.

•Considering the indirect financial contributions by each party, for example, gifts and inheritances from families.

•Considering the non-financial contributions to the marriage or de facto relationship, for example, caring for children, being the homemaker and maintaining or improving the property.

•Taking into account future needs, for example age, health, financial resources, care of children and income earning capacity.

•Finally, after considering all of the above, the final consideration is to apply the test of whether any proposed property settlement is fair and equitable in the circumstances.

It is important to realise that the way your assets and debts will be shared between you will depend on the individual circumstances of your family. Your settlement will probably be different from others you may have heard about.

Can you have an informal property settlement?

Whilst there is no law against making your own informal property settlement without lawyers and outside the scope of the Family Law Act, it is not a wise move. Unless a settlement is approved by a Court, or a formal binding Financial Agreement is made pursuant to the Family Law Act, an informal property settlement is not regarded as binding. This means that one of the parties could renege on it and be entitled to apply to the Family Court for a greater share of the property in the future. However, it is not necessary for you to appear in court in order to have a binding settlement. If terms of settlement are reached, a family lawyer can prepare an Application for Consent Orders which may be lodged at the Family Court without the need for anyone to actually appear in Court. Consent orders have the same legal force as a decision made by a Judge in a Courtroom. Before making the consent orders the Court will need to be satisfied that the orders are properly drafted and that the terms are just and equitable. The benefit of having orders made by consent is that you know exactly what the settlement will be as opposed to the uncertainty of having a judge to decide the matter for you. The long delays experienced in court proceedings coupled with the expense of court proceedings certainly make going to court the less preferred option.

Full and Frank Disclosure

If you are involved in a case about property you are required to make a "full and frank disclosure" to the other party about all of your property, superannuation, financial resources. For detailed information about this, refer to the page Disclosure under Family Law Rules under the Reading Room tab.

Mediation and Negotiation

The Family Law Rules require you to take certain steps before you commence legal proceedings in the Family Court (These steps are called Pre Action Procedures). The Pre Action Procedures are intended to encourage parties to resolve matters through negotiation rather than having a Judge make a decision in Court. Unless your case is urgent, or involves some exceptional factor, such as allegations of abuse or fraud, you must:

•Make a genuine effort to resolve the dispute through counselling or mediation;

•Providing the other party with copies of relevant documents;

•Make a settlement offer;

•advise the other party of the orders you will seek from the Court.

Complete details of what is required to comply with Pre Action Procedures can be found at the page-Pre Action Procedures under the Reading Room tab.