Applying for a divorce
To legally end a marriage, an application is made to the court. Australia has a no-fault divorce system and the court is not concerned with attributing blame, however, to obtain a divorce order:
- the marriage must have broken down with no likelihood of reconciliation; and
- the parties must have lived separately and apart for a continuous period of 12 months; and
- if there are children under the age of 18 years, the court must be satisfied that appropriate arrangements are in place for their care and wellbeing.
In determining whether a couple has lived apart for 12 months, the court recognises that there are reasons why a couple may continue living under the same roof, despite their decision to separate, such as for financial, religious, or cultural reasons. In such cases, the parties will need to prepare an affidavit explaining the relevant circumstances and file this with the application.
If there is a child or children of the marriage under 18 years, a sole applicant will need to attend court to answer any questions regarding the care of the child or children to satisfy the court that suitable arrangements are in place for the children’s care and welfare.
What is a family law property settlement?
A property settlement concerns the division of assets, liabilities and financial resources between a separated couple and the finalisation of their financial affairs. This ensures that the parties can move on with their respective financial lives, helps protect them from future claims, and facilitates stamp duty concessions when transferring certain assets such as real estate.
Even ex-partners who are on good terms should legally document an agreement reached for the division of their property, and all separating couples should obtain independent legal advice to ensure their rights are adequately protected.
When can you obtain a property settlement?
You can obtain a property settlement once you separate from a former spouse or de facto partner. There is no requirement to be divorced before settling your financial affairs however the following time limitations are important:
- for de facto partners, court proceedings for a property settlement must be commenced within 2 years of separating;
- the granting of a divorce triggers a 12-month limitation period within which to bring court proceedings for a property settlement or spousal maintenance.
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 property settlements are finalised without going to court, which is generally only considered as a last resort. Separating couples are encouraged to settle property issues amicably with full disclosure.
When negotiating how property should be divided after a break-up, the same 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 children;
- making just and equitable orders in consideration of all circumstances.
Arranging for the future care and welfare of children after a relationship breaks down can be stressful for the parents, the children and other family members. The best interests of the children will be paramount in all parenting matters and the law provides a presumption of shared parental responsibility, unless extenuating circumstances exist.
Parties should make genuine efforts to resolve disputes regarding parenting arrangements and may do so through negotiation with the assistance of their legal advisors or other services. Agreements may then be set out in parenting plans or consent orders.
Consent orders must be approved by the court and are legally enforceable. Parenting plans are not approved by the court but may be taken into consideration in any subsequent court proceedings concerning the children.
Separating parents can arrange for ongoing financial support for their children between themselves or apply for assessment through Australia’s child support scheme. Child support comprises regular or periodic contributions by one parent of a child to the other parent or carer to meet the child’s ongoing welfare and maintenance.
Payments are determined and regulated by Services Australia and applications are made by the primary carer. Services Australia also has the power to enforce child support payments including the ability to collect payments from employers, the Australian Taxation Office and through social security payments.
Generally, child support is payable for all children (including adopted children, children born through surrogacy and children from same sex relationships) until they turn 18 years. In some cases, child maintenance may be payable for children over 18 years who are in full-time study, or who have a physical or mental disability.
Various factors are considered when calculating child support payments including the length of time the child spends with each parent/carer, the costs of raising children relative to their age and the capacity of the parents to meet those costs, the parents’ respective incomes, and their responsibilities for supporting other children.
Either parent may object to an assessment which sometimes may not consider any special or unusual needs of a child or the circumstances of a parent/carer. Alternatively, a parent’s/carer’s circumstances may change or there may be a change in care arrangements which justify a review.
Spousal maintenance is where one person from a former relationship provides financially for the other and may be payable when one party cannot adequately meet his or her reasonable living expenses and the other party has the financial capacity to assist that person.
These days spousal maintenance is often not relevant in family law matters as it is preferable that financial affairs are finalised rather than ongoing. Sometimes, however, maintenance is justified and may be ordered indefinitely or on an interim basis, pending the final determination of a property settlement.
An application for spousal maintenance and supporting submissions is made with the court and must be made within 12 months of the finalisation of a divorce or within 2 years after the breakdown of a de facto relationship. In limited circumstances the court may allow a party to make a late application however there is no guarantee a late application will be allowed.
Our family law and divorce lawyers will take the time and care to handle your case with sensitivity and compassion, with every effort made to ensure a fair and reasonable resolution of your matter.