We understand that the breakup of a relationship is often an extremely difficult time. The emotional and financial impact on an individual and those around one can be immense. Our approach is to handle your matter with sensitivity, focusing on your individual situation. We provide realistic advice; experience has taught us that seeking agreement at an early stage between parties is often the best way. If at all possible, we attempt to avoid pursuing litigation, which can be both lengthy and expensive.
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Unlike many countries throughout the world, Australia has for many years had “no fault” divorce. It is sometimes difficult for clients, especially if he or she comes from a country where “at fault” divorce exists to understand, that divorce is, separate from both property and arrangements for children (for example, child-support payments). However, It is vital that clients are made aware of this.
Who can apply for a divorce?
If either you or your spouse:
• Regard Australia as your home and intend to live in Australia indefinitely, or
• You are an Australian citizen by birth, descent or by grant of Australian citizenship, or
• You ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
• You are an Australian citizen by birth, descent or by grant of Australian citizenship, or
• You ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and that there is no reasonable likelihood of resuming married life. [Note: It is possible to live together in the same home and still be separated].
If you have been married less than two years, you are required to try marriage counselling before you apply for a divorce. Although the court may allow you to file your divorce application without attending counselling in certain circumstances, for example, if you have experienced domestic violence or cannot find your spouse, you will need to file an affidavit explaining your situation.
When you separate from your spouse (married or de-facto), it will normally become necessary to divide up your property and to finalize a property settlement.
Property refers to the parties’ current assets, liabilities and financial resources; it will also include both parties’ superannuation and pension entitlements.
If both parties can agree on how your property should be divided without any court action, they can either divide their property by entering into a financial agreement or have an agreement formalized by applying for Consent Orders, in which you ask a court to make orders in the terms of your agreement.
The main differences between a Binding Financial Agreement and a Consent Order are:
• A Consent Order is a written agreement that is approved by a court. Signing a Draft Consent Orders means you that you agree with the Orders sought and will follow the terms stated in the document. When the Consent Order is made, it will have the same effect as a Court Order made by a judicial officer after a court hearing. The Court will only make Orders that you and your former partner/spouse have agreed upon, if it is satisfied the terms of the Orders are “just and equitable” to both parties.
• A Binding Financial Agreement is a form of contract between you and your spouse (or ex-spouse) and does not come under the scrutiny of a Court. The Family Law Act 1975 provides that parties to a marriage or to a de facto relationship can enter into a binding legal agreement about the financial arrangements should their marriage or de facto relationship break down.
Our policy at AZ Legal is to work with our clients to obtain Consent Orders rather than Binding Financial Agreements. The reason for our approach is that we believe Consent Orders give our clients an added level of protection, with the Court scrutinizing the document from the outset. Further, if you need to enforce a Binding Financial Agreement, you must first apply to the Court for a declaration that the Agreement is valid. This can be additionally time-consuming and stressful.
Time-Limits for Property Settlement:
There are strict time limits that apply to Family Law Property Settlements.
Under the Family Law Act an application to the Court for a Property Settlement must be filed within either:
• 1 year of a divorce becoming “absolute” for married couples (a divorce becomes absolute, or final, when the Court issues a certificate of divorce which is usually 1 month and 1 day after the divorce matter has been heard.
. 2 years after separation in regard to a de-facto relationship.
[Note: In certain limited circumstances where the time limit has expired, you can still make an application to the Court].
[Note: In certain limited circumstances where the time limit has expired, you can still make an application to the Court].
What the Court considers when dealing on Property matters
• Working out what you have, as well as what debts you have;
• Looking at the direct financial contributions by each party to the marriage or de facto relationship;
• Looking at indirect financial contributions by each party such as gifts and inheritances from families;
• Looking at the non-financial contributions to the marriage or de facto relationship such as caring for children and homemaking, and
• Future requirements – a Court will take into account things like age, health, financial resources, care of children and ability to earn.
Children & Separation
After separation decisions need to be made about where the children of the relationship (under the age of eighteen) will live, when and how much time the children will spend time with the other parent, and whether there are any specific issues that need to be addressed to support the welfare of their children.
If you and your former partner can agree on the future arrangements for your child/ren after separation you do not have to go to court, you can:
Make a Parenting Plan which is a formal written agreement that is decided by you and your former partner that sets out parenting arrangements for your child/ren. or
Apply for Consent Orders; these are Orders that are made by of the Family Court on the terms you and your former partner have agreed upon.
If you cannot come to an agreement via a Parenting Plan or Consent Order, you may need to file Court proceedings. Before doing so, you must participate in Pre-Action Procedures -unless there is violence (or a perceived threat of violence) in the family.
It is important to be aware that the primary concern of the Court is whether the “best interests of the child” are being served.
It is imperative that adequate time, skill and effort goes into preparing Parenting Plans, Court Orders and indeed Court Hearings, to best present any case . In regard to your child’s welfare, one might claim this is particularly needful. Our committed and experienced team are here to help you.
Property Settlement:
When you separate from your spouse (married or de-facto), it will normally become necessary to divide up your property and to finalize a property settlement.
If both parties can agree on how your property should be divided without any court action, they can either divide their property by entering into a financial agreement or have an agreement formalized by applying for Consent Orders, in which you ask a court to make orders in the terms of your agreement.
The main differences between a Binding Financial Agreement and a Consent Order are:
A Consent Order is a written agreement that is approved by a court. Signing a Draft Consent Orders means you that you agree with the Orders sought and will follow the terms stated in the document. When the Consent Order is made, it will have the same effect as a Court Order made by a judicial officer after a court hearing. The Court will only make Orders that you and your former partner/spouse have agreed upon, if it is satisfied the terms of the Orders are “just and equitable” to both parties..
A Binding Financial Agreement is a form of contract between you and your spouse (or ex-spouse) and does not come under the scrutiny of a Court. The Family Law Act 1975 provides that parties to a marriage or to a de facto relationship can enter into a binding legal agreement about the financial arrangements should their marriage or de facto relationship break down.
You can make a financial agreement before, during or after a marriage or de facto relationship.
Our policy at AZ Legal is to work with our clients to obtain Consent Orders rather than Binding Financial Agreements. The reason for our approach is that we believe Consent Orders give our clients an added level of protection, with the Court scrutinizing the document from the outset. Further, if you need to enforce a Binding Financial Agreement, you must first apply to the Court for a declaration that the Agreement is valid. This can be additionally time-consuming and stressful.
Time-Limits for Property Settlement:
There are strict time limits that apply to Family Law Property Settlements.
Under the Family Law Act an application to the Court for a Property Settlement must be filed within either:
• 1 year of a divorce becoming “absolute” for married couples (a divorce becomes absolute, or final, when the Court issues a certificate of divorce which is usually 1 month and 1 day after the divorce matter has been heard); or
In certain limited circumstances where the time limit has expired, you can still make an application to the Court and seek “leave to proceed.
What the Court considers when dealing on Property matters:
• Working out what you have, as well as what debts you have;
• Looking at the direct financial contributions by each party to the marriage or de facto relationship;
• Looking at indirect financial contributions by each party such as gifts and inheritances from families;
• Looking at the non-financial contributions to the marriage or de facto relationship such as caring for children and homemaking, and
• Future requirements – a Court will take into account things like age, health, f
• Looking at the direct financial contributions by each party to the marriage or de facto relationship;
• Looking at indirect financial contributions by each party such as gifts and inheritances from families;
• Looking at the non-financial contributions to the marriage or de facto relationship such as caring for children and homemaking, and
• Future requirements – a Court will take into account things like age, health, f