Common Questions About Family Law in Australia

Family Law Australia

Common Questions About Family Law in Australia

20th October 2019

Divorce, separation, property settlement and children’s matters – there is a lot of information out there about many of the issues that arise when relationships, de facto, marriage, same sex relationships, intergenerational family relationships break down. We understand that the volume of information can be overwhelming, as well as confusing. So, to assist, we have compiled our answers to some of the most common questions regarding family law in Australia.

Is it Possible to Be Separated and Living Under One Roof?

This is a common concern for many newly separated couples. It can cause many financial and logistical concerns, so sometimes, living under the same roof for a brief period of time is the best option.

Legally, it is possible to be separated but living under the one roof, provided that you can demonstrate that you are living separate lives. If you are married and want to rely on a period of separation under the one roof for the purposes of proving the required 12 months of separation before applying for a divorce you then you must file an affidavit with your divorce application setting out the dates and circumstances of your separation under one roof. An affidavit is a written statement prepared by a party or witness, and is the main evidence presented to a court. Evidence that you may need to provide in your affidavit include:

  • Change in sleeping arrangements
  • Division of any finances
  • Family outings and activities that were shared/not shared
  • Decline in any household duties for one another
  • Notifying close friends and family members of your separation
  • Reasons as to why you continue to live under the same roof
  • Government departments notified of your separation, for example, Centrelink.

If you are applying for a divorce on your own (sole application), you must file two affidavits; one by you and one by an independent person who has seen or heard about your living situation such as a family member. If you and your spouse are applying for a divorce together (joint application), you must file at least two affidavits. This can be one affidavit each from you and your spouse, or one either from you and an independent person such as a family member.

You may be required to attend a court hearing. Our family law solicitors at Pullos can advise you of any court requirements.

Being separated while still living in the same house can also have consequences for your legal rights and obligations in relation to property settlement, spousal maintenance and the arrangements for your children (you might refer to them as “child custody or child access” arrangements). Our specialist family lawyers at Pullos lawyers can advise you about any consequences you need to consider in your particular circumstances.

What Are The Time Limits in Family Law in Australia?

There are various time limits in family law in Australia, depending on the matter and type of relationship.

For married couples, parties can apply for a divorce 12 months after the official date of separation. These applications must be made to the Federal Circuit Court of Australia, and the parties must prove to the court that their marriage has broken down irretrievably (by proving that they have lived separately for at least 12 months) and that proper arrangements have been made for their children.

Applications for property settlement or for spousal maintenance can be brought at any time – you don’t have to wait to apply for a divorce to bring a claim for property settlement or spousal maintenance.

If you do obtain a final divorce order before you have a property settlement or spousal maintenance orders then you must file those claims no later than 12 months from the date of your final divorce order.

De facto couples have a time limit of 2 years from the date of their separation to bring claims for property settlement or spousal maintenance

If your claim for property settlement or spousal maintenance aren’t filed in the Court within these time limitations you will not be able to bring those claims unless you first obtain the leave of the Court to file them out of time. Time limitations are very serious, strictly enforced and you should take urgent legal advice from one of our family law specialists at Pullos Lawyers if you are divorced but haven’t filed a claim for property settlement or spousal maintenance or if you have been in a de facto relationship and separated but not yet filed a claim for property settlement or spousal maintenance.

Is Court Necessary When Going Through a Divorce?

A “Divorce” is the order you obtain to end your legal relationship of marriage. The only way to obtain that divorce order and bring to an end your legal obligations and rights as spouses arising out of being married then you must apply to the Court for that order.

If you are applying for divorce have no children under the age of 18, then there is no need to attend a court hearing. You do not have to attend a hearing if you make a joint application for divorce, and have a child under the age of 18. There is also no need to attend a hearing if a sole application is made and there are no children under 18. Once your documents are filed and served on the other party the order will be made and sent out to both of you at the addresses you will put in your application.

Attendance of a court hearing is absolutely necessary if a sole application for divorce is made and you have children under the age of 18. Only the person who has filed for the divorce or their lawyer needs to attend this hearing.

Agreements or Orders for property settlement, spousal maintenance, child support and arrangements for children are dealt with completely separately to your application for divorce – other than the time limitations that apply.

Is Property Divided in an Even Split?

There is no mathematical formula that can be applied when determining the division of property. There is also no rule about a 50/50 division.

In working out a property settlement we need to move through a 5 step process and, ultimately, if agreement can be reached, the Judge has a wide discretion as to how much weight will be applied to each of the factors considered.

Those 5 steps can be summarised as follows:

  • The Value and Ownership of the Assets

All assets and liabilities, owned by either or both parties, whether in their own names or in company or trust structures, as well as superannuation are identified and valued in order to calculate a net figure, often referred to as the net asset pool.

Those assets and liabilities will be valued as at the date of the division, not the date of separation. That can often make a significant difference to the outcome and is one of the reasons to obtain specialist family law advice, if not before you separate then as soon as possible afterwards. Our specialist family lawyers at Pullos Lawyers either in Brisbane or on the Gold Coast can assist with a preliminary phone call (at no charge) followed by a more in depth consultation in person or by Skype or Zoom.

Contact one of our specialist family lawyers to organise your no-obligation preliminary phone call.

  • Is It Appropriate To Adjust Property Interests?

There are some cases where it may not be appropriate to adjust the legal ownership of the assets identified and valued in the first step. There have been some recent cases, and on case that made it all the way to the High Court of Australia where the circumstances of the parties were such that it was determined there should be no property settlement – but rather each party simply retained what they had in their respective names.

These circumstances need specialist family law advice. Contact us to arrange your telephone appointment at no charge to discuss if this step might apply to you.

  • Contributions From Each Party

The contributions made to the build up, conservation and improvement of the asset pool, are identified and weighed up, from the commencement of the relationship, right through to the termination of their relationship and even post separation. Contributions may include financial (bringing assets to the relationship in the beginning or during the course of the relationship, e.g. inheritances or injury or insurance claims received while you were together), non-financial (e.g.renovations to increase value of a home), homemaking (cleaning & cooking) and parenting (looking after children).

  • Future Needs of Each Party

Section 75(2) of the Family Law Act 1975 outlines the future factors to be considered in deciding how property should be divided. Some of the major factors include:

  • the age and state of health of each of the partiess
  • the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
  • whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
  • the responsibilities of either party to support any other person.
  • Property Settlement is Just and Equitable

This is the “how to” step where we work out how to distribute the assets between the parties to the marriage (identified and valued at step 1) to give appropriate weight to the contributions and future needs. This is where the discretion comes in. When the specialist family lawyers at Pullos Lawyers give you advice about your property settlement rights, entitlements and obligations we will use our decades of experience and knowledge of similar cases to yours that have been decided to range of outcome is likely to be.

Before you start negotiating a settlement with your spouse – either on your own or with the assistance of a mediator or lawyers, it is a wise idea to obtain legal advice about what the range of legal outcomes is likely to be in your particular circumstances. Armed with that advice you can confidently negotiate a settlement that you are happy with and you know how that compares to your legal range of entitlement.

Our specialist family lawyers can give you that advice – whether it is to give you confidence to negotiate or as the first step in a Court based resolution. You can benefit from our decades of knowledge and experience. Contact us to organise your initial telephone discussion at no cost.

How Does the Court Determine Where the Child Shall Live After Separation/Divorce?|

Family Law in Australia outlines no fixed rules as to which parent a child will live with, or how much time they will spend with the parent they don’t live with. post separation. There is no presumption in favour of mothers or fathers. There is also no rule requiring “50/50 shared care”.In fact, when it comes to parenting roles, the Family Law Act 1975 is gender-neutral. In order for the Family Court to determine where the child shall live, they will always consider the child’s best interests as the paramount consideration.

Section 60CC of the Family Law Act 1975 outlines the following primary considerations when determining the best interests of the child:

  • the benefit to the child of having a meaningful relationship with both of the child’s parents; and
  • the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

A few additional considerations, there are many more, the court will look at include:

  • any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child;
  • the nature of the relationship of the child with:
    • each of the child’s parents and
    • other persons (including any grandparent or other relative of the child); and
  • the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

Learn More About Family Law in Australia With Pullos Lawyers

These are only just some of the most commonly questions asked regarding family law in Australia, so if you have any additional questions you would like answered, please feel free to get in touch with our team. We can help you with all family law concerns including divorce, property settlement, spousal maintenance, arrangements for your children (“custody” and “access”), child support, prenuptial agreements and international divorce so contact us via email, or call Pullos Lawyers on (07) 5526 3646 (Gold Coast office) or (07) 3144 1641 (Brisbane Office).

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