Australia: Family Law Frequently Asked Questions

Last Updated: 22 April 2012
Article by Loretta Carč

"Do I have to go to court?"

Often parties in dispute over children or property will be reluctant to attend court.

There are clearly benefits in negotiating a fair settlement without the need to issue court proceedings and wherever possible, the emotional and financial burden of proceedings should be avoided. However, if there is delay in resolving the issues, or the prospects of reaching agreement start to recede, it may be necessary to begin proceedings to protect your rights and to bring matters to a head.

If you do have to go to court, it is critical for your lawyer to focus on resolving the matter promptly and at minimal cost. Preparation and a supportive legal team are the keys to a confident court appearance.

"What if we have already reached an agreement?"

Not all breakups are messy and some can even be quite amicable.

For both married and de facto couples, agreements as to the division of assets need to be formalised to ensure that they are binding and enforceable by the Family Court. This can be done either by a 'Binding Financial Agreement' or an 'Application for Consent Orders' filed at the Family Court.

A Binding Financial Agreement can be entered into at any time before, during or after a relationship. Your lawyer should be able to draft and advise upon such agreements.

More commonly, lawyers will prepare an Application for Consent Orders which sets out the financial position of the parties and describes in detail the agreement they have reached. It is then filed at court and the Judge is asked to approve the orders.

If agreement cannot be reached, it may be necessary to issue court proceedings which can be settled at any time and finalised with 'Consent Orders'. Effective lawyers will encourage their clients to negotiate throughout the proceedings to attempt to reach an amicable outcome.

In deciding how marital assets should be distributed, the court follows a four step process:

Step 1

It works out the net value of property owned by the parties (usually at the date of the trial);

Step 2

It considers how the parties have contributed to such property, including an assessment of:

  • the financial and non-financial contributions made by the parties to any relevant property, including purchase, maintenance and improvement;
  • any contribution made by a party to the marriage to the welfare of the family and any children of the marriage, in particular in the capacity of homemaker or parent;
  • the effect of any proposed order upon the earning capacity of either party.

Step 3

It considers whether there should be an adjustment in favour of either of the parties to take into account their future needs including, for example, their age, health, earning capacity, responsibility to house and care for any child or other party and the availability of financial resources.

Step 4

It then considers whether the proposed order will be 'just and equitable'. Your lawyer should be able to identify and advise upon the relevant assets of a relationship and how the court is likely to divide them between the parties.

"What happens if I need support from my partner? Can my family and I still get that financial assistance?"

Spousal Maintenance

There are circumstances following the breakdown of a relationship where a party can apply to the court for a periodic or lump sum payment by way of spousal maintenance. Whilst there are quite specific issues that need to be dealt with when making such applications, each case is examined by the court on its own merits. Your lawyer should be able to advise on the prospects of making a successful claim for this type of maintenance.

Adult Child Maintenance

Child Support is not payable to children over 18 years old. However, it is possible in some circumstances to apply on behalf of an adult child for financial assistance.

"Now that the property has been sorted out, how do I get a divorce?"

There is only one ground for divorce in Australia, which is that the marriage has broken down irretrievably, with the parties having separated for at least 12 months immediately before the application for divorce is filed. The courts are no longer interested in who might be responsible for the marriage breakdown.

Sometimes a couple can be regarded as having separated even if they have continued to live under the same roof but it will depend on the individual circumstances and the court will require proof of marriage breakdown during that time.

"What happens to the children...?"

The court has an overriding duty to consider what is in the best interests of any children and recognises the emotional impact of disputes on them.

Experience tells us of the wisdom in talking and working through issues, and using counselling and mediation services as the first step. Indeed, generally the Family Court requires parents to attempt to resolve any parenting disputes with the assistance of an accredited Dispute Resolution Practitioner before they apply to the Court to decide the matter. Exceptions would include where there has been family violence or where there is a risk of abuse. Your lawyer can assist in applying for Parenting Orders after Family Dispute Resolution (FDR) has been attempted or where an exemption to FDR is claimed.

Where parenting arrangements have been agreed between the parties, your lawyer should also be able to prepare the necessary application for Consent Orders, as well as assist others who may have played a significant role in a child's life, such as grandparents and other significant adults.

And finally, "How much is this going to cost me?"

Your lawyer should aim to keep costs to a minimum. The more amicable you and your ex can be, the better off you will both be financially and emotionally. Like most professionals, lawyers usually charge by the hour and your lawyer is required to give you an estimate of costs, based on your circumstances. Billing will often be done monthly to allow better control of the costs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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