Family Lawyers can help in a number of situations following the break-down of a relationship.
Divorce
The most obvious issue is divorce, but how many people realise that the parties have to be separated for at least 12 months before they can apply for a divorce?
No Fault
Divorce in Australia is dealt with in a no fault jurisdiction, meaning that as long as the basic criteria for divorce are established (i.e. 12 months separation, no possibility of reconciliation and certain jurisdictional requirements), the parties are not required to explain why the relationship broke down or give details as to who was responsible.
Children
The welfare and other arrangements relating to children are an important issue which applies equally to married and de facto couples, and both heterosexual and same sex couples.
In most cases, the parties will have an informal agreement dealing with the arrangements for each parent to spend time with the child or children of the relationship, which is often modelled on the pre break-up arrangements.
However, the significant emotional impact of a beak-down in the relationship can create difficulties when discussing details regarding the children, particularly when there have already been communication issues in the relationship or where there is a power imbalance.
In such cases, it is critical for the parties to be properly informed regarding their rights and responsibilities and, if necessary, having someone impartial communicate directly with the other parent or their lawyer.
There are many factors which the Family Court can and will take into account when parties disagree about how much time children should spend with each parent, a topic we will cover in a subsequent newsletter.
Mediation
Parents often do not realise when applying to the Family Court in relation to children that, in the absence of certain reasons for an exemption such as violence or urgency, the parties are required to attempt to resolve their issues through mediation before an application can be filed in the Family Court.
A particular problem following mediation is the parties failing to have the agreement formalised by the Family Court. A parenting plan that is signed by both parties at mediation is not binding on either party and cannot be enforced if the other parent simply decides not to comply with the agreement. It is therefore imperative that where agreement is reached on the parenting arrangements for the children, the agreement is formalised in Orders made by the Family Court.
Where agreement has been reached by consent, a form can be completed and filed at court with the Family Court having the power to make the necessary orders without either party having to appear at Court.
Every case is different, but some of the things parents need to include in their agreed orders are the details of who the child or children live with, when and where the visits with the other parent will take place, details of handovers, telephone communication, parental responsibility, special events such as Christmas and birthdays, education, medical issues, and travel arrangements (to list but a few). It is often prudent to take professional advice at this stage.
Financial Matters
Also known as property settlements, this can include division of property, spousal maintenance and other related financial issues.
Such matters again apply equally to married and de facto parties, as well as heterosexual and same sex couples.
This is the area where there is often confusion as to the basis for a fair and equitable division of property, and where we would recommend that the parties obtain independent legal advice as to their rights and entitlements before beginning discussions or negotiations with the other party.
When speaking to your lawyer, you can expect to be asked to provide information about your current asset pool (taking into account all property or assets owned separately or jointly, and any liabilities that exist), the financial and non-financial contributions each party made before, during or after the relationship, and any specific future needs of the parties.
Protective measures can include the provision of immediate, and possibly ongoing, financial support or spousal maintenance to one party if they are unable to support themselves, or to ensure that the marital asset pool is protected to prevent one party attempting to sell property or spend large sums of money before agreement is reached on how the property should be divided.
Finally...
Problems can arise where one party fails to provide proper disclosure of their financial situation. Clients are often unaware of the full extent of the property or assets held by their former partner.
Of course, the diverse and complex nature of relationships and arrangements provides a good reason to seek the guidance of a family lawyer, but we would always recommend seeking advice so that you are fully aware of your rights in relation to your children or finances.
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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