Australia: What happens after family separation?

Family separation is a very difficult time for everyone involved, and to make it worse, the legal process after separation can be protracted and confusing.

This article is designed to help you understand the process after separation so that you can focus on moving forward in your life.

Try to reach agreement if at all possible

Once you and your partner have decided to separate, the first thing to do is to talk to your partner calmly about how to move forward. The most important things to discuss are:

  • Living arrangements for both parties and the children, if any
  • Financial budget for both parties and the children, if any

The last thing anyone wants is to have one party with nowhere to live and no money for rent or food.

If you cannot come to suitable arrangements about these matters, then you must seek legal advice immediately. Your lawyer will help you negotiate with the other party to come to interim arrangements before permanent arrangements are made.

What you need to bring when meeting your lawyer

On your initial consultation with your lawyer, you must bring the following information with you:

  • Your identification (driver's licence and Medicare card)
  • Your former partner's details (name, address, contact information and/or lawyer's contact details)
  • Information regarding your assets, liabilities and finances, such as certificates of title of properties (or the details of the properties), bank account statements, individual tax returns, company tax returns, vehicle registration details, superannuation statements and any other relevant information about your assets
  • Your children's details, if any

Your lawyer will ask you if you have come to any agreement between with your former partner about the arrangements for the children or the property settlement. If you have, your lawyer can help you draft the relevant legal documents to have those arrangements sealed by the court, making them a court order.

How will the assets of the relationship be divided?

Coming to an agreement with your former partner about how the property is to be divided can be very difficult. Sometimes one party has put significant amounts of money towards a property, or maintenance of the property, while the other party has reared the children, or contributed to the relationship in other ways.

Under the Family Law Act 1975 (Cth), the court must take into consideration both the financial and non-financial contribution of each party to the relationship and the assets.

Your lawyer will advise you that the relationship assets will be pooled into a combined sum. Each party's contribution to the relationship and assets will then be assessed to configure a percentage split between the parties.

If you and your former partner cannot agree on a property split, and your lawyer and your former partner's lawyer cannot assist with a settlement, you may commence proceedings to have a judge decide the case for you.

If you and your former partner can agree, or your lawyers have enabled you to come to an agreement, then you may enter into two types of agreements.

The first is a binding financial agreement. The second is a court sealed consent order.

Binding financial agreements not without risks

A binding financial agreement is an agreement between the parties that is not sealed, registered or approved by the court.

The agreement is only binding if strict requirements are met, such as that both parties receive independent legal advice about the effect of the agreement on the rights of the party and about the advantages and disadvantages of the agreement.

These agreements may be made before a marriage, during a marriage or after a marriage, and can be made for same sex and de facto couples.

There are risks involved in entering into binding financial agreement. There has recently been a string of court cases where the court has overturned a binding financial agreement.

Binding financial agreements can be set aside by court

For example, in Black & Black [2008] FamCAFC 7, the couple had agreed by way of a binding financial agreement that the husband would sell his property and deposit the funds into a joint bank account, and the wife would deposit the proceeds of her personal injury compensation claim into the same joint bank account.

The matrimonial home would then be purchased from the funds in the joint bank account. In the event of separation, the parties would sell the matrimonial home and split the proceeds equally.

After the binding financial agreement had been signed, the wife's personal injury claim was settled out of court for a smaller amount that expected and therefore her contribution to the joint account was less than expected at the time of entering the binding financial agreement.

On separation, the husband argued that the property should not be divided equally as per the binding financial agreement, because the wife did not contribute equally to the joint account.

On appeal to the Full Court, the husband successfully argued that the section of the Act governing the binding financial agreement should be interpreted strictly. The certificate annexed to the binding financial agreement did not explicitly exclude the court's jurisdiction in the matter. Therefore, the agreement was set aside and the property was split using the ordinary principles for a property settlement.

It is very important to seek expert legal advice if you intend to enter into enter into a binding financial agreement.

Court sealed consent orders

A court sealed consent order is a document drafted by your lawyer that sets out the terms of the agreement between the parties. It can be simple or complex depending on what the parties have agreed to.

The consent order is attached to an application form which sets out both parties' assets and liabilities. Both parties need to complete the application form and provide each other with their documentation disclosing their assets and liabilities. It is important that each party provides the other with full and frank disclosure, so that both parties know what is in the matrimonial pool of assets and what they are both agreeing to keep or discard.

Once the application and disclosure are complete, and the parties have sought independent legal advice, both the consent order and the application are sent to the court with a $160.00 filing fee for assessment.

The court will assess the agreement and provided nothing unreasonable has been agreed to, then the court will seal the documents as a court order. The parties are not required to attend court at all. Your lawyer will then help you to finalise the requirements in the consent order.

Living arrangements and time to be spent with the children

In the event that the parties cannot agree on living arrangements and time to be spent with the children, the first step is to attend mediation. Mediation can be organised privately or through agencies such as Centacare.

At mediation, you will either come to an agreement by way of parenting plan and adhere to it in the future, or you will not come to an agreement. (For more information about mediation in family law, please see our earlier article Five good reasons to try to resolve your family law property and parenting disputes through private mediation.)

If you do not come to an agreement, you will require the mediator to provide you with a section 60I certificate. This certificate will be provided to the court in the event that proceedings are commenced about the living arrangements and time to be spent with the children.

Before commencing proceedings, it is important to speak to your lawyer. Your lawyer will be able to advise you on your rights as a parent and may be able to liaise with the other party or other party's lawyer in order to come to an agreement. Again, you may enter into a parenting plan, which is non-binding, but it is a good planning tool for the parties to spend time with the children.

If you feel that you require a court sealed document, then you may enter into consent orders in relation to the children also. It is a matter of preparing the consent orders and application for consent orders.

Court proceedings a last resort when all attempts to reach agreement have failed

If you cannot come to an agreement with your ex about the children or the property, either directly or through your lawyer or mediator, then you may commence proceedings.

Proceedings may be long and drawn out because the court requires many documents to be filed, including affidavits stating your case. Sometimes, in matters involving children, there will be an independent children's lawyer appointed by the court, so that the child is equally represented.

The court may also order that a family consultant report be prepared. This means that the parties will be interviewed by a family consultant who will prepare recommendations as to the living arrangements and time to be spent with the children. The court will then take these recommendations into consideration when making final orders.

If at any time during the proceedings you wish to come to an agreement with the other party, you may do so.

Anneka Frayne
Family law
Stacks Law Firm

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions