Our team of Family Solicitors can offer you practical and empathetic advice during a difficult and emotional time.
From our offices we help individuals every day who have been through the emotional turmoil of divorce or separation and appreciate you will have difficult decisions and arrangements to make in the future, particularly if you have children or complex financial matters to discuss.
We know that you will be looking for the best advice tailored to your own situation, and our Family Solicitors can provide you with that and more, speaking in plain English to help you understand every step of the way.
We are able to provide you with assistance in all areas of family law, including:
- Parenting arrangements for your children
- Matrimonial and de facto property settlements, including settlements for same sex couples
- Child Support
- Domestic and international relocation of children
- Child abduction, including Hague Convention issues
- Surrogacy and issues of parentage
- Spousal and de facto maintenance
- Domestic and family violence
You can only apply for divorce under Australian Law after you have been separated for a period of at least one year. In 1976, the Family Law Act established a "no-fault divorce" system in Australia. This means that the only ground required for divorce is that the marriage has broken down irretrievably and who is to blame is irrelevant.
If there are children aged under 18 years old, the Court can only grant a Divorce if it is satisfied that proper arrangements have been made for the welfare of those children.
Subject to proof of separation, it is sometimes possible to obtain a Divorce if there has been a separation under the same roof.
If you only wish to settle property and financial issues and/or child arrangements, it is not obligatory to apply for a Divorce. You do not have to wait for a year before dealing with property and child issues as a Divorce is a separate independent Court Case.
A Divorce Order, once granted at the Divorce Hearing, does not become final until one month and one day after the Divorce Hearing and you should not finalise any arrangements to remarry until the Court has fixed the date on which the Divorce is to become final.
$990 (plus GST, Process Serving Fees & Federal Circuit Court Filing Fees)
Spousal and De facto Maintenance
Spouse maintenance is financial support paid by a person to their former spouse or partner where that spouse or partner is unable to adequately support themselves. It is separate from child support or child maintenance.
The court considers a number of factors in determining a spouse maintenance application, including;
- the needs of the person applying,
- the capacity of the former partner or spouse to pay,
- the ability of the person applying to work,
- the care of the children under 18 years,
- the age and health of the parties.
Spousal maintenance can be a periodic payment; for example a weekly payment, a lump sum payment, or payment of specific expenses.
There are time limits on applying for spouse maintenance. If the parties were married an application must be made within 12 months of the date of divorce. If the parties were in a de facto relationship the application must be made within 2 years of the date of separation. The time to apply may be extended by the court, but this requires special permission and may not be granted.
Parenting arrangements for your children
Our family solicitors can help you reach an agreement with your partner about parenting issues. If necessary, we can refer you to counselling services to help with this process.
There is no standard custody arrangement for a child. Often a child lives mainly with one parent and spends time with the other parent. Sometimes a child spends equal time with each parent. Different arrangements work for different families.
If you and your partner reach an agreement, we can formalise the arrangements by obtaining Family Court Orders without you needing to go to Court. Court Orders are not necessary in every case. We can talk to you about whether they will be helpful for you. We can also advise you about parenting plans and other more informal agreements about parenting issues.
Grandparents, or others who are significant in children's lives, may want to make sure they continue to see the children even after a separation. Our family lawyers have experience acting for family members in a range of situations, including where parents are themselves unable to care for children.
If you and your partner can't reach an agreement about children's matters, or if there are urgent issues that need to be addressed, Family Court proceedings may be necessary. We can represent you in Court and guide you through what can otherwise be a confusing process. With our experience and expertise you can be sure that your case will be presented to the Court in a way that achieves your desired outcome for your children.
Trying to finalise your property settlement can be very emotional, particularly when balancing so many of the immediate challenges following separation. It’s perfectly understandable for you to feel uncertain and confused. We are here to help and make that process as easy as possible for you.
A property settlement is the division of property owned and acquired during a marriage or de facto relationship. The Family Law Act 1975 deals with property settlements and the same general principles apply in determining the entitlements of a party regardless of whether you were married or in a de facto relationship.
A de facto relationship is defined in Section 4AA of the Family Law Act 1975. The law requires that you and your former partner, who may be of the same or opposite sex, had a relationship as a couple living together on an ongoing domestic basis.
There is no formula used by the Family Court to divide property and no one can tell you exactly what orders a Judge will make as every case is different. As lawyers we can provide you with estimates only as the Courts have a wide discretion in making orders that may alter the interest of parties in property.
The Family Law Act 1975 sets out the general principles the Court considers when determining financial disputes arising out of the breakdown of a marriage or de facto relationship.
- To identify and value all the property that is available for division. This includes all assets, liabilities and superannuation benefits of each spouse. The value attributed to each item of property is the current value of the asset and the current amount owing on debts;
- To consider the financial and non-financial, both direct and indirect, contributions made by and on behalf of each party to the acquisition, conservation or improvement of property;
- To consider the future needs of each party including:
- whether either party has the care of a child to the relationship;
- the age and state of health of each party;
- the income, property and financial resources of each party;
- the physical and mental capacity of each party for appropriate, gainful employment;
- the disparity in the income earning capacities of each party;
- instances of family or domestic violence;
- commitments that are necessary for each party to support themselves or any other person.
You do not have to wait until you are divorced to ask the Court for orders about your property settlement. However, once you are divorced you have 12 months from the date your divorce order becomes final to file an application for a property settlement. This timeframe can be waived by the Court only in certain circumstances.
If you were in a de facto relationship, your applications for property or financial settlement must be made within 2 years of the breakdown of your relationship.
You do not have to go to Court to achieve a property settlement. You may be able to reach agreement as to the just and equitable division of property by negotiation, mediation, or other means outside Court. In those circumstances we strongly recommend entering into Consent Orders or a Binding Financial Agreement (BFA) so as to formalise any agreement you have reached with your former spouse.
At Athena Law our preferred approach is to ascertain quickly whether a negotiated settlement can be achieved or whether Court proceedings may be necessary. We will always advise you of the options available to you so you can make the decisions that are right for you and your family.
Child support payments are assessed by the Child Support Agency according to a formula, known as an administrative assessment. The assessment takes into account the number of children, each parent’s income and the care arrangements for the children.
Parents can however make their own arrangements about child support by way of an agreement, which can provide greater flexibility and certainty. There are two ways to legally formalise a child support agreement, namely by entering into:
- A limited child support agreement; or
- A binding child agreement.
Limited Child Support Agreements
This agreement has fewer requirements than a binding agreement. There must however be a child support assessment in place, and the amount payable under the Agreement must be equal to, or more, than the assessment made by the Agency.
This agreement needs to be in writing and signed by both parents. Legal advice is not required for this agreement. We do however recommend you obtain legal advice before entering into any child support agreement.
A limited child support agreement remains in place for 3 years, and can be ended after 3 years without notice to the other parent.
Binding Child Support Agreement
A binding child support agreement must also be in writing and signed by both parents. For this agreement to be binding each parent must receive independent legal advice. This requires each parent to have their own solicitor.
This type of agreement allows for greater flexibility as there is no requirement a child support assessment is in place, and there are no restrictions as to the amount of child support payable. This agreement also allows for more certainty as it cannot be varied.
You can end this type of agreement by entering into a new agreement, or going to Court. Terminating the agreement through court is not guaranteed however as the Court will only end a binding agreement in exceptional circumstances.
While there is greater flexibility as to child support arrangements in a binding agreement, the terms may affect Centrelink or Family Tax payments received by a parent. Also, as the agreement cannot be varied, changes in either parent’s circumstances, including changes to income or parenting arrangements, are not taken into account.
Athena Law can assist in advising you as to whether a limited or binding child support agreement would be in your interests given your specific circumstances.