Frequently Asked Questions – Family Law

How to obtain a divorce?

The only ground for divorce is that you have been separated for 12 months and there is no likelihood of reconciliation. You can apply for divorce on your own or jointly with your spouse.

A divorce may have implications for property settlements, spousal maintenance and your Will. You have 12 months from the grant of a divorce to make an application for a property settlement.

What should do when getting a divorce?

  • You should consider getting professional help such as counselling.
  • You should put the children on top of the agenda and keep it as civil as possible.
  • You should make copies of important documents such as tax returns, bank account statements, loan contracts and so.You should retain important documents such as passports and birth certificates.
  • You should work out how to manage personal debts and family debts on your own. You must get as clear an idea as possible as to where you stand financially.
  • You should change your passwords to your bank accounts and other internet and computer passwords.
  • You should close all joint accounts and open new bank accounts in your own name.
  • You should not listen and believe what other people tell you about their divorce. Talk to professional people and get your own advice including legal advice.
  • You should always consider mediation and other collaborative ways of resolving children and property issues. Try to avoid court.

How does Family Court or Federal Circuit Court deal with property settlement?

Firstly, the court identifies and values the assets and resources and liabilities of the parties;

Secondly, the court considers the contributions made by each party to the acquisition, conservation and improvement of the assets and resources as well as contribution to the welfare of the family. At the conclusion of this examination, a preliminary division of the assets and resources is made based on the contributions of the parties;

Thirdly, the court will consider any adjustments to the preliminary division based on a number of factors relating principally to the future needs of the parties; and

Fourthly, the court will assess whether the division as adjusted is fair and equitable and all the circumstances.

The above four-step process may not always be applied in the above manner and if it is applied in the above manner the issue of fairness and equity will permeate the first three steps and as well as the threshold issue of whether it is fair and equitable for the court to make an order.

How are defacto relationships treated by the Family Court?

The Family Law Act was amended in November 2008 and the amendment came into effect on 1 March 2009. Since 2009 defactos have had exactly the same property settlement and maintenance entitlements as married couples. Defacto couples must bring their property settlement claims within 2 years from the date of separation. This applies to people living in both heterosexual and same-sex defacto relationships.

What are my child’s best interests?

The best interests of the child are depend on the particular circumstances of each case but will invariably include the child’s care, welfare and development. The law says that the ‘best interests of the child’ is a paramount principle which includes the need for the child:

  • to have a meaningful relationship with both parents; and
  • for the child to be protected from physical and psychological harm.

On that basis, there is a presumption that both parents will have equal share parenting and will spend equal time with the child unless it is not in the best interest of the child. This presumption will be rebutted if the child is at risk of physical and psychological harm by anyone of the parents.

What is family violence?

The Family Law Act defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes a family member to be fearful. Examples of family violence are:

–            assault, sexual or otherwise;

–            stalking;

–            repeated derogatory taunts;

–            withholding financial support;

–            preventing the family member from making or keeping connection with his or her family, friends or culture; and

–            causing death or injury to an animal.

What are Binding Financial Agreements?

Binding Financial Agreements are private property arrangements which come into three categories: property arrangements before marriage (also called prenuptial agreements); property arrangements during marriage; and property arrangements after marriage. The entering into arrangements are subject to strict formalities.

These arrangements can be set aside by the court. The major difficulties with property arrangements before marriage is that there is limited capacity for the parties to foresee the future. With property arrangement during and after marriage major the complaint is often the lack of financial disclosures when these agreements are entered into.

What is Spousal Maintenance?

Spousal maintenance is not an automatic right and such a right depends on the needs of the party and the capacity of the other party to alleviate that need. Generally, the court will consider:

  • the age and health of the parties;
  • the parties’ income, property and financial resources;
  • the parties’ ability to work;
  • what is a suitable standard of living; and
  • if the relationship affected the parties ability to earn an income.

What is Child Support?

The Child Support Scheme requires the parent who does not live with their children because of separation and divorce to make a financial contribution towards their child’s upbringing. The amount for the contribution is complicated and formula based. The formula can be found here.

The Commonwealth Department of Human Services has the responsibility to administer the child support scheme.