Our caring and experienced lawyers assist you to make informed decisions about your future during this stressful time. We endeavour to ensure that relationships are preserved as amicably as possible, especially where the parties have children and must move forward as effective co-parents, while ensuring that you are fully informed and supported in relation to your rights and obligations.
The only requirement for a divorce in Australia is that the parties have been separated for 12 months.
An application for Divorce is separate from property settlement and parenting applications, and relates only to the dissolution of your marriage. The application does not require any attendance at court unless the parties have children under 18.
If you have been separated under the one roof during the 12 months of separation prior to filing your application, additional affidavit material is needed to support evidence of separation. This we draft for you with your divorce application.
We provide fixed fee agreements on divorce applications.
Our experienced Family Law solicitors guide you in a friendly and supportive environment through your rights and obligations while negotiating property settlement. Most property settlement matters are negotiated by letters between solicitors or at private mediations.
Occasionally, it is necessary to commence Court proceedings to force parties to the table and in that case we expertly represent you in the light of the recent changes to the rules of Court that are designed to speed up the negotiation process and reduce costs. While an amicable settlement is always the aim of any property settlement, if necessary we press your rights in full if the matter has to be litigated.
In fact, separated couples are required by Court rules to negotiate a financial settlement in good faith, with mediation often used to help resolve disputes.
There are four steps in ascertaining the entitlement of parties in property settlement:
- Construction of a Balance sheet:- where the assets, liabilities and financial resources of the parties are disclosed and identified including superannuation.
- Consideration of the contributions of both parties:- financial, non-financial and as homemaker and parent are assessed. Family violence can result in a greater assessment of contribution in favour of a party whose contributions have been made more arduous as a consequence of family violence. A percentage contribution of each party is then assessed within a range.
- The percentage contribution is then adjusted on the basis of what is loosely called future needs factors such as:- age, health, earning capacity, care of children under 18, other dependants of each party, payment of child support, superannuation, the rearing of another parties’ children during the relationship, and behaviour that has detrimentally affected the value of the asset pool such as gambling, drug addiction, or dissipation of assets post separation. This adjusted percentage range is then determined as each parties’ entitlement.
- The orders made must be considered just and equitable: – that is, the parties must then determine how the assets of the parties are to be divided to achieve the percentage split calculated as a consequence of the previous three steps.
Getting it right
Whether transferring the family home, splitting superannuation, or dividing up the household cars, it is essential for any party to a property settlement to have properly considered the future tax or stamp duty consequences which may arise as a result of the division of their assets.
Legal advice should be sought in relation to the tax and duty implications of transferring any property or assets as a result of a property settlement. Exemptions apply in certain circumstances. However, transfer of assets out of the family company may have income tax consequences to the party receiving the assets.
Superannuation is a significant asset that is often included in a property settlement.
If you are a primary carer, and have a lower super balance as a result, it is particularly important that this is fairly addressed.
Existing superannuation can be split between the parties to be accessed at a later date, or future contributions which are made by a party can be split so as to ensure that their former partner has the necessary financial support in future.
How an inheritance is treated in a family law matter will vary depending on when it was received in the relationship.
If the inheritance was received during the relationship, it is viewed as a sole financial contribution by the inheriting party. And the inheritance or other assets acquired as a consequence will be on the Balance Sheet. If the inheritance was not received until after separation, then it is still on the balance sheet. If the deceased has died, but the estate is not administered at the time of property settlement, then the inheritance is only taken into account as a future financial resource of the inheriting party.
In any of the above scenarios, the non-inheriting party is taken to have made no contribution to the acquisition of the inheritance. It is seen as a sole financial contribution by the inheriting party.
And if the inheritance is the will of a person who is very much alive at the time of property settlement, the provisions of the will are completely irrelevant.
In deciding arrangements for children under the Family Law Act parents must have regard to the best interests of the child as the paramount consideration and make decisions for their children on that basis. The child’s best interests are met by having a meaningful relationship with both parents but in doing so a child must be protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In the absence of family violence, there is a presumption of equal shared parental responsibility (‘ESPR’) from which flows a presumption that children will spend equal time or substantial time with each parent. Parental responsibility involves decisions and control over aspects of the children’s lives such as the children’s place of residence, their education and medical treatment.
Where the presumption applies, there is a presumption that the children will spend equal time or substantial time (that is time during the week as well as weekends) with both parents.
Parenting plans while not legally binding are a flexible alternative to Court orders, especially if you intend to change the arrangements for time in the future.
There are a number of relationships centres including Relationships Australia, Uniting or Catholic care that have services to assist separating parents to formulate a parenting plan. They also have excellent courses to assist parents to co-parent after relationship breakdown.
Parenting plans are not enforceable by a court but provided the plan is in writing and signed and dated the Court may have regard to the plan as evidence of the arrangements which have been in place for the welfare of the child.
To determine if there is a spouse maintenance liability three questions must be asked.
1) The first is does one party have a need for support.
After determining a party’s income, then what are their necessary and unavoidable living expenses. If the income does not meet the living expenses, then they have established need.
2) Does the other party have an ability to pay?
What is that party’s income and necessary and unavoidable living expenses? If they have an excess of income, then they have an ability to pay.
3) How much of this excess of income will a court award that party to pay for the maintenance of the other?
A court will not award payments of maintenance indefinitely. An award will only be given to allow the party to be financially assisted until they are able to meet their own expenses. This is usually calculated as a weekly amount and indexed by CPI.
Often the Court will not consider making orders for periodic payment of spouse maintenance but will rather give the party requiring support an additional percentage amount by way of property settlement in lieu- often assessed at around 5% of the nett asset pool. This additional entitlement will then be said to be by way of lump sum spousal maintenance. Issues of property settlement must be decided first before any issue of spouse maintenance is addressed to avoid the issue of double dipping- an adjustment for spouse maintenance may not be considered appropriate if there has been a significant adjustment for disparity of earning ability.
You have 2 years from the date of separation to apply for orders of property settlement and spousal maintenance.
You have 12 months from the date of your divorce to apply for orders of property settlement and spousal maintenance.
If you do not file Consent orders or commence proceedings within that time frame you may lose your rights under the Family Law Act 1975 and be confined to seeking relief under the general law. The general law is less generous and will not allow adjustments in your favour for spousal maintenance or for future needs issues such as the care of young children and disparity of earning ability. We strongly recommend that if Consent Orders are not filed within the time limit that you commence proceedings within that time limit to protect your rights under the Family Law Act 1975.
Wills, Severing Joint Tenancies and Superannuation nominations after relationship breakdowns.
We recommend that you update your will and superannuation and life insurance policy nominations and consider severing any joint tenancies.
Any real property held as joint tenants automatically passes to your spouse or partner on your death and cannot be passed under your will. Severing the joint tenancy will ensure your share of the property passes under your will pending property settlement. Jointly held bank accounts, shares and other investments may also not pass under your will but automatically pass to your spouse/ partner.
Any current will is valid even though you may be separated.
Any provision benefitting your spouse remains valid until your divorce when your will is read as if they had died before you. This may have unintended consequences for example if there are provisions for gifts over to each other’s respective families.
Any provision benefiting your partner remains valid until you make a new will.
If you die intestate, that is without a will, your spouse or partner may control the administration of your estate, take all or part of your estate and control any part of your estate determined to be for the benefit of your children.
If possible, make binding nominations for your superannuation. Your superannuation and life insurance do not form part of your estate and cannot be disbursed by direction in your will unless the nominated beneficiary of the policy is your estate. The proceeds of these policies are disbursed in accordance with the terms of the super fund’s trust deed or the insurance policy. The fund or policy may allow for distribution amongst a number of persons including anyone alleging to be a spouse or partner or other dependant as at the date of your death and any person nominated by you as beneficiary. It may take months for a trustee to establish who was in fact dependent and the extent to which they will abide by your nominations.
If possible, make binding nominations of beneficiaries to take away the trustees discretion and ensure the funds are paid to the persons you intend to receive them.
We ensure that all our family law clients have valid wills and can assist you to ensure that you have binding nominations for your superannuation.
See us for comprehensive advice on Divorce, Property Settlement, Parenting and post separation Estate Planning advice.
If you are separating from your partner or spouse, it is important to obtain independent legal advice to ensure that an optimum outcome is achieved for you and your family so you can move on with your future.
Our family law team provides professional and friendly legal advice in all aspects of family law, from divorce, property settlement and parenting issues to future estate planning.