Relationships can be complex at the best of times, but when they break down there are a range of practical and legal issues to consider. We can help you through this difficult time, providing guidance and advice to protect your legal rights, put your family first, and help you to move on with your life. We will keep you away from the courtroom wherever possible and ensure you achieve a fair and reasonable property settlement and arrangements that are in your children’s best interests.
Dividing your Property after Separating
After a relationship breaks down, you will need to think about how your property and finances should be divided. Family law in Australia states that each party should receive a fair share of the joint property pool. The property pool considers all assets, financial resources, and liabilities. Assets, whether held together or individually and whether acquired before, during or after the relationship are taken into account.
Determining what is ‘fair’ depends on what each party brought to the relationship, how each person contributed during the relationship and their respective future economic needs. Contributions are not just from paid employment but include non-financial contributions, such as looking after children, home improvements and maintenance, and providing emotional and social support.
Financial Agreements and Consent Orders
A formal (legally binding) property settlement enables parties to move on with their respective financial lives, helps protect them from future claims, and can facilitate certain duty concessions when transferring assets such as real estate. Negotiating and finalising a property settlement is often achieved without going to Court, usually with the assistance of the parties’ respective family law solicitors.
If you and your ex-partner come to an agreement on how to divide your property, you can formalise your negotiations in a financial agreement or consent orders.
A financial agreement operates like a contract between the parties. The Court is not involved but each party must receive independent legal advice and the agreement must meet strict legislative requirements to be effective.
Consent orders are often considered a more formal way to finalise your property arrangements as they must be filed with and approved by the Federal Circuit and Family Court of Australia. An application is made to the Court and if the proposed orders are considered just and equitable, they will be granted, usually without the parties having to attend Court.
We can help you negotiate a property settlement that is fair and reasonable in the circumstances and prepare the relevant documents to ensure the agreement reached is legally binding.
Parenting Arrangements for your Children
A child’s best interests is the paramount consideration in all Australian family law parenting matters. There is no concept of parental ‘rights’ or ‘custody’, only of parental ‘responsibilities’ and ‘care’.
The law starts from the presumption that it is best for a child to have an active relationship with both parents. The starting point is generally that both parents have equal and shared responsibility for their child. Shared parental responsibility means that parents are required to consult each other regarding long term decisions for the child. It does not necessarily mean that the child will spend equal time with each parent which may not be practical for every family. There is, however, an expectation that each parent will spend at least ‘significant’ time with their child.
Parenting arrangements can be achieved through a parenting plan, consent orders or if the parties cannot agree, court proceedings.
Going to Court for your Family Law Matter
If you cannot reach an agreement through negotiation or mediation, you may seek resolution through litigation in the Courts. The Federal Circuit and Family Court of Australia has jurisdiction over family law matters. It has specialised family law judges who apply the Family Law Act and other relevant legislation to resolve disputes and make binding decisions.
For financial matters, the Court will require that the parties first attempt to settle the division of property before the matter reaches a final hearing. For parenting matters, unless extenuating circumstances exist, the parties will first need to attend compulsory family dispute resolution before commencing proceedings.
While arranging your affairs after a relationship ends is stressful and challenging, we can help you navigate the legal process to ensure that you can move forward in the best light possible.
If you need assistance, contact one of our solicitors at [email protected] or call 02 6885 0025 for expert legal advice.
