Comprehensive Family Law Services
Not all family law proceedings are adversarial and wherever possible, we focus on amicable solutions. We seek to work collaboratively with all parties to help arrive at solutions that are in the best interests of the children (where applicable) and all other parties to try and avoid unnecessary costs and complications.
We make our Family Law Services convenient so you need not be a Doncaster or Templestowe resident
How does the Law affect me and my application for a separation or divorce?
The Family Law Act 1975
To paraphrase the objectives of the Act. The best interests of children are first and foremost – not parental rights. Children are to be ensured of the ability to have meaningful relationships with each of their parents and to be protected from harm. The Act is administered by Attorney-General’s; Social Services.
Family Dispute Resolution
Where children are involved, it is incumbent on the parties to have made genuine efforts to sort out their issues via Family Dispute Resolution before making application to the courts. The only exceptions are where family violence, child abuse or urgency exist. These Government funded services can be located via Family Relationship Centres, Legal Aid Commissions, community based law services or accredited FDR practitioners.
Do I need to go to court To Separate or Divorce?
Separations in Australia do not have legal process. To initiate a divorce, you are required to apply to both the Federal Circuit and Family Court of Australia. Western Australians need to apply to the Family Court of Western Australia.
Overview of the Family Law Act and the Legal system
What is the first thing to do when separating?
Divorce in Australia does not seek to attribute fault nor blame, it is enough to show that the relationship has broken down irretrievably and that there is no likelihood of getting back with your spouse after a minimum of 12 months separation. Even though there is no formal process for separation or de facto breakups, you may wish to consider contacting Services Australia (including but not limited to Centrelink and Medicare) for advice and impacts with regards to your change of status.
What am I entitled to after separation?
After separation the way property may be shared will be determined by individual circumstances. This is regardless of whose name the property is under nor whether income earned is little or zero it will be guided by the Family Law Act 1975 wherein, “a person has a responsibility to financially assist their spouse, or former de facto partner, if that person cannot meet their own reasonable expenses from their personal income or assets.”
In the event that parties cannot resolve matters outside of the courts then the courts can decide but do not subscribe to popular public perception that half half is the basis of the split.
When considering separation or divorce when should I see a solicitor?
Once you arrive at the decision to go your separate ways. Or perhaps before you make the decision to make a commitment of marriage. Even with the most amicable of separations custodial rights, the rights of the parties (especially children), maintenance issues, division of assets etc. can be not only be overwhelming but outside of what you are feeling or where you thoughts are.
At such a time, most of us are going through the five stages of grief, yet we are called upon to exercise rational thought for dealing with the complexity of the law, endless process and reimagining a life that we most likely had not planned nor prepared for. This is likely to leave us vulnerable and prone to make less than ideal decisions.
Similarly, some marriage breakdowns have resulted in what may appear to be unjust and inequitable outcomes concerning division of assets, spousal maintenance or remaining estate distribution to other family members. As unfortunate or unintended as a divorce may be, some of us may be well served to consider a binding financial agreement before proposing marriage.
Understand your legal rights and obligations with Property and Financial settlements
Property and financial settlements not are necessarily covered once you’ve resolved the matters concerning child support, spousal maintenance or child maintenance. Property and financial settlements include income, assets, resources, contributions and liabilities and depending on the length and of the relationship, future needs of the parties and other relevant factors such as children, standard of living, age and health. The Act sets out these factors and based on the spirit of collaboration and practicality it would serve both parties well to come to a mutual agreement. Whether parties are able to resolve their differences amicably or not, it is wise to engage a lawyer to provide arbitration or mediation services. In the long term this approach in terms of cost and fairness helps parties with not just the legal issues but a good solicitor alert you to factors that may not have been considered during these stressful times.
Where parties cannot come to a mutual agreement with Property and Financial settlement.
Where agreement is not being reached it is preferable to seek arbitration or mediation to negotiate matters away from the courts to minimise costs and avoid lengthly and prolonged dispute. This may be in the form of a casual arrangement, a binding financial agreement, a consent order or a ruling from the court as a result of litigation. In Victoria and the rest of Australia except Western Australia the sections of the Family Law Act 1975 pertinent to the decisions of the Court (Family Court of Australia or the Federal Circuit Court of Australia) to provide a property settlement order are 79(4) and 75(2) in relation to marriages, and sections 90SM(4) and 90SF(3) in relation to de facto relationships. If it deems necessary the Court may also decide on orders for spousal maintenance and child support. We advise that you seek legal advice as the impacts of making a poor decision can be far reaching and costly.
Doesn’t 50/50 split apply in Australian divorce?
The division of assets and liabilities is not under a prearranged percentage such as a 50 /50 split and is probably more likely to be around 60/40 if not more towards 80/20. The actual amount depends upon circumstances and factors used to determine property settlements in Australia. Allocation of finances does not get computed under “a typical divorce setting” or percentage split. Principles of fairness and equity are the guide for resolving property and financial settlements as referenced in the paragraph above.
Timing is critical when the relationship is being dissolved
Property settlements should be arranged at the earliest time available once separation has been established. The reason for this is that if property arrangements have not been made, application must be made to court within 12 months of finalisation of divorce and for de-facto relationships within 2 years of separation. Again, it is in the interests of the parties to seek mediation or arbitration before and taking matters to court. When you reach out to us at Dianne Grace Family Law, we will avoid jargon, remove complexity and protect your interests.