FAQ

Frequently asked questions and answers
Separation and divorce can be an emotional time for most people. Our experienced team of family lawyers will guide you through the daunting and stressful process with empathy and understanding. Our emphasis is on problem solving, and we will endeavor to provide you with pragmatic and realistic advice about resolving the care arrangements for children and property settlements. It is important to obtain legal advice early so as to understand your rights and the options available to you. We will be there to guide you each step of the way.

Whilst separation is an emotional time, important decisions need to be made immediately after separation. Some of the decisions we can assist you with are:

  • where your children live and who will take care of them;
  • how you and your former partner will support yourselves and your children;
  • what, how and when you will tell the children, other family members and friends;
  • who will pay outstanding bills or debts;
  • who will stay in the house;
  • how will the rent or mortgage be paid;
  • what will happen to any joint bank accounts;
  • what will happen to the house, car, furniture and other property; and
  • how do you protect yourself financially.

There are many good reasons to consult an experienced family lawyer. We can demystify the process for you, and help you understand what your rights and entitlements may be, by:

  • explaining how the law applies to your circumstances;
  • advising you about the range of likely outcomes for your matter;
  • advising you about what information you are entitled to receive from, and provide to, your former partner;
  • providing you with information about alternate dispute resolution services available to you;
  • advocating or negotiating on your behalf with your former partner;
  • discussing strategies and tactics to resolve your matter;
  • assessing risks to your position and how to protect yourself, including pre-nuptial (financial) agreements which protect your assets in the event of separation; and
  • formalising any agreement reached between you and your former partner so that they are final and enforceable.
You can apply for a divorce:
  1. you and/or your partner are a Australian citizens by birth, decent or grant of citizenship;
  2. your marriage has broken down and there is no likelihood that you will get back together; and
  3. you have been separated for at least 12 months.

If you have been married for less than two years, you will need to attend counselling with a family counsellor to discuss the possibility of reconciliation. If you cannot attend counselling, you may seek permission from the Court to apply for a divorce if special circumstances exist.

There are many reasons people might separate and remain living under the one roof. You may be legally separated even if you still live together, but are living separate lives. Living separate lives means you do not spend time together socially, engage in family activities, perform household duties for one another and do not sleep together. You should have also told family and friends that you have separated. Your date of separation might have an impact on your entitlements when the time comes to divide your finances. It is important to discuss the implications of living under the one roof with your former partner with an experienced family lawyer.

If you, or children in your care, are threatened or require immediate emergency assistance, you should contact the Police on 000. You can also get in touch with community services which provide counselling or emergency accommodation.

If you think your children are at risk of physical or mental harm when they spend time with your former partner, you should contact us to discuss your options.

Family violence occurs in many families. Family violence is not always physical. It might include economic and financial abuse, sexual abuse, psychological threats, damage to your property (including pets) and other coercive or threatening behaviours.

It is important that you put the safety of yourself, and your children, first. We can assist you with making an application for a Family Violence Intervention Order. This Order can stop your former partner from making threats, or from coming near where you live and work. It can also protect children.

Our team of lawyers is experienced in family violence matters and can provide you with sensitive and proactive advice that keeps you and your children as safe as possible.

If you are served with an Intervention Order (IVO), it will contain a detailed description of what family violence the applicant alleges you have committed against them, or against your children. When you are served, you are also provided with a Summons, which will have a date and time you are required to appear in Court on it. Even if you do not agree with the basis for the IVO, you must ensure you comply with its terms and conditions until this date. It is a criminal offence to breach an IVO, even if the protected person invites you to do so. It is important that you discuss your options with one of our expert lawyers.

Where parties are married they have one year after their divorce is finalised to bring an application for a property settlement. If the parties were in a de facto relationship, then they have two years from separation to issue an application. If the time limit has expired, you may be able to obtain an extension of time on the basis of hardship. We can provide you with assistance to bring a successful application.

A de facto relationship is defined by the Family Law Act as a relationship between two people who are not married, but who live together on a genuine domestic basis. It also applies to same sex couples. Various factors are considered when determining whether two people are in a de facto relationship, including:

  • the duration of the relationship;
  • whether a sexual relationship existed;
  • whether there are any children of the relationship;
  • the extent and nature of shared residence;
  • the parties’ degree of financial dependence on one another;
  • the parties’ mutual commitment to a shared life;
  • the public aspects and reputation of the relationship; and
  • ownership, acquisition and use of shared property.

It can be difficult to know for certain if you are in a legally recognized de facto relationship. Our team can provide you advice based on your individual circumstances.

The law provides that all parties must attempt to settle their dispute prior to commencing Court proceedings. We can work with you to develop a strategy to resolve your dispute, which could include negotiation, mediation, family dispute resolution or going to Court, depending on what is best for your individual circumstances. In fact, ninety five per cent (95%) of family law disputes are resolved before a final hearing. Our team are experienced in both negotiation and advocacy, and can provide you with advice about appropriate options for your matter.

An Independent Children’s Lawyer (ICL) represents your child’s best interests in Court proceedings and ensures those interests are the focus of any decisions made about parenting arrangements. An ICL can be appointed by the Court or upon application by a party. They can be appointed in circumstances where there are allegations of abuse or neglect, where the children hold views about their living arrangements, where one party has mental health issues or where there are other complex or difficult issues. Although an ICL considers the views of a child, where age appropriate, they will ultimately provide their own view about what arrangements are in the children’s best interests.

Whilst most people regard their pets as a member of the family, the court does not have jurisdiction to make orders for care arrangements of pets.

The court will treat pets as an “asset” and will consider factors such as who the registered owner is, who has possession of the family pet and who can continue to maintain and care for the family pet.

The law creates an obligation for both parents to support their children financially, whether biological or adoptive parents. Parents can come to their own private agreement as to how much child support should be paid, or obtain an assessment from the Child Support Agency.

Child support is the financial support payable by one parent to another to assist with the costs of a child who is under the age of 18. Spousal maintenance is financial support paid by a party to a relationship (or marriage) to their former spouse in circumstances where their former spouse cannot adequately support himself or herself financially and the other spouse has the capacity to do so. The Court will consider the financial needs of the applicant and consider whether the spouse has the financial capacity to assist.

Parties contemplating entering into a relationship or are already in a relationship can enter into a financial agreement which records the assets held at the time of the signing of the agreement and sets out what has been agreed will happen to those assets, and any other assets that are accumulated during the relationship (or marriage) in the event that the relationship (or marriage) fails.

Trying to reach a financial settlement after separation can be highly stressful and complex. A lawyer will provide you with comprehensive advice about your entitlements, advantages and disadvantages of entering into an agreement, and whether the agreement reached is “just and equitable”.

If you would like advice regarding your financial matters, contact our office to make an appointment with one of our expert family lawyers.

Getting a divorce will invalidate your will to the extent that it refers to your ex-spouse, which may create considerable issues in reading and interpreting your will. However, the separation period prior to divorce has no effect on your will.

If you would like to update your will, please contact our office to arrange an appointment with one of our lawyers.

It is difficult to know what work may need to be done in your matter and whether your matter will settle by negotiation or in court. We will provide you with a realistic breakdown of the estimated costs and disbursements you may occur at various stages, taking into account the facts of your matter.

Unfortunately we do not take on legally aided clients at this time.

A Power of Attorney is a written document where a person appoints another person to act on their behalf for particular matters.

The most common type of Power of Attorney is an Enduring Power of Attorney, where a person appoints another person(s) to make decisions about financial matters, personal matters or both.

A person can appoint a person to make medical treatment decisions, however, this is no longer done via a Power of Attorney.
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areas of expertise

  • Property settlements
  • Separation and divorce
  • Custody (parenting arrangements)
  • Court proceedings
  • Financial agreements (including pre-nuptial)
  • Intervention Orders
  • Mediation
  • Round table conferences
  • Independent Children's Lawyer
  • Same sex couples (LGBTIQ+)
  • The rights of grandparents
  • International family law
  • Estate planning and elder law
FAQ was last modified: August 18th, 2020 by spllawyers2019