10 Key Facts About Property Settlement

What is Property Settlement?

When a marriage or de-facto relationship is over, the financial ties between the parties need to be finalised.  For instance, if there is a jointly-owned house, it needs to be decided what happens to the house.  It may be that the house is sold, or one party may be able to take it over and, if necessary, “buy” the other party’s interest.

The Family Law Act 1975  sets out the process and law regulating Property Settlement.

Often people hear stories from friends, relations or work colleagues about their experiences; because the Family Law Act deals with people on an individual basis, each matter must be looked at on a “case-by-case” basis. Every relationship and situation is different; so to know where you stand, you must obtain advice about your situation, not someone else’s experiences.

Here is a comprehensive booklet our Accredited Family Law Specialist ( who has over 33 years experience in Family Law) has written about coping with property-settlement-managing-co-parenting/

Do separating couples need to have Property Settlement?

Yes.  One of the most important reasons for having a property settlement is to finalise your financial ties with your ex-partner.

If you do not finalise your financial relationship, either party may come back at the other down the track and make a claim for Property Settlement. If this happens, the Court doesn’t look at the property at the date of separation, they look at it at the date of proceedings, and, if it makes it all the way through the Court process, at the date of Trial.  Therefore, there are situations where property or debt acquired after separation by one party is brought into the property pool.

Examples of this are real estate or assets acquired after separation (even with another person), increases in superannuation and savings, and increases in the former matrimonial home.

Extreme cases can be when one party inherits an amount of money or has a lottery win after separation, but prior to a formal property settlement taking place. In this situation, the inheritance or lottery win can be included in the property asset pool for the Court to consider.

There are also practical issues which need to be addressed after separation; such as, who is responsible for the mortgage payments, personal loan or credit card payments?

Before agreeing to any proposed settlement, it is most important that you get legal advice as to your particular financial entitlement (and obligations) so that when you are dealing with your former-partner, you know where you stand, legally.

How do I start the Property Settlement Process?

Whether you reach amicable agreement or not in relation to your property settlement, the best way to finalise the financial relationship is to commence the property settlement process as soon after separation as is practicable. Most matters, even when there is a dispute, do not go to a Trial before a Judge.

At Journey Family Lawyers, we normally start the process by advising you of your entitlements.  With your instructions, we will then draft a letter to send to the other party to try to reach agreement without the necessity of going to Court.

Alternatively, Mediation between the parties is an option we recommend if it is likely that an agreement can be reached.  However, in some cases where  there is little likelihood of Mediation succeeding, commencing Court proceedings may be appropriate course of action to take because the Court process induces parties to address the issues and Mediation can follow.

Often, there are disputes about what property is in the property pool, what values are attributable to those assets and how they should be managed during the process (i.e. who should pay the mortgage, or who should live in the house before a final Property Settlement has taken place). These types of issues vary on a case -by-case basis but must also be dealt with to allow the Property Settlement process to proceed.

What is Property? 

Property includes all the assets under the ownership OR control of either or both parties to the relationship.

This includes real estate, interests in businesses and companies, superannuation, shares, money in bank accounts, vehicles, boats, antiques, jewelry or artworks and so on. Also, interests or entitlements in trusts may also form part of the property pool.

Also there are some financial resources that one party may have access to that a Court can also take into account.  Examples of financial resources can be interests in deceased estates and interests in family trusts.

What are the time constraints for Property Settlement?

Either party to a Marriage or a de-facto relationship (as defined by the Family Law Act), can bring an Application for Property Settlement at any time after separation.

Generally it is best to deal with Property Settlement as soon as separation occurs. At the least, separating parties ought to obtain independent legal advice as to their rights and obligations for property settlement so that they do not agree to accept less than their entitlement.

With some exceptions, separating parties must commence proceedings for a Property Settlement (bring a Court Application) within twelve months of their Divorce, for a married couple and for a de-facto couple, within two years of their separation. If you do not commence property proceedings within these time limits, you may lose your rights.

If a Property Settlement is not reached prior to these time limits, the other party may still be able to bring an Application for Property Settlement “out of time”.  So, if you have not had Property Settlement, you may still be at risk outside these time limits.

 

How do I formalise our Property Settlement?

Often through negotiations, agreement can be reached and then the best way to finalise property is through Consent Orders. Consent Orders are Orders both parties have agreed to and which a Court or a Court Registrar then scrutinises and if they are satisfied that the proposed settlement is just and equitable, they will make the Orders

There is also an option to make a written agreement called a Binding Financial Agreement.  There are many cases where these types of agreements have been overturned by the courts. It is important that they be prepared carefully and signed off properly. Quick or cheap Financial Agreements are not the answer.

How is Property Settlement calculated?

The Family Law Act and the Courts have established a four-step process to work out the respective parties’ rights and entitlements in a Property Settlement.

Broadly speaking, the process considers what is in the property pool, including all assets and liabilities; it then looks at initial contributions, contributions during the relationship, both financial and non-financial and then it looks at post-separation factors. As there are many variables, each case must be looked at on an individual basis to determine the respective entitlements.

Before agreeing to anything, we strongly recommend you see a Lawyer to go through this process to work out your position.

Do I have to go to Court for Property Settlement?

Most cases do not go to Court or to Trial. This is because the process is aimed at negotiating and finalising the property settlement without the necessity of a Court action. There is a process that encourages settlement. The result is that, even when Court proceedings are commenced, very few cases end up in a final Trial.

What happens if one party does not want to have Property Settlement?

It is not uncommon that one party wants to finalise the Property Settlement and the other party does not. At Journey Family Lawyers, we firstly write to the other party or their Lawyers suggesting a process to mediate/negotiate the Property Settlement.

If the other party refuses to mediate or negotiate or, does not do so in a genuine manner, the next step is to bring an Application for Property Settlement. This means that both parties go before the Court. The Court makes directions to clarify the issues; it generally also Orders some form of Mediation. Often this process results in an agreed settlement (and Consent Orders).

This system means that, even if a party does not want to cooperate, the Court system deals with the Property Settlement, regardless.

 

What should I do?

In the first instance, you need to know where you stand in relation to your entitlements and obligations. If you do not do this you will not know what to expect and you may agree to something that is not “fair”.

Also, if you do not know what your entitlement is, you cannot negotiate effectively with the other party.

Therefore we recommend your first step is to see a Lawyer to ascertain your individual situation.

At Journey Family Lawyers, at our initial consultation, we try to work out a client’s entitlement and a suggested course of action to settle the matter as soon as practicable.

Sometimes after ascertaining your entitlement, you may choose to discuss it with your former partner. If you come to an agreement, we recommend you use a Lawyer to formalise that agreement.

Other times, it might be a matter of engaging Lawyers to deal with the issues.

Each case is usually slightly different and it depends on the individual situation.

If you are in doubt with any of these matters, always consult a Lawyer.

Alternatively, if you are wanting further information, click here to go back to our Property section where we have lots of helpful articles.

Family Lawyers Brisbane

Guide to Understanding the Divorce Process

10 Key Facts About Property Settlement

What is Property Settlement?

When a marriage or de-facto relationship is over, the financial ties between the parties need to be finalised.  For instance, if there is a jointly-owned house, it needs to be decided what happens to the house.  It may be that the house is sold, or one party may be able to take it over and, if necessary, “buy” the other party’s interest.

The Family Law Act 1975  sets out the process and law regulating Property Settlement.

Often people hear stories from friends, relations or work colleagues about their experiences; because the Family Law Act deals with people on an individual basis, each matter must be looked at on a “case-by-case” basis. Every relationship and situation is different; so to know where you stand, you must obtain advice about your situation, not someone else’s experiences.

Here is a comprehensive booklet our Accredited Family Law Specialist ( who has over 33 years experience in Family Law) has written about coping with property-settlement-managing-co-parenting/

Do separating couples need to have Property Settlement?

Yes.  One of the most important reasons for having a property settlement is to finalise your financial ties with your ex-partner.

If you do not finalise your financial relationship, either party may come back at the other down the track and make a claim for Property Settlement. If this happens, the Court doesn’t look at the property at the date of separation, they look at it at the date of proceedings, and, if it makes it all the way through the Court process, at the date of Trial.  Therefore, there are situations where property or debt acquired after separation by one party is brought into the property pool.

Examples of this are real estate or assets acquired after separation (even with another person), increases in superannuation and savings, and increases in the former matrimonial home.

Extreme cases can be when one party inherits an amount of money or has a lottery win after separation, but prior to a formal property settlement taking place. In this situation, the inheritance or lottery win can be included in the property asset pool for the Court to consider.

There are also practical issues which need to be addressed after separation; such as, who is responsible for the mortgage payments, personal loan or credit card payments?

Before agreeing to any proposed settlement, it is most important that you get legal advice as to your particular financial entitlement (and obligations) so that when you are dealing with your former-partner, you know where you stand, legally.

How do I start the Property Settlement Process?

Whether you reach amicable agreement or not in relation to your property settlement, the best way to finalise the financial relationship is to commence the property settlement process as soon after separation as is practicable. Most matters, even when there is a dispute, do not go to a Trial before a Judge.

At Journey Family Lawyers, we normally start the process by advising you of your entitlements.  With your instructions, we will then draft a letter to send to the other party to try to reach agreement without the necessity of going to Court.

Alternatively, Mediation between the parties is an option we recommend if it is likely that an agreement can be reached.  However, in some cases where  there is little likelihood of Mediation succeeding, commencing Court proceedings may be appropriate course of action to take because the Court process induces parties to address the issues and Mediation can follow.

Often, there are disputes about what property is in the property pool, what values are attributable to those assets and how they should be managed during the process (i.e. who should pay the mortgage, or who should live in the house before a final Property Settlement has taken place). These types of issues vary on a case -by-case basis but must also be dealt with to allow the Property Settlement process to proceed.

What is Property? 

Property includes all the assets under the ownership OR control of either or both parties to the relationship.

This includes real estate, interests in businesses and companies, superannuation, shares, money in bank accounts, vehicles, boats, antiques, jewelry or artworks and so on. Also, interests or entitlements in trusts may also form part of the property pool.

Also there are some financial resources that one party may have access to that a Court can also take into account.  Examples of financial resources can be interests in deceased estates and interests in family trusts.

What are the time constraints for Property Settlement?

Either party to a Marriage or a de-facto relationship (as defined by the Family Law Act), can bring an Application for Property Settlement at any time after separation.

Generally it is best to deal with Property Settlement as soon as separation occurs. At the least, separating parties ought to obtain independent legal advice as to their rights and obligations for property settlement so that they do not agree to accept less than their entitlement.

With some exceptions, separating parties must commence proceedings for a Property Settlement (bring a Court Application) within twelve months of their Divorce, for a married couple and for a de-facto couple, within two years of their separation. If you do not commence property proceedings within these time limits, you may lose your rights.

If a Property Settlement is not reached prior to these time limits, the other party may still be able to bring an Application for Property Settlement “out of time”.  So, if you have not had Property Settlement, you may still be at risk outside these time limits.

 

How do I formalise our Property Settlement?

Often through negotiations, agreement can be reached and then the best way to finalise property is through Consent Orders. Consent Orders are Orders both parties have agreed to and which a Court or a Court Registrar then scrutinises and if they are satisfied that the proposed settlement is just and equitable, they will make the Orders

There is also an option to make a written agreement called a Binding Financial Agreement.  There are many cases where these types of agreements have been overturned by the courts. It is important that they be prepared carefully and signed off properly. Quick or cheap Financial Agreements are not the answer.

How is Property Settlement calculated?

The Family Law Act and the Courts have established a four-step process to work out the respective parties’ rights and entitlements in a Property Settlement.

Broadly speaking, the process considers what is in the property pool, including all assets and liabilities; it then looks at initial contributions, contributions during the relationship, both financial and non-financial and then it looks at post-separation factors. As there are many variables, each case must be looked at on an individual basis to determine the respective entitlements.

Before agreeing to anything, we strongly recommend you see a Lawyer to go through this process to work out your position.

Do I have to go to Court for Property Settlement?

Most cases do not go to Court or to Trial. This is because the process is aimed at negotiating and finalising the property settlement without the necessity of a Court action. There is a process that encourages settlement. The result is that, even when Court proceedings are commenced, very few cases end up in a final Trial.

What happens if one party does not want to have Property Settlement?

It is not uncommon that one party wants to finalise the Property Settlement and the other party does not. At Journey Family Lawyers, we firstly write to the other party or their Lawyers suggesting a process to mediate/negotiate the Property Settlement.

If the other party refuses to mediate or negotiate or, does not do so in a genuine manner, the next step is to bring an Application for Property Settlement. This means that both parties go before the Court. The Court makes directions to clarify the issues; it generally also Orders some form of Mediation. Often this process results in an agreed settlement (and Consent Orders).

This system means that, even if a party does not want to cooperate, the Court system deals with the Property Settlement, regardless.

 

What should I do?

In the first instance, you need to know where you stand in relation to your entitlements and obligations. If you do not do this you will not know what to expect and you may agree to something that is not “fair”.

Also, if you do not know what your entitlement is, you cannot negotiate effectively with the other party.

Therefore we recommend your first step is to see a Lawyer to ascertain your individual situation.

At Journey Family Lawyers, at our initial consultation, we try to work out a client’s entitlement and a suggested course of action to settle the matter as soon as practicable.

Sometimes after ascertaining your entitlement, you may choose to discuss it with your former partner. If you come to an agreement, we recommend you use a Lawyer to formalise that agreement.

Other times, it might be a matter of engaging Lawyers to deal with the issues.

Each case is usually slightly different and it depends on the individual situation.

If you are in doubt with any of these matters, always consult a Lawyer.

Alternatively, if you are wanting further information, click here to go back to our Property section where we have lots of helpful articles.

Will and Power of Attorney

Time to get your Will sorted?

If you have been through or are going through separation, then you may have thought ” I need to get my Will changed”.
Chances are that your ex-partner is the person who is currently your Attorney, and also executor of your will.
If you haven’t already done so, now is the perfect time to update your Will. We have a great streamlined service that means that you come in, give instructions or email instructions, and leave with a fully executed will. It only takes an hour or so. We can also do your Enduring Power of Attorney at the same time. Don’t delay. We can fix that nagging worry quickly and at the reasonable cost of $330.00 for a Will and EPOA ( GST inclusive.) Call us today on 07 32059000 ( Strathpine ) or 07 34482199 (North Lakes ) or 07 38325999 for our Brisbane Office.

Learn more about Wills and Powers of Attorney

What if you pass away before you change your Will?  The law is that  if you have separated from the executor of your current Will but not yet actually divorced, then your ex is the person who controls your estate.

 

 

Property settlement family court

Keeping your Costs down in Family Law

We all want the best outcome we can possibly have from your Family Law journey. Whether it be by mediation or Court. In a perfect world, everyone would have equally  knowledgeable  and  conscientious lawyers to represent them. The reality, though , is that good lawyers are quite expensive, and sometimes people have to settle for lawyers who would not usually be their first choice.

 

Journey Lawyers  have found a way around that. We have many clients who have been able to use our services even though they are not the financially strong party.  We are some of the good lawyers, but having options for keeping costs down makes us affordable to more people.  Here’s three ways that we do it.

1 We get our clients to do as much as they can for themselves. Its just like labouring for the tiler, or builder. You do the stuff you can and that doesn’t need legal experience. You then get us to do the legal stuff, like Court documents,  attending Court with you, and advising you along the way.  People who do this are well able to answer the many letters that usually come about times and dates for children’s visits, for example, or answer letters asking for copies of documents. It saves the costs of us having to read the letter in the first place, then saves the costs of us having to send it to you to get instructions, and then saves you the costs of us writing back to the lawyer. That saving of about 20 minutes legal work can save you lots. Multiply that by 10 or so letters and you can see that you have made a big difference to your legal bills.

2. We offer fixed fees for just about everything we do. Just ask. We will work out what amount of work your particular case should need, and then we quote it as a fixed fee. You can budget for each step.

3. If your ex partner has control of joint funds, then we can apply to the Court for an interim distribution of funds to help you with your legal fees.  ONce we have that money for you, creating a “level playing field” so to speak, then you can still use options above to make the most of your money.

By the way, you will also get a bill every week so you can keep track of your spending.

So there you have it. this is how we keep costs down for our clients.

 

 

Happy Kids

Co-parenting over School Holidays

 

Take time to Plan ahead:

 

Co-parenting during School holiday arrangements for the children can be hard .
School Holidays can be hard even in a non separated household.
Both parents may need to work and both parents may want to have time off with the children.
It is just as hard for the children, sometimes.
It’s a mistake to talk about “the children” as though they were a single unit rather than kids of different ages and personalities.
So to co-parent through the holidays, we have to find a way to satisfy the individual needs of the people involved.
It’s best if the discussions about holidays takes place in plenty of time before the holidays so that the holiday time arrangements can be worked out to everyone’s satisfaction.

 

Various Options for Holiday Time Co-parenting:

 

Parents can use a combination of vacation care, accrued annual leave and grandparents to get through the holiday break.
In Janet Baxter’s study of the Australian Institute of Family Studies, she noted that some kids have been staying home by themselves while their parents worked.
The statistics show that more and more families are using School holiday programs or ” vacation care”.
Whatever plan you make for your family, it is always best to do it with civility and avoid involving the children in any conflict.

Its extra stress for everyone if the arrangements are vague or uncertain. Once everyone knows what co-parenting arrangements are going to be in place, then the children and the parents can relax and enjoy their holidays.

 

What to do if you can’t agree:

 

If you and your ex partner can’t agree well in advance of the holidays, think about going to mediation. There you should  to try to resolve the issues with the help of a mediator or counsellor who is registered as a Family Dispute Resolution Provider (FDRP). If you want to find an FDRP, then click HERE  .

If that fails, then you can ask for a S 60(1) certificate from the Family Dispute Resolution Provider. You may have to go to Court to get arrangements for school holidays.  You will need to file a section 60(i) certificate with your application. Sometimes, if you see a Family Lawyer then the lawyer may first write a letter to the other parent to see if there is a possibility of agreement. We almost always try to resolve  matters this way. If there is urgency or the other parent has absolutely refused to engage in sensible co-parenting discussions, you may need to go to Court.

 

The Journey Brisbane Family Lawyers difference :

 

  1. 1. We offer fixed fees for a letter to your ex partner. We also can do fixed fees  for bringing an application up to the end of  its first day in Court.
  2. 2. Our clients have been able to get affordable representation by using our unique step in-step out process.  The clients then manage the case on their own in  between Court events, only calling on their lawyer for help when they need it.
  3. 3. We also travel to Rockhampton for the Federal Circuit Court and Family Court and do not charge for travel and accommodation in Rockhampton.

 

Just call and ask for a fixed fee quote, or email us or call for an appointment on (07) 38325999 ( for North Lakes, Strathpine and Brisbane City Offices.

We acknowledge using some information from the 2013 paper by  Janet Baxter of the Australian Institute of Family Studies.  familylawyer - Successful Co-ParentingYou can read it HERE .

familylawyer - Successful Co-Parenting

Top 10 Tips for Successful Co-Parenting

The term “co-parenting” is used to describe a situation where two parents work together to raise a child following separation, divorce or changed living conditions. Both parents maintain some type of shared responsibility, equal or otherwise, as a protection of the child’s right to continue to receive care and love from both parents.

Lynette Galvin, our Accredited Family Law Specialist and Family Lawyer, has seen lots of co-parenting successes. But she’s also seen co-parenting fails, including her own. Lynette understands the world of co-parenting because she lives it everyday as a stepmother. Therefore there’s no one more qualified to assist you in your co-parenting journey. Here are Lynette’s top 10 tips for successful co-parenting.

1. Do not relay messages through your children

Try to communicate directly with your ex-partner and avoid asking your children to relay messages on your behalf. Co-parenting is about working together, and if you show your kids you cannot talk directly with your ex-partner, you’re sending the wrong message. Furthermore, asking a child to relay a message could be somewhat distressing to the other parent. Messages such as “Mum says you should be putting us to bed earlier”, put a lot of pressure on them. Protect your child’s comfort and deliver the message yourself. If you primarily communicate through text or email, remember that tone and intention can often be misconstrued.

2. Keep conversation to the point and business-like

familylawyer - Successful Co-Parenting

While it’s important that you speak directly and often to your ex-partner, it’s also important to keep things brief and matter-of-fact. This is especially so if your conversations tend to lead to an argument.

Stick to the facts and what directly impacts them or the kids. Avoid rolling your eyes, a disbelieving shake of the head, tutting, or any other gesture that can be just as hurtful as name calling. If you do slip up, apologise immediately. You’re in the business of taking care of your children, so try to speak or write to your ex-partner as if they are your business partner. That means being cordial and respectful.

3. Only speak positively

When you make a conscious decision to speak only in positive terms about your ex-partner (at least in front of the kids – we know some venting is needed), you allow your kids to grow up with feelings of respect and admiration. These feelings are crucial for their wellbeing and comfort.

The only person you have control over is yourself. Even if your ex-partner doesn’t show the same courtesy by speaking positively of you, try to take the high road. Learning to ignore a badmouthing ex-partner will result in a big family payoff.

If your ex-partner has something bad to say, be careful with your response. Explain to your kids that sometimes people say things they don’t necessarily mean when they’re upset, and then advise them that you’ll talk it over in private. Whatever you do, don’t lash back with name calling. Model the best way to respond to difficult situations with maturity and integrity and your children will respect you for it.

4. Be considerate

familylawyer - Successful Co-Parenting (3)

Even though you are no longer together, you are allowed to care for your ex-partner. That said, you need to give your ex-partner time to understand and process the breakup. You might be feeling okay about things but how people deal with a break up of relationship varies enormously. Your ex-partner might be hurting and you should consider this and allow them time to get over you. Be polite and respectful and if they don’t want to talk at first, don’t push. Explain that you are open to communications any time they are ready and sincerely ensure that if there is any time they would like to talk that you’ll be there.

Being considerate also includes letting your ex-partner know about school functions, being flexible with schedules and asking them for their opinion. Recognise that working together means putting your kids first and that it requires sacrifice. Not easy for either of you, but necessary.

5. Back off when it’s not your time

It’s fine to want to know what your kids are up to when they are with your ex-partner and it’s also okay to try and coordinate schedules. Nevertheless, you must try to avoid intruding on your ex-partner’s time with the kids. Avoid scheduling children’s activities on the other parent’s time without clearing it with them first and don’t call or text too often. Pick your battles and don’t pull up on every small component of parenting you would have done differently. If your ex-partner took the kids to McDonalds or sent your son to a birthday party in a dirty T-shirt, is it really the end of the world?

6. Refrain from exposing your fears

familylawyer - Successful Co-Parenting (4)

Talking to your kids about emotions and helping them to understand what effect they can have on others is important for building a healthy emotional vocabulary. Crying is a natural and normal thing to do, but it has its time and place. Following a relationship breakdown, kids are feeling scared. Seeing you cry teaches them that you care and that the breakup matters, but if you are crying everyday it can be quite frightening for your kids. Children need to know that everything is going to be alright, even when you’re not sure it is. Teach them that being upset is okay, but when you feel the waterworks coming on repeatedly, slip into the shower to hide some of your pain.

7. Think about the future

There are bound to be times when it all seems too hard. You will want to scream and shout and declare that you are “done”. But think about the future. Imagine your child’s graduation, their wedding, or the day they give birth to their first child. If you show unreasonable behaviour now, will it prevent you from standing beside each other on these special occasions? If you’d like nothing more than to make your child happy on these momentous days, take a deep breath and keep calm.

8. Leave decision-making to the parents

Whether you’ve entered a new relationship or your mother is on your case about needing “more time”, “less time”, “more money” or a “cleaner home”, keep parenting decisions between you and your ex-partner. Other people are entitled to show some angst, but their angst shouldn’t impact how you choose to co-parent. You and your ex-partner are the only parents involved. If someone else doesn’t respect that, show them how strongly you feel about the matter.

9. Never air your grievances on Facebook

familylawyer - Successful Co-Parenting (2)

Unlike a private conversation, aired grievances on the internet remain there forever. Something you write in haste or after a few wines might seem harmless at the time, but it can haunt you for years to come. Keep the relationship between you, your ex-partner and a few close confidants. If you need to vent, see a professional. No good will come from a vent on Facebook. We promise you that.

10. Make the most of your free time

When the kids are going to your ex-partner, make a plan! Sitting around and moping will only highlight the negative aspects of the situation, leading to hurt feelings. Plan to catch up with friends, go watch a movie, do the housework or go to the gym – any activity that will keep you busy and gives you some all important “me” time.

Think forward with Journey Family Lawyers

Lynne’s biggest piece of advice? Foster positive transitions for yourself, your ex-partner and your kids by engaging with Journey Family Lawyers Brisbane. You’ll receive specialist care so that you can work together harmoniously while keeping costs down.

Understanding the Divorce Process, with Clickable links to help

Are you thinking of getting a divorce and want to know what the process is like? If you live in Brisbane or North Brisbane there are five key steps in the divorce process you should know about, and it’s important that you understand what each one entails before you get a divorce. This includes filing for divorce, property settlement, and managing co-parenting after separation. You should also seek legal help when you get a divorce, especially if you’ve got children and joint property.

Divorce and separation

The Federal Circuit Court of Australia has the jurisdiction to deal with divorces under the Family Law Act 1975. When granting a divorce, the Court doesn’t consider the reasons for the divorce but simply recognises that the marriage has ended due to a breakdown and the parties will not get back together.

If you have children under 18 years of age, the Court will only grant a divorce if you’ve made proper arrangements for them.

Who can apply for a divorce?

In Australia, you can apply for a divorce if you and/or your spouse meet one of the following criteria:

  • You consider Australia your home country and will live in it permanently or
  • You’re an Australian citizen or
  • You normally live in Australia and have done so one year before filing for divorce.

If you married overseas and want to get a divorce in Australia, either you or your spouse must also meet the above criteria. You also need to give the Court a copy of your marriage certificate. If it isn’t in English, you should file an English translation of it, as well as an affidavit from the translator.

When applying for a divorce, you’ll need to prove to the Court that you’ve lived separately and apart from your spouse for at least one year and that you won’t resume married life. You can, however, be separated and still live in the same house – this is also known as being separated under one roof.

‘Separation under the one roof’… What does it mean?

You and your spouse can be separated but continue to live in the same house one year before applying for divorce. You’ll have to prove to the Court that you were separated during this time. You can find more information about this in the publication ‘Separated but living under one roof’.

How to apply for divorce

Simply register for the Commonwealth Courts Portal if you haven’t already done so, then complete the Application for Divorce online and pay the filing fee.

How much will a divorce cost?

The filing fee for a divorce application is $865. If you’re experiencing financial hardship or hold certain government concession cards, you may be eligible for a fee reduction. If so, you only have to pay $290.

What to do if you’ve been married less than two years

You should file a counselling certificate. You’ll have to attend counselling to get the certificate. Contact the Family Relationship Advice Line on 1800 050 321 to arrange counselling, or Relationships Australia on 1300 364 277. If you can’t attend counselling with your spouse, you should file an affidavit. You and your spouse should also have been separated for at least one year before applying for a divorce.

What if you have children and joint property?

The granting of a divorce doesn’t determine issues of property distribution or arrangements for children. For more information, please refer to ‘Property and Asset Settlement’, ‘Child Custody’, and ‘Co-parenting/Managing Separation with Children’ below.

Where to find more information on divorce and separation

Changing your name and address after getting divorced

Reverting to your maiden name or former name

If you took your spouse’s surname when you got married, you can revert to your maiden name or former following a divorce or separation.

If you were married in Australia, you should contact every organisation you have a personal account with to change your family name. You also have to provide proof of the name change, including the following:

  • Australian birth certificate
  • Australian marriage certificate
  • Updated photo ID
  • Identity documents

If you were born and/or married overseas and legally changed your family name to your spouse’s with the Registry of Births, Deaths and Marriages, you’ll have to legally change your name again with them.

If you were married in Australia, you’re entitled to be known by your maiden name regardless of your marital status. You simply need to prove the link between your married and maiden names with your marriage and birth certificates.

Who you need to notify when changing your name and address

Here are some organisations, governments, banks, and councils you’ll need to notify when you change your name and address after a divorce: They are all clickable links straight to the people you need to notify. We hope this helps you in these chaotic times.

You can easily and quickly notify organisations of your new name using a personalised name change kit.

Property and asset settlement

When your marriage is over, the financial ties between you and your ex should be finalised. For example, if you have a joint property, you should decide what happens to the house. You can either sell it or stay in it and your ex moves out.

What’s included in the property pool?

When you make a claim for property settlement, the Court will look at the property at the date of proceedings and at the date of Trial if it makes it all the way through the Court process. This means property, assets, and debt acquired after separation by either party will be brought into the property pool.

The property pool can include:

  • Joint property
  • Investments (shares, real estate)
  • Interests in businesses and companies
  • Interests or entitlements in trusts
  • Interests in deceased estates
  • Superannuation and savings
  • Inheritance money or lottery win
  • Boats
  • Vehicles
  • Jewellery
  • Artwork
  • Personal injury and compensation payouts
  • Long service leave
  • Life tenancy
  • Pension entitlements

How to start the property settlement process

The property settlement process should start soon after you divorce or separate from your spouse. At Journey Family Lawyers, we usually start the process by advising you of your entitlements. Then with your instructions, we’ll draft a letter to send to your ex partner to try to reach an agreement without having to go to Court. If an agreement can’t be reached, we recommend mediation between you and your ex partner. If there’s little chance of mediation succeeding, however, Court proceedings will commence and mediation can follow.

Time constraints for property settlement

Your or your ex-partner must apply to the Court for property settlement within 12 months of your divorce or within two years of your separation. If you don’t commence property proceedings within these time limits, you could lose your rights.

How to formalise your property settlement

The best way to finalise your property settlement is through a consent order, which is an order that you and your ex have agreed to. If the Court finds the property settlement to be fair and reasonable, they’ll make the order.

If you can’t reach an agreement with your ex, you can apply to the Court for a financial order.

How is the value of the assets determined?

When negotiating a property settlement, the Court will determine the value of the assets of both parties.

  • Furniture –The value of furniture is determined by their current sale value or second-hand value, not their replacement value or insurance value.
  • Joint property –The value of the property is what someone’s prepared to pay for it. But if you won’t be selling it, the value of the home is determined by taking the average of all the valuations provided by reputable real estate agents in the area. This is enough for most negotiations, but if agreement cannot be reached on the value and it goes to trial, a proper valuation by a registered valuer will be needed.
  • Cars, Motorbikes :These can be valued initially from a Redbook Valuation or a formal valuation obtained from a registered valuer.
  • Boats; These can be either valued or comparative values can be obtained from Tradeboats online.
  • Caravans These can be estimated initially from a Caravan online sales site or a formal Valuation
  • Superannuation –The value of your superannuation is harder to determine as its current value is lower than it’ll be at your retirement age. A Journey Family Lawyer can use forms to obtain information from your superfund to determine your super’s value. The forms are included in the Superannuation Information Kit. Self-managed super funds are generally valued with the help of an accountant. Some special Superannuation funds like Military Super have their own valuation process.

How are assets and debts divided?

When deciding how to divide assets and debts, the Court looks at:

  • What you’ve got and what you owe (assets and debts and what they’re worth)
  • The parties’ direct financial contributions to the marriage (wage and salary earnings)
  • The parties’ indirect financial contributions (gifts and inheritances from families)
  • The non-financial contributions to the marriage (caring for children and homemaking)
  • The parties’ future needs (the Court will consider your age, health, financial resources, care of children, ability to earn, etc).
  • Any financial resource or entitlement that you have that is not actually ‘property’ that can be divided between you both.

How can you split superannuation?

While you can split superannuation entitlements between both parties, it doesn’t automatically convert the interests into cash. The entitlements are still subject to superannuation laws, eg. it’s normally retained until you reach retirement age.

You can split superannuation by:

  • Entering into a formal written agreement
  • Seeking a consent order
  • Obtaining a court order if you can’t reach an agreement with your ex partner.

If you’re seeking a court order, the Court will tell the trustee of the superfund about the order by providing them with 28 days written notice. The trustee can attend the court hearing and object to the order you’re seeking. This is called providing the trustee with ‘procedural fairness’. Once the order is made, you should give a sealed copy of the order to the trustee.

Child custody

Child abuse or family violence

If your spouse abuses your children, you can apply to the Court to grant you custody of your children and you can ask the Courts to have your spouse leave the home by court order. If you’ll be leaving the house and your children are going with you, you should also take items that your children may need if you have time and also your special things that are of sentimental value.

If you’ve experienced domestic violence, you can apply to the Court for a domestic violence protection order to protect you, your children, and other relatives or associates from your ex.

While it’s important that your children have both parents involved in their lives, you should also make sure they’re protected from physical and psychological harm. The Family Law Act specifically says so.

What is ‘equal shared parental responsibility’?

Whether you or your spouse have full custody of your children, the Court will usually presume it’s in the children’s best interests if both of you have equal shared parental responsibility. In the case of child abuse or family violence, this won’t apply.

Equal shared parental responsibility means both parents are responsible for making long-term decisions for their children after a divorce or separation. This means you and your spouse should make parenting arrangements for your children, and they must be practical and in your children’s best interests. These could cover:

  • Where your children live
  • Who your children spend time and communicate with
  • What time your children spend with the parent they don’t live with
  • Times for your children to contact each parent by phone when they’re with the other parent
  • Childcare or education
  • Medical issues
  • Religious or cultural practices
  • Financial support for your children
  • Changeover arrangements (Where and what time should changeover occur, who drives where)
  • Arrangements for special days (Christmas, Easter, Mother’s Day, Father’s Day, birthdays)
  • How you and your ex-spouse will communicate with each other.

Who can you include in parenting arrangements?

If it’s in your children’s best interests, you can include the following people in your parenting arrangements:

  • Grandparents
  • Extended family
  • Other people who are concerned with the welfare of children.

Most importantly, you and your spouse should both be included in the parenting arrangements, to the extent possible having regard to any child abuse or family violence.

Written parenting arrangements

There are three types of written parenting arrangements. If you and your spouse agree with the arrangements made for your children, you can record your agreement as a parenting plan or a consent order. If you disagree with the arrangements, you can apply to the Court for a parenting order. But you should try to reach an agreement through family dispute resolution before applying.

1. Parenting plan

A parenting plan sets out the care arrangements for your children. It must be signed and dated by both parents. There’s no need for it to be in a specific format or witnessed.

You can change the plan any time by making another written agreement. It must also be signed and dated by both parents.

2. Consent order

You can apply to the Court for a consent order to make your agreement legally binding. You can also apply for a consent order online. You’ll also have to complete an Annexure to draft consent parenting order. You should file this with the Court at the same time as you apply for the consent order.

The consent order should be signed and dated by a suitable witness, such as a Justice of the Peace. You’ll have to pay a $160 fee when you file an application for a consent order.

You can change a consent order by making another consent order, parenting plan, or parenting order.

3. Parenting order

A parenting order is an order made by the Court regarding arrangements for your children and your parental responsibilities. The Family Law Act sets out what the Court should consider when making parenting orders, including what’s in your children’s best interests.

A parenting order is legally enforceable, so if you disobey the order you can face serious consequences.

Child support payments

Depending on who has custody of your children, you can determine the amount of child support you need to pay or receive by visiting Child Support at the Department of Human Services. If you want to change a child support assessment due to special circumstances, you can complete an application form to change the assessment. Your child support will be changed if there are indeed special circumstances and the change would be fair to both parents and the children.

Sometimes if your Income is going to radically increase or decrease, you could lodge an Estimate Of Income but be careful to read the guidelines or get legal advice before you do.

Co-parenting and managing a separation with children

Have your children’s best interests in mind

When co-parenting/managing separation with children, you and your ex should always have your children’s best interests in mind. Here are some factors to consider:

  • Protecting your children from harm
  • Ensuring your children have a meaningful relationship with both parents
  • The views of your children (Giving weight to their age and maturity)
  • The relationships your children have with each parent and other family members
  • The capacity and participation of each parent when parenting and spending time with the children
  • The effect of any changes to the children’s circumstance
  • The practical difficulty and expense of any arrangements.
  • The relationship the children have with each other sibling

What is ‘equal shared care’?

Equal shared care means your children spend half the time living with you and the other half with your ex.

In many cases, however, an equal shared-care arrangement isn’t in the children’s best interests, so the Court will consider an alternative arrangement. For example, your children will live with you and spend every second weekend, plus one night each week and half of the school holidays with your ex. Other arrangements such as 4 or 5 day weekends every second week, or 8 days a fortnight with one parent and 6 days a fortnight with the other are also common. It depends on what is best for the children.

What if you’re relocating?

If you’ll be relocating with your children, you should get your ex’s written consent or do it with a court order. On the other hand, if your ex moves away with your children and it affects your children’s ability to spend time with you, you can obtain a recovery order requiring your ex to return your children.

Tips for successful co-parenting

Here are some tips for successful co-parenting:

  • Don’t use your children to relay messages to their other parent.
  • Speak directly to your ex partner but keep it businesslike and to the point
  • Don’t talk badly about your ex to your kids or in their hearing
  • Be considerate towards your ex-partner
  • Respect your children’s time with your ex-partner
  • Don’t do something that would make it hard for your children to have both parents attend their weddings
  • Don’t let another adult’s angst affect the decisions you make in your parenting arrangements with your ex-partner
  • Plan your time when your children are away, so that you don’t mope
  • Don’t air your grievances on social media, even if you’ve blocked your ex-partner. Someone will pass it on and one day the kids may read it too..

Would you like some guidance through your divorce? Contact Journey Family Lawyers Brisbane today

With more than 30 years’ experience, Journey Family Lawyers Brisbane can guide you through the process of divorce and help you achieve a positive outcome. Our services include divorce, separation, property settlement, and child support. We’ve helped thousands of Australians through their separation, so call us now on (07) 3832 5999 for a free 15-minute consultation. You’ll get personal advice from one of our friendly specialist family lawyers to ensure your divorce goes as smoothly as possible.

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Talk to a Family Law Lawyer for free. Call (07) 3832 5999

Did you know that you can phone 38325999  to have a free 15 minute or so chat with one of our lawyers at any time during business hours?

Usually we have a solicitor who can take your call right away, or if not, can all you back within the hour.  Or you can email us on enquiries@journeyfamilylawyers.com.au for a free email response. This helps many people each week and we are happy to do this and give you the information that gives you some clarity about your legal position. Sometimes this is all people need in the early stages of their separation or divorce journey.

If you are ready for more detail, though,  you can also  have an hour long, confidential , no obligation consultation on property settlement and divorce, children’s custody issues, or any other Family Law matter with a Journey Family Lawyer for $275.00 GST inclusive. If you cannot get to one of our offices, in Strathpine, Brisbane City and North Lakes then why not have a phone conference for an hour. We do it a lot, and we even have clients from interstate and overseas that we never see. These days with email it is much easier to have long distance representation.  We have helped many people this way.

You will generally leave one of these conferences with a clear idea of where you stand, and also a plan for the future.  People often say they wish they had come to us sooner, as these things had been keeping them awake at night. To make an appointment or to phone to talk to a lawyer, call

07 38325999 (Brisbane)

07 32059000 (Strathpine)

07  34482199 (North Lakes)

Kind regards,

Lynette

Will legal will signing

Time you got your Will sorted?

Legal wills, Lawyer

Aimee South,  lawyer, is experienced in Will making  and Powers of attorney.

 

No one knows what’s around the corner.
If you die without a legal Will then the law decides how your property is divided amongst your family. Dying without a will may leave your loved ones in limbo or even missing out all together.

If your situation involves step children, de facto partners or ex partners, then you have more reason than most to get your financial ducks in a row before it is too late.

Imagine a scenario where your partner cannot stay in the family home just because you didn’t get around to doing your will.
Or your failure to make a will means your partner doesn’t have enough money to properly provide for your children.

Its important to do a will properly because it is the last thing your will ever say to your family. It tells them you care about what happens to them enough to take steps to have a valid will drawn up.

It is not expensive with the Journey Family Lawyers Wills process. We don’t cater for people who have huge estates and complex needs. But what we do offer is a sensible and uncomplicated process to get you signed up with a valid will as soon as possible after you call us. Call our lawyers today, and they will help you work out your needs. It will then  be prepared quickly and you can either come to an office to sign, or we can send your will to you with signing instructions.

Once it is done, you keep it safe and tell someone where it is. The whole process is quick and easy and costs not much more than a night out.   Call us and let us take care of it for you.

While you are here, why not get us to do an enduring Power of Attorney for you.

 

 

How to choose your Family Lawyer.

The Top Things to Consider When Choosing Your Family Lawyer.
In your whole life, you may need the services of a good divorce lawyer only once. If you are lucky, you may never go through separation and divorce.

Still, if you find yourself in that situation, here are a few things you need to consider so you can choose the best lawyer for you.

These tips help whether you are choosing a Brisbane Family Lawyer or a divorce lawyer in another state.

1. Check the Firm’s background – While you are choosing a lawyer your divorce, first make sure to check the background of your lawyer. Questions such as How long has the Family Lawyer has been practising? What is the Family Lawyer’s Education? What reputation does the lawyer have?  A good reputation?  Or not so good. And a reputation for what? Some lawyers have a reputation for going hard for the client. The key to whether that is a good or bad thing is proportionality. It’s not hard to simply follow up every little issue on a property case.  Any one can do that. The benefit of a great lawyer is that they know which things are worth spending your money on. These things matter a lot.

2. What kind of law he or she or the law firm practices – Well, there are plenty of law firms who practice all sorts of  general law, but if you have a divorce case, you should consider using a firm that specialises in Family Law.  If you have a lawyer who is not a Family Lawyer on top of the changes to Family Law from time to time, then you may be quite disadvantaged.

3. Ask other lawyers or call the Queensland Law Society. – They will know someone who has a reputation as a sensible Family Lawyers who will run your case efficiently and effectively.  For example sometimes an accountant or Criminal or tax lawyer will  know who the best family lawyers are.

4.Then you should consult yourself. After you have had an initial phone conversation with a  Brisbane Family Lawyer you should be able to answer these questions.  ( By the way, beware of lawyers who are unavailable to talk to you or who will only chat if you pay for the call.)

a. Is this lawyer going to be able to help you with your family law problem or did they seem unsure?

b. Was the Family lawyer you spoke to polite and interested in your case? Does she or he have a plan?

c. Are you comfortable with the lawyer and the ethos of the Family Law Firm. Could you tell the lawyer everything?Is the lawyer a good ” fit” with you in communication style?
d. Do you feel that your lawyer would understand your priorities, and respond on time
e. Are you okay and comfortable with the fee structure? Can you afford the Family Lawyer? Were you able to discuss fee options up front with the lawyer.

f. Are you comfortable with the terms of the fee agreement and/or Family Law representation agreement?

 

Brisbane Family Lawyers representing in Court

Wills and Enduring Powers of Attorney

Do you have a Will? Do you need one when you are separated? Does your old one still work if you have separated?

What happens if you died and the house is in joint names? Do you want your ex-partner to receive the whole property?

What about your Enduring Power of Attorney? Is your ex still the person you would like to see managing you affairs if you were too ill to do so? You may need a new Will as soon as possible.

And if you die, do you want your ex to get your estate and manage your affairs? Chances are, if you have been married and have property, a Will, or an Enduring Power of Attorney with your ex partner named in it, you need to address these matters urgently.

We can sever the joint tenancy so that your house or land does not automatically go to your ex (they don’t have to sign a thing). You should consider a new Will (at least a basic one) and an updated Enduring Power of Attorney.

Also what about your superannuation? It doesn’t go according to your Will every time. All Superannuation Trust deeds are different. Sometimes they are not distributed in accordance with your Will.  You need to contact your Super fund immediately if there is a chance you have named your ex as a beneficiary.

We can help you with this.

It is impossible to imagine every circumstance that readers of this page may face. Your case must be considered individually.

Contact us at Journey Family Lawyers and ask about your circumstances if you have any concerns. We prepare straight forward wills for clients in an easy, 3 step process. It takes about an hour of your time, and you can know your family will be cared for if the worst should happen. 

Pre Nup

Prenuptial Agreements or Pre-Nups

Click here for Journey Family Lawyers pre nups video.

A binding pre-nup costs time and money/ $5500 fixed fee. Don’t risk a cheap prenup. It may cost you $$$$$$$ in the long run if it can be overturned. More and more couples who are marrying or commencing to live together are wanting to have a pre-nuptial agreement to protect any assets they had before commencing living together or getting married.

WHY? there is an increase in parents and family members helping young couples with loans, guarantees or gifts because property prices are so high and the  property market is hard for a young couple to get into. The Family Court has traditionally treated loans from family members with scepticism, often dividing the property between both parties even though the parents only contributed the money to help their daughter or son.

The leading case on this is:

Biltoft and Biltoft [1995] FamCA 45; (1995) FLC 92-614, the Full Court said , “the Court has indicated that it may properly determine not to take into account or to discount the value of an unsecured liability in certain circumstances. Such liabilities would include but are not limited to a liability which is vague or uncertain, if it is unlikely to be enforced or if it was unreasonably incurred.”

A Pre-Nup is one way to deal with the assets as if they were just for the benefit of one party, and not enrich the spouse in the event of divorce.

Pre Nups are very difficult to draft in order to achieve the right outcome. A cheap/ rushed or do it yourself  pre-nuptial agreement may be overturned more easily than a financial agreement where all precautions have been taken and all necessary documentation has been carefully done. This costs money. But it may be a good investment for peace of mind of the couple and their families.

 

 

DIY Divorce Kit

Divorcing our former spouse is an important part of moving on for many people

Whilst the Courts offer a free Do it yourself Divorce kit, we at Journey Family Lawyers can also act for you and manage the divorce process for you. It can be a complicated process and we will handle your divorce in the most expeditious manner possible. If you want to talk about the process, give us an obligation free call.

Divorce can be an expensive process and, in many cases, people can and do try to manage their own Divorces. We at Journey Family Lawyers have prepared a Guide to “Do it Yourself” Divorce to assist those trying to manage the process themselves. If you have any questions, feel free to use our 10 minute free telephone consultation service.

Of course, with other aspects such as property and children, you need to talk to a Lawyer to understand your rights; this is particularly so with property and children’s issues and we strongly recommend you get professional advice on these matters so you know where you stand. THERE ARE TIME LIMITS for instituting property proceedings after separation and divorce.  ITs worth a visit to know where you stand in relation to divorce.

Steps to Take in Applying for Divorce

Application

You must decide whether you will file a sole or joint Application for Divorce.  If you and your spouse are amicable and able to co-operate, it may be easier to file a Joint Application.

Completing the Application

Your Application will be filed in the Federal Magistrates Court unless exceptional circumstances exist. Please contact us if you are unsure. you can now do this online.

Signing the Application

Your Application must be sworn or affirmed by you that all of the facts and details within the Application are true and correct to the best of your knowledge.  This must be signed before an appropriate person able to witness documents.  This can be done before a Lawyer, Justice of the Peace or other authorized person to witness an Affidavit.

Collating the Application

Along with the signed Application, you must attach all supporting documentation that may be required.  This whole document must then be photocopied twice. You must also attach a copy of your Marriage Certificate.

Filing

Your Application, the along with the two copies need to be filed at your nearest Family Law Registry.  This can be done by attending at the Registry in person or posting the documents to the Registry.

You must also remember to pay the appropriate filing fee and provide the Application for Reduction and payment of Divorce if applicable.  This can be paid by cheque made payable to “Collector of Public Monies” or filing in person by cash or credit card.

Upon filing your documents the Court will keep the original and return two copies to you.  On these copies you will find in the Court Use Only Section your court file number, along with the allocate date of your hearing.

The Court will also give you copies of the Family Court Brochure “Marriage, Families & Separation”, for both you and spouse.

Filing Fee Reduction

Applicants who are under a financial disability may apply for relief from paying all the Court filing fee. 

There are two ways of applying for a filing fee reduction.

In one category (see below), you may fit into a particular category of people who are eligible for a fee reduction. The second way of obtaining a fee reduction is because of Financial Hardship.

A fee reduction was previously available for eligible applicants with a fee of $60.  On 1 January 2013 the court increased the Reduced Fee to $265. The “Fee Exemption” form is now called ‘Reduction of Payment of Court Fees’ form.

1. Fee Reduction for Eligible Persons

The reduced fee may apply if:

  • You hold a Health Care Card, Health Benefit Card, Pensioner Concession Card, Commonwealth Seniors Health Card or any other card issued by Centrelink or the Department of Veterans Affairs that entitles you to Commonwealth health concessions;
  • You are receiving Legal Aid, Youth allowance or Austudy payment or Abstudy;
  • You have received a “Notice of Exemption” from an approved Community Legal Centre;
  • You are an inmate of a prison or otherwise legally detained in a public institution.

Only the Applicant has to satisfy one of these categories to qualify for a fee reduction however if you want to lodge a joint Application for Dissolution, both of you must satisfy one of the categories.

To access the Application for Reduction of Court Fees, follow this link. 

When filing the Application for Dissolution, you will need to submit the completed Application for Reduction of Court Fees form to the Registry. You will also need to attach photocopies of documentary evidence of any of the above (such as your Health Care Card or Legal Aid letter) to support your claim. Photocopy both sides of the card or other document.

2. Fee reduction because of Financial Hardship

You may be eligible for a fee reduction if your income, day to day living expenses or liabilities and assets are at a level that payment of the full fee would cause financial hardship. To apply for this a different Financial Information form must be filled in.

To access the Guidelines for reduced fees (financial hardship), Click here.

If after reading the guide lines you think you are eligible, download the Application for Reduction of Court Fees (referred to above) and lodge when you are filing your Application for Divorce.

Service of Documents

There is no requirement for service if you applied by way of joint Application, each you and your former spouse should keep one (1) copy of the Application received back from the Court.

If you applied for Divorce by way of sole Application, there will be a requirement of service on your former spouse

In order to serve your former spouse, you must fulfill the requirements of service, being that you must serve the sealed copy of the Application for Divorce and the brochure “Marriage Families & Separation” on your spouse:

    1. At least twenty-eight (28) days before the date of your hearing, if your spouse is currently in Australia; or
    2. At least forty-two (42) days before the hearing if your spouse is out of Australia.

 

Attendance at the hearing

If you and your former spouse have no children currently under the age of eighteen (18) there is no requirement to attend at the hearing. This applies in both situations of sole and joint Application for Divorce.  If your application was a Joint Application, even if there are children of the marriage under the age of eighteen (18) years, neither you, or your former spouse are required to attend the hearing.

You will be required to attend the hearing if you are the Applicant of a sole Application and you have a child or children under the age of eighteen (18) years.  It may be possible for you to attend the Court Hearing by telephone.  Click here for further information.

Outcome of your Divorce

If your Divorce Application is successful, the Court will grant what is known as a Divorce Order. The Divorce does not become finalised when granting the Divorce Order; rather one (1) month and one (1) day later unless otherwise shortened by the Court.

If you did not attend the hearing a copy of the Divorce Order will be sent to you in the post or available online if applicable.   However you will not receive this until the Divorce has become finalised.

Additional Important Information

Journey Family Lawyers practice solely in Family Law and are very experienced in matters of Divorce and Separation.  Journey Family Lawyers are more than happy to assist you with any of your Family Law or Separation queries.

Upon finalisation of your Divorce, there is a time limitation placed on you in order to apply to the Court to have your property matters finalised and financial ties with your former spouse severed.  This time limit is one (1) year from the date the Divorce becomes finalised.  After this time, it is still possible to apply to the Court for a property settlement, however it will only be granted in special circumstances.

If you and your former spouse have children under the age of eighteen (18) years, you should consider how you are going to continually co-parent these children post separation.  Journey Family Lawyers are most than happy to assist you in formalising care arrangements for your children by way of agreement and lodgment with the Court or by way of Application for the Court to determine what is in your children’s best interests.  There are many factors that the Courts take into account in determining what arrangements are in the children’s best interests, and this is something that we can go through with you.

Frequently Asked Questions

How do I apply for Divorce?

There are two (2) ways in which you can apply for a Divorce from your former spouse:

    1. You can apply for a Divorce by yourself, this is known as a sole application; or
    2. You and your spouse can apply together; this is known as a joint application.

When can I apply for a Divorce?

In Australia, in order to apply for a Divorce from your former partner the Court needs to be satisfied that you and your former partner have been separated for at least a twelve (12) month period.

The Court must also be satisfied that there is no reasonable likelihood of the two of you resuming your former married lives.

What if we are separated but still living together?

It is possible to continue to live with your former spouse and still be classed as separated. There are a number of factors that the Court will take into account when determining whether you and your former spouse are actually separated.

If you applied by way of sole application, you must file an Affidavit of yourself in order to put evidence before the Court that you and your partner, though still living under one roof, are in fact separated.  It may also be beneficial to file a further Affidavit of  a third party, such a family member or friend, that can give further evidence to the Court that you and your former spouse are separated.   If you and your spouse are applying as a joint application, you must each file an Affidavit of evidence in this regard.  The evidence in this Affidavit needs to be more than simply and you and your former spouse are living in separate bedrooms, there must have been a change in the relationship, whether gradual or sudden, demonstrating that you are separated and living separately, but in the same house.

I was married overseas, can I get Divorced in Australia?

In order to apply for divorce in Australia, you or your former spouse must fulfill one of the following criteria:

    • You or your former spouse regard Australia as your homeland and intend to continue to live in Australia indefinitely; or
    • You are an Australian Citizen by birth, descent or grant of Australian Citizenship; or
    • You or your former spouse have ordinarily lived in Australia for the last twelve (12) months and continue to ordinarily live in Australia.

How much does it cost to get Divorced?

In order to apply for Divorce, there is a filing fee payable. You can find the current Family Law filing fees here.

A reduced fee may be payable in some circumstances, for example if you or your former spouse hold certain government concession cards, such as a Health Care Card or a Pensioner Concession Card, or if you are experiencing financial hardship.  In order to apply for this reduction you will need to complete the required form.

The divorce form asks me for my address, but I don’t want my former spouse to know where I live, what do I do?

It is not a requirement for you to disclose your residential address on the Application for Divorce; however you may be required to provide more information to the Court in this regard if required.  You will, however, have to provide an Address for Service.  This may be your lawyer’s address.

If you are concerned about your safety and there is current pending or existing Orders in relation to family violence with your former spouse, this must be included in your Application as they may affect the Orders that the Court may make.

Do I have to attend Court to get Divorced?

Once your Application is filed with the Court, it will be listed for a Hearing.

If there are no children of the marriage who are currently under eighteen (18) years of age, neither you nor your former spouse will be required to attend the hearing.

If your Application with your former spouse is a joint application, even if there are children of the marriage under eighteen (18) years of age, neither you nor your former spouse would be required to attend the hearing.  If there are children under eighteen (18) years of age, in order to grant a Divorce Application the Court must be satisfied upon with the breakdown of the marriage, that there are adequate care arrangements in place for these children.

If you make a sole Application to the Court and there are children of the marriage who are under the age of eighteen (18) years, you must attend at the hearing.

If you are required to attend the hearing in accordance with the above and do not do so, your Application for Divorce may be adjourned to a further hearing or dismissed altogether.  In some circumstances it may be possible to attend the Court hearing by telephone.

I am getting re-married; do I need to be divorced?

In accordance with Australian Law you are not able to re-marry until our divorce from your previous spouse has been finalized.  If your divorce was granted on the day of the hearing. In most cases the divorce will become finalized one (1) month and one (1) day later. If you intend to re-marry, you must comply with all requirements of the Marriage Act 1961, including that you must give the marriage celebrant a Notice of Intended Marriage at least one (1) month prior to the wedding.  However a marriage celebrant will not accept a Notice of Intended Marriage until the divorce has become finalised from your previous spouse.

So I have got divorced, is there anything else that I need to think about with my former spouse?

An Application and grant of Divorce is not the only issue that you and your former partner will need to consider post separation.  You will also need to consider issue:

    1. Regarding property and severing your financial ties; and
    2. If you have any children under the age of eighteen (18) years, finalizing their care arrangements.

It should be noted that neither of these two things are reliant on a divorce and can be finalised any time after separation.

I can’t find my Marriage Certificate, do I need it?

In applying for an Application for Divorce, you must provide the Court with a copy of your marriage certificate.  If you are unable to locate your Marriage Certificate, and were married in Australia, the Registry of Births, Deaths & Marriages in the capital city of the State where you were married should be able to provide you with a certified copy of this.

If you are unable to get a copy of your Marriage Certificate, you will need to prepare an Affidavit and file it with the Court.  This will be used as evidence of your marriage and why you are unable to get a copy of the Marriage Certificate.

If your Marriage Certificate is not in the English language, you will need to:

  1. Obtain an English translation of the marriage certificate;
  2. File an Affidavit of the translator who translated the original foreign language marriage certificate confirming:
    • Their qualifications to translate the marriage certificate; and
    • That the translation is accurate.
  3. Annexed to this Affidavit needs to be a copy of the original Marriage Certificate and a copy of the translated Marriage Certificate and the affidavit must state that the attached copy of the Marriage Certificate is a true and correct copy of the original Marriage Certificate.
  4. What if we are separated but got back together and now we have separated again.  Can I still apply for a Divorce?

As stated previously, you must be separated from your former spouse for a minimum of twelve (12) months before applying for a Divorce.  However you can recommence living together as husband and wife for a period of up to three (3) months post separation.

 If the period you got back together was less than three (3) months, then the time before you got back together can be used in addition to the time after you separated again to add up to a total of twelve (12) months.  If you and your former spouse got back together for a period of longer than three (3) months before you separated for the second time, you must be separated for a further twelve (12) months before applying for a Divorce.

Do I have to do any form of counselling before I can get Divorced?

If you and your former spouse have been married for a period of less than two (2) years, you must attend counselling with a family counsellor to discuss reconciliation.  If you do not attend counselling you must seek permission from the Court to apply for a Divorce.

If you have been married for a period longer than two (2) years, there is no requirement for you and your former spouse to attend any form of counselling.

Journey Family Lawyers offer a free 10 minute chat over the telephone with one of our experienced lawyers.  We also offer an Initial Consultation for the reduced rate of $143.00 (GST inclusive) which can cover both parenting and property and maintenance matters and let you know where you stand.

 Journey Family Lawyers will gladly can assist you and act on your behalf at a reasonable fee.

Child Support for Separating Families

The financial support of children when parents separate is the responsibility of both parents. The system and process of child support is regulated by the Child Support Agency (CSA).

Child Support is money paid by one parent to the other, to assist towards the financial support of the children. The amount to be paid can be either negotiated between the parents or calculated by the CSA. If one party refused to pay the amount they are required to pay by the CSA, the CSA can take steps to recover that money. In other cases, the CSA collects the Child Support and passes it onto the other parent.

If anyone needs detailed information about the amount of child support payable, we recommend you visit the CSA website which has a “calculator” that parties can use.

Broadly speaking, the amount of Child Support payable is based on a formula that takes into account the incomes of the two parties, the number of children and nights those children spend each year with the respective parents

Generally, a parent only needs to provide Child Support until a child turns 18 years of age. However there are exceptions to this rule. You need to discuss this aspect with Lawyer if you think it might apply to your situation.

Separated parents have a number of options to determine the financial arrangements. These include:

  1. Agree with the other parent as to how much child support will be paid . This would then be either:
    • Pay  the other parent directly (which would be an informal arrangement); or
    • Enter into a legal agreement to formalise the arrangements (private Child Support agreement).
  2. Register with the CSA  to assess how much Child Support should be paid (through the legislative formula) and then either:
    • Make the payments directly from one parent to the other; or
    • Have the CSA collect the child support from one parent and pass it to the other.

There are potential benefits of having a private arrangement however there can be serious disadvantages as well. A great deal depends on your particular situation and you should NEVER agree to a Child Support Agreement, or sign any document until you have seen a Lawyer to discuss its implications. You need to remember that these types of decisions can, over the growing up period of a child or children, turn into a large amount of money. For instance, if you have committed to a payment arrangement and your situation changes (for example, you cannot work because of ill-health), you could end up with an obligation to pay money that you cannot afford.

Some Lawyers promote Child Support Agreements but do not explain the potential disadvantages. Often, if one party is advantaged, the other party will be disadvantaged. Therefore, we strongly recommend you see a Lawyer to make sure you receive proper advice and you know where you stand.

Child Support can be complicated. At Journey Family Lawyers, not only are all our Lawyers dedicated to Family Law but they also specialise within the various aspects of Family Law. If you need expert advice, call us and ask to have a talk with one of our experts about your Child Support issues.