Frequently Asked Questions
SEPARATION
Do I have to apply for a legal separation?
No, Court documents do not have to be filed to establish separation for the purposes of the Family Law Act. Separation is a question of fact in each case.
How is separation defined?
Separation means more than physical separation. Three elements are required:
- intention on the part of either or both parties to sever the marital relationship;
- where only one party considers the relationship to be at an end, he or she must communicate this attitude to the other party;
- the parties acting on that intention or acting as though the relationship has come to an end.
DIVORCE
When can I apply for a divorce?
This can occur when you and your spouse have separated and have been living separately apart for a continuous period of 12 months. This establishes the sole ground for divorce in Australia namely irretrievable breakdown of marriage.
CHILDREN’S ARRANGEMENTS
How does the Court decide where/with whom my children will live?
The Court considers a wide range of discretionary factors in deciding where the children will live. The priority of the Court is always to ensure that the best interests of the children are met. The Court may also order independent evidence from a Psychologist or Counsellor to assist them in determining which care arrangements will promote the best interests of the children.
Can I relocate interstate or overseas with my children?
If there are no existing Court Orders in place, you can move interstate or overseas if the other parent consents to you relocating. If the other parent does not consent to the move you will need to obtain a Court Order.
CHILD SUPPORT
How much child support will I receive or have to pay and for how long?
The Child Support Agency calculates the amount of child support payable by one parent to the other using a formula which takes into account both parents' incomes, the percentage of care of the child(ren) each parent has and the cost of living depending on the age of the child(ren). You can obtain an estimate and find further information via the Child Support Agency website — www.csa.gov.au.
Child Support is ordinarily payable until the youngest child is 18 years of age. If the child is at school in the year they turn 18, payments continue until the end of the school year.
If you have any further questions regarding Child Support — such as objections to the assessment issued by the Agency – contact Westminster Lawyers for more information.
Can my son/daughter receive child support now that they are at university?
It is possible to seek payments for children who are over the age of 18 and engaged in tertiary study. This is referred to as Adult Child Maintenance. This can also payable if the maintenance is necessary because of a mental or physical disability of the child.
If the adult child is engaged in study, the maintenance must be necessary to enable the child to complete his or her education. Adult Child Maintenance is not dealt with by the Child Support Agency and orders would need to be sought from the Family Court or Federal Magistrates Court. However it is possible to obtain such Orders by agreement (by consent).
The Court would need evidence of the child's financial circumstances and income in support of an application. It would also consider the contribution that each of the parties to the Court application should be making to the child.
If you think you may be eligible to receive Adult Child Maintenance, contact Westminster Lawyers for further information regarding how to proceed.
PROPERTY SETTLEMENTS
Do I have to be divorced before I can apply to the Court for children’s orders or property settlement?
No you do not have to wait to be divorced. As soon as you separate you can apply for property or children's Orders. However, once your divorce has been granted, you only have 12 months to issue proceedings for Orders after which time you will have to apply to obtain the permission of the court to issue proceedings.
How do I resolve property/financial issues?
There are a number of alternatives for resolving property/financial disputes. If you and your partner can agree on how the assets and liabilities are to be divided you can formalise this agreement by way of consent orders or a binding financial agreement. If no agreement can be reached on the division of property an application can be made to have your matter heard at court. However, this is process is both costly and time consuming. We will always try to resolve your matter by way of agreement and issue to court only as a last option. Mediation and collaborative family law procedures are often used to assist parties to reach financial settlements in a dignified and cost-effective manner. We regard Court proceedings as a last option.
FINANCIAL AGREEMENTS
Are pre-nuptial agreements binding?
Financial agreements are binding and enforceable if they are made in strict accordance the procedures laid down in the Family Law Act.
Financial agreements stipulate how property and financial resources are to be divided upon separation. They may also deal with the maintenance of either party. They must be in writing and signed by the parties. Each party must have independent legal advice prior to signing. Financial agreements can be terminated by written consent or set aside by a court.
Similar Financial Agreements known as “cohabitation agreements” can regulate financial agreements between de facto couples including parties in same-sex relationships.
FAMILY DISPUTE RESOLUTION
What is family dispute resolution?
This is a process where an independent third party (known as a Family Dispute Resolution Practitioner) assists parties who are going through separation or making arrangements for the care of their children to reach agreement. The matters covered as part of Family Dispute Resolution can include arrangements for the person or persons with whom a child is to live, the person or persons with whom a child is to spend time and communicate, and arrangements for the allocation of decision-making responsibility in relation to children.
Do I have to attend family dispute resolution?
The law requires separated or separating families who have a dispute about parenting arrangements to attend Family Dispute Resolution and make a genuine effort to resolve their dispute before they can make an application to a Court for orders in relation to their children. This requirement does not apply in certain circumstances, such as where there is urgency or in cases involving child abuse or violence.
SPOUSAL MAINTENANCE
Am I entitled to maintenance/do I have to pay maintenance and if so, for how long?
Spousal or de facto periodic maintenance may be paid when one party has the financial capacity to pay and when the other party is unable to financially support himself or herself adequately.
In determining whether or not periodic maintenance is paid, each party's financial income and commitments are assessed.
There is a competing obligation upon the courts to ensure that, as far as practicable, any orders made finally determine the financial relationships between the parties. As a result, there is a tendency for periodic maintenance orders to be for a shorter duration.
DE FACTO RELATIONSHIPS
My partner and I have never been married. What are my rights and obligations?
For people in de facto relationships that break down after 1 March 2009, new laws apply under the Family Law Act in relation to the division of property between them provided that certain pre-requisites are met. The new laws apply to relationships between de facto partners of the same and opposite sex.
As a result of the new laws, financial matters between de facto partners following relationship breakdown fall within the regime under the Family Law Act 1975. This is the same law that applies to marriage breakdown. The same legal principles that apply to financial settlements between parties to a marriage are now applied to settlements between de facto partners.
Superannuation can be split between de facto partners following their relationship breakdown. Spousal maintenance can also be ordered.
Cases between de facto partners pertaining to their children also fall within the regime under the Family Law Act. The Family Law Act has applied to cases pertaining to children of de facto partners since 1988.
SUPERANNUATION
Is superannuation taken into account in a property settlement?
Yes, superannuation is treated in a similar way to other property. It is valued, contributions to it are assessed, and an adjustment can be made in favour of one party or the other taking into account matters such as the parties' earning capacities, age and health. Superannuation belonging to one party can be transferred to the other pursuant to a court order; or a binding financial agreement.
INJUNCTIONS & RESTRAINING ORDERS
Can my spouse/partner withdraw all of our savings?
My spouse has threatened to take my child overseas. Can he do that?
There may be circumstances where you may require an injunction or a restraining order. This is a court order to stop someone from doing something which may disadvantage you, such as stopping your spouse/partner from withdrawing savings out of a bank account or taking the children overseas or moving the children's residence or school without your consent.
