Divorce and Family Law

Married couples in Australia can apply for a divorce if their marriage has broken down irretrievably. To make an Application for Divorce:

  • the parties must have been separated for a period of at least 12 months;
  • one of the parties must regard Australia as their home and intend to reside in Australia permanently;
  • one of the parties must be an Australian citizen by birth, decent or grant of Australian Citizenship; and
  • the parties must have lived in Australia and have done so for 12 months immediately before filing the application for divorce.

Parties must be separated for a period of at least 12 months, but this time can include a period of separation under the one roof. Often following separation, parties do not have the financial resources to formally separate and live in different residences so they may regard their marriage as over, but continue to live in the same residence.

An application for divorce can be made by you or your spouse, or it can be made jointly. If you are making the application on your own, you will need to satisfy the Court that your spouse has been properly served and is on notice of the application.

If you have children under the age of 18 years, you will be required to attend Court for the hearing of the application. The Court will need to be satisfied that proper arrangements have been put in place for the children.

Please call us for an obligation-free meeting so we can discuss your options with you. We often do divorces on a fixed fee basis so that you will know exactly how much it will cost right from the start.

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Parenting agreements and orders

In every separation involving children, the law requires all parties to act in the children’s best interests. This means that any agreement or parenting Order must reflect what is absolutely in the best interests of the child or children, including where they live, what education they receive, who cares for them, and what time they spend with different members of their family.

Children have the right to spend time with and develop a meaningful relationship with both of their parents. Children have the right to maintain contact with their extended family including grandparents, uncles or aunts or any other person who is concerned for their care, welfare and development.

Both parents have equal shared parental responsibility for their children unless a Court has determined otherwise. When parents separate, the parent with whom the child is spending time has responsibility for the day to day issues. Long term issues affecting a child’s care, welfare and development such as what health care they receive, their religious and cultural upbringing and what school they attend should not be made without consulting the other parent.

It is important to consider what options are open to you as soon as you separate. This will ensure that the children are as protected as they can possibly be from the ill-effects of family breakdown.

If parents cannot agree on what arrangements should be in place for their children, they should seek legal advice on their options. Parents should also contact a Family Dispute Resolution (FDR) Centre to start the negotiation process as entering into FDR is a mandatory requirement before commencing proceedings in the Family Court (if you are seeking parenting orders). There are some exceptions, including if there has been a history of violence in the relationship or if one parent has relocated without the input or consent of the other.

We often undertake these types of matters on a fixed fee basis and invite you to contact us to discuss your options.

Property Settlement

When couples separate they need to divide the property they have acquired during their relationship. Property can include real estate, money in bank accounts, shares and investments, companies and trusts, motor vehicles, furniture and superannuation.

The Family Court takes a four-step approach when determining the division of matrimonial property as follows:

  1. Determining the net asset pool, that is the value of your assets less the value of your liabilities;
  2. Assessing the contributions, both financial and non-financial, that each of the parties made during the relationship;
  3. Assessing the future needs factors of each of the parties;
  4. Ensuring that the overall result is both just and equitable.

Our aim is to negotiate a fair and equitable property settlement without the need to go to Court, however, if your matter can’t be settled, we are able to guide you through the Court process as well. We always recommend for parties to finalise their matters by way of Court Orders whether they be Consent Orders or through the formal Court process.

Resolving your property settlement by consent can be both a fast and cost-effective way of finalising your financial relationship, this allows you to move on with your life.

There are certain time frames that are important to remember when separating property. If you are legally married then your time frame only starts running once you get divorced, then you have 12 months post finalisation of your divorce to finalise your property settlement. If you are a de facto couple then you have 2 years from the date of separation to finalise your property matters. In special circumstances the Court is able to extend these time frames, however it is best to finalise your property settlement as soon as you can.

We recommend for people to obtain independent legal advice as soon as they separate, this in part is due to the property pool being determined as at the date the matter is resolved rather than the date of separation. Many things can happen between separation and final resolution and you should always ensure that you are properly protected in the meantime.

We offer fixed fee initial consultations for these types of matters and often offer fixed fee agreements throughout property settlements. Please contact us for an obligation free assessment of your matter.

Family Law for De Facto Couples

If you have been in a de facto relationship and separate you may fall within the scope of the Family Law Act. In considering whether or not a de facto relationship existed, the Court will have regard to any or all of the following:

  1. The duration of the relationship;
  2. The nature and extent of the common residence;
  3. Whether a sexual relationship existed;
  4. The degree of financial dependence or interdependence and any arrangement for financial support between the parties;
  5. The ownership, use and acquisition of the property of the relationship;
  6. The degree of mutual commitment to a shared life;
  7. Whether the relationship is or was registered;
  8. The care and support of a child or children.

If a couple meets the criteria and are classed as a de facto couple they will need to separate their property as a legally married couple would.

De facto couples who cannot agree on a property settlement need to apply to the Court within 2 years if separation. After this time, they can apply to the Court to extend the time frame if they have a good reason for missing it.

There is no limitation period when it comes to parenting matters.

Rights for Same Sex Couples

Same-sex couples have the same rights as heterosexual couples in the context to both de facto relationships and married couples under the Family Law and married couples. The Family Court has the power to make orders to adjust the property between same sex couples who have separated.

Parties to a same sex relationship who have not married but have lived together on a genuine domestic basis for at least 2 years (or less if they have a child or children) must apply for de facto financial orders within 2 years of the breakdown of the relationship. After this limitation period, a party will need the Court’s permission to apply out of time. Those who have legally married fall within the same parameters as their heterosexual counterparts.

There is no limitation period when it comes to parenting matters.

“My family has obtained Rowena’s expertise on a range of different matters over the past few years. We have always found Rowena to be a highly experienced, very efficient lawyer who has always displayed the highest level of commitment and professionalism. Rowena has always gone above and beyond to achieve the best outcome for our family. With a calming, caring and supportive nature and genuine good heart, we have always been very impressed with how Rowena always communicated so we could understand, putting us at ease. Rowena is an amazing person who we highly respect and have always been impressed with her outstanding results. I have recommended Rowena to anybody who needs a lawyer and will continue to do so. Guaranteed…..Rowena will always give you her best and more.” – Debbie.