Divorce and Family Lawyers

In a de facto relationship, two adults live together but aren’t married to each other. The legal requirements for a de facto relationship are:

1. The couple must have lived together for at least two years, or have children together
2. The couple must live together on a genuine domestic basis. In other words, they live together as domestic partners. Whether they are domestic partners depends on different factors, for example:
   a. Whether there’s a sexual relationship
   b. Financial arrangements
   c. Who owns the assets
   d. How they use the assets
   e. Commitment to sharing a life
   f. Caring arrangements for any children
   g. How others perceive the relationship

De facto couples have many of the same legal rights as married couples, but there are some critical differences. While a marriage certificate is proof of marriage, to prove a de facto relationship, you need to be able to prove the date you started living together.

Proving that the de facto relationship was a genuine domestic living arrangement might also be an issue, for example, if you say you lived together on a genuine domestic basis, but your ex-partner says you were housemates and nothing more.

If it’s not too late, one way to overcome these difficulties is to register your relationship while you’re still with your partner. The effect of registration is that the South Australian Government legally recognises the relationship.

Marriages and de facto relationships both have rights for the division of property, but the rules for making applications to court are different. You’ll need legal advice as soon as possible if property division is an issue.

Under Australian family law, children and parenting issues are treated the same regardless of whether the parents are married or in a de facto relationship. But any issues concerning wills, deceased estates or superannuation may be more challenging for a de facto partner to claim any rights.

Seek our advice if you’re concerned about your legal rights as a de facto spouse.

There’s no limit to how long you and your former spouse (or former partner) can stay separated. But in some circumstances, there’s a minimum requirement.

For example, to get a divorce, you and your spouse must have been separated for at least 12 months. It’s a good idea to take note of the date of separation, just in case there are any disagreements.

Occasionally, a couple can separate but continue to live under the same roof. It complicates proof of separation, but it’s still possible to prove. If you’re in this situation, contact us for legal advice.

Getting a divorce is a surprisingly straightforward process. Divorce is the legal end to a marriage that’s recognised by Australian law.

You must be able to prove to a court that:

• You and your spouse have been legally separated for at least 12 months
• Your marriage has broken down beyond repair. There’s no hope of reconciliation

If you and your spouse have children together, you must also demonstrate special arrangements to look after their needs.

Getting a divorce requires an application to a court and showing proof that your circumstances meet divorce requirements. Because Australia has no-fault divorce, neither party is obliged to prove that the other party did something wrong.

Even if your spouse doesn’t want a divorce, it’s possible to apply without their consent. This is known as a Sole Application for Divorce.

While the divorce process is straightforward, it’s the surrounding issues that complicate divorces. Examples include property settlements and children’s issues.

Divorced couples have 12 months from the date of the Divorce Order to ask the court to make orders to divide their property.

Speak to us about your divorce requirements.

Yes. Since same-sex marriage became Australian law in late 2017, same-sex married couples are legally allowed to divorce. Divorces can be granted to any couples with marriages recognised by Australian law.

When there’s been a relationship breakdown, Australian law considers that the wellbeing of your children is the critical concern. Any arrangements for your children must be in their best interests.

When making arrangements for your children, you’ll need to consider many issues, including:

• Where they will live
• How they will divide their time between parents
• Whether there are any challenges with distance and travel that will affect the time they spend with either parent
• Their ability to continue living a normal life, for example, enrolment in one school even when spending time between parents’ homes
• Whether child support is needed
• How much child support is needed and how it will be paid
• Who pays for extra expenses, for example, school trips and out of school activities
• Whether you should record the arrangements in a legally binding agreement
• Whether either parent is a risk to the child’s safety and wellbeing

The impact of separation or divorce must be minimised for your kids. We’ll help you sort out these issues so you can establish their routine.

Get in touch for more information.

Property division is complicated. Things will get difficult if you have different financial assets and you disagree about how to split them, for example:

• Real estate
• Shares
• Bank accounts
• A business
• Property in one person’s name

Australian family law has a four-step approach to working out property division:

Step 1 – Find all the assets and debts (this is known as the net asset pool), including superannuation.

Step 2 – Consider the contributions that each partner has made to the relationship. This could be financial (for example, earning an income, lump-sum payments and inheritance) or non-financial (for example, looking after the children, housework and improvements to the home).

Step 3 – Work out what each party will need for future living costs. Many things will influence this, including:

• Age
• Health
• Ability to earn an income
• Caring responsibilities for children or other dependents

Step 4 – Consider the first three steps and work out what would be fair for both parties.

For more complicated property divisions, experts may be required to find assets and to value them. It also takes significant skill to work out future living expenses and to lay the groundwork for a fair division.

If you agree on property division, you can ask a court to make consent orders. Consent orders are made with the agreement of both parties. If one party breaches the orders, the other party can ask the court to enforce them. Consent orders tend to save time, stress and expense.

Our team of Adelaide family lawyers have excellent experience in family law property settlements. We’ll guide you through the challenges of property settlement.

Contact us to find out more.

Binding financial agreements (BFAs) operate as a type of private contract which can be made at any stage of a relationship.

A BFA sets out how property will be divided. If your relationship breaks down (or if it already has broken down), you and your ex-partner can avoid the expense and stress of going to court to argue over who gets what.

You both stay in charge of the property division, provided that you can agree. If you go to court and ask a judge to decide, you have no control over how the property is split. The BFA remains private and confidential.

The type of BFA that most people will have heard of is a pre-nuptial agreement, made before marriage.

BFAs should be carefully considered. You’ll need excellent legal and financial advice.

Every BFA must:

1. Completely disclose your financial position and the financial position of your former partner
2. Be in writing
3. Only be made after both parties have received independent legal advice

We’re experts in BFA negotiations and advice, and we do our best to make sure you understand all the issues, benefits and potential negatives of all aspects of BFAs.

Contact us to find out how we can help you secure your financial future with a BFA.

Spousal maintenance is a payment ordered by a court after a separation. It’s a payment from one party to the other party. It can apply to de facto relationships or marriages.

It can be a regular and ongoing payment. Often, spousal maintenance is ordered where the parties’ earning abilities are significantly different. This can happen where, for example, one partner worked part-time for many years to look after children.

Depending on whether you’re married or de facto, there are different rules about time limits for spousal maintenance applications. Ask us for advice about how spousal maintenance may apply to you.

Spousal maintenance is worked out by a court considering many things, including each person’s:

• Age
• State of health
• Responsibilities for dependent children
• Right to a standard of living
• Ability to earn an income
• Financial contributions to the relationship
• Non-financial contributions to the relationship
• Current relationship status
• Share of the asset pool
• Child support obligations
• Access to Centrelink payments

Often, spousal maintenance forms part of a binding financial agreement (BFA). If it’s paid as a lump sum, which many parties prefer because it removes the ongoing obligation. Where there’s friction, this clean break can be useful to help parties move on.

We’ll help you negotiate spousal maintenance that’s right for you. Find out more.