Family & Divorce

By making an Application for Divorce, you are seeking to legally end your marriage.  You are eligible to file an Application for Divorce after you and your spouse have been separated for a minimum of 12 months.  Separation can include separation under one roof (where you and your spouse remain living in the one house, but no longer live as husband and wife), and can also include separation for minimum of 12 months where that same period has been ‘interrupted’ by a period of no more than 3 months where you and your spouse have unsuccessfully attempted to reconcile your relationship.

In Australia, there is no requirement to prove fault or marital abandonment in order to be eligible to make an Application for Divorce.   Accordingly, you may choose to make a sole Application for Divorce even where your spouse does not wish to get divorced.  Alternatively, if you and your spouse are both in agreement that the marriage should be ended, you may choose to make a joint Application for Divorce.  The latter has benefits, particularly where there are children of the marriage relationship.

Divorce is a separate legal process from other family law matters including parenting matters and property settlement.  Accordingly, there is no requirement to agree care arrangements of children or the division of property between yourself and your spouse before making an Application for Divorce.  In some circumstances, it is advisable not to make such an Application until property settlement has been agreed and finalised, as a statute of limitations commences to run once a final divorce order is made by the Federal Circuit Court of Australia.  The statute of limitations provides that parties to a marriage relationship have 12 months from the date on which the final Divorce Order was granted to seek Court Orders for the division of property.  Once this time elapses, a person will only be able to gain the assistance of the Court where property settlement cannot be agreed if the Court agrees that it is in the interests of justice and equity for the 12 month time limitation to be extended.

Our family lawyers can represent you to manage all legal matters associated with making an Application for Divorce, including completing, filing and serving the necessary paperwork, and attending Court.  We will discuss with you whether the Application should be a sole or joint Application, and whether it is best to wait to apply for a Divorce once property settlement matters have been finalised.

Where parents decide to end their marriage or de facto relationship, often one of the primary concerns is what arrangements should be made in respect of the care of children of the relationship.  Such arrangements include where the children will live, how often they are to spend time and communicate with each parent, the sharing of special occasions such as Christmas and birthdays, and who will be responsible for the making of major decisions such as schooling.  Understandably, there are many variables which may impact on such considerations, including the age of the children, the children’s right to have a meaningful relationship with other siblings (particularly in the case of blended families), the distance between each parent’s residence and other significant locations such as school, parents work commitments (particularly where one parent is a shift worker) and whether the relationship between the parents is amicable or otherwise.

Under the Family Law Act 1975, the best interests of the child is of paramount importance.  Having a meaningful relationship with both parents is considered (save in the most exceptional cases) to be in a child’s best interests, and this means it is important for both parents to spend ‘substantial and significant’ time with their child.

Our family lawyers will help you resolve these issues as soon as possible, in the most cost-effective, timely and least stressful manner.  Where parents have reached an agreement about the care of their children, we can assist in documenting the agreement and having it filed in the Family Court of Australia so that the agreement becomes binding as an Order of the Court.  Where agreement has not been reached, we can assist in negotiating with the other parent or, if agreement is not possible, by filing an Initiating Application in the Federal Circuit Court of Australia.  If your spouse has already initiated proceedings in Court, we can assist you in drafting responding documents, thus ensuring the Court is aware of and gives consideration to your position.

Our family lawyers are also able to assist you with less routine matters relating to the care of children, including:-

• relocation (where one party wishes to move interstate or overseas with a child);
• recovery (where one parent has absconded with a child);
• location (where one parent has the child in their care and cannot be located); and
• contravention (where one party is breaching current court orders) matters.

With our legal expertise you will be able to re-establish your life while minimising the impact on your children.  Properly handled, this will also assist you to maintain a respectful relationship with your former partner.

Property and financial settlements are often complex.  There is no set mathematical equation which can be applied to determine the split of assets between parties to a marriage or defacto relationship which has ended.  In order to determine a just and equitable division of assets between the parties, the Family Law Act 1975 provides that a four step approach is to be taken.

The first step is to identify the net asset pool, which necessitates identifying all assets and all liabilities.  Superannuation is also included (although in practice it is often treated as a separate class of assets than non-superannuation assets such as real estate and personal property) and a splitting order can be made such that some of one party’s superannuation entitlements are paid into the superannuation fund of the other party.

The second step is to consider the contributions of the parties.  This includes initial contributions, direct and non-direct financial contributions (both routine such as wages/salary and lump sum such as redundancy entitlements, personal injury compensation, inheritance), direct and indirect contributions to the acquisition, conservation and improvement of assets, contributions as homemaker and parent, and wastage by either party to the relationship (wastage is a limited class of negative contribution to the asset pool).

The third step is to consider what are often termed the ‘future needs’ of the parties.  Factors such as the age, health, income-earning capacity and responsibility to care for children of the relationship are examined.

Finally, the notional division of assets arrived at through contemplation of the first three steps must be re-examined with a view to determining whether the percentage split appears just and equitable overall.

The specialist skill and experience of your lawyer at Lindbloms Lawyers will be invaluable to secure your financial future.  Our family lawyers are experts at analysing property settlement issues.  We have worked in many cases which have involved complex financial arrangements including cases where there are trusts, companies, superannuation and asset valuation issues involved.

Where possible, we will assist you to negotiate a property settlement which can be documented as Consent Orders and filed with the Family Court of Australia.  This has the benefit of saving time, money and stress on unnecessary litigation.  However, where the parties cannot agree as to how assets should be divided, we will assist you to make an Initiating Application to the Federal Circuit Court of Australia (or in rarer instances, the Family Court of Australia), including drafting, filing and serving Court documents on the other party, and attending Court.  If your former spouse has already initiated proceedings, we will assist you in preparing responding Court documents so that your position can be considered by the Court.  Where litigation is afoot, we will advise you throughout the litigation process.

Your lawyer at Lindbloms Lawyers will guide you through the process and help get the best possible outcome for you.

Binding Financial Agreements (‘BFA’s) are often colloquially referred to as ‘pre-nuptial agreements’, although legally they can be entered into at any stage of a relationship, including once a relationship has ended (although it is generally best to avoid a BFA at the end of a relationship and instead pursue Consent Orders, further details of which are available under ‘Property’).

BFA’s can have the benefit of avoiding costly, stressful and lengthy litigation in the future, as they define how assets will be divided between the parties to a relationship in the event of a relationship breakdown.  They can accordingly provide certainty and confidence to parties moving forward in their relationship.  The Court is not involved in this process as it is a private and confidential arrangement.

However, they are legally complex documents which require attention to detail, careful drafting and thorough legal advice.  Three principals are crucial in the preparation of and in entering a BFA:-

1. there must be full and frank disclosure of the financial position of each party;
2. the BFA must be documented in writing; and
3. each party to the BFA must receive independent legal advice.

Our team of family lawyers take great care when drafting BFA’s and giving advice on the same.  We can draft a BFA on your behalf, or provide advice on a BFA which another solicitor has drafted.  We will assist you to understand the legal complexities of a BFA and the benefits and potential detriments of the same, so that you can make an informed decision as to whether to enter into a BFA.  If you have previously entered into a BFA and wish to receive advice as to whether the same can be set aside, we are able to provide you with advice regarding the same.