FAQ – Divorce

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Considering DIVORCE, PROPERTY SETTLEMENT
& CHILDREN PROTECTION

Laws governing marriage, divorce, de facto relationships, property settlements, guardianship, adoption, and the care of children (not being children subject to the intervention of the State child protection system) are contained in the Family Law Act 1975 (Cth).

The Family Law Act established a principle of “no-fault divorce” in Australian Law for the first time. The only ground for divorce is an irretrievable breakdown of marriage, evidenced by a twelve-month separation immediately preceding the date of the filing of an application for divorce.

This means, the court does not consider who is at fault but only whether the marriage has broken down for a continuous period of not less than 12 months; and there is no reasonable likelihood that the parties will get back together.

Divorce is simply the legal dissolution of a marriage. The divorce takes effect one month and one day after the Divorce Order is granted by the Court. You cannot remarry until then.

Any one of the couples can apply for a divorce as a sole applicant. It is also possible for both parties to apply for a divorce in one application. Please note that the couples who are separated but living under one roof can apply for a divorce.

Generally, this is the advised route. In this instance the two lawyers will negotiate on behalf of our respective clients and try to reach consent. If this is not possible then proceedings can be commenced to have the matter determined at court.

It is also possible for both parties to retain one lawyer provided the parties are able to negotiate the agreement between each other and have consent orders submitted to court.

A divorce and property settlement are two different legal processes. A property settlement is the formal division of property following a couple separating.

Discussion regarding the division of assets can occur whilst parties are living together and be finalised before their divorce is finalised and even whilst they continue to live.

Property settlements can occur in 3 ways


1. By submitting consent orders to court
2. By executing a Binding Financial Agreement
3. By initiating a case in court and letting a judge decision how the asset division should happen

On a divorce, a distribution of assets of a couple is distributed considering the common asset pool and several other factors. It is important that you obtain legal advice on asset distribution.

Net wealth is not split evenly (i.e., 50/50). The property adjustment for distribution is calculated following a complex process which have serval steps:2 Court has a discretion to decide the property settlement entitlements of each party based on facts of each case. The steps can be however understood as follows:

Step 1:

 

– Court will decide if it is just and equitable to adjust the part’s interest in the marital asset pool. Court will use the following steps to determine the adjustment.

Step 2: Identify and valuing the assets

 

– The first step is to identify each asset as held by the couple.
– Assets include all assets owned by the parties – it doesn’t matter if the assets were acquired before the relationship or during the relationship.
– The parties must also similarly value all liabilities held by the couple.

Step 3: Valuing the Contributions of Each Party

 

– After identifying the total net asset pool of the couple the court will look at making adjustments between what each party to the relationship walks away with on a percentage basis.
– At this stage the non-financial contribution (such as contributions to the welfare of the family and parenting) are considered.

Step 4: Calculating Future Needs

 

– The court looks at what each parties’ future needs will be post separation.
– Here factors such as age, health, income, earning capacity, care and support of children, financial circumstances of any new relationship will be considered.

Step 5: Considering the Practical Effect and Outcome

 

– Here the court will consider if the division of assets is just and equitable in all circumstances.

If you have children, you need to put an initial parenting plan in place to ensure the best interest of the Children. This plan can be converted into a parenting order by endorsement of the court. There are different ways a parenting orders can be obtained:

1. A parenting plan can be drawn up

a. This is a plan that can be arranged between the couple, or with the assistance of a family dispute resolution practitioner.
b. This is not a legally enforceable document


2. Consent orders

a. Parties may submit orders by consent to court on how they wish to carryout their parenting responsibilities.
b. If these orders are accepted by court, it will then become legally binding.

3. By initiating an application to court if parties cannot agree on how to parent their Children post separation.

a. In this instance the court will determine how the parental responsibility will be divided between the parties.
If you are not able to agree about parenting issues, you will need to apply to the Court for a parenting order.

Several steps (known as “pre-filing procedures”) need to be taken before you make an application to the Court and you must make a genuine effort to resolve the matter by family dispute resolution. (Commonly known as the mediation procedure) You should obtain specific legal advice on this procedure because you need to obtain a Certificate from a registered family dispute resolution practitioner before and application is filed with court unless certain circumstances exist such as family violence.

The Family Law Act 1975 requires the courts to take into consideration the best interests of the child/ren as the most important consideration when making parenting orders.

Please note that a grandparent of a child or any other person concerned with the care, welfare, and development of the child/ren, can also apply for a parenting order for the child/ren.

Of course, parties can be represented by separate lawyers. Unlike a simple situation of agreements, the lawyers will then engage in several rounds of negotiations to resolve the outstanding issues. If no agreement is reached then, it is the court that will resolve the issue based on the circumstances of each case and in accordance with the law. This means, that the parties should be prepared to wait longer for the resolution of the disputes, while incurring higher costs.

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A. On what grounds you can get a Divorce?

The Family Law Act established a principle of “no-fault divorce” in Australian Law for the first time. The only ground for divorce is an irretrievable breakdown of marriage, evidenced by a twelve-month separation immediately preceding the date of the filing of an application for divorce.

This means, the court does not consider who is at fault but only whether the marriage has broken down for a continuous period of not less than 12 months; and there is no reasonable likelihood that the parties will get back together.

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B. What is a divorce in law?

Divorce is simply the legal dissolution of a marriage. The divorce takes effect one month and one day after the Divorce Order is granted by the Court. You cannot remarry until then.

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C. Who apply for a divorce?

Any one of the couples can apply for a divorce as a sole applicant. It is also possible for both parties to apply for a divorce in one application. Please note that the couples who are separated but living under one roof can apply for a divorce.

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D. What happens when my partner retains another lawyer?

Generally, this is the advised route. In this instance the two lawyers will negotiate on behalf of our respective clients and try to reach consent. If this is not possible then proceedings can be commenced to have the matter determined at court.

It is also possible for both parties to retain one lawyer provided the parties are able to negotiate the agreement between each other and have consent orders submitted to court.

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E. Does a divorce order address issues of children, property, or maintenance?

No.
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F. What are the options for property settlement? Can this be in the divorce case itself?

A divorce and property settlement are two different legal processes. A property settlement is the formal division of property following a couple separating.

Discussion regarding the division of assets can occur whilst parties are living together and be finalised before their divorce is finalised and even whilst they continue to live.

Property settlements can occur in 3 ways


1. By submitting consent orders to court
2. By executing a Binding Financial Agreement
3. By initiating a case in court and letting a judge decision how the asset division should happen

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G. How are the assets of parties distributed?

On a divorce, a distribution of assets of a couple is distributed considering the common asset pool and several other factors. It is important that you obtain legal advice on asset distribution.

Net wealth is not split evenly (i.e., 50/50). The property adjustment for distribution is calculated following a complex process which have serval steps:2 Court has a discretion to decide the property settlement entitlements of each party based on facts of each case. The steps can be however understood as follows:

Step 1

– Court will decide if it is just and equitable to adjust the part’s interest in the marital asset pool. Court will use the following steps to determine the adjustment.

Step 2: Identify and valuing the assets

– The first step is to identify each asset as held by the couple.
– Assets include all assets owned by the parties – it doesn’t matter if the assets were acquired before the relationship or during the relationship.
– The parties must also similarly value all liabilities held by the couple.

Step 3: Valuing the Contributions of Each Party

– After identifying the total net asset pool of the couple the court will look at making adjustments between what each party to the relationship walks away with on a percentage basis.
– At this stage the non-financial contribution (such as contributions to the welfare of the family and parenting) are considered.

Step 4: Calculating Future Needs

– The court looks at what each parties’ future needs will be post separation.
– Here factors such as age, health, income, earning capacity, care and support of children, financial circumstances of any new relationship will be considered.

Step 5: Considering the Practical Effect and Outcome

– Here the court will consider if the division of assets is just and equitable in all circumstances.

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H. How do the couples make arrangement for children in a divorce?

If you have children, you need to put a parenting plan in place to ensure the best interest of the Children.

Parenting orders can follow a two-step process

1. A parenting plan can be drawn up

a. This is a plan that can be arranged between the couple, or with the assistance of a family dispute resolution practitioner.
b. This is not a legally enforceable document

2. Consent orders

a. Parties may submit orders by consent to court on how they wish to carryout their parenting responsibilities.
b. If these orders are accepted by court, it will then become legally binding.

3. By initiating an application to court if parties cannot agree on how to parent their Children post separation.

a. In this instance the court will determine how the parental responsibility will be divided between the parties.

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I. How do you apply to Court for parenting orders?

If you are not able to agree about parenting issues, you will need to apply to the Court for a parenting order.

Several steps (known as “pre-filing procedures”) need to be taken before you make an application to the Court and you must make a genuine effort to resolve the matter by family dispute resolution. (Commonly known as the mediation procedure) You should obtain specific legal advice on this procedure because you need to obtain a Certificate from a registered family dispute resolution practitioner before and application is filed with court unless certain circumstances exist such as family violence.

The Family Law Act 1975 requires the courts to take into consideration the best interests of the child/ren as the most important consideration when making parenting orders.

Please note that a grandparent of a child or any other person concerned with the care, welfare, and development of the child/ren, can also apply for a parenting order for the child/ren.
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J. When parties cannot agree on consent orders, what would be the consequences?

Of course, parties can be represented by separate lawyers. Unlike a simple situation of agreements, the lawyers will then engage in several rounds of negotiations to resolve the outstanding issues. If no agreement is reached then, it is the court that will resolve the issue based on the circumstances of each case and in accordance with the law. This means, that the parties should be prepared to wait longer for the resolution of the disputes, while incurring higher costs.