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There are no formal requirements to make separation occur. All that has to happen for separation to take place is that there is communication between the parties that the relationship has ended on a final basis. Once separation occurs, the jurisdiction of the Family Law Act is activated. Since 2009, this also includes de facto and same sex couples.
Yes. There are important time limitation periods that must be complied with in family law. Please check our table below and see when you need to have commenced an application by to ensure your rights are protected:
De facto property settlement/maintenance applications – 2 years from the date of separation.
Property settlement following divorce – 12 months from the date of divorce.
Property settlement following divorce – There is no time limit as to when an application for divorce must be brought, although at the time of bringing an application, the parties must have been separated for 12 months.
Spousal maintenance – 12 months from the date of divorce.
It is possible to live together but still be considered as separated. In family law, this is called being ‘separated under the one roof’. This is a perfectly acceptable arrangement, and does not stop you from being able to enter into family law processes. All that needs to be proven is that it has been communicated that the relationship has ended on a final basis.
If you are unable to reach an agreement, there are a few options available to you:
Family dispute resolution
If you are unable to reach an agreement, then under the Family Law Act you must attempt family dispute resolution. There are some exceptions to this rule, such as if there are issues of family violence. Family dispute resolution is a form of mediation. It takes place at specialist centres such as Relationships Australia. If you do not wish to engage in the family dispute resolution process at this stage, we are able to assist you in negotiating a parenting settlement. We will do this by writing to your former partner or to their lawyer with your proposal, and negotiate counter offers if necessary. If an agreement is reached, then we are able to draft the necessary paperwork to formalise the agreement that is reached.
If family dispute resolution is not successful or is not suitable, then we are able to advise and represent you in the court process to apply for orders to be made in relation to your children.
In most cases, couples aren’t able to reach an agreement on their own about what to do with any property that is between them.
If there is no immediate agreement, we can assist you in starting the negotiation process. The negotiation process involves things such as:
Writing to your former partner with a proposal and negotiating counter offers if necessary.
Mediation or alternate dispute resolution.
Round table discussions.
If there is no resolution as a result of negotiating, we can also assist you in taking the matter to court.
If you are seeking to keep the former family home, you will usually need to pay the other person to ‘buy them out’. How much you pay them depends on a number of factors, but is usually an amount that is agreed between the parties or ordered by the court.
It is very important to have your finances sorted out before you enter into discussions about buying the other party out. You should make sure that you have approval from your bank to take over the mortgage and pay the other person out. We recommend that you speak to your bank or broker as soon as possible so that you know what your borrowing capacity is.
Generally, under the Family Law Act, it is more likely that any final property settlement made between parties will not include maintenance provisions. Spousal/partner maintenance is usually only available under special circumstances, and is not something that needs to be paid indefinitely. The kinds of special circumstances that can lead to spousal/partner maintenance are things such as where one party has care of children, where one party has very limited financial resources, or when one party is unable to work due to care of children.
The court adopts a four step process in diving matrimonial assets. This includes:
Identify the net asset pool (assets – liabilities)
Consider the following contributions:
Non financial contributions
Contributions to the family welfare including any homemaker or parent contributions
Effect of any proposed order on the earning capacity of either party
Consider any other factors such as age, health, earning capacity, responsibility to care and house a child or other party and financial resources and whether one party should receive an adjustment.
Is the proposed order just and equitable?
If you need advice about this process, you should go expert advice to ensure you protect your entitlements.
Spousal maintenance is financial support paid by a party to a marriage to their husband or wife (or their former husband or wife) or their previous de facto partner in circumstances where the other party is not able to adequately support themselves.
In assessing whether you are entitled to spousal maintenance, many factors need to be considered such as the age and health of parties, each parties income, property and financial resource, earning capacity and whether the relationship has impacted a parties capacity to earn an income.
You are not entitled to maintenance if you re-marry. If you start a new de facto relationship the court will consider the financial relationship of yourself and your new de facto partner before awarding spousal maintenance.
If you have been married for less than two years, but have been separated for at least 12 months, you will be able to apply for a divorce, but only if you have a certificate from a counsellor. The certificate will need to be filed with the court at the same time that your application is made.
The court does not require that both parties attended upon the counsellor.
It is very common for people to get back together for short periods of time after a separation. If this has happened to you, the separation is ‘paused’, but continues again if you separate once more.
For example, Sarah and John have been separated for two months. They decide to try and work things out. They get back together for six weeks. At the end of the six weeks, they decide to separate once more. At the end of that six weeks, John and Sarah have only been separated for two months. The period of separation continues from there.
Under the Family Law Act, grandparents and other people who are important to children are able to make applications to the court under certain circumstances.
If you have reached agreement on your own, then we are able to help you draft the necessary papers to formalise the agreement. In these cases, only one of you will need to see us.
Property settlements cover a number of different kinds of property, including:
Residential or commercial real estate
Furniture and household items
Compensation or insurance payments
Property settlements also deal with debts, including:
Credit card debts
Unless the parties otherwise agree, child support is separate to a property settlement. It is important to remember that both parents have legal obligations to financially support their children.
It is possible to enter into a private child support agreement under certain circumstances. Here at Coutts, we are able to assist in drafting the necessary paper work to enter into a child support agreement.
For more information about child support, we recommend that you contact the Child Support Agency or visit their website.
A client came to us to assist in determining whether they were in fact separated, particularly when one party wishes to reconcile. It was then identified that there were no arrangements for the children, including who they would live with, when they spend time with the other parent, whether the children are allowed to travel with the other parent and child support.
The client was advised that we needed to firstly determine whether the marriage was irretrievably broken down. Discussed the elements of separation, being that the marriage has irretrievably broken down, and at least one of the parties had the intention of ending the relationship. Discussed the requirement of this intention and that physical and financial separation are used to prove separation in instances where it is ambiguous. In the event that it is the client’s intention to proceed with separation, discussed the requirement to firstly attempt to negotiate between the parties, if negotiations fail move to mediation and if mediation is unsuccessful then proceed to litigation.
Going forward the client would need to prove separation and an intention to end the relationship on a final basis. This can include physical separation, while separation under the same roof is possible, as well as financial separation. Sometimes an affidavit from family and/or friends are required to support the party to state that they did not attend social gatherings as husband and wife during the period of separation. Going forward, the long-term goal is to reach an agreement which represents the best scenario for both the Children, and the client.
A client came to us to assist with a complex property settlement involving a large property pool, self-managed superannuation fund and a business involving both parties of the marriage as Directors.
The issues we identified included attempting to negotiate a property settlement within a volatile relationship which includes a medium-size business with many employees, and how a business can continue to run during a family law property settlement.
Our advice included engaging specialist Barristers with experience in not only family law matters, but also commercial. This enabled us to approach the matter from a technical, and also holistic approach. When attempts to negotiate with the other side failed, we ensured that the business was able to continue trading with as little disruption as possible.
Going forward the client needs extensive support to continue litigation as the other side continues to bring new applications to Court in an attempt to bring the business to a standstill which could cripple the business.
A client was seeking a Divorce as she had since found a new partner and wanted to re-marry. The parties were married in Australia, and lived in Australia during their marriage, however our client was not an Australian citizen and was currently residing in South Africa.
In order to apply for an Australian Divorce, the court must first be satisfied that the Court has jurisdiction. Jurisdiction requires that the party applying to the Court be either an Australian citizen or ordinarily reside in Australia for the previous 12 months.
Our advice initially was to seek a joint application with the client’s partner – as the other party was an Australian citizen and resides in Australia, this party would satisfy the jurisdiction requirement. After our attempts to obtain the other party’s signature on a joint application failed, we needed to find another way. Our advice was to file a sole Application, serve on the other side and hope that the other party would attend court to satisfy the jurisdictional issue. When the other party did not attend court, our only option was to attempt to obtain a copy of the Citizenship certificate of the other party. We were able to obtain this certificate, file with the court and the divorce was granted.
The client was officially divorced and free to re-marry.