Separation and Divorce
Dealing with separation and divorce is hard, both emotionally and on a practical level, trying to figure out what to do next can be stressful!
It is important to seek assistance and guidance early on to ensure you are able to make the right decisions for you and your family. Our experienced team of Divorce Lawyers are here to assist you and guide you through the process.
Arrangements for child
One of the biggest concerns for separating parents is the care arrangements for their child moving forward. It is important to ensure that arrangements are put in place as soon as possible to try and establish a stable routine for your child. Remember it is not actually about what is fair. It is about what is in the best interest of the child.
It is important to ensure that conflict is kept to a minimum when dealing with parenting matters.
If you are able to reach an agreement in regards to your parenting arrangements it is important to ensure they are documented and formalised.
There are two ways of documenting your parenting arrangements:
- Parenting plan – A parenting plan is a document setting out the agreement that has been reached between the parents of the child. It must be in writing, signed and dated by the parents. It is important to note that a parenting plan is not made by the Court and is therefore not binding on the parties. That means there is no formal recourse should a parent fail to stick to the parenting plan.
- Consent order – A consent order is a formal document setting out an agreement reached between the parties which is lodged with the Court. If the Court is satisfied that the arrangements set out in the order are in the best interest of the child the Court will then make the orders. These orders are binding on each of the parties. If a party breaches the terms of the orders, applications can be made to the Court and penalties can be imposed.
Sometimes parents are simply unable to agree on arrangements for their children. In these cases it may be necessary to commence Court proceedings to have the Court resolve the dispute. In most circumstances before you can commence Court proceedings you must have attempted mediation with a qualified family dispute resolution provider and have been provided a section 60I certificate. There are exceptions to this rule.
We will provide you with not only the legal advice relevant to your situation but also the practical guidance to help you make the best arrangements for yourself and your children.
It is a common misconception that you need to get divorced before you start a property settlement.
It is not necessary to get divorced before finalising your property settlement. A property settlement can be finalised upon separation, whereas parties must be separated for a period of twelve months before they can make an application for divorce.
When considering finalising your property settlement, there are a couple of things to keep in mind:
- Assets are generally valued at the time of negotiations. This means that if the value of assets you hold increases, your ex may also reap the benefit of the value increase. The reverse is also true, if the property value decreases. The question to ask is why has the value or the property pool changed since separation;
- Assets you receive or accumulate post separation will be taken into account by the Court. There are different approaches to dealing with assets accumulated post separation, however, they are not ignored by the Court and your ex can make a claim against these assets, including any inheritance you may have received after separation;
- Finalising your property settlement sooner rather than later will provide you with certainty and enable you to make plans for your future;
- Delay can make your property settlement more complicated.
You can commence negotiations at any time following your separation. We recommend that you take steps to finalise your property settlement shortly after separation as delay is generally not beneficial.
If you reach an agreement with your ex-partner it is essential that it is documented by way of consent orders or a binding financial agreement to ensure that it is legally binding.
In the event that you have divided your assets by private agreement and it is not correctly documented, your property settlement may not be over. This means that your ex may make an application through the Court for a property settlement in the future and seek a portion of the assets you have accumulated or received post separation.
Divorce is generally the final step taken in the separation process, and formally ends a marriage. An application for divorce may be made by yourself as a sole applicant or where you have agreement with your ex a joint application can be made both parties.
When it comes to divorce, Australia is a ‘no fault’ jurisdiction. That means that when considering whether to grant a divorce the Court will not be concerned with the reasons for separation. The parties simply need to prove to the Court that there has been an irretrievable breakdown of the marriage. An irretrievable breakdown will be evidenced by a period of 12 months separation.
Even where parties have separated but continued to live together under the one roof it may be possible to prove to the Court that there has in fact been a separation for a period of 12 months.
If the parties have children under the age of 18 years it will be necessary to satisfy to the Court that appropriate care arrangements are in place for the children.
Finally, it is important to note that once a divorce order is final, parties will have 12 months in which to commence any proceedings seeking property settlement and/or spousal maintenance, if they have not already finalised these matters.