A relationship breakdown is an emotionally difficult time, which can be compounded by the stress of a number of practical and financial matters. It can be even more complicated when children are involved.
Moving forward requires complex decisions to be made and it is important to have expert advice right from the beginning, whether it is in relation to a marriage breakdown or a de facto relationship. Most matters can be settled outside court either informally or through consent orders or other legal documents. However, it is still important to seek legal advice so you can make informed decisions to ensure the best possible outcome for you and your family.
An application for divorce can be made if a marriage has irretrievably broken down. It does not require the consent of both partners. A couple must be separated for 12 months before a divorce application can be made, but separation does not necessarily require you to live in separate residences. If you have children under the age of 18, the court will also need to be satisfied that proper arrangements have been put in place for their care.
A divorce order is not required before settling your financial affairs or putting in place parenting arrangements. However, if a divorce has been granted there is a 12-month limitation period within which to bring court proceedings for property settlement or spousal maintenance.
De facto relationships
De facto couples can also access remedies under family law legislation. When a couple have not been legally married, various factors will be considered to determine whether they were in a de facto relationship, for example, the length and nature of the relationship, financial dependence or interdependence, the care and support of children, or whether the relationship was registered under state law.
For de facto partners, any court proceedings for a property settlement must be commenced within two years of separating.
A property settlement involves the division of assets, liabilities, and financial resources between a couple whose relationship has broken down, and legally finalises their financial affairs. A legal property settlement enables the parties to move on with their respective financial activities and may facilitate duty concessions when transferring certain assets such as real estate. The division of assets can be achieved through a financial agreement, consent orders or court proceedings.
In some circumstances it may also be appropriate to seek other forms of financial support, for example, spousal maintenance, where one partner from the former relationship provides financially for the other.
The assets of a relationship can often be the subject of disagreement as to who deserves what. Wherever possible, we facilitate the amicable resolution of disputes with an emphasis on negotiation and mediation. It is essential that you are aware of all financial implications before you finalise a property settlement. We recommend obtaining legal advice to ensure that negotiations are conducted fairly and that you receive what you are legitimately entitled to.
We will assess your entitlement based upon:
- assets you owned prior to the relationship
- the income you provided during the relationship
- any gifts and inheritance you received
- any improvements you made to your property or assets
- your efforts put into building up and running a business
- your non-financial contribution such as general home duties and the raising and looking after children
Parenting arrangements can address issues such as where children live, how much time they spend with each parent and other specific issues in relation to education or healthcare. Under family law legislation parenting arrangements must be made in the best interests of the child. There is a presumption that shared parental responsibility is best for the child, but this will not be the case in all situations. Shared parental responsibility means that parents are required to consult each other regarding long term decisions for the child and does not necessarily mean that the child will spend equal time with each parent.
Parenting arrangements can be achieved through a parenting plan, consent orders or court proceedings.
Deciding who will primarily raise and care for the children is often disputed when a relationship breaks down. Every case presents different facts and circumstances. We can assist in the negotiation and facilitation of parenting plans and parenting orders that take into account the benefit of children having a meaningful relationship with both parents, as well as protecting them from physical or psychological harm or being exposed to neglect or family violence.
Our aim is to make sure the necessary parenting arrangements are in place at the earliest opportunity with minimal interruptions to your children’s life.