The following conditions need to be satisfied to be eligible to divorce your spouse:
- You must be legally married;
- You need to have been separated for a minimum of 12 months;
- There needs to be no reasonable prospect of reconciling with your spouse;
- You and your spouse are Australian citizens or residents or regard Australia as your permanent home.
If you have been married for less than 2 years or you are wanting to have your marriage annulled, then there are additional conditions which apply.
Within 12 months of divorcing your spouse you need to reach a property settlement otherwise you will lose the right to ask the court for a property settlement. There are circumstances when a court will allow a property settlement after 12 months although these are very limited.
The divorce process can take on average 4 months from the application date and receiving the decree nisi of divorce. When the decree nisi is received you are divorced.
When determining a property settlement, a court will take a four-step approach –
Step One – What do you have?
The Court must first determine what assets, liabilities and financial resources are to be considered in determining the property division.
In essence a list of everything that you and your partner own is created. It does not matter if your home is registered in your name, your partner’s name or even a friend’s name.
If you own it (or part of it)- it will go on the list. This is also the case for debts and other liabilities. The Court will also take the value of each of the assets as at the date you reach agreement or the date that you appear for a trial – not the date that you separated.
This is very important to remember as the value of things you own could change over time.
Step Two – How did you get it?
Secondly, the Court looks at the different ‘contributions’ you each made during your relationship.
There are many different types of contributions such as-
- Financial contributions such as income or assets that you or your partner brought into the relationship
- Non-financial contributions such as unpaid work in a family business or an owner builder undertaking renovations to real estate
- Contributions to the welfare of the family such as the day to day running of the household and care of children.
Each relationship is made up of very different contributions and it is for this reason that the Court will look at each relationship on its own facts. There is no hard and fast rule.
Step Three – Other factors to consider
he third step involves the Court taking into consideration a number of matters such as-
- Your age and state of health
- Your children, their age, their needs and who will be caring for them
- Your income, your partner’s income and how this may be affected after the property settlement
- The effect (if any) that the relationship has had on your or your partner’s ability to earn an income and obtain employment
- Any other matters the Court considers relevant in your relationship.
Step 4 – Is the overall division appropriate?
Finally, after weighing up contributions and all the other factors that are relevant to your case the Court will come to a decision (normally in percentage terms) about how your property should be divided between you.
There is no precise science to reaching a decision as every relationship is different, however the Court must be satisfied that the division is ultimately ‘just and equitable’.
There is considerable difficulty in predicting with certainty the likely outcome of an application for property settlement without first having a lot of specific information.
We encourage you to meet with a member of our team to discuss what outcomes might be appropriate for your family.
If an agreement regarding property settlement can be reached between the parties, it is recommended it be formed in a legally binding manner. This will ensure there are no further claims between the parties (save for exceptional circumstances).
There are two ways to make a legally binding property settlement.
Consent Order – This involves lodging certain documents with the Court for approval of the terms of the agreement.
Binding Financial Agreement- This involves a lawyer for each of the parties signing a certificate stating that their client has received independent legal advice about the agreement.
Equal shared parental responsibility
In 2006 the law saw the introduction of the presumption that both parents should share ‘Equal Shared Parental Responsibility’ for their children. This means that parents should have, where appropriate, the ability to both make together important decisions in relation to their children, for example decisions about health care and schooling.
This presumption DOES NOT mean that children will necessarily spend equal time with each of their parents. Instead, if a Court is satisfied that parents should have Equal Shared Parental Responsibility, equal time may then be considered. If Equal time is not appropriate the Court must then consider an order for significant or substantial time.
The fundamental principles relating to children’s matters
- Ensuring that children have the benefit of both of their parents having meaningful involvement in their lives;
- Ensuring children are protected from harm;
- Ensuring that children receive proper parenting to help them achieve their full potential;
- Ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of children;
- That children have the right to know and be cared for by both of their parents;
- That children have a right to spend regular time and communicate with their parents and other people significant to their care, welfare and development including grandparents and other relatives;
- That parents should share in the duties and responsibilities concerning the care, welfare and development of their child/ children;
- That parents should agree about the future parenting of their children;
- That children have a right to enjoy their culture; and
- The Family Courts will only make orders that are considered to be in the “Best Interests” of children.
Child support is about ensuring the separated couples and their children enjoy a similar standard of living in both households.
The Child Support Agency (“the Agency”) is the Federal Government department that oversees who pays who and how much.
The formula relied upon by the agency is about the general needs of children divided between the parents based upon each parent’s income and how often the children are in that parent’s care.
Parents can have child support assessments reviewed by the Child Support Agency, the Social Security’s Appeal Tribunal and the Federal Circuit Court if they feel the assessment is wrong.
Parents can also make binding private agreements that bypass the Agency in certain circumstances.
Binding Child Support Agreements (“agreements”) enable parents to agree how much (if any) child support is paid, and what it is applied to. Parents can agree that the payer of child support pay for things like private school fees, car payments, mortgage repayments, extra-curricular activities and private health cover.
These very important agreements should not be entered into without proper legal advice. A lawyer for each parent must execute a certificate of having given a parent independent legal advice for the agreement to be binding.
Once signed, the agreements are usually registered with the Agency.