In an effort to provide our readers with a comprehensive insight into prevalent practical matters pertaining to Family Law, we have curated the "Frequently Asked Questions – Family Law Edition 2023". While this compilation aims to serve as an informative guide to our readers, it's imperative to acknowledge the uniqueness of each individual case. For advice tailored to your specific circumstances, we strongly urge you to engage with our office directly for a free consultation.
1. I have received legal documentation from my former partner's solicitors. What action should I take?
Upon receipt of such documents, it is paramount to identify their specific nature and purpose. These documents could range from a request for financial disclosure, a preliminary Application for Consent Orders, to a draft Financial Agreement. In some instances, you might be presented with a Parenting Plan, particularly when there's an inclination towards a more flexible arrangement without formalising the parenting agreement in rigid terms. It is essential to understand that correspondence from a legal representative does not necessarily imply an impending court proceeding. In many cases, this indicates a proactive approach towards an amicable resolution, as matters often reach settlements through mutual consent when legal professionals are involved. To comprehend the implications and recommended next steps, we advise scheduling a free consultation with us.
2. What process should be followed to ascertain my entitlement in the property pool after separation?
By law this determination follows the so-called Four-Stage Process, once it is clear that some division of property is required. The initial step encompasses an evaluation of the current assets and liabilities held by both parties. Following this, an assessment is conducted to gauge the financial and non-financial contributions made by each party throughout the relationship and post-separation. The third phase necessitates deliberation of the future needs factors, as outlined in Section 75(2) of the Family Law Act, which include considerations such as the primary caregiver for children below the age of 18, among other factors. The final stage is a comprehensive assessment to determine if the proposed distribution is just and equitable. We engage in a meticulous walkthrough of this process with our clients at the commencement of our professional relationship, ensuring clarity regarding their prospective entitlements.
3. My former partner and I have an agreement in place in relation to our property and children, why do I need a family lawyer?
While it is commendable that both parties have reached an agreement amicably, it's crucial to understand that a verbal agreement or even a written one may not always be legally binding or enforceable. A family lawyer can help ensure these agreements are formalised by drawing up Consent Orders or a Binding Financial Agreement that is legally recognised. Additionally, they can review the agreement to ensure that it aligns with the best interests of all parties, especially children involved, and is equitable and in compliance with the Family Law Act. We strongly recommend engaging one of our experienced family lawyers to ensure that your rights are protected and any potential future disputes are minimised.
4. My former partner and I have reached an agreement, but his lawyer says that we must do a Financial Agreement and not Consent Orders. Why would this be the case?
A Binding Financial Agreement (BFA) and Consent Orders are the only two methods to formalise property settlements by agreement. Consent Orders are made by a court and must be deemed 'just and equitable' by the court. On the other hand, a BFA is a private contract between the parties and doesn't require court approval. Your former partner's lawyer might suggest a BFA over Consent Orders for various reasons, but often this is done because the proposed agreement is not just and equitable and would potentially be rejected by the Court. For BFAs, it is a strict requirement that you obtain independent legal advice to ensure that you fully understand your legal entitlement prior to entering the agreement.
5. I would like my former partner to pay child support to me? What do I need to do?
To formalise child support arrangements, you should apply for a Child Support Assessment to the Department of Human Services' Child Support Agency. The Agency will calculate the amount based on both parents' income, the child's living arrangements, and other relevant factors using a special formula. Alternatively, you and your former partner can reach a private agreement, known as a Binding Child Support Agreement, regarding payment amounts and frequency. If you choose to do a Binding Child Support Agreement, both parties must engage independent lawyers for legal advice. If you already have an assessment, it may be possible to vary it by making a departure order application through the Courts.
6. My former partner and I separated several years ago. We were never married and our only property is registered in his name only. Can I wait for him to take the first step?
Waiting in this situation might not be in your best interests. In family law, there are time limits on when you can apply for a property settlement. For de facto couples, this is two years from the date of separation (for married couples, it is 12 months from the date the divorce order comes into effect). If you exceed this period, you may need the court's permission to apply, which may not be easily granted. In this situation it is essential to be proactive and seek legal advice promptly to protect your rights.
7. Is it mandatory to go to Court to resolve my family law property and parenting matters?
No, it's not mandatory. Many couples resolve their issues through alternative dispute resolution methods such as mediation or collaborative law, avoiding the court altogether. Going to Court should be considered as a last resort, and often it's in both parties' interests, both emotionally and financially, to resolve matters outside the court by doing Consent Orders or executing a Binding Financial Agreement.
8. Can grandparents or other relatives get custody or visitation rights for the children?
Yes, the Family Law Act recognises the importance of children having a relationship with significant people in their lives, including grandparents. If parents deny access, grandparents or other relatives can apply for court orders to spend time with the children. However, the court will always consider what is in the child's best interests when making any decision.
9. If there's domestic violence, how does it affect my family law matter?
The safety and well-being of the parties and children involved are paramount. If there's evidence of domestic violence, it can significantly impact decisions related to child custody, visitation, and even property settlements. The court may make orders that prioritize the safety of the victim, including supervised visitations or, in extreme cases, no contact. Victims of domestic violence should immediately seek legal advice and assistance from local support services.
10. My former partner and I are not officially married (only religious marriage), do the same rules of property division apply to us upon separation?
Your relationship would be considered as a de facto relationship, which encompasses couples not officially married. Such couples are granted the same rights and obligations as married couples under the Family Law Act. However, certain criteria must be met to be considered a de facto relationship including but not limited to the relationship's duration, nature and extent of common residence, and shared financial responsibilities. It's essential to establish that the relationship qualifies as de facto under the law. At Surge Legal we can help clarify your specific situation and rights related to property division and other matters.
Remember, the above information is a general overview only and not legal advice. It is essential to consult a family lawyer for tailored advice specific to your individual circumstances. Contact Surge Legal Now on 02 8722 5021 for FREE INITIAL LEGAL ADVICE.