Family Law

Our family law team provides legal advice and assistance for a range of matters relating to family law and de facto relationships, including:

• Divorce and separation
• Property settlements
• Spousal maintenance
• Domestic and family violence
• Parenting plans and parenting orders
• Guardianship of children
• Adoption

Property settlement

After spouses or de facto couples separate, it is important for them to take steps to finalise their property and financial affairs. While formalising a property settlement may seem overwhelming, informal arrangements are not legally recognised as bringing a couples’ financial affairs to an end and may leave them at risk of future claims. It is essential that you are aware of all financial implications before you finalise a property settlement and we can help you through the process.

A property settlement involves the division of assets, liabilities, and financial resources. You do not need to go to Court to finalise a property settlement if you can come to a negotiated agreement. This is often achieved with the assistance of each party’s respective lawyers and, in some cases, the help of a mediator. Your agreement can be formalised through consent orders which can be filed with and approved by the Court to make them legally binding.

If you are unable to agree on a property settlement, you may apply for the matter to be determined by the Federal Circuit and Family Court of Australia. In property settlement matters, the Court’s objective will be to order a ‘just and equitable’ settlement which considers the following factors:

• the parties’ assets, liabilities, and financial resources
• the parties’ respective direct and indirect financial contributions
• the non-financial contributions each party has made to the relationship
• the future needs of each party, considering their relative earning capacities, state of health, education, and responsibilities as primary carer of any children

Parenting Arrangements

The family law system requires that the best interests of the child are the primary consideration in parenting matters. There is no concept in Australian family law of parental ‘rights’, and the notion of ‘custody’ no longer applies.

The starting point is that both parents have equal and shared responsibility for their children, meaning that each parent is equally responsible for the children’s care and support. Shared parental responsibility does not necessarily mean that a child will spend half of their time with each parent, which may not be practical in all situations. There is, however, a presumption (rebuttable in specific circumstances such as domestic violence) that it is best for children to have an active relationship with both parents. This generally means that children should spend significant time with each parent.

Spousal Maintenance

After a couple separates, there can be an imbalance between each party’s capacity to support themselves financially, for example, a disparity in income because one party was the primary breadwinner during the relationship while the other gave up a career to contribute in other ways.

Spousal maintenance means that one person from a former relationship provides financially for the other when the applicant cannot meet his or her own reasonable expenses through income or assets. It applies to both marriage and de facto relationships.

Applications for spousal maintenance must be carefully prepared and supported by evidence. In determining the application, the Court considers a range of factors, for example:

• the assets, income, financial resources and liabilities of each party and their respective capacities for employment
• the age and health of the parties
• the responsibilities of each party to support others and whether a party has responsibility for the care of a minor child or children
• either party’s eligibility for a non-means-tested pension, allowance, or benefit
• a suitable standard of living in the circumstances

Pre-nuptial Agreements – Binding Financial Agreements

Whether you are starting a new relationship or are already in one, you and your partner may consider entering into a financial agreement (known also as a prenuptial agreement).

A financial agreement can help to provide certainty about what will happen to your respective property if you and your partner later separate. The agreement can help to protect assets existing prior to the relationship (particularly important if you have children from a previous relationship), protect a business from closure if a relationship breaks down, or outline what is to happen with an inheritance. We can discuss your circumstances so you can make an informed decision about whether a financial agreement is right for your needs.

If you need assistance, contact [email protected] or call 08 9221 6820 for expert legal advice.