Separation can be a very difficult time and it can be hard to know where to start when sorting arrangements for your children, division of property and finances. Often, parties try and remain amicable, especially when children are involved, although sometimes this is not possible. Attending counselling or family therapy can assist separating couples try to remain amicable while negotiating the steps which need to be taken to finalise their separation.
If you have decided to separate and you and your partner are amicable, you may wish to:
- Consult with a specialist family lawyer and obtain advice in relation to your rights and entitlements following the breakdown of your relationship.
- Attempt to reach agreement in relation to parenting and/or property matters with your former spouse directly.
- If you cannot reach agreement, you should consider attending family dispute resolution or mediation. You can organise a private mediation or, in some circumstances, through a not-for-profit agency such as Relationships Australia. If you require assistance with negotiating, you should consider attending with a specialist family lawyer to negotiate on your behalf. If you can reach agreement, it is in your best interests to document the agreement you have reached with your former partner sooner rather than later. You can document the agreement you have reached by entering into the documents below:
- Application for Consent Orders and Minute of Consent Order – These documents are filed with the Federal Circuit and Family Court of Australia and once approved by the Court they sever your financial ties with your former partner on a final basis. These documents must be filed to end your financial relationship with your former spouse. Entering into these documents seeks to ensure that your former partner does not file an application in the Federal Circuit and Family Court of Australia seeking a property settlement at a later date. It is not necessary for either party to obtain their own legal advice to prepare or enter into these documents, although it is strongly recommended. You can also include parenting Orders in this document. However, if you wish to remain flexible with your parenting agreement, then a Parenting Plan may be more suitable. Sometimes parties elect to enter into a Binding Financial Agreement instead of an Application for Consent Orders and Minute of Consent Order to document arrangements made in relation to property.
- Deed of Release – this document seeks to provide that you and your former spouse will release each other from a future ‘family provision claim’ on each other’s estate and further, that you will not challenge the other’s Will. This document is not necessary to end your financial relationship with your former partner, but is often recommended to afford your estate greater protection when you pass away. If you wish to enter into a Deed of Release with your former partner, both parties are required to obtain legal advice from their own lawyer.
- Binding Financial Agreement for NIL spousal maintenance – this document seeks to prevent a successful claim for spousal maintenance (also referred to as ‘alimony’ in the United States) against each other now or in the future. This document seeks that neither you, nor your former partner will be able to make an application to the Federal Circuit and Family Court of Australia requesting payment of spousal maintenance unless the Binding Financial Agreement has been first set aside. This document is not necessary to end your financial relationship with your former partner, but is often recommended if you are the spouse with the greater income. If you wish to enter into a Binding Financial Agreement, both parties are required to obtain legal advice from their own lawyer.
- Child Support Agreement – If you reach a private agreement with your former partner in relation to financial arrangements for your children that is separate or in addition to a child support assessment issued by Services Australia (Child Support), you should consider documenting this arrangement by way of a Child Support Agreement. A Child Support Agreement documents arrangements made for payment of expenses such as school fees, private health insurance, medical expenses or extra-curricular activities. There are two different types of child support agreements – a Limited Child Support Agreement and a Binding Child Support Agreement. If you wish to enter into a Binding Child Support Agreement, both parties are required to obtain legal advice from their own lawyer.
Application for Divorce
A property settlement is separate from an Application for Divorce and this can be filed once you have been separated from your partner for 12 months.
You may make an Application for Divorce either jointly with your former partner or individually on your own behalf. Please note if you file a sole Application for Divorce:-
- You will be required to serve a hard copy of the application on the other party and then provide evidence to the Court that the other party has received the application.
- You will be required to pay 100% of the filing fee.
- You will be required to attend Court (electronically) and make submissions to satisfy the Registrar that proper arrangements have been made for the children.
An Application for Divorce legally ends your marriage to your former spouse in Australia. It does not end your financial relationship with your former partner. This can only occur by entering into an Application for Consent Orders and Minute of Consent Order or a Binding Financial Agreement (in some circumstances).
If you or your former partner wish to commence Court proceedings for a property settlement or spousal maintenance, then the person wishing to apply must commence court proceedings within twelve (12) months of your divorce becoming final. In limited circumstances, permission can be obtained from the Court to start proceedings after the limitation period.
If you would like assistance with the process after separation, mediation or require legal advice, Dorter Family Lawyers and Mediators are expert Family Lawyers who specialise in all areas of family law and mediation, and can assist. Please contact us on (02) 9929 8840.