Family law is complex and often leaves people with a number of questions. Here are three of the most common questions our family lawyers are asked.
How do I get a divorce in Australia?
Australia operates under a ‘no fault’ divorce regime. This means that there is only one ground for divorce, being the ‘irretrievable breakdown of marriage’. This is proven by there being a period of 12 months separation between the parties to the marriage. This separation can occur even while the parties are still living under the same roof. After these 12 months have passed, either party, or the parties jointly, can successfully apply to the court for a divorce. There are important consequences to obtaining a divorce, however, and you should seek legal advice before proceeding.
How do I obtain a fair property settlement arising from my marriage or de facto relationship?
In broad terms, in Australia property settlements are determined by following a 4 step process:
Step One involves identifying and valuing the pool of assets between both parties to the relationship. This includes all assets, including houses, cars, business assets, trusts, and superannuation.
Step Two involves assessing the contributions of each party to obtaining, conserving or maintaining the property pool. Contributions do not only include direct financial contributions, but also include indirect financial contributions (such as offering ones’ house as security for the purchase of other property), non-financial contributions (such as assisting with renovations on the matrimonial home), homemaking contributions and parenting contributions. Based on these contributions, an initial percentage division of the property pool determined in Step 1 will be determined.
Step Three involves considering whether the division contained in step 2 should be varied on the bases of a number of different factors, including the age and health of the parties, the financial resources of the parties, the care of children, eligibility for social security benefits, the earning capacities of each of the parties, and any other factor relevant matter.
Step Four involves determining whether the division of the asset pool is just and equitable in all the circumstances. Every relationship is different, meaning what is just and equitable in the circumstances differs in every case.
It is important to seek legal advice as each of the steps in this process are multifaceted and can be complex, depending greatly on the individual circumstances of each case.
How do I know how to divide time with a child between parents?
Australia takes a children’s rights approach to family law, rather than a parental rights focus. This means that in any decision about a child, the best interests of the child must be a paramount consideration. The primary considerations in determining the best interests of the child are the benefit to the children of having a meaningful relationship with both children’s parents and the need to protect the child from being exposed to abuse, neglect, or family violence. There are, however, a number of additional considerations, such as the views of the children (depending on their maturity), the ability of the parents to cooperate, and other practical considerations.
Every family relationship is different, so it is important to seek legal advice to know the best solution for you when it comes to family breakups.