Applying for a Divorce – What Do I Need to Know?

If you’ve landed on this page, the chances are you’re looking for advice on the divorce process and how to apply for a divorce.  If you have been separated for 12 months and you can satisfy the court that this is the case, then you have grounds for divorce.  In this article, we’ll answer some of the most common questions regarding divorce applications so you can make an informed decision about your next steps.

Daykin Family Law offer a range of services to support the process of divorce and separation, including child support, child custody, property settlements and family mediation servicesView our blog for a wealth of information on various Family Law matters, and if you need further assistance, do not hesitate to get in touch.

Who can apply for divorce?

To be eligible to apply for a divorce in Australia, either you or your spouse must answer yes to at least one of the following:

  • Were born in Australia or have become an Australian citizen by descent (born outside Australia and at least one parent was an Australian citizen and your birth is registered in Australia).
  • Are an Australian citizen by grant of Australian citizenship (a citizenship certificate will be required).
  • Are lawfully present in Australia and intend to continue living in Australia. You must have been living in Australia for at least the last 12 months.

You’ll need to satisfy the Court that you have lived separately and apart for at least 12 months prior to making a divorce application and that there is no likelihood of getting back together and resuming married life.

How do I know if I have grounds for divorce?

Since the introduction of the Family Law Act in 1975, the only grounds now available for divorce is that the marriage has broken down irretrievably  Section 48 of the Family Law Act 1975 (Cth) sets out that to establish the fact that a marriage has broken down irretrievably, applicants need to prove both that they have been separated for at least 12 months and, secondly, that there is no reasonable likelihood of the parties resuming cohabitation.

What if we still live together?  Can we still apply for a divorce?

It is possible to be separated and still live together in the same home. Mostly this happens for just a short period of time, however for some spouses it can extend to months and even years.  Provided you meet criteria of a 12 month separation prior to your divorce application, you are able to proceed, however you will be required to provide the court with additional information.

These are usually in the form of two affidavits; one provided by you and one by a family member or friend, detailing the separation.  For example, this could include things like changes in sleeping arrangements, the division of finances, household duties and a reduction in joint attendance at social events, amongst others.  There isn’t a set list, but you’ll need enough evidence to persuade the Court that you are no longer a couple.

If you want a divorce but have been living under the same roof, it is advised that you seek legal advice.

How do I submit a divorce application?

How you submit a divorce application depends on whether it is a sole application or a joint application.  If both parties agree, you do not need to serve any documents on the other party and attendance in Court is not required unless you select to attend.

However, if you make a sole divorce application, the process is more complicated.  Firstly, you will need to inform the Court that you are applying for a divorce, making you the ‘applicant’ and your spouse the ‘respondent’.  Divorce papers will need to be served on the other party, and the application must be stamped with the seal of the Court by the Court Registry.  You may not serve the documents yourself.  You must use a third party (such a paid process server, friend or relative), or by pre-paid post to the respondent’s last known address if they sign a document acknowledging they were served.

If a sole divorce application is made, and you and your spouse have children under the age of 18, a Court appearance will be required.  If the respondent opposes the granting of a divorce order, they can file a response in the Court within 28 days (for example, if the respondent can demonstrate that the parties haven’t been separated for 12 months).

What if my spouse refuses to accept the divorce application service, or cannot be located?

If your spouse refuses to sign for the divorce serving (known as an Acknowledgment of Service) then the server must provide a photograph of the respondent (spouse) and for the server to confirm that this was the person served and that they refused.

If you are unable to locate your spouse, you can still apply for divorce but the Court requires evidence that you have attempted to locate them, either by serving divorce documents at their last known address, making enquiries with the respondent’s family, friends or colleagues .  This will need to be backed up by evidence (affidavits and postal receipts, for example).  An order for substituted service may need to be sought.

What happens after I file my divorce application in Court?

Once the application is filed, the registrar needs to be satisfied that ‘irretrievable breakdown’ (as detailed above) exists. If there are no children under 18, then there is no need for either party to appear personally at a hearing.  However, if there are children of the marriage under 18, one of the parties is required to attend (most likely applicant).

The court order for divorce is granted in 2 steps.

Step 1:

If the Court is satisfied that arrangements for the children have been made then a Court Order (or Divorce Order) will be made.

Step 2:

The Divorce Order then becomes final, usually within a month and a day, and this becomes the actual date that the Divorce Order takes effect.  A copy of the Divorce Order will be mailed to you and your ex-spouse, stamped with the Court seal.  After the Divorce Order takes effect, you are able to re-marry if you wish.

Do I need a lawyer to process my divorce?

Some people apply for a divorce without a lawyer, which can be suitable if the application is joint.  It can be more complicated, as we set out above, for sole applications.

Is a Divorce Order all I need to finalise my financial matters?

No, a divorce is only the legal severance of your marriage.  To finalise your property settlement and/or spousal maintenance agreement in a binding and enforceable way, further steps need to be taken to enter into either an application for consent orders or a Binding Financial Agreement.  We can guide you through the process and advise on which avenue is best for your situation.

If you can’t reach agreement on property settlement and/or spousal maintenance matters, then mediation may be a good way forward.  Court proceedings should always be a last resort.

Are there any critical time limits I need to be aware of once I am divorced?

Yes, once a Divorce Order takes effect terminating your marriage, a time limit starts ticking.  You and your ex-spouse will then both have 12 months to file in the Court for property settlement and/or spousal maintenance.  If you don’t, you may be out of time and this may cause you financial detriment.  You can seek the Court’s leave to proceed with an application out of time, but success is not guaranteed and it can be a costly process.

We recommend that you obtain expert family law advice at the time a divorce is applied for to ensure that your interests are protected.

Steps needed outside of a Divorce Application

After separation, you can be left to make very important decisions at what can be an emotional, tumultuous time.  It is therefore recommended that you seek objective, expert legal advice to ensure that you receive the best outcome for you and your family.

It is also advisable to obtain legal advice if you need assistance in making parenting arrangements, dividing assets such as property after separation or in the event that spouses are separated but living together.

If you are seeking legal advice about your separation, or just need to understand your divorce application options further, Daykin Family Law can help.  Shannon Daykin is an experienced Family and Divorce Lawyer, recently named as a Leading Family & Divorce Lawyer (Recommended, Brisbane) and Leading Parenting & Children’s Matters Lawyer (Recommended, Queensland) in the prestigious Doyle’s Guide 2018 and 2019.  In 2019, Daykin Family Law was named in the Doyle’s Guide as a Leading Family & Divorce Law Firm (Recommended).

We give you expert legal advice on the most appropriate and cost effective course of action for you and your family.  Contact us on (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.

How to get custody of a child

If you have just separated or are likely to, it is important you get advice about what will happen with custody of the children.

Most of the time, parents who have separated agree on the future parenting of their children.  For some, the children might live with one parent, and see the other at weekends, holidays and special days.  For others, the children may effectively have two homes and spend an equal amount of time with each parent.  For many, the arrangements are somewhere between.

Sadly, not all agreements can be made amicably, or there may be extenuating circumstances that mean parents choose to litigate in the family court system.  Litigating child matters in the courts can be particularly emotionally straining for all parties involved and is often considered to be a last resort.  That being said, it is important to understand the process and implications if you’re considering seeking custody as part of a separation.  In this article, we seek to provide some clarity around the process of seeking child custody.

What is child custody?

The term ‘custody’ is actually no longer used by the family law courts, however it is still used regularly by others and in the media.  In Australia, parenting arrangements fall under the Family Law Act 1975, which covers divorce and separation, property separation, parenting arrangements and financial maintenance.  The terms ‘custody’ and ‘access’ are no longer used and have been replaced with ‘live with’ arrangements and ‘spend time with’ arrangements as preferred terms.

What is the legal process for getting child custody?

There are no standard arrangements for the care of a child following separation, however the starting point is Section 65E of the Family Law Act.  This details the basis of who a child will ‘spend time with’ and who a child will ‘live with’.

The law assumes firstly that decision making is shared amongst parents (for example decisions around religion, medical treatments, changes to where a child lives or to their name or decisions around their education), unless in circumstances of a risk of family violence or abuse.  However, equal shared parental responsibility does not always mean that there is an automatic right to spend an equal amount of time with the child.  This decision is made by the Courts in the best interests of the child.

What are the ‘best interests of the child?’

The courts’ primary focus in deciding on custody (parenting order) is what is in the child’s best interests.  The primary considerations are;

  • The benefit to the child of having a meaningful relationship with both parents
  • The need to protect children from any harm, such as family violence, neglect or physical and psychological harm

The latter is always deemed the priority of the two primary considerations.  There are a host of other additional considerations that may include;

  • the views or wishes of the child – if these are expressed
  • the relationship of child with their parents and significant others, for example grandparents and siblings
  • parental involvement – how much time each parent has spent with the child, whether they have fulfilled their parental obligations
  • the effect of any changes – such as where the child has been living or staying, practical difficulties of spending time with each parent or significant others
  • cultural issues – for example religion
  • any family violence issues
  • another other issues the court deems are important to the case

Should I go to court for child custody?

It is most often the case that parenting arrangements can be made without the intervention of the Courts.  Most lawyers would recommend finding alternative ways to finding a resolution, for example mediation.  By appointing an experienced family lawyer and taking a proactive approach to litigation, it is very possible to avoid the Court or leave the court system sooner, allowing you to move on and raise your children.

We pride ourselves on only a very small percentage of our matters making it to a final hearing in the court because the advice we give is pragmatic and we explore all opportunities available to settle your matter without the high cost associated with litigation to the end.

If you are seeking court intervention, ask yourself the following;

  • Do I want sole parental responsibility?
  • Why do I want sole parental responsibility?  Do I have a genuine concern about the other party’s ability to care for the children and/or capacity to co-parent effectively?
  • Why do I want the children to live with me?  Do I have a genuine concern about the children’s ability to adjust or the new lifestyle of my ex-partner?
  • Are my children at risk of violence, abuse or neglect? Do I have any evidence of this?

If your concerns are genuine and you cannot come to a resolution outside of the Court, you can file an application in the Family Law Courts for Parenting Orders.  You should seek advice about whether any exemptions to attending family dispute resolution first apply to your circumstances.

What is the process for getting a court order?

You must demonstrate that you have tried alternative methods of dispute resolution prior to filing an application with the courts, unless your situation is urgent or another exemption applies (for example it involves family violence or child abuse).  It is imperative to get advice from your solicitor prior to taking any action.

If you are unable to reach an agreement, documents need to be filed with the Federal Circuit Court of Australia, including the initiating application, affidavit(s), mediation certificate, notice of risk and the court filing fee.  In some cases, an application may need to be filed with the Family Court of Australia.  It is really important to seek advice from a family law expert if you are considering going down this path.  We can guide you through the parenting arrangements process, avoiding litigation where possible and ensuring you can the best outcome for your children and family.  If Court is the only option, then we can guide you through the litigation process.

What if I already have a parenting arrangement in place and circumstances change?

Firstly, it depends how the parenting arrangement is recorded.  If you have a court order and want to vary it, you may need to satisfy the Court that there has been a significant change in circumstances, which requires expert family law advice.

The above gives you just a snapshot of some of the complex factors involved when considering child custody.  It is possible to avoid Court and come to a resolution that suits both parties, particularly with the support of a friendly, understanding and compassionate family lawyer. At Daykin Family Law, we’ve worked with hundreds of parents to come a resolution in the best interests of their children.

We have developed close relationships with psychologists and social workers who also act as experts in the Family Law Courts and can help you and your family stay out of the Court system wherever possible.  If Court is the only option, we can discuss with you ways to keep your legal costs down and work with you to achieve the result you desire.

Daykin Family Law have offices in Brisbane and are highly experienced in navigating the complex area of Child Custody.  Director, Shannon Daykin, was named in the prestigious Doyle’s Guide for 2019 in the Leading Family & Divorce Lawyers list (Recommended) and Leading Parenting & Children’s Matters Lawyers list (Recommended). Daykin Family Law was also named as Recommended in the Leading Family & Divorce Law Firm list.

We give you expert legal advice on the most appropriate and cost effective course of action for you and your family.  Contact us on (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.

Family Separation

Family separation & responsibility

Working in family separation

In the daily work we do as family lawyers, we are reminded what an immense honour it is for a client to place their trust in us.  This trust is many fold.  Trust that we will do what’s best by steering them in the right direction, not making mountains out of mole hills that can destroy relationships and benefit only the lawyers.  Trust that we will resolve instead of create conflict.  Trust that we won’t lose sight of the bigger picture, even if clients do.

For many of us lawyers, meeting all of these needs comes naturally, we are committed to avoiding the long term damage that messy separations can cause for clients and their children.  Simply, because we stake our reputation on our ability to problem solve effectively, some of us have families of our own, and we many of us truly care.

How we help

We care about how your separation impacts on you and your children, and what the future holds for you all.  Unearthing what you need is the first step towards achieving a settlement that will ensure you can move forward with certainty, whether it be a need for enough capital to re-establish yourself in a new home, or retain your business.  Sometimes when people come to us, they don’t know what they want or how they will move forward at all and that’s ok.  Separation is a process and we know the steps needed to reach finality as efficiently as possible.

It is a privilege working with those clients who genuinely want to remain amicable with their children’s other parent, and the person they created a life with.   Relationships can be, at best, fragile after separation.  At worst, relationships can be decimated beyond repair and often in this case lead to long term damage to children.  We see all too often the damaging impact of litigation on families, and it has been highlighted in the news recently about the issues with the system.  How lawyers go about their work in a family separation can have a lasting impact on many people in one matter.  We are mindful of this responsibility and this guides how we practise.

Steering clear of family law courts

For many, litigation is not a sensible or practical option, particularly when there are so many alternatives.  The traditional forms of positional bargaining back and forth through lawyers can be very costly.  We work with a number of other family lawyers who think like us and have the skills to short shrift the expensive traditional model, and reach a resolution sooner for both people.

Collaborative law is a process that can assist separating couples to place their goals and interests at the forefront of negotiations.  There is also a co-operative process we adopt informally with other colleagues which has excellent outcomes for our clients.  Mediation services are also another alternative as the assistance of an independent third party can be enormously advantageous.

Separating property after separation, agreeing on spousal maintenance and negotiating child custody can be painful, but it doesn’t have to be.  With so many alternatives available, there is often a path to be chosen away from the court which will save time and money.

Stepping towards your family law settlement

Divorce lawyers, family lawyers, child custody lawyers… whatever you want to call us.  We all have responsibilities to our clients and one of those responsibilities is to explore these alternative dispute resolution processes with you.  In essence, we are problem solvers.  We obtain your instructions in a comprehensive way, advise and guide you and strive to get you from A to B with your dignity in tact and, hopefully, an amicable co-parenting relationship you can be proud of when your children are older.

Talk to Daykin Family Law today about how we can guide you towards a peaceful and amicable separation and divorce.  You will be supported by an Accredited Family Law Specialist and a team that are focussed on achieving your goals.  Appointments in Fortitude Valley near Brisbane CBD, or by phone or Skype for regional or overseas clients.

Spousal Maintenance

Am I entitled to Spousal Maintenance?

In other parts of the world, they call it “alimony”.  In Australia, we call it “spousal maintenance” for married couples or “maintenance” for de facto couples.

Spousal maintenance is money paid from one spouse to another to support them financially. It can be obtained by married couples either before or after a separation, or de facto couples who have separated on a final basis.

Eligibility for spousal maintenance

Under the Family Law Act 1975 (Cth) (FLA), the court can make any order for maintenance that it considers appropriate.

To be eligible to receive spousal maintenance, the following must apply:

  1. Need (established by the spouse who is to receive payment)

To obtain maintenance, the party must be unable to support themselves adequately due to obligations to care for a child of the relationship who is under 18 years of age, their age, incapacity to obtain employment or some other relevant factor.  There are other circumstances that a court might consider as an adequate reason for a party to claim they are unable to support themselves.

  1. Capacity to pay (demonstrated by the spouse who is to make payment)

A party is only required to maintain the other party where they are “reasonably able to do so”.   This will be assessed by considering the income, property and financial resources of the party.

Each spouse will be required to list their total income and reasonable expenses to determine what deficit or surplus exists, as well as other information about their financial circumstances.  This will help the court to determine how much spousal maintenance may be payable.

How much spousal maintenance am I entitled to?

There is no set formula or calculator to find out how much spousal maintenance you are entitled to.  The amount that your ex-partner is liable to pay as maintenance will be a question for the Court to determine, once they have determined your eligibility.  It will based on the facts that are presented to the court in relation to the need of one party for maintenance and the capacity of the other to pay maintenance.

In making a determination of eligibility and quantum/type of payment, the court can consider the factors set out in the FLA.  A non-exhaustive list of those factors is:

  1. Age and state of health of the parties;
  2. Income, property and financial resources of the parties;
  3. Ability for each of the parties to obtain appropriate employment;
  4. Any duty of each of the parties to support a child or other person;
  5. Eligibility for allowances or benefits from the State or Commonwealth or their superannuation fund; and
  6.  The length of the marriage and the extent to which that has affected one person’s earning capacity.

Spousal maintenance payments can be made in many different forms, such as periodic payments (for example weekly or monthly payments), lump sum payments or a transfer of specific property.

How do I go about seeking spousal maintenance?

Parties to a marriage or de facto relationship which has broken down can agree to one party paying the other maintenance payments.  If no agreement can be reached, one party can apply to the court for an order for spousal maintenance.  The application can seek spousal maintenance payments only or at the same time make an application for property orders with the Court for a property settlement.  Urgent applications for maintenance are also possible.

How long do I pay spousal support?

If you are the payor of maintenance, you may be questioning how long you might have to pay it for.  Spousal maintenance orders can be made when there is income earning disparity between the parties and required to be paid for a certain period, for example to allow one party to re-establish themselves in the workforce so that they can support themselves into the future.  Therefore, the length of time that you may be required to pay will be dependent upon your spouse’s individual circumstances and their future needs.

Time limits

It is important to note that there are time limits which apply to applications to the court for spousal maintenance and maintenance orders.

For a married couple, parties have 12 months from the date of a divorce order coming into effect to make an application for spousal maintenance.  For a de facto couple, parties have 2 years from the date of separation to make an application to the Court for maintenance orders.

In limited circumstances, a Court may grant leave to proceed outside of these time limits in certain circumstances but this is not guaranteed and court proceedings would be required.

Finding out more about spousal maintenance

At Daykin Family Law, we can advise you on all aspects of spousal maintenance and maintenance.  Contact our office today for a fixed fee initial consultation with our Director and Accredited Family Law Specialist, Shannon Daykin, to discuss your specific circumstances and potential entitlements or liabilities.

prenuptial and binding financial agreement difference

Prenuptial and Binding Financial Agreements – Is There A Difference?

At Daykin Family Law, we are often contacted by couples asking for advice on the preparation of a prenuptial agreement or ‘prenup’.  Prenup is a popular terminology, but actually refers to agreements taken prior to marriage in the USA and other countries.  The equivalent of a prenup in Australia is known as a Binding Financial Agreement.

What is a Prenuptial Agreement?

A prenup, or Binding Financial Agreement as it is referred to in Australia, allows married couples (post-nuptial), soon to be married couples (pre-nuptial) and parties in a defacto or same sex relationship, to enter into a legal agreement about their financial affairs in the case of a relationship breakdown.

Binding Financial Agreements were introduced in Australia in 2000 to provide a mechanism for couples who are either contemplating marriage, or are already married to organise their affairs, including what could happen to property, business or how they would be looked after financially following a separation.

Should I get a prenup?

Prenups, or Binding Financial Agreements, are designed to remove uncertainty and avoid the stress of going to court.  When done correctly, they can be a very useful tool for financial planning.  It is, however, very important to take your time, and use an experienced lawyer to demonstrate that each party has had the opportunity to negotiate and reach a fair decision on the agreement.  Agreements done in haste have been known to be challenged by the court.

In a recent case known as Thorne v Kennedy, the High Court overturned a prenup between a young woman and her property developer husband after she was made to sign the agreement the night before her wedding.  The judges ruled that the document was effectively signed under duress.  Therefore, it’s important that a pre-nuptial agreement is agreed upon by both parties over an adequate period of time.  Other circumstances where the court can overturn an agreement is where the agreement would put unnecessary hardship on the spouse, especially where there are children involved.

In sum, pre-nuptial agreements have many benefits when entered into with the right legal advice from a family lawyer.  They can protect your property and estate plan, reduce conflicts, clarify special agreements and establish ground rules for future matters.  If you’re considering a BFA and would like some advice on whether it’s right for you, contact us today.

binding financial agreements

Do I need a binding financial agreement?

When separation occurs, it can be difficult to know what you need and who to speak to. Let us explain what a binding financial agreement is and when it might be appropriate.

What is a binding financial agreement?

A binding financial agreement is a document that records an agreement as to the division of a married or de facto couple’s respective property interests. A binding financial agreement can address how the property and financial resources of a couple are dealt with, as well as spousal maintenance.

A binding financial agreement can be completed either before a relationship has commenced, during a relationship or after a relationship has broken down. For the purposes of this blog, we will focus on binding financial agreements completed after a relationship has ended.

What are my options for recording a property settlement?

When a couple separates, and they agree about the division of their property interests, there are usually two options available to them to enter into a property settlement and finalise their financial relationship with one another. For a binding and enforceable property settlement agreement, they can either:

  1. Enter into a binding financial agreement; or
  2. Apply for consent orders and file the proposed orders with the court for the court’s consideration and approval.

There are advantages and disadvantages to each of the above options, so you should seek legal advice as to the option which will be most suitable for your circumstances.

Should I choose a binding financial agreement?

A binding financial agreement may be more suitable in circumstances where, for example, the parties wish for their agreement to be recorded and kept strictly private and confidential between the parties and their solicitors. Another example is where the agreement may not be seen in the eyes of the court as being a just and equitable distribution of the net assets.  A private agreement such as this done correctly will effectively oust the jurisdiction of the court to make property adjustment orders.

Binding financial agreements are completed without any supervision by the court system. Therefore, you have more control over when the agreement comes into effect and are not subject to the court’s final approval of the terms of settlement.

Binding financial agreements will not be suitable for all cases though. Also, they can often be more expensive than obtaining consent orders, because your lawyer will be required to take your instructions, draft detailed documents with precision to ensure it is binding and provide comprehensive written legal advice to you regarding your rights and other matters in relation to the document.

What are the requirements of a binding financial agreement?

There are strict requirements set out in the Family Law Act 1975 (Cth) (FLA) which must be adhered to for a financial agreement to be binding. Some of the requirements include, but are not limited to:

  1. It must be in writing;
  2. It must be signed by all parties to the agreement; and
  3. Both parties must have received independent legal advice including on the effect of the agreement on their rights before the binding financial agreement is signed.

Binding financial agreements can be set aside by the court where the requirements have not been met, or where other circumstances are present such as fraud, non-disclosure etc. Whether a financial agreement is binding on the parties would ultimately be a decision for the court to make if it were ever challenged, so it is important to engage the right lawyer who can draft the agreement correctly and provide you with sound legal advice.

Cutting corners

You will almost certainly be able to find a “cheap and quick” binding financial agreement after a search on Google. But beware, the risks of entering into a binding financial agreement that does not satisfy legislative requirements can be significant.

It could end up costing you much more in the long run to cut corners on recording a settlement.  This could be to either rectify a deficient agreement, or respond to a court application seeking property adjustment orders.  This is even after you thought you had finished and settled.

Seek expert advice to ensure you are protected.

Speaking to a professional

If you have separated from your partner (or are considering it) and would like advice on your options regarding property settlement, contact Daykin Family Law today to book an initial consultation with our Director, an Accredited Family Law Specialist, at a reduced fixed fee.

Daykin Family Law has extensive experience drafting and advising on binding financial agreements and can assist with finalising your property settlement sooner so you can move forward with certainty. We can meet with you in our offices conveniently located in Fortitude Valley close to the CBD, or by phone or Skype.

Divorce and Separation

Separation and divorce in Australia: what’s the difference?

There is a misconception that a divorce will also resolve your property settlement with your ex-partner: It will not. Obtaining a divorce order will not give you finality in your financial relationship with each other.

Divorce in Australia

For divorce in Australia, parties must complete a divorce application and file it with the court.  The court will consider this material at a hearing, the date of which is set down when you file the application (usually 3 or so months after filing).  If a divorce order is granted, this will provide you with a legal separation, however it will not automatically alter your property interests under family law.

To be eligible to apply for a divorce, you must have been separated from your spouse for at least 12 months.  There can be circumstances where parties may have separated but they remain living together under the same roof for a period time or have had short periods of reconciliation and then separated again on a final basis.  You may still be eligible to make a divorce application in these situations.  You should speak to a lawyer to discuss your particular circumstances and confirm your eligibility and the court’s requirements.

Options for finalising a property settlement

Separate to a divorce, a property settlement will provide you with an alteration of property interests (for example, determining who will keep the house, or whether it needs to be sold; who will be responsible for the credit card liabilities; how superannuation will be split between you etc).  The process for finalising a property settlement will depend on whether the parties have agreed or can come to an agreement regarding how their property interests should be divided.

If both parties agree

If a separated couple agrees to alter their property interests and the terms of that property settlement, they can have a legally binding and enforceable agreement by:

  1. Entering into a binding financial agreement; or
  2. Applying to the court for consent orders.

Using either option, or in some cases both options, your lawyer will need to take your detailed instructions in relation to the property that you own (including assets, liabilities, superannuation and financial resources), the contributions made by both parties throughout the relationship and any factors which may impact on the parties moving forward (such as age, health, income disparity, care of children etc). They will assess your entitlement and confirm whether your agreement is in line with what the courts would consider is just and equitable. They will then draft the required documents for you to affect the property settlement. There will be different processes from this point depending on which option you choose: binding financial agreement or consent orders.

If both parties cannot agree

Mediation is a process whereby the parties attend upon a mediator, with or without their solicitors present, to attempt to come to an agreement about the division of their property interests. The mediator should assist the parties to keep the conversation to relevant information and work with you to generate options for terms of settlement which are acceptable for both of you.  If an agreement is reached at mediation, you can approach a lawyer to draft the relevant documents and finalise the property settlement.

Court proceedings are started as a last resort if the parties cannot agree on how to divide their property interests. Proceedings are not usually commenced without attempts to resolve the matter by way of negotiation or alternative dispute resolution as they can be costly and emotionally taxing on all parties involved.

A formalised property settlement will usually be required

It is important to finalise your financial relationship with your ex-partner.  An informal agreement, even if it is in writing, may not be binding and one of the parties may be able to make an application to the court seeking an arrangement that is different to the agreement made between you (provided they apply within the relevant time limit).  Therefore, having your agreement formalised through a binding financial agreement or consent orders is necessary to protect yourself moving forward.  A lawyer can assist you with this and guide you through this process.

Time limitation for property settlement – married couples

There is a 12-month time limitation for a married couple to apply to the court for a property settlement or for spousal maintenance after a divorce order takes effect.  Whilst the court can grant leave to apply outside of this time limit, it can be a difficult and costly process and success is not guaranteed.

In some cases, we recommend that parties enter into substantial negotiations before divorcing which often results in a resolved property settlement before an application for divorce is even made or a divorce order is granted.

What if we weren’t married?

Former de facto couples are substantially afforded the same rights under family law legislation to a property settlement as married couples.  The time limitation is different however for de facto couples, whereby they have 2 years from the date of separation to make an application to the court for property settlement or maintenance.  Like married couples, the court can grant leave to apply outside of this time limit but, again, this can be a difficult process and success is not guaranteed.

Talk to an expert

Contact Daykin Family Law to discuss your options with our Accredited Family Law Specialist & Director, Shannon Daykin.  Let us help you navigate separation, divorce and the property settlement process in a cost effective and efficient manner.

Child support basics: What is it & what are my options?

What is child support?

Child support is a payment made by one or both parents to the other to assist in the cost of looking after children until they reach the age of 18 or complete high school.

The Department of Human Services (DHS) utilises a formula to calculate how much child support you should pay or receive.  This is worked out based on:

–        How many children you each have;

–        How old the children are;

–        How much money you need to support yourself;

–        The income of the parents; and

–        The percentage of care each parent has for the children.

The cost of the child is based on the research about how much parents spend to raise a child in Australia.  These figures are updated each year to ensure they stay current. These amounts are also different for different people as the research has established that people that earn different incomes spend different amounts on their children.

This is a complex formula that leads to much confusion.  The DHS has provided a child support estimator online to assist parents with this process.

How is child support paid?

You can choose to manage the payment of child support between yourselves.  This does not involve the DHS at all.  Parents who choose this option decide how much and how often child support is paid.  This can affect your Family Tax Benefit if you receive any.  This can also be risky as the DHS cannot enforce payment of an amount you have agreed to with the other parent.

The next option is private collection. To do this, you can ask the DHS to undertake an assessment for you. This can also be utilised if you have registered a child support agreement with DHS.  This calculates the amount of child support that one parent needs to pay the other.  A private collection arrangement would mean you and the other parent decide when and how this is paid.

The DHS would not become involved in this type of arrangement unless you asked them to be.  If a parent falls behind in their payments, the agency can collect up to three months of arrears or nine months in extreme circumstances.  This system works well for parents who are amicable.

If parents are unable to communicate, if there are issues with reliability in payment or if there are domestic violence issues, you can ask the DHS to collect on your behalf.  This is called Child Support Collect.  DHS can collect if a child support assessment has been made, if they have accepted a child support agreement or if there is a registered court order for child support.

For Child Support Collect, DHS collects the money from the paying parent and pays it to the receiving parent.  The dates of these payments are set by DHS.  If a parent fails to make payments, the DHS can take enforcement action including deducting money from a paying parent’s pay, intercepting tax returns and/or bank account deductions.

It is important that both parents continue to update the DHS regarding their circumstances to ensure that over or under payments are avoided and issues of debt recovery do not occur.

What if I want something specific in place for child support between the other parent and I?

You can enter into a private child support agreement with the other parent and this can be made binding and enforceable.

You may agree to cash payments, non-cash items such as health insurance or school fees, or a combination of these.  These arrangements can be formalised by a Limited Child Support Agreement, which can have a limited life span, or a Binding Child Support Agreement which can remain in place for longer.  Both parties need to have legal advice for a Binding Child Support Agreement.

If you would like to consider one of these options, we can provide you with the necessary advice.  Many people negotiate property settlement, spousal maintenance and/or child support agreements at the same time.

Here are some examples of how a simultaneous settlement could work:

  • The child support recipient parent agreeing to take less property from property settlement if all expenses are paid for the children until they turn 18 or finish high school, such as private health fees and associated costs and all health related costs.
  • The child support recipient parent agreeing to take more property from property settlement than they might otherwise be entitled to, on the basis that they be paid no or relatively low child support in the future.
  • The child support recipient parent agreeing to a settlement where they are paid certain child support (periodic amounts every week plus school fees and health costs paid for by the other parent), certain periodic spousal maintenance payments for a period of time and an agreed percentage of property.

The above arrangements can be negotiated and, once agreement is reached, drafted into binding and enforceable agreements by Daykin Family Law.

What if we do not agree with how much child support is being paid?

Parents often disagree with the estimation for child support.  This can be as a result of not agreeing about the arrangements for time children spend with each parent or disputes about income.  You can apply to DHS to have the assessment changed.  If you still do not agree with the decision, there are other avenues you can take, and we suggest you seek legal advice from us about these issues.

I have a plan for what child support I would like for my children. What’s my first step?

The first step is to make an appointment for an initial consultation with us to discuss your options, your proposals and how your goals can be achieved in the most cost effective and amicable way.   Daykin Family Law are experts in the Brisbane family law field and can assist you to resolve your issues so you can move on with your life sooner. Contact us today to discuss your situation and the options that can be specifically tailored for you.

How might separation impact my business?

One of the first questions we are often asked by our business owner clients is what impact a separation is going to have. You spend years building an empire, whether it be large or small, and you are understandably anxious about how separation will effect what you’ve built and what the future holds.

The first step is to ensure that there can be no immediate impact on the running of your business. Any fallout from the inter-personal relationship with your former partner or spouse must be managed so that it does not impede its operational running or damage its reputation. We assess the risks with you as some urgent matters may need to be attended to, particularly if your ex has access to business accounts, important documents or the premises or staff generally.

In more severe cases where attempts to curtail damaging behaviour have been exhausted, or urgent and swift action is required, there a range of remedies available from the court. This can include restraining a person from taking certain steps which may cause loss to you or the business. In our experience, a firm approach from the start can assist in resolving such issues quickly without litigation. However, where harm to business operations is imminent, an application may need to be filed with the court without delay to protect your business and assets.

Once any urgent issues are identified and dealt with, attention can be focussed on crafting a settlement to finalise the financial aspects of your separation. Settling matters early can save on legal costs and the emotional strain associated with protracted negotiations or litigation.

An initial step towards this finality is making disclosure of your financial circumstances. In our experience, the quickest way to create tension, distrust and a sharp escalation in fees is to be opaque in the way someone discharges their duty to make full and frank disclosure. If an opposing lawyer deems that the other party is refusing to make disclosure or is not being forthcoming with the documents needed to advise their client, chances are they are advising on their end to file proceedings in the court to obtain an order for disclosure. This should be avoided as there are lengthy queues in the court and litigation can be costly. We will guide you on the necessary documents to disclose having regard to the nature of your entities and extent of your assets, liabilities, superannuation and financial resources.

It is often a good idea to involve your trusted accountant at an early stage if they were not already involved from the outset. We have had many initial meetings with clients and their financial advisors to gain clarity at the first meeting about what clients want to achieve and how value can be added to their affairs through restructuring as part of the family law process. It is also important to be across any potential taxation consequences of a proposed settlement, Division 7A issues, the structure itself (including trusts interests of the parties and associated issues), future asset protection and other such important matters.

In some cases, the accountant is also trusted by the former spouse or partner and can play a positive role in achieving a settlement sooner, such as facilitating the efficient exchange of disclosure and even in reaching agreement on a value for a business to avoid the cost of an independent valuation as part of the family law process.

Coupling anxiety about what the future holds for your business with the emotional stress of a relationship breakdown itself can take a significant toll. We take a no-nonsense and pragmatic approach to advising our clients, guiding them on the path that will best achieve their goals, protect their interests and allow them to get on with the important job of running their business or home or whatever else should be taking priority.

Contact us today for an initial consultation with Shannon Daykin, an Accredited Family Law Specialist, to discuss your business, protecting your interests and how we can assist in resolving your property settlement as efficiently as possible.