Divorce and Separation Archives | Page 4 of 5

Successful co-parenting with your former partner can be tricky to achieve and may involve a period of negotiation and compromise before finding an agreeable solution. In some cases, you may not achieve a mutually agreeable solution on your own and in this instance, there are several options available to protect what matters most; the wellbeing of your shared child or children.

It is common during separation and divorce for the separating parties to harbour negative emotions towards each other. These feelings can make agreeing on terms of the separation, particularly the care of your shared child/ren, difficult or sometimes impossible.

What is a parenting plan?

A parenting plan is a written agreement which outlines how you and your former partner will co-parent your shared child/ren. It can detail a range of things, such as where the child/ren will live, where they will go to school, which parent will provide care and when, what will happen on special holidays and birthdays and how a child will communicate with their parents. The plan can also detail agreed-upon parenting styles, a particular faith/religion that will be taught at home and any required healthcare plan specific to the child/ren.

A mutually agreed-upon plan can provide structure and routine to a child/ren’s life during what can be a volatile, emotional and distressing time.

Remember, circumstances change and so to can the plan. As children age, their needs and preferences change, so keep communication with your former partner open so that the plan can be revised in future. If needed, set a date to review the plan with your partner so that you can both feel assured that it is always the best solution for your child/ren.

The Family Courts

The Family Law Courts can hand down an order which dictates what parenting arrangements will be in place for a child until they turn 18. While for some, enlisting the Court’s help is the only option for achieving a resolution, it should only be considered a final resort. Receiving a decision from the Court is not only a costly exercise which can be drawn out over a long period of time, but the final order can also feel impersonal for your family, as it is a legal directive, rather than an arrangement that your family have devised together. You give over control to the Court, which is unsuitable for many families.

Before turning to the Courts, there are several support resources available to families.

Before going to court

A family report, prepared by an unbiased third-party professional, assesses the family dynamics, a child/ren’s wishes and their needs to create a recommended parenting arrangement. This report can also be submitted as evidence to a Court if the situation demands a Court decision.

A family dispute resolution mediator can also act as an unbiased voice of reason between yourself and your former partner. Unlike the Court, a mediator will work with all affected parties to determine the best solution, rather than handing down a legal directive.

Utilising a mediation professional is also an opportunity for both parents to discuss their wishes and concerns regarding their child/ren’s relationship with their other parent and the future, without needing to converse directly with their former partner, which could potentially start an emotionally-fuelled argument.

The most important thing

No matter which solution you turn to, it is important to remember that your main concern should always be the health and happiness of your child/ren. During a separation or divorce, when emotions are running high, parents can often fall into the trap of letting their negative emotions towards their former partner restrict the possibility of reaching a solution which is best suited for the child/ren.

It is important that children feel loved, supported and safe as the family transitions after separation. Never argue with or speak negatively of your former partner in front of the child/ren. While you should keep communication with your child/ren open and encourage them to discuss their feelings openly with you, never ask them to pick sides or make a final decision regarding their living arrangements.

Whilst family and friends may give you advice and mean well, it should not replace the sound and pragmatic advice of a family law specialist. The danger with this is that the legal system is complex and how you conduct yourself is important. A wrong turn with how to handle certain important situations can be disastrous, not only for the objectives you want to achieve but could also have a negative impact on your children. We guide clients through post-separation issues by being upfront about the things that might cause unnecessary dispute. Similarly, we provide clear advice when needed on when a firm approach is needed to protect what matters most.

Shannon Daykin, Daykin Family Law’s Director, is an Accredited Family Law Specialist, with a wealth of experience and expertise in family law and parenting agreements. Contact us today to discuss all your options in order to achieve a positive solution as efficiently as possible.

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.

The blog published by Daykin Family Law is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Daykin Family Law on any legal queries concerning a specific situation.

Property settlement can be a substantial part of separation and divorce. Whilst valuing tangible property such as homes and cars is relatively straightforward, valuing a business is usually more complex. One of the first questions we are asked by self-employed clients is what impact a separation may have on their business. This is a valid worry – you’ve spent years building a business, only to find suddenly your livelihood may be at risk or operations may be impacted by a separation. We’ll take a look at business valuations in a property settlement in this article, outlining some of the key considerations and next steps.

Reaching an agreement

Whether the business in question is your former partner’s, yours or jointly operated by you both, it’s important that you and your former partner seek to agree on a value together and ascertain any issues in dispute that are a roadblock to an agreement. The party who wants to keep the business could undervalue the business or claim that they alone create the value of the business; particularly relevant when an individual’s specific expertise or skill set is the main offering to customers, for example, an interior designer.

We often recommend calling upon a trusted accountant, who is aware of the business position and its history, potential tax consequences of any proposed settlement and issues to be considered for asset protection. A familiar third party can often play a positive role in achieving a settlement sooner and potentially avoid the cost of an independent valuation in some cases.

You can engage an expert, third-party forensic account with experience in business valuation within family law cases including those in court proceedings. Any professional involved in the valuation process must be willing and able to present their professional findings in court. How you engage this expert is important. If not engaged properly, the evidence from the expert may be subject to challenge later on if an agreement can’t be reached.

Generally speaking, one valuer will provide a final ruling on the business’ value. You may request to use a separate valuer to that of your partner, but you must present a strong argument as to why the court should accept this evidence.

Engaging a secondary valuer can be costly and time-consuming, so the best outcome would be an agreed approach between both parties. Ordinarily, the valuation cost is shared equally between parties unless one party requests additional information from the valuer which increases the cost significantly. In this instance, the two parties should negotiate the allocation of cost.

Methods of valuation

The valuer’s report will include the final valuation and how they arrived at that valuation. Businesses can be valued using a range of different methods and each method examines the business from a slightly varying perspective. A particular approach may be the most appropriate to an individual case, depending on the business set up or the industry

A fair market valuation assumes a scenario in which there is a willing buyer, a willing seller and neither party is under compulsion to buy or sell. If we imagine a family business in which you have a 20% stake and your parents hold the remaining 80%, your parents have the majority vote in decisions regarding the business. A fair market valuation assumes a willing buyer but in reality, finding an investor for a business in which your parents have full control in that scenario is unlikely. It may be that your share value is discounted. This is just one example of issues that business valuations traverse.

Any form of valuation will consider the business profits, assets and any other relevant information required to provide an accurate and unbiased final valuation. Providing any and all the relevant documentation quickly and in an organised fashion allows for a smooth and therefore cost-effective process in which an accurate result can be obtained.

Providing relevant information

In providing information, do not disregard loan accounts in which you or your former partner may owe money to the business, or the business may owe money to you or your former partner. A full analysis of realisation and other taxation costs may be crucial to the valuation and should not be overlooked. Mistakes can be made when overlooking such issues, which can have a marked impact on any settlement to a party’s detriment if not fully identified ahead of time.

Business valuations are an important part of the property settlement process, but just one part of a larger picture. When you’re dealing with the stress of a relationship breakdown, you need reassurance that you’ve got an experienced legal professional in your corner. 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.

We work with a range of top-level forensic accountants to assist our clients in identifying issues and helping them reach an early resolution to property settlement wherever possible.

Contact us today for an initial consultation with Shannon Daykin, Daykin Family Law’s Director, an Accredited Family Law Specialist with a wealth of experience and expertise in family law and complex property settlement. We’ll discuss your business, how to protect your interests and how we can assist in resolving your property settlement as efficiently as possible.

At Daykin Family Law, we work with our clients to resolve matters in a cost effective and timely manner, which usually means staying out of Court wherever possible. The Court system can be complex, costly and time consuming. In many cases, alternative methods of dispute resolution can achieve preferable outcomes, without the added stress that can arise through a Court battle.

Speaking to, and taking advice from, a lawyer does not necessarily mean going to Court. The can be a common misconception of some. Instead, getting legal advice can empower you to make educated decisions that are best for you and your family.

So, how can you avoid going to Court whilst coming to a suitable arrangement in your family law matter? Here’s a closer look at the different types of alternative dispute resolution commonly used in family law cases.

Family Dispute Resolution (FDR)

Whilst it can seem impossible at a time when emotions are running high, coming together to calmly and rationally discuss disputes is often all that is needed to ultimately resolve them. Family Dispute Resolution (FDR) can be a really effective means of increasing the chances of early resolution, so that both parties can move ahead.

If you and your former partner disagree on allocation of property, parenting issues or family matters, Family Dispute Resolution could help. FDR is a confidential process whereby someone trained in dispute resolution will help reach a consensus acceptable to both parties. The FDR process is provided by organisations such as Legal Aid and Relationships Australia and can also be facilitated by lawyers, social workers and mediation practitioners.

Lawyers can assist before and during, for example, gathering the relevant information required and negotiating in advance those matters to allow you to reach an agreement in an informed and supported manner.

Mediation

Similarly to FDR, mediation can be used to resolve property and parenting matters. The process begins with an individual, confidential session between you and the mediator to outline the issues that are most important to you, before mediation commences. Most mediation sessions are facilitated by private practitioners, including lawyers, barristers, social workers and other accredited mediators. If mediation is right for you, we can recommend a mediator that will be a good fit for your matter.

Negotiation

Depending on the scope of the dispute, negotiation can be an effective means of dispute resolution. Negotiation is particularly beneficial when the parties are unable to or uncomfortable directly engaging in discussions with each other. For example, in situations where clients have experienced domestic violence. Negotiation can occur between lawyers and/or in separate rooms, to avoid direct contact between clients.

Arbitration

The process of arbitration is where the parties choose a private arbitrator to decide how their property is to be divided or whether spousal maintenance is payable.

Both parties present their arguments and evidence to the arbitrator, who then makes a determination. Their decision (or ‘award’) is delivered within a specified period, making it a drastically quicker solution than going through the Courts. Arbitration is voluntary and can be undertaken either by the parties on agreement or by a Court order.

Collaborative Law

Collaborative Law is similar to mediation in some ways, however each party will have their own legal representative who is collaboratively trained. To reach an agreement, a series of face to face meetings are held with both parties and their lawyers, to discuss issues openly and in a non-confrontational manner. Should the parties be unable to reach an agreement and Court proceedings are necessary, the lawyers must withdraw from the case and neither can act for that client in Court. This is to ensure that all parties are committed to settling collaboratively and avoiding litigation.

Such lawyers should be specifically trained in the collaborative process to ensure they possess the necessary skills to successfully engage with all parties. To find out if collaborative practice is right for you, check out our detailed article on Collaborative Law here. Director, Shannon Daykin, is a trained Collaborative Lawyer.

If all else fails....

Should alternative dispute resolution fail for you, or litigation is necessary, for example in matters involving child safety, domestic violence or where talks fall flat, then the matter will most likely be taken to Court. Find out about the process here.

In any case, family law matters can be complex, even when both parties can communicate well and mutually agree on matters. So it’s important to get proper legal advice from the outset to ensure you reach the most desirable possible outcome for your circumstances. Daykin Family Law can assist you in creating a personalised plan unique to your situation.

Daykin Family Law’s Director and Principal Lawyer, Shannon Daykin, is a Brisbane based family lawyer is collaboratively trained, an Accredited Family Law Specialist and has a wealth of experience and expertise in family law. If you’re considering your options for resolution and would like to keep the matter as stress-free as possible, contact us today for a no obligation consultation to find out what’s right for you.

The Basics of Divorce Applications

When a marriage breaks down, it can be difficult to wade through a sea of different information looking for the facts, your legal responsibilities, how to go about property and financial division and parenting arrangements. At a time of inevitable stress, it’s important you can lean on someone you can trust, who can support you, fight your corner if necessary and ensure you get the best outcome for you and your family.

Today, we’ll be talking through the basics of divorce applications and what your likely next steps may be. This blog is particular to divorce, however we’ve covered other family law disputes and considerations here.

Starting a Divorce Application

Before filing a divorce application, you need to decide whether it is a sole or joint application, as there are different steps and obligations in each case. In a sole application, you are the applicant and your former partner is known as the respondent.

A joint application is signed by both parties and applied for together. In this case you do not need to serve the other party with filing papers.

You must also make sure you’re eligible to apply for divorce in Australia. To determine if this is the case, you or your spouse must be able to answer ‘yes’ to 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.

If you’ve been married for less than two years you need to file a counselling certificate. You can find more information on the Federal Circuit Court website. If you have been separated but living in the same residence within 12 months of filing the application, you will also need to provide additional evidence by preparing an affidavit.

Once a divorce application has been submitted and the Courts are satisfied there has been an irretrievable breakdown of the relationship, the court will proceed with an order for divorce. Court attendance will be required if a sole application was submitted and there is a child of the marriage aged under 18. We have broken down the steps to divorce in our article here.

Parenting Arrangements

Another key factor that separated couples with children must consider is how to make parenting arrangements and responsibilities in the best interests of the children. Under the Family Law Act, there is a presumption that both parents have shared parental responsibility for their children until they reach eighteen years of age. This responsibility normally doesn’t change if the parents’ relationship breaks down.

The main consideration in any parenting arrangement by law is that any decision is taken in the best interests of the children, not necessarily the desire of the parents. Both parents must decide where a child will live, how much time will be spent with each parent and when, extending to special events such as birthdays, Christmas and other holidays. If an agreement can’t be reached, legal assistance should be sought. Find out more here.

De facto Relationships and Same Sex Couples

De facto relationships (between two adults of the same or opposite sex who live together but are unmarried) are also recognised in Australian law. Under current laws, couples separating from a de facto relationship may be eligible to pursue financial and property settlements in an identical way to married couples in most states. The are also similar rights where children are involved. Many de facto couples are unaware of their rights and obligations, so if in doubt, contact us today or read more here.

Seeking Legal Advice

Here at Daykin Family Law, you can find a wealth of resources on our blog to assist in deciding the best course of action for you and your family. It is important to seek independent legal advice to help you understand your rights and responsibilities, and where possible, avoid going to Court. 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, 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).

Most of us know someone who has been through a difficult divorce, juggling family life and work along with the pain and anguish of awaiting a family law decision in the Federal Circuit and Family Courts across Australia.

It is no secret that the Australian judicial system is overburdened with too many matters and not enough resources to always resolve litigants’ issues in a timely and cost effective way. The results are often devastating for the parties involved, financially, in terms of legal costs, and emotionally as a result of often long and protracted legal battles. The flow on impact to children can also not be ignored.

Enter a new process becoming increasingly popular with people who are dissatisfied with the traditional litigation process, known as Collaborative Law. The collaborative process avoids the Court entirely, ensuring all parties are supported by a team of professionals to come to a resolution that works for everyone and is as stress-free as possible.

So what is Collaborative Law and what might it mean for the future of family law and divorce proceedings?

What is Collaborative Law?

Collaborative Law is a refreshing new approach to resolving legal issues. It’s similar to mediation in some ways, in that it is reliant on good faith, full disclosure and achieving amicable resolutions that are agreed by all parties. The main difference is that in Collaborative Law, practitioners each have their own lawyer. In mediation, the mediator is a neutral third-party, assisting both parties in reaching an agreement. In Collaborative Law, each party is represented by their own legal representative who is collaboratively trained.

How does it work in practice?

There are generally two types of Collaborative Law: Lawyer-only and Interdisciplinary. In the lawyer-only model, the case has two clients and two collaboratively trained lawyers. Interdisciplinary Collaborative Law takes the model a step further and gives clients the option of including other professionals on the collaborative team, for example a financial specialist or child specialist or counsellor in some cases.

The central tenet of collaborative practice is what is called a Participation Agreement or Collaborative Contract. This is a signed agreement setting out the expectations, rights and responsibilities both of the clients and their lawyers throughout the process. The Participation Agreement usually states that the participants will behave respectfully, maintain confidentiality, frankly express their concerns and reach written agreement without the threat of court proceedings.

To reach an agreement, a series of face to face meetings are held with both partners and their lawyers, in which all issues are to be discussed openly and in a non-confrontational manner. If the partners are unable to reach agreement and court is the only alternative, both partners’ lawyers must withdraw from the case. In those circumstances, the lawyers cannot act for either party in contested litigation. This ensures that when a party hires a collaborative lawyer, they are 100% committed to settling the case collaboratively. Such lawyers should be specifically trained in the collaborative process to ensure they possess the necessary skills to successfully engage with all parties.

Is my case suitable for collaborative practice?

Not all matters are suitable for collaborative methods of resolution. It can be appropriate if you and your partner:

Are willing to take personal responsibility in order to move forward and reach an agreement
Would like to reach a fair and amicable agreement in a healthy and holistic manner for the benefit of your family
Wish to spare yourselves and your children from the stress and emotional hardship litigation can cause
Understand the necessity to be frank and give full disclosure on financial issues

Coming to an amicable resolution through Collaborative Law really hinges on the parties’ willingness to compromise. If you’re seeking vengeance, or are trying to avoid giving away certain financial information to your spouse, then it may be better to pursue traditional divorce proceedings instead. You can find out more about the process here.

Is my case suitable for collaborative practice?

Not all matters are suitable for collaborative methods of resolution. It can be appropriate if you and your partner:

Are willing to take personal responsibility in order to move forward and reach an agreement
Would like to reach a fair and amicable agreement in a healthy and holistic manner for the benefit of your family
Wish to spare yourselves and your children from the stress and emotional hardship litigation can cause
Understand the necessity to be frank and give full disclosure on financial issues

How do you agree a settlement?

The process of Collaborative Law is normally as follows;

Each party is represented by a trained collaborative lawyer
Contract is signed
The foundations are laid for optimum communication and problem solving between spouses and their advisors
Lawyers will work with their clients to best understand their circumstances, needs and desired outcomes
Information is shared fully and freely on request, retaining an environment of honesty, transparency and collaboration
Negotiations take place in a series of face to face meetings with both lawyers and clients present
Following each meeting, the solicitors debrief with their clients to discuss the events of the meeting and the progress that has been made
The amount of meetings and timescale to resolution vary depending on the complexity of the matter and progress made in each meeting. Typically negotiations can take anywhere from one to eighteen months
Once a settlement is reached, the lawyers will typically either draw up a Settlement Agreement which will be converted into a joint consent order application and sent to the Court for approval and/or converted into a Binding Financial Agreement

What happens if we can’t reach an agreement?

The purpose of collaborative law is to stay out of the family court, allowing you and your partner to decide the best outcome for your family, not a judge. When it proves difficult, your team work harder with you to find solutions that allow you to reach an agreement. That being said, either or both spouses can terminate a collaborative divorce at any time and it is then up to the spouses to determine how to proceed – inevitably by filing an application with the Court.

If you choose collaborative law as the method for ending your marriage and finalising your obligations and agreements, we recommend that you go into it with a commitment to succeed. If you don’t have that mindset from the outset, or have another reason that would prevent you from being as open, honest and communicative as possible, it may be better to find a different route.

Daykin Family Law’s Director and Principal Lawyer, Shannon Daykin, is a Brisbane based family lawyer is collaboratively trained, and Accredited Family Law Specialist and has a wealth of experience and expertise in family law. If you’re considering your options for divorce resolution and would like to keep the matter as stress-free as possible, contact us today for a no obligation consultation to find out if it’s right for you.

If you have separated from your partner and have care of the children from that relationship, you are, in most circumstances, able to apply for financial assistance from the other parent to contribute to the costs of raising those children, in the form of child support obligations.

Child support stems from a fundamental principle that both parents have a responsibility to provide for their children. After separation, whether married or de facto, an agreement can be reached regarding the type and level of child support that is paid from one parent to the other to make sure that a child is supported financially by both parents. Child support is an ongoing payment that is purely for the financial support of a child from that relationship.

The area of child custody can be fairly complex, particularly if parents cannot come to an amicable agreement or there are extenuating circumstances that require the intervention of the Court. In our previous blog post, you can find out in more detail how to get child custody. Today, we’ve summarised the key things we think you need to be aware of when considering your child support obligations.

How long the obligation lasts

In Australia, child support obligations continue until a child turns eighteen years of age, or to the conclusion of Year 12 if the child turns eighteen during that year of schooling. However, in order for the obligation to continue to the end of Year 12 a specific application must be made. In some circumstances, the Court can order for a parent to financially support an adult child of the relationship.

There are certain circumstances in which the obligation can be stopped early, for example:

If the child becomes self-sufficient
If the child marries or enters into a marriage-like (de facto) relationship
If the child is adopted
If the child dies

On the other hand, child support can also be extended in circumstances where, for example:

The child over 18 can’t support themselves because they are completing their secondary or tertiary education
The child over 18 has a mental or physical disability

This is called adult child maintenance. If you would like to receive child maintenance for your adult child, or you have been asked to pay adult child maintenance, you should get legal advice.

How to calculate child support

The procedure for paying and receiving child support is governed by the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth).

The actual process of assessing the amount of child support can be quite complex, but in general terms it involves the use of an 8 step formula;

work out each parent’s child support income
work out the parents’ combined income
work out each parent’s income percentage
work out each parent’s percentage of care
work out each parent’s cost percentage
work out each parent’s child support percentage
work out the costs of children
work out the child support amount

In practical terms, the simplest way to work out your potential child support contribution or what you are likely to receive is to use the Department of Human Services Child Support Estimator. The estimator takes you through each step and provides a calculation based on your individual circumstances.

How to pay or receive child support

There are various ways in which you can organise and manage your child support payments. This will depend on your individual circumstances as well as how able you are to communicate with your ex-partner.

Child support can be paid:

Through the Child Support Agency periodically
Privately following an assessment
Directly between the parents (self-managed)

If you and the other parent are not able to communicate effectively, it may be advisable to organise your child support payments though the Child Support Agency by opting for the ‘Child Support Collect’ method.

You are able to change to another arrangement at a later date if you find you need to, however the parent receiving the child support must agree to the change in payment method.

If either the payer or payee are living abroad, child support payments may still apply. If this is the case, you should seek legal advice.

What happens if your child support matter goes to Court

There are limited circumstances where child support arrangements go to Court. Most child support disputes are handled outside of the Court. However, some examples where a case may go to court are:

where the paternity of the child is in dispute;
if you have property or parenting proceedings underway and you need to dispute an assessment which does not take into account a parent’s proper circumstances;
if you are in proceedings for property or parenting matters and you want to halt any assessment process pending the outcome;
to set aside or vary a child support agreement where the other parent won’t agree to stop or change the arrangements set out in the agreement.

Compiling the correct documentation, serving other parties and the ensuing evidence gathering and subsequent hearing can be complex. It is vital in these circumstances that you seek independent legal advice from a family law specialist.

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 will 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 today.

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 services. View 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.

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.

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:

Entering into a binding financial agreement; or
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.

When parents separate, it can be one of the hardest times in their lives and the lives of their children. What comes next can lead to uncertainty and stress for everyone involved. Moving from managing one household that once had two parents, to two households with one parent in each can be a logistical nightmare. This is even without the emotional overlay of a relationship breakdown.

What you strive for

In an ideal world, an agreement would be reached by parents as to when the children spend time with each of them and how parenting will be managed across the two household until the children are 18. Apart from some teething issues, the parents will grow their co-parenting relationship with positivity and sensitivity and get it right between them. This is often not the case though.

For some separated parents, the balance is not right and too many roadblocks impact on the flow of life in both households for them and their children. It can feel like hitting up against a brick wall with no end in sight.

What if I don't live in an ideal world?

There are options however to move beyond any impasse and towards a better future for your children. The first step we would suggest for all parents, where appropriate, is to attempt direct negotiations with the other parent.

Direct negotiations do not necessarily need to be face-to-face. Sometimes a planned phone call, an email or even a simple text to explain what is happening and what you would like to change can be helpful. If you have a parenting order in place already, legal advice should be sought as a parenting plan entered into after a parenting order can effectively vary the operation of the order in some circumstances.

Sitting together face-to-face can be ideal, talking over issues in real time and cutting down on the ability for miscommunication over multiple emails and text messages. Often there are logical and reasonable explanations as to why a parenting arrangement is not working and solutions can be found. If parents are able to discuss these issues freely and constructively, then unnecessary conflict can be avoided in this scenario.

If differences can be resolved between parents, this can be a great foundation for a positive co-parenting relationship in the future and reinforces that parents are the best people to make decisions about their children. It can also be the most cost effective way to resolve issues.

Mediation

Sometimes direct negotiations are not helpful, or are not appropriate because of family violence issues for example. In this case, parents can utilise mediation services to discuss the issues with an independent third party. This may be needed if one parent wants to significantly change the current arrangement, or there are more complex issues to be resolved, as some examples.

There are a number of options for mediation. The most cost effective being the use of the Family Relationship Centres, Family Relationships Australia or other public and community-based services. These services are able to assist parents to discuss the issues and potentially write up a new parenting plan.

Private mediation services also exist, usually at a higher cost. However, most will allow you to bring your solicitor along. This can be helpful to receive advice on the spot regarding the law relating to your particular matter, your rights and the impact of any proposals. A solicitor can then draft the agreement terms on the day if it is appropriate, usually to be formalised soon after.

Counselling

Daykin Family Law works with a range of counsellors who know our industry and the specific struggles that separated families face.

Counselling can be a useful process for separated families, particularly if there has been a breakdown in one parent’s relationship with a child or a parent’s behaviour is causing issues. The counsellor can work individually with parents and children, or together, to identify what isn’t working and work on a plan to move forward.

If all else fails...

The last resort for all parenting disputes is an application to the court for parenting orders.

Depending on the circumstances, you may need to attempt family dispute resolution first. The court requires a Section 60I certificate to be obtained before an application is made to the court. This is a certificate to say you have been to mediation and made a genuine effort to negotiate, that you have invited the other person and they refused to attend or that your matter was not suitable to mediate. The court requires a valid certificate or an exception to apply before the application can be filed.

Litigation: been there, done that

In circumstances where there are already parenting orders in place, the court needs to be satisfied there has been a significant change in circumstances to warrant a change if there is no agreement.

We recommend that you seek independent legal advice if the current Orders you have in place for your children are no longer appropriate or are not working. There can be a range of reasons that a court might allow a parenting order to be varied.

The overarching consideration for the courts when making such decisions are the best interests of the child.

What if I end up in Court?

If you apply to the court, a Family Report may be needed to provide expert evidence to the court about your family and what is recommended to occur.

Independent representation of the children might be necessary by an Independent Children’s Lawyer to ascertain relevant information and assist the court in deciding what is in the best interests of the child.

If the last resort of court is necessary, then Daykin Family Law can guide you through the process. We focus on identifying issues at each step and advising you on your options, so that you can make informed decisions.

By taking a proactive approach to litigation, we have assisted many clients leave the court system sooner and get back to the important task of raising their children and moving on with their lives. 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.