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Going through any relationship breakup can be stressful and emotionally draining, especially if you have been married for a long time. In Australia, there is an important distinction that must be made between “divorce” and “separation” that not many people may be aware of. There are also different types of separation that effect the process of obtaining a divorce.

Read on to get an understanding of how and when you may have “legally” or “officially” separated with your former spouse and when you can file for divorce.

Divorce

Divorce is the legal term that refers to the severance of a marriage between two people. As such, divorce does not apply to couples in de facto relationships. Under Australian law, there is no requirement to prove the reason for the breakdown of the marriage. However, the parties do need to demonstrate to the court that the marriage has broken down irretrievably. This ground is established only if the parties have separated and thereafter lived separately and apart for a continuous period of not less than 12 months. The court will not make a divorce order if it considers that there is a reasonable likelihood of cohabitation being resumed between you and your former spouse. It is for this reason that an application for divorce can only be filed with the court once at least 12 months and 1 day have elapsed from the official date of separation.

Separation

In Australia, the legal definition of separation is when one party forms the intention to sever a marriage or de facto relationship and then communicates that intention to the other party. It seems like a simple definition, but many people may get confused about whether they are, in fact, separated for the purposes of Family Law in Australia.

Often, people may find themselves living entirely separate lives but within the same house, especially if there are children involved. Notably, the law does not require physical separation as evidence of a breakdown of a marriage or a de facto relationship. Couples may well be considered separated despite living in the same residence. This is known as “separation under one roof.”

If you continue to reside together with your former spouse, for example, for the sake of your children, this can potentially create some difficulties when it comes to filing for divorce. In these circumstances, a clear distinction needs to exist between you and your former partner living together for the sake of the children as parents, in contrast to living together as spouses. For this, an Affidavit is usually required in support of an application for divorce.

Marriages of less than 2 years’ duration

If you were married to your former spouse for less than two years, you will have an additional requirement of considering reconciliation with the assistance of a specified person when applying for a divorce. This is usually done in the form of marriage counselling. However, if your individual circumstances prevent any form of reconciliation counselling being a viable option, the parties would normally be required to obtain special permission of the court before being allowed to file an application for divorce. An Affidavit in this regard may also be required.

Process for filing for divorce

If you believe you are ready to file an application for divorce, you can commence the process yourself using the court’s online portal. You will first need to select whether you are filing a sole application (that is, by yourself) or if you are filing a joint application with your former spouse.

The requirements differ depending on whether it is a sole or joint application, whether there has been any period of separation under one roof and depending on the duration of the marriage, as outlined above.

Seeking legal advice

We understand that, sometimes, the whole process can be daunting and confusing, as no one marriage or relationship is ever the same. If you find it difficult to navigate through the process, feel free to reach out to one of our friendly lawyers who will be able to guide you in the right direction.

It is important to seek independent legal advice to help you understand your rights and responsibilities, and where possible, avoid going to court. There are also time limits which apply to filing in the Family Law Court for property settlement/and or spousal maintenance once a Divorce Order takes effect. 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).

Contact us today to make an appointment with Shannon Daykin, an Accredited Family Law Specialist. Shannon was named as one of Brisbane’s Leading Family & Divorce Lawyers (Recommended) and Leading Parenting & Children’s Matters Lawyers (Leading) 2021, Brisbane, in the prestigious Doyle’s Family Law Guide. We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.

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) 3852 5490 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.

It may come as a surprise to some that when a relationship ends, one party might still be compelled to make a lump sum or ongoing payments to support their former spouse. Even if you do not have children with your former partner, you may still be required to pay a certain amount if the necessary requirements of “Spousal Maintenance” have been met. Spousal Maintenance is completely separate to child support, but the two are often misconstrued and taken to be one and the same.

In this article, we will discuss the differences between child support payments and spousal maintenance payments and briefly explain obligations in respect of these.

What is Spousal Maintenance?

Spousal Maintenance is essentially financial support that is paid by one former partner to the other partner of a marriage or de facto relationship that has broken down in circumstances where the other party is unable to adequately support themselves. It is money which is to be used by the recipient to assist in payment of their reasonable living expenses.

You might be asking yourself, why would does financial support need to be provided to a former partner if there is no longer a relationship? In short, the law in Australia states that a person may have a responsibility to financially assist their former spouse or de facto partner if that person cannot meet their own living expenses. The duty to support and maintain each other works both ways, and this obligation may continue even after separation.

To be successful in an application for Spousal Maintenance, there are essentially two limbs that must be satisfied. Firstly, the applicant must have a need. Secondly, the respondent must have capacity to pay spousal maintenance. There are a range of factors which the Court consider when a party seeks such orders, such as the age of the parties, care of children and the parties’ income and financial resources, to name a few.

For a clearer understanding of the concept and purpose of spousal maintenance, visit our article on What is Spousal Maintenance?

Child Support

Child Support, on the other hand, refers to the financial support by a parent specifically for their child/ren. A private arrangement for the payment of child support can be negotiated between the parties and recorded in a Binding Child Support Agreement or a Limited Child Support Agreement. For the former, both parties need independent legal advice. Such agreements can cover the payment of periodic child support (a regular amount for example) or non-periodic amounts. Non-periodic amounts can include payments towards costs such as education, medical and extra-curricular costs. Lump sum payments are also possible.

Alternatively, or in conjunction with the above, Child Support may be assessed at a particular rate by the Department of Human Services (Child Support Agency). Child Support matters are managed by Services Australia which is the entity that administers the Australian Child Support Scheme. The Family Court or Federal Circuit Court of Australia does not generally deal with Child Support matters, although it may be possible to apply to the Federal Circuit Court of Australia for a departure from a child support assessment carried out by the Child Support Agency in certain circumstances.

Time limitation for Spousal Maintenance

It is important to note that there is a time limitation for a party to make a claim for Spousal Maintenance against the other party. This date is 12 months from the date that a divorce order takes effect if you were married, and 24 months from the breakdown of your relationship if you were a de facto spouse.

Interestingly, the Court still has power to grant permission (“leave”) to a party who is making an application for spousal maintenance (married) or maintenance (de facto) even if that party is out of time. For this, the party making the application will need to demonstrate hardship.

What this means in practical terms, is that in some circumstances, it could be possible to make an application for Spousal Maintenance even after the limitation period has elapsed and/or after property settlement has been finalised.

Seek legal advice

There is no one particular way to approach matters involving Spousal Maintenance and Child Support, as it will really depend on the individual circumstances of every case. This is why it is always best to seek legal advice about your situation, obligations and entitlements, as well as tailoring the best options to your needs and the needs of your family.

Sometimes people do not realise that they may be entitled to receive payments from their former partner by way of spousal maintenance. Likewise, some people might fail to recognise the risk of there being a potential Spousal Maintenance application made against them in the future even after they finalise a property settlement. There are ways to limit potential future liability in this regard, such as entering into a Binding Financial Agreement which effectively extinguishes spousal maintenance rights for one or both parties.

Contact us today and make an appointment with Shannon Daykin, an Accredited Family Law Specialist, to discuss your circumstances and needs. Shannon was recently named as one of Brisbane’s Leading Family & Divorce Lawyers (Recommended) and Leading Parenting & Children’s Matters Lawyers (Leading) 2021, Brisbane, in the prestigious Doyle’s Family Law Guide. We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.

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It’s often said that January is ‘Divorce Month’, a time where there is suddenly an influx of separations and ensuing divorce proceedings, however is this really the case? Today’s blog looks at why January has this reputation and what to do if you find yourself in this situation.

It is true that many family lawyers find themselves busier at the start of the year, with a reported spike in breakups of about 30% in January. This could be due to a myriad of factors, but may be associated with more time spent together over the festive season and the stress that can sometimes cause, for example an extended period of time spent unoccupied with work and the regular mundane distractions.

There has been reported anecdotal evidence of three main factors that contribute to the increase in separations and the onset of divorce proceedings in January, these are:

The increased time spent together during the holidays: it’s fair to say that holidays are known to be a period of switching off and spending time with loved ones. This increase in quality time can have an adverse effect when a couple is under a period of certain strain, and can often heighten the stresses and existing relationship difficulties. This time of year may exacerbate existing issues and doubts in couples and bring their problems to the surface, becoming more clear and suddenly difficult to ignore.
New year resolutions: with a new year brings new resolutions. This is often a time for self-reflection and plans for self-improvement. When a person has been dealing with stagnancy or unhappiness in their relationship, the new year can be a time for renewal and growth. This is often a purposeful time where individuals feel they can make the difficult decision to end a relationship in search for a clean break and a more positive future.
Christmas spent with the family: usually a period of time where family holds the most meaning, and usually the most amount of time. Couples with children may more likely to resist ending their relationship during this time as they do not wish to cause strain on the family dynamic and result in stress to the children. Additionally, this period results in a lack of time and resources available for couples seeking legal advice due to taking care of the children. It is because of this that parents may choose to separate in this time as they are now provided the space to make decisions without the pressure of Christmas.

This was further backed by a 2016 report by the University of Washington who conducted research from hard data on divorce filings over a 14 year period. The evidence showed a clear and consistent rise in divorce proceedings beginning in January more than any other month of the year! The researchers behind this study noted the significant impact that the above points had on this pattern.

What should I do if I’m considering getting a divorce?

When you come to the conclusion that separation is the best option for yourself and your partner, the flood of information available can be overwhelming. It can be difficult to seek out factual information, understand your legal responsibilities, grapple with the division of property and finances on top of parental arrangements. In this time of heightened stress, it is important to have someone reliable you can speak to, someone you can trust and someone who can help to support you emotionally and logistically and who can also assist you in getting the best outcome available for you and your family.

When planning the next steps of separation towards divorce, a helpful list of practical steps supported by useful information is the perfect place to start. We recently wrote a blog on the basics of divorce to assist in this exact situation, this resource can be found here: https://daykinfamilylaw.com.au/the-basics-of-divorce-applications-2/

The main things to consider when beginning the first stages of the divorce process are:

Financial and Property Settlements: one of the most important and stressful elements when it comes to divorce and the negotiation of assets among divorcees or separating couples. The levels of complexity of each of these settlements lies with each individual couple, sometimes agreements can be straightforward and made easy, other times no agreements can be reached and court action may be required. In the latter instance, it is advisable to work with a specialist family lawyer who is able to assist in the resolution of these differences. It is also important to consider other advice needed, such as financial advice and taxation advice. This is to ensure any agreement reached or orders sought are appropriate for your situation.
Parenting Arrangements: another complexity when couples begin the separation process is the responsibilities around children and how to navigate the arrangements in the best interests of the children. The principal consideration in any parenting arrangement by law is that the best interests of the child are paramount. Negotiations and agreements often focus on many factors including where the children will live and how much time each parent will spend with the children considering holidays, birthday commitments and special days. Other agreements can be reached around communications, travel and addressing specific issues.

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 options further, Daykin Family Law can help.

Contact us today to make an appointment with Shannon Daykin, an Accredited Family Law Specialist. Shannon was recently named as one of Brisbane’s Leading Family & Divorce Lawyers (Recommended) and Leading Parenting & Children’s Matters Lawyers (Leading) 2021, Brisbane, in the prestigious Doyle’s Family Law Guide. We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.

Christmas is considered a very special time of the year for many people around the world, but for some it can be a time of sadness and frustration. Following a relationship breakdown, Christmas may seem like a daunting time, particularly when parenting children across separate households.

Where both parents are willing and able and there are no safety concerns to consider, the best outcome of a separation is co-parenting. This is where both parents agree to put their children’s interests first and to communicate in a respectful, child-focused way, setting boundaries and compromising to lead the way to effective co-operation.

Here are some ways in which you can ensure the best chances of ensuring a happy and healthy Christmas this year for your children:

1. The kids come first

When making decisions, always consider what is in the best interests of the children. Younger children may worry about whether Santa will reach them, whilst older children might have a preference for where they spend Christmas. Bringing them into the decision-making process can be beneficial for the whole family and make children feel heard.

2. Communication is key

Each parent should communicate their expectations in advance with each other as it is important that both parents understand the other’s needs. Being prepared, realistic and willing to listen and compromise may make a stressful situation more manageable.

3. Sharing of Christmas presents

In regards to Christmas presents, consider agreeing on a budgetary limit so as to avoid one parent being perceived as giving more than the other. To try and preserve some form of normalcy, both parents can agree to buy one main present for each child signed from both parents. This approach will demonstrate a united front.

4. Sharing of time with the children

You may decide that your children should spend Christmas Eve at one home and Christmas Day at another. Whatever you decide when co-parenting at Christmas, you can find ways to make it special for the children, and extended family too.

5. Travel arrangements

Where traveling will be involved with one of the parents over Christmas, it is advisable to make sure the other parent has agreed to the plans, or that a compromise can be made for time spent together before or after the travel period if a Parenting Plan has not yet been agreed upon.

6. Avoid any fighting

When discussing Christmas plans, ensure the discussion does not end up in a fight, especially in front of the children. Research tells us that this may perpetuate any guilty feelings the children may have over the separation. Try to communicate in a clear and respectful way and ensure the children are not exposed to a dispute.

7. Send updates

Agreeing on an ‘update’ style of communication can be beneficial. You can report on activities, send photos of particular events and help the other parent to feel involved. Give and ask for information that you expect to get as a parent in a timely manner.

8. Accommodate the feelings of the children

Where the children may start to miss the other parent, consider allowing the children to contact the parent so as to alleviate their anxiety, especially where the children are still young. It is important that the children are not made to feel guilty for experiencing such feelings or feeling ‘stuck in the middle’ of a separation.

9. Involve the children in the Christmas planning

When the Christmas arrangements have been planned and agreed between both parents, it can be important to communicate these plans to the children so that they feel involved and that there are no surprises for them.

10. Be flexible and listen to the needs of the children

Where the children feel uncomfortable with any Christmas plans, it is important to take their feelings into consideration and consider whether any plans could or should be amended so that they feel safe and assured. Like the first tip, the children come first, so keep their best interests at heart.

Holidays like Christmas may be a difficult time for children especially young children therefore it is vital that each parent put aside their feelings and ensure there is a smooth transition for the children during this time. Despite all of your efforts, it is possible that difficulties may still arise. You can take responsibility for what you do as a parent, however you cannot be responsible for how the other parent behaves. If you find yourself in this situation where the other parent will not cooperate, remember that help is available.

If you’ve tried all the above tips but have difficulties communicating with the other parent after separation, you may need to consider other options. This may include engaging a lawyer to help negotiate plans on your behalf, or engage the assistance of a mediator to assist in facilitating an agreement.

Our separation and divorce lawyers can assist you through the process to come to an amicable agreement regarding parenting arrangements.

Contact us today to make an appointment with Shannon Daykin, an Accredited Family Law Specialist. Shannon was recently named as one of Brisbane’s Leading parenting lawyers in the prestigious Doyle’s Family Law Guide. We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.

Separation or divorce can be an emotional journey that can have both physical and mental health effects on people. The separation and divorce process, coupled in some situations with the family court process, can become incredibly stressful, taking a toll on the wellbeing of parties, sometimes impairing their judgment and decision-making abilities.

Literature tells us that separated couples going through the process might experience a range of overwhelming psychological symptoms that includes loneliness, sadness, shock, anger, uncertainty, guilt, betrayal, frustration, hopelessness, or a mixture of all. These feelings can last a short-time or have a lasting impact and so it is important to deal with those feelings in a healthy way.

Mental health is a vital aspect of our wellbeing. Many people see mental health issues as only serious disorders or health conditions, however things like stress can have a big impact on mental health. It’s easy to shrug off your own feelings, particularly when juggling work and parental responsibilities, however it’s important to prioritise self-care.

Here are a few ways parties going through a separation or divorce might consider when prioritising their mental health.

Ways to Protect Your Mental Health During Separation or Divorce

1. Talk

It can be important to talk things out. Even when your feelings are particularly strong, you should try to communicate them to a trusted confidant.
Endeavour to build healthy relationships and surround yourself with a support team of people with similar values as you, who understand and who can listen to you.
Your support team can include a family member, friend, colleague or a third party counsellor.

2. Acknowledge the pain

Acknowledging the feeling of loss caused by separation can be crucial. When couples separate due to the death of a partner, there is a defined grieving process of denial, questioning, depression or anger, evaluation, and acceptance.

On the other hand, when a partner is lost due to separation or divorce, many partners find themselves without clear guidance on how to process the loss. Our review of literature in this area tells us that some couples have found it helpful to follow the ‘five stages of grief’ model:

Denial
This occurs at the beginning of the separation or divorce process. At this stage, couples find it difficult to accept that the relationship is coming to an end. It can be normal to have a feeling of denial when you go through such a major life-changing event as separation or divorce. It is a form of coping mechanism people use.
Questioning
At this stage, you question whether there is a way you could have handled things differently besides going through separation or divorce. At this point, you may wish you could change the past and the events that led to the relationship breakdown.
Depression or Anger
You may experience anger, anxiety, depression as different negative feelings begin to emerge. At this stage, you may benefit from the added support of loved ones or professionals.
Evaluation
At this stage, you might begin to weigh the reasons that your relationship didn’t work and this may include taking responsibility for your part in the breakdown.
The factors that led to the breakdown of your relationship may be difficult to process, but evaluating what went wrong and taking ownership where required can help in moving on. While evaluating, no matter what caused the breakdown of the relationship, it is important to allow yourself to acknowledge the emotions that come with this stage.
Acceptance
This is the stage where you accept what has happened and take steps to move on or look towards the future.
It is important to remember that every individual is unique and process grief differently. It may be totally normal if you don’t fit into a particular grieving model.

3. Maintain physical health

We all know that physical health is closely connected with mental health. Stress that persists for a long time can cause health problems which can have a tremendous impact on mental health.

It therefore becomes paramount that you maintain or improve your physical health when going through the process of separation or divorce. It might be of help to partake in stress-reducing physical activities that fit into to your lifestyle such as swimming, walking, jogging, bike riding, or having a good night’s sleep.

4. Stay positive

It can be daunting to have a positive outlook when dealing with an intense life transition such as separation or divorce.

It is crucial however to try to swap the negative feelings and emotions that come along with positive thoughts. Positive emotions have a way of translating to healthy mental wellbeing. Think of the things that are within your control and then make a plan to improve them, if needed.

Optimistic thinking has been shown to enhance mental and overall health.

5. Take time to review what matters to you

The mental stress of divorce or separation can make you lose yourself. This might be a good time to review what matters to you and a time for reconstructing who you are again.

Find what matters to you – this could be spiritual or religious beliefs, music, art, or other activities or hobbies that bring you joy. Rediscovering purpose and remembering the positives in life promotes good mental health. It can also be a means of coping through separation or divorce.

At a stressful time, it is vital to have a trusted advisor on side to help you through the maze of separation. At Daykin Family Law, we strive to make the separation and divorce process as collaborative and conflict-free as is possible.

Daykin Family Law’s Director, Shannon Daykin, is a Brisbane based family lawyer and an Accredited Family Law Specialist with 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 are concerned about your mental health or wellbeing, we recommend that you contact Beyond Blue on 1300 22 4636.

There are several reasons why you may be thinking about relocating, temporarily or permanently. You may wish to move to another town, move interstate or travel to another country. There is a common law presumption unless a Court makes another order that both parents of a child who is not 18 have parental responsibility for their child, and therefore there are legal implications that must be considered when relocating with a child, whether you are separated or divorced.

Today’s blog talks through some of the common questions asked when considering relocating with a child within Australia. The list is not exhaustive by any means, so we encourage you to speak to us to discuss the matter in detail and find out what’s right for your individual circumstances.

What is child relocation?

Child relocation can be described as the changing of a child’s living arrangements to another town, city, state or country. If parents have an order for equal shared parental responsibility, and a change to the child’s living arrangements makes it significantly more difficult for the child to spend time with a parent, then the non-relocating parent’s consent to the relocation or court order permitting the move is needed.

The relevant legislation is s65DAA of the Family Law Act, which explains in detail the process that the court must follow when considering if a child should be spending equal or substantial time with each parent.

How do I get permission to move?

If there is a need to relocate, first and foremost it is encouraged that you talk to the other parent and try to come to an amicable agreement. You may be able to compromise on the other parent spending longer periods of time during school holidays or longer visits through the year, or your former partner may agree to move to where you are hoping to relocate to.

Attending dispute resolution can often help in reaching an agreement about the relocation. If you are able to resolve the issue, it is often best to enter into a written parenting plan or apply to the Family Court for a consent order to formalise the agreement.

How do I make plans for contact between my child and the other parent?

It is important to set out the parameters of contact or “time and communications” with the other parent on the type of contact (for example video calls, telephone calls and physical contact), how frequent communications or visits/time will be, how costs of travel will be split, if and how the child can travel, accompanied or otherwise. Once you have agreed on the frequency and type of communications, this can be recorded in writing, preferably in the form of a parenting consent order.

What if I can’t reach an agreement with the other parent?

If you have tried and failed to reach an agreement, you must demonstrate that you have attempted family dispute resolution (with the exception of family violence and other limited exceptions) before you can apply to the Federal Circuit Court for an order that permits relocation.

Obtaining a relocation order can be difficult, expensive and three may be delays. The court will always consider the best interests of the child before any other factors, as this is the paramount consideration for the court.

How do I apply to the court for a relocation order?

If you are applying for relocation, you will need to include in your application a demonstration of an attempt at Family Dispute Resolution, as well as detailed information of your plans for relocation. For example, you may need to include information on;

where you are going
your reasons for the relocation
the housing situation
plans for school and before/after school care
the support system in the new location
history of your relationship with your former partner
the relationship between the child and each parent
your proposals for the child’s time and communication with each parent after any relocation

What if the child is relocated without a court order?

If a parent moves without consent of the other parent or a court order, the other parent may be able to apply to the court for an order that the child or children be returned until an outcome has been determined by the court in certain circumstances. If a court order is already in place, the other parent may be able to file a contravention application to seek that a party who breaches a court order be punished.

If the other parent takes your child without discussing it with you, you can apply for a Recovery Order with the court, which enable police officers to take action to find, recover and return a child to you, as well as prohibiting that person from removing or taking possession of the child.

Final Thoughts...

As with any major decision to be made as separated parents, consideration should always be given to where family dispute resolution is appropriate. This is a means to try and resolve parenting issues without litigation if possible, with the help of a trained and independent professional.

Daykin Family Law have extensive experience in mediating outcomes for clients which can avoid the court process and provide you with certainty. Talk to us today about how we can assist you.

Shannon Daykin is an Accredited Family Law Specialist with extensive experience in helping with family law matters and dispute resolution. If you are struggling to agree on a relocation arrangement, contact Daykin Family Law today to let us devise a clear plan for you.

A main concern for people when they separate is what will happen to the property they have accrued during the relationship. It’s no wonder then that questions around the division of property are some of the most common we are asked at Daykin Family Law.

We frequently advise on concerns related to the family home and ownership of property in the event of separation, so we’ve pulled together some of key facts you need to know about property before, during and after divorce or separation.

How do we go about dividing property and assets?

There are several options available when it comes to the division of assets, but for most separating couples, what happens to the family home can negotiated and agreed as part of property settlement. There is no set way how this agreement can be reached, and often depends on reaching an outcome that suits both parties and the children, if any.

Simply put, a Property Settlement is the division of assets and liabilities between a separated couple, whether married or de facto. Property Settlement involves the division of the things you and your partner own or have an interest in. This can include real property, businesses, shares and chattels to name a few.

If you require more information on the process and time constraints in detail, we’ve covered 8 Things You Need to Know About Property Settlement here.

Who pays the mortgage after separation?

At a time when budgets are often stretched, this question is a common one. Firstly, if the mortgage is in both names (‘joint names’) then both parties are legally responsible for paying the mortgage. If payments are not made, by either or both parties, then the bank can take steps to legally repossess the property, despite any separation or divorce proceedings that are in place.

If, in the event that one party, whether living in the house or not, refuses to make mortgage repayments, there are a number of options to consider:

Contact the lending institution and inform them of the circumstances. It may be better that they are aware of the reason for defaulted payments and may be able to reach a compromise with you on repayments pending final division of your property through the Family Court or Federal Circuit Court.
If you and your partner can agree to sell the property, this will ensure the mortgage is paid. Any proceeds following the sale can be held in a trust account until you reach an agreement with your former partner.
In some circumstances, you can obtain a Court Order for spousal maintenance to force your partner to contribute to ongoing mortgage payments.

Whether you keep making mortgage payments depends on a number of circumstances. For example, continuing to make mortgage payments can enhance your property entitlements if those payments are considered to be post-separation contributions in certain scenarios.

In other circumstances, it can be advisable to cease making contributions where that person is no longer living at the property and has to rent new premises and lacks the capacity to make such payments. Ultimately, the decision made surrounding mortgage payments can impact on property settlement . It is strongly advised to seek advice from a family law specialist to decide the best course of action for your individual circumstances.

We’ve separated. Who stays and who goes?

In situations where one spouse is unable to live under the same roof as the other, a ‘holding pattern’ can be agreed that allows one spouse to take rented accommodation and for resources to be made available for this purpose until the property settlement is finalised. If no agreement can be reached and neither spouse wants to leave, an application can be made to the Court for an order granting sole occupation. In order to do this, it may need to be demonstrated that it isn’t viable for both spouses to live together, and that the funds are available to fund a separate accommodation for the other party.

We were in a de facto relationship. Can we still apply to the Court for Property Orders?

Yes, you may be able to. The Family Law Act 1975 contains certain mirror provisions that apply to both married and de facto couples. An application for property settlement arising from the breakdown of a de facto relationship can be made in circumstances where:

the separated couple have been living together on a genuine domestic basis for two years or more; or
there is a child of the relationship; or
a party has made substantial contributions of a certain nature and serious injustice would result.

Can we begin the property settlement process before we divorce?

Yes, you can commence the process at any time. A settlement can be a lengthy process, so it can be advisable to begin the property settlement process as soon as it is feasible. Sometimes, the longer parties wait before dividing the property, the greater the chance that problems may arise, for example one of the parties could be reducing the property pool by wasting, selling or disposing of property.

It should also be noted that the Court will usually identify and value property that exists at the date of the final hearing, meaning property acquired by the parties after the date of separation can be taken into account.

However, it is important to only begin the process when you can think rationally. Where there is any hostility, it is advised to seek the assistance of a lawyer. Separating de facto parties must bring proceedings for Property Settlement and/or maintenance within two years of the date separation and married couples must do so within twelve months of a divorce order taking effect.

We have children. Will this affect the property settlement process?

Putting aside the legal aspects, if you have children, this can bring an emotive aspect to considerations around property, especially in the short term. In what is normally a turbulent time, parents should consider whether it is viable, appropriate and financially possible for one parent to remain in the family home with the children in the interim period of separation or divorce. Some separating couples in this situation prefer the primary carer to stay in the family home to ensure continuity for the children.

While both parties may strive to ensure continued access to the family home for the children, sometimes this may not be feasible. Many primary caregivers are not the primary income earners and may be concerned about how they might be able to make financial ends meet while maintaining continuity for the children in the family home, or how they will solely take on a mortgage.

Alternatives such as spousal maintenance may be an option in this scenario, to ensure one party pays for particular outgoings for a period, even if they are not living in the family home. Where there are financial strains from not immediately dividing the property assets, we strongly advise getting legal advice to try and reach the most balanced outcome for both parties.

What do I do now?

Separation, divorce and property settlement can be one of the most emotional and financially important decisions of your life so it’s crucial to work with a lawyer with the expertise and experience you need to be able to make informed decisions about your entitlements and which course of action is best for you personally and your children.

Daykin Family Law offers a discounted initial consultation wherein you can understand your entitlements and obligations. We can discuss your entitlements and suggest the best course of action to settle the matter quickly and efficiently.

If you believe you can come to an amicable agreement with your partner, it is still important to have that agreement formalised in a binding and enforceable way. Property Settlement can be a complex area of law; therefore, sound and pragmatic advice is needed to ensure that all issues are fully assessed from the outset and steps are put into place to protect you throughout your whole matter.

Each case is different and depends on the individual situation, so contact us today to start the discussion on how we can help you move your financial separation forward.

If you require further information on separation or divorce, check out some of our other articles:

Whether you are leaving a marriage or de facto relationship, you may require a Property Settlement or the division of assets upon the breakdown of your relationship. We’ve pulled together a list of our most commonly asked questions to help you navigate this complex area of law.

What is Property Settlement?

Generally speaking, Property Settlement is the division of assets and liabilities between a separated couple, whether married or de facto. Property Settlement involves the division of the property held by both parties.

The Family Law Act 1975 (Cth) sets out the law regarding Property Settlement and, importantly, deals with people on an individual basis. So, whilst you may have heard stories from friends and family who have been through Property Settlement, it is important to note that those circumstances may not necessarily apply to you and your ex-partner. Every relationship is different, so it’s crucial to obtain advice about your situation and circumstance from an expert.

What is ‘Property’?

Property is generally classed as all of the assets (things you own). This could be in joint or separate names, or could be held by someone else on a party’s behalf. Some examples include;

Your family home
Holiday home
Cars
Boats
Household effects (anything from the sofas to the cutlery)
Personal items such as jewellery and clothing
A business
Savings and superannuation
Shares
Debts
Credit cards
Leases such as Hire Purchase Agreements
Family pets

It can also include property you held in your own name prior to the relationship, or property you acquired following separation.

Do separating couples need to have a Property Settlement?

Negotiating a Property Settlement is really important – if you don’t finalise your financial relationship, either party is able to come back and make a claim for property settlement at a later date. In this case, the Court considers the property at the date of proceedings rather than the date of separation. This could mean that any debt accrued by the other party is brought into the property pool in some circumstances, despite the debt being accrued after separation. This can apply to superannuation and savings, assets acquired with another person right through to extreme cases like a lottery win. Aside from physical property, practical issues such as mortgage payments, personal loans and credit cards also need to be taken into consideration.

Whilst Property Settlement can be the most complicated part of the separation, it is also one of the most important steps to take, as it finalises your financial relationship. This means that neither party can make any further property settlement claims against the other if the agreement is made binding and enforceable or property settlement Orders are made by the Court.

What are the time constraints for Property Settlement?

Whether you have recently separated from a marriage or de facto relationship, you are able to apply for property settlement now. You don’t need to wait for a divorce, for example, before having a Property Settlement. This can occur shortly after separation.

Generally speaking, it may be best to consider property settlement as soon as you can feasibly do so. However (with a couple of exceptions) separating parties must bring proceedings for Property Settlement within two years of separation for a de facto couple or twelve months of a divorce order taking effect for a married couple. If a Property Settlement is not reached prior to these time limits, it is possible for the other party to bring an application ‘out of time’ in certain circumstances so you may still be at risk.

I’ve heard that property is usually split 50/50 in a property settlement. Is that true?

Whilst many people think this is the case, there is actually no rule or presumption that dictates the equal division of assets in Australia. Property Settlement is always at the discretion of the Court who will weigh up many factors in making their decision. Some of these factors can include;

How much money each party contributed
Contributions made towards parenting and homemaking
The length of the relationship
Non-financial contributions
The current and future needs of each person

The longer the relationship, the more likely it may be that the Courts may consider both the contributions of the parties are equal, but the reality is that each case is unique and different.

Whether you reach an agreement out of Court, or have to litigate to obtain your entitlement, the law we advise you on when it comes to property settlement is the same.

Broadly, this process involves:

Ascertaining the legal and equitable entitlements of both parties (which can include assets in another person’s or entity’s name), known as the “property pool”;
Assessing whether or not it is just and equitable to make orders for property settlement and, if it is, assess each party’s financial and non-financial contributions to the property pool and the relationship;
Considering other relevant factors which will impact on your entitlement, such as your state of health, discrepancies in respective earning capacities and care of children of the relationship under the age of 18 years; and
Considering whether the structure and monetary outcome of the proposed settlement is just and equitable or, in other words, appropriate

What if my ex-partner doesn’t want a Property Settlement?

Sometimes, one party may request the property settlement and the other party does not want to finalise the settlement. In this case, your family lawyer can contact the other party in writing to progress towards financial separation, or suggest mediation. If this is refused, a last resort is then to bring an application for property settlement despite their wishes. The Court will then decide on a just and equitable division of assets and liabilities, as well as superannuation.

How do I start the Property Settlement process?

Whether amicable or not, the best way to finalise the Property Settlement is to commence the process as soon as is practical. At Daykin Family Law, we normally start the process by advising you of your entitlements, then proceed to draft a letter to send to the other party with your agreement. Where it is possible, we will try to avoid the necessity of going to Court by coming to an amicable resolution.

In some cases, where there is little likelihood of achieving an amicable result through mediation, we will assist you in commencing Court proceedings.

The Property Settlement process is aimed at negotiating a settlement outside of Court, and as such, most cases do not go to trial.

What should I do next?

If you are considering a Property Settlement, the first thing to do is to understand your rights and obligations. Daykin Family Law has extensive experience in navigating, resolving and finalising property settlement and financial issues upon the breakdown of a relationship, including acting for third parties whose interests are affected by marriage or de facto relationship breakdowns.

Daykin Family Law offers a discounted initial consultation wherein you can understand your entitlements and obligations. We will work out your entitlement and suggest the best course of action to settle the matter quickly and efficiently.

Each case is different and depends on the individual situation, so if in doubt, contact us today.

If you require further information on separation or divorce, check out some of our other articles:

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.

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.