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How long is the divorce process?

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The procedures and requirements set out by the family law courts in Australia

As with most legal processes, divorce in Australia requires you to follow strict procedures and timelines. Whilst you may separate from your partner at any time, divorce is a lengthier process which will require the court’s involvement.

Fortunately, Australian divorce law is a fairly simplified process when compared to the legalities of other countries. However, there are still procedures which must be adhered to. In this blog, we discuss the timeline affiliated with divorce in Australia and provide tips for the most streamlined and time-efficient divorce experience.

The timeline

Australia has a ‘no-fault’ jurisdiction, meaning that a court does not consider which partner was at fault in the marriage breakdown. The only ground for divorce is the irretrievable breakdown of the relationship, which is demonstrated by 12 months of separation. Even so, you should expect the divorce process to take a minimum of four months from when you file for divorce and when the divorce order is issued by the court.

A divorce order will arrive one month and one day after a successful divorce hearing. For example, if your divorce hearing was on June 1st, your divorce order would issue on July 2nd.

You should not make plans to remarry until after you have received the divorce order from the court. Remarrying prior to receiving this order is an offence in Queensland known as bigamy, punishable by imprisonment, and your new marriage can be declared void.

Before filing for divorce

It’s important to note that you must be separated for 12 months prior to filing for divorce. Australian Family Law recognises ‘separation under the one roof’, in which you and your partner separate but remain living together. In this instance, you will need to prove that you were separated during this time. A Family Law Specialist can assist in this process.

If you separate and come back together for a period of fewer than three months, you must simply prove that you were separated for a total of 12 months. For example, if you separated on 1 January 2020, reconciled on 1 June 2020, but then separated again on August 1st 2020, then you would be eligible to file for divorce on 2 March 2021; a total of 12 months separated. If you separate and come back together for a period longer than three months, the time resets.

The application process

Following the 12-month separation period, you can file for divorce yourself or jointly with your spouse. If you apply yourself, not jointly, then your spouse will need to be served with the divorce court documents. This can take time, particularly if you are unaware of your spouse’s location.

A joint application is easier as neither party have to be served with the court documents. If you and your partner are in agreement regarding the divorce and are still in contact, filing a joint application can assist in streamlining the divorce process as you will not have to wait for your spouse to be served

In setting a date for the court hearing, the court will consider whether it was an individual or joint application and therefore whether they need to allow time for one party to be served with court documents.

Divorce documents can be served via the post, through a legal service or in person. You yourself cannot serve your spouse in person, but any other person over the age of 18 can do so. This may be a friend or family member, if not a professional process server.

Employing a professional process server may reduce the time required to fulfil this step and they will usually complete an Affidavit of Service for filing, however, do consider that there will be fees involved in this process.

Married less than two years?

Keep in mind, if you have been married for less than two years, there are additional steps that precede filing for a divorce order. You will need to obtain a Counselling Certificate, which proves to the court that you have received professional counselling and considered reconciliation, or only one party attended such counselling and the was invited to attend but did not.

Engaging an Accredited Family Law Specialist will ensure that all the necessary procedures are followed correctly and accurately in the lead up to your divorce hearing, lowering the possibilities of the court adjourning the hearing to a later date which can delay the divorce order being made.

Ensure your divorce is as streamlined as possible – enlist the professionals. Shannon Daykin, Daykin Family Law’s Director, is an Accredited Family Law Specialist, with a wealth of experience and expertise in property settlement, parenting agreements and all other aspects of family law.


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.

Co-parenting and dispute resolutions.

Parenting arrangements: what if we don’t agree?

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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.

Daykin Family Law business valuation

Getting a business valuation in property settlement

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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.


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.

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How can I stay out of court?

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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.


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.

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In plain English: The basics of going to Court

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If you’ve worked with us before, you’ll probably know that we’re advocates for Collaborative Law, and advise where possible that our clients stay out of Court when settling a family law dispute.  However, sometimes going to Court can be unavoidable when in the midst of a property dispute or an issue concerning children.  If you’ve tried alternatives to Court and still find yourself facing the inevitable, refer to our handy guide on what to expect when you’re going to Court.

 

What you need to know about going to Court

 

Matters under the Family Law Act are normally handled by the Federal Circuit Court.  More complex cases are determined by the Family Court of Australia.  In Brisbane, the Federal Circuit Court and Family Law Courts are based in Harry Gibbs Commonwealth Law Courts Building in Brisbane CBD.  

 

Going to Court can be a long and time consuming process (often between 1 to 2 years or more to progress from initiating proceedings to Judgment if settlement does not occur in the meantime).

 

For matters involving property and parenting, there are a couple of common steps that are taken:

 

  1. First Court Date

Following an application being filed with the Court, the Court will allocate what is known as a First ‘Mention’ date.  The purpose of the First Mention is to provide an initial assessment of what needs to happen for the matter to be finalised.  Often, procedural orders are made to progress the matter.  This can include disclosure, valuations and mediation for a property settlement matter, or the preparation of a Family Report for a parenting matter.

 

For more information, refer to the FFC guide here: FCC Fact Sheet: The first court event – helpful information

 

  1. Conciliation and Mediation

A Conciliation Conference is a compulsory mediation session with your lawyer, along with your former partner and their lawyer.  This occurs within the Court with a Registrar convening the Conference.  Mediation occurs outside of the Court, with a mediator engaged by the parties. 

 

The purpose of Conciliation Conferences and Mediation is to try and agree a suitable arrangement for all parties.  If you are able to come to an appropriate resolution agreed by both parties, then proposed Orders can be prepared, signed and submitted to the Court for the Judge’s consideration.  If the Court makes the Orders, then no trial will occur.

 

For matters involving parenting disputes, Compulsory Family Dispute Resolution must take place first (except in specified exempt circumstances – contact us for more information).  The aim of Family Dispute Resolution is similar to a Conciliation Conference – all parties can attempt to come to a resolution surrounding issues of parenting, instead of a Court deciding the matter for you.  If you are unable to come to a resolution, you will receive a Certificate from the accredited dispute resolution provider verifying your attempt to resolve the matter out of Court.

 

  1. Family Report (Only in parenting matters) 

The Court will often make an Order that a Family Consultant is to prepare an independent, non-confidential report, as evidence for the Court to consider in reaching a determination.  The Consultant will meet with each party, the child(ren) and any significant others in the child’s life.

 

Parties can seek a Family Consultant’s Report through the Court, or engage a private Family Report Writer/expert to prepare a Family Report.

 

Preparing for a Trial

 

Preparing for Trial is costly and involves significant work, so it is important to consider alternatives to Court and to make every effort to settle the matter before it reaches the Trial stage.  

 

The kind of work required for a trial can include:

 

    • Filing affidavits detailing your evidence and of any witnesses you intend to rely on.  Other documents are usually required to be filed, such as a Case Outline
    • Property valuations need to be obtained for a property matter
    • You might need to issue subpoenas for external documents or other information
    • You may need to instruct a barrister to represent you, instructed by your Solicitor
    • Exchange disclosure – documents relevant to your case

 

Trial

 

A trial date can be set up to 18 to 24 months or more after an application has been filed, depending on the Court’s diary and how your matter progresses.  

 

On the trial date(s), you and your lawyer will attend Court and a Judge will hear your matter. The Applicant will be heard first, along with their witnesses, led by their lawyer.  The Respondent will then do the same.  After this, the lawyers will submit to the Judge arguments about how the matter should be decided, referring to evidence and case law. The Judge will then make Orders or adjourn the case to give their judgment another time.  This can sometimes take up to a further 6 months to 1 year for a Judge to deliver their Judgment.  

 

Undeniably, therefore, there are many benefits to settling out of Court.  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.  We have published articles giving guidance on a range of issues, and you can find some articles below:

 

https://daykinfamilylaw.com.au/what-is-collaborative-law/

https://daykinfamilylaw.com.au/what-happens-to-property-before-after-divorce/

https://daykinfamilylaw.com.au/settling-out-of-court/

https://daykinfamilylaw.com.au/property-settlement/

https://daykinfamilylaw.com.au/child-custody-mediation/

 

If going to Court is the only option, then we can guide you through every step of the litigation process.  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).

 

We provide 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.

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The Basics of Divorce Applications

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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 affadavit.

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.

Financial and Property Settlements

A key element of any divorce is the settlement of both financial and property assets, including real estate, cars, superannuation, debt and more.  The complexity of each settlement will vary from couple to couple, with some being fairly straightforward and agreed without having to go to a Judge.  Others are more complex, and if an agreement can’t be reached, court action may commence. 

In circumstances where an agreement can’t be reached, it is advisable to work with a specialist family lawyer who is able to attempt a resolution during Pre-Action procedures.  You will generally need to demonstrate you have explored other methods of resolution prior to going to Court.

If the matter goes to Court, the Judge will consider the following (but not limited to);

  • The financial contributions of each party to the relationship
  • Non-financial contributions of each party
  • The future financial position of each party, including providing for children

You do not have to be divorced to organise a property settlement, but you must apply within 12 months of a divorce order taking effect.  It is important to note that financial and property settlements are a completely separate process to divorce.  You can find out more about the property settlement process 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).

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.

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What is Collaborative Law?

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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.

How do you agree a settlement?

The process of Collaborative Law is normally as follows;

  1. Each party is represented by a trained collaborative lawyer
  2. Contract is signed
  3. The foundations are laid for optimum communication and problem solving between spouses and their advisors
  4. Lawyers will work with their clients to best understand their circumstances, needs and desired outcomes
  5. Information is shared fully and freely on request, retaining an environment of honesty, transparency and collaboration
  6. Negotiations take place in a series of face to face meetings with both lawyers and clients present
  7. Following each meeting, the solicitors debrief with their clients to discuss the events of the meeting and the progress that has been made
  8. 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
  9. 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.
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8 Point Guide to Pre-nuptial Agreements

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We are regularly contacted by people asking for advice on the preparation of a pre-nuptial agreement or a ‘pre-nup’, as we’ve covered in our previous article here.  In Australia, pre-nups are actually referred to as Binding Financial Agreements and we often help clients in this area, whether they’re getting married or entering a de-facto relationship, or already married or in a de-facto relationship.  We’re regularly asked a series of common questions, so we demystify each one of those questions in this article to help you make an informed decision on what might be appropriate for you and your relationship if you’re considering a pre-nup.

 

  1. What is a pre-nup?

A pre-nup, or Binding Financial Agreement (BFA) as it is referred to in Australia, allows couples to enter into a legal agreement about their financial affairs in the event of a separation.  This applies to married couples (post-nuptial), those who plan to wed (pre-nuptial) and parties in a de-facto relationship.

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

 

  1. Are pre-nups (Binding Financial Agreements) legally enforceable?

The Family Law Act 1975 (Cth) allows couples to enter into a Binding Financial Agreement before marriage or cohabitation, during marriage or cohabitation, and after a relationship breakdown. Each party must enter into the Binding Financial Agreement willingly and effectively must be fully informed of the advantages and disadvantages of entering into the agreement, their rights etc. Each party must receive independent legal advice about the Binding Financial Agreement.

To ensure any pre-nup is less open to challenge later on, the parties should ensure that any contemplation of a Binding Financial Agreement is done in ample time to prepare the document and negotiate the terms before any wedding, and ensure there is no duress or undue pressure on either party.  Both parties need time to fully consider, negotiate and obtain independent advice on the Agreement.

 

  1.  What are the benefits of having an agreement in place?

A  significant benefit of a BFA is that it can provide clarity and certainty to both parties in a relationship and can extend to their families too.  By setting out agreed-upon rules prior to any potential dispute, it may be more likely that the agreement will be considered by all parties to be fair and reasonable.

A BFA can seek to protect pre-existing assets from claims by the other party, which is important when one party is in a superior financial position to the other.  Often one party has accumulated assets prior to the relationship without contribution from the other party and therefore wish to ensure those assets remain theirs upon separation.  

 

  1.  What are the cons and pitfalls?

The Family Law Act gives the Court power to set aside a BFA in a number of circumstances.

Such circumstances include:

  • where it was obtained by fraud or duress;
  • a party failed to disclose relevant matters;
  • where the objective of the agreement was to defeat the interests of other parties;
  • where circumstances have arisen which make it impracticable for the agreement to be carried out;
  • since making the agreement, a material change in circumstances has occurred relating to the care and welfare of a child and, as a result of the change, the child or a party to the agreement will suffer hardship if the court does not set the agreement aside;
  • Any provision in a financial agreement that seeks to exclude or limit maintenance payments can be ineffective if at the time of the agreement coming into effect the proposed recipient is unable to support himself or herself without resort to an income tested pension benefit or allowance.

If a financial agreement is set aside, the Court can make orders for property settlement and maintenance in accordance with the principles set out in the Family Law Act.

 

  1.  What would the agreement contain?

The agreements are tailored to individual circumstances; no one agreement is the same as another.  The agreement can deal with the division of both property (assets, liabilities, superannuation and financial resources) and spousal maintenance, or some agreements deal only with property division and leave spousal maintenance to be dealt with at a later time with no agreement prior to a separation.

The agreement may set out how assets are to be held and managed during the marriage, for example, whether a joint account will be opened and how property is to be held.

 

  1.  Do lawyers need to be involved?

Put simply, yes!  For a BFA to be in fact “binding” under the Family Law Act, it requires, among other things, a lawyer to certify that they have given advice to their client with respect to:

  1. The effect of the Agreement on that person’s rights; and
  2. The advantages and disadvantages, at the time the advice was provided, of that person making the Agreement.

Without this advice, the Agreement may not be binding and enforceable even if it is duly signed by all parties involved.  

 

  1. How do I terminate an existing Binding Financial Agreement?

A Binding Financial Agreement can be “terminated” in one of two ways:

  • the parties can enter into another financial agreement, provided that a specific provision is included in the new agreement stating that the former agreement is terminated; or
  • the parties can enter into a “termination agreement” pursuant to section 90J (for married couples) or section 90UL (for de facto couples) of the Family Law Act. As with the original BFA, for a termination agreement to be binding and enforceable, it must be signed by all parties to the agreement, and each of the parties must have received independent legal advice with respect to the termination agreement.

 

  1. What is the cost of an agreement?

Costs depend on the complexity of the financial arrangements and the length of the negotiations.  However, the existence of a fair and negotiated agreement can mean legal costs are significantly lower in the long run than if there are subsequent divorce proceedings.


If you, or someone you know, is entering a relationship or marriage and could benefit from a discussion about whether a Binding Financial Agreement is right for them, please contact us for an appointment at our office in Fortitude Valley, Brisbane.

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.

 

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5 key things you should know about child support

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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;

  1. work out each parent’s child support income
  2. work out the parents’ combined income
  3. work out each parent’s income percentage
  4. work out each parent’s percentage of care
  5. work out each parent’s cost percentage
  6. work out each parent’s child support percentage
  7. work out the costs of children
  8. 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.

 

How to document your child support agreement

If you are able to reach an agreement about the collection of child support privately or through mediation, it is crucial to document the agreement to have a written record of each parent’s obligations.

There are 2 types of agreements: limited and binding.  We explain them briefly as follows.

  • Limited child support agreements can be accepted if there is a child support assessment in place and the annual rate payable under the agreement is equal to, or more than, the annual rate of child support payable under the child support assessment. It is not essential to obtain legal advice for the agreement, however it is advisable to ensure that your interests are protected.
  • Binding child support agreements can be made and accepted even if a child support assessment has not been made. The agreement can be made for any amount that all parties agree to, for periodic, non-periodic or even lump sum child support payments. Each party must obtain independent legal advice before entering into the agreement to be aware of the advantages and disadvantages of entering into such an agreement, among other things. A certificate signed by your lawyer will be attached to the agreement.

 

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.

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What happens to your property before, during and after a divorce or separation?

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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:

  1. 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.
  2. 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.
  3. 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:

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

Family Separation & Responsibility

Am I Entitled to Spousal Maintenance?

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

How might separation impact my business?