When a relationship ends there is often still a lot of inter-mingling of finances. Unravelling these joint finances and assets can be difficult, but is often simplest if dealt with soon after separation. It is important to get legal advice prior to disposing of or transferring any property after separation, as this can often have unforseen long-term consequences.
It is also important to note that it makes no difference whose name an asset is in. It will generally be considered by the Family Court as an asset of the relationship. There is no set formula for who is to receive which asset, or how much of the property. The Family Court assesses each property settlement on its individual circumstances, which is why it is so important to receive good legal advice before entering into any agreements or making any significant decisions.
We have a broad range of experience in property settlement including where businesses and multiple properties are involved.
There are time limits for applying to the Court for property orders.
You have 12 months from the date of your divorce to seek property orders.
In the case of de facto relationships you have 2 years from the date of separation to seek property orders. A defacto can also sometimes bring a claim even where the couple have not lived together for two years, especially where: • They can show they have made substantial financial or personal contributions and they will not be compensated adequately unless they are allowed to bring their claim; • (for a close personal relationship) they care for their partner’s child and they would suffer an injustice if they are not allowed to bring their claim; • They have a child from the defacto relationship.
In some limited circumstances the Court may grant an extension of time however this will not occur in all cases. Therefore it is extremely important to act well before the time limit is due to expire.
Often the most distressing effect of a separation is its impact on the children, and how each parent will continue their relationship with the children.
When the Court makes orders relating to children the children’s best interests are the Court’s paramount consideration. There is no set formula for how these best interests are achieved and the Court will look at each family situation individually.
The types of issues that you may confront after separation are:
We will assist you to navigate through and resolve these issues, or any other issues particular to your circumstances. This can most often be achieved by agreement but if your case requires determination by the Court we will then assist you to make the best use of that process.
Divorce is the formal ending of a marriage. There is no legal requirement for separated parties to divorce. However if you intend to remarry you will need to obtain a divorce in order to do so. In NSW if you divorce then any provision in your Will in favour of your spouse will be automatically deleted (unless you provide otherwise). However there is no automatic deletion like this just because you separate or even if you have completed a property settlement. If you are separated then you would almost certainly need to make a new Will. Your Will may say that your spouse is to receive your estate on your death and this may no longer be what you want. Broadly in Australia there is only one ground of divorce being irreconcilable differences. This ground is evidenced by the parties to the marriage being separated for a period of at least 12 months. This means that you cannot apply for a divorce in until you have been separated from your spouse for 12 months.
Separation from a de facto relationship (whether a heterosexual or same-sex relationship), is governed by the Family Law Act 1975. This means that de facto separations are dealt with in a very similar way to separations from a marriage. This is why it is just as important for people separating from a de facto relationship to seek legal advice as it is for people separating from a marriage.
Paternity generally becomes a question in relation to three issues;
Under certain circumstances the Court can require that a potential father and a child undertake paternity testing. This is an area where prompt legal advice is likely to lead to a faster resolution of these issues.
When two people separate they generally no longer have the financial support of each other. It also can take some time after separation before a property settlement can take place. This can leave one partner in a position with a greatly reduced income (or in some circumstances no income at all) for a significant period of time. In these circumstances you may be entitled to spousal support (known as spouse maintenance). Child support is only designed to provide for the needs of the children and is not intended to maintain the parent as well. Often government benefits are insufficient due to the expenses required to be paid such as a mortgage or car loan. Occasionally a party is unable to access much by way of government benefits as their asset wealth is too high but often these assets are in joint names so that their value cannot be accessed in the short term. In these situations you may be entitled to spousal support.
In order to receive spousal support you need to be able to prove to the Court that you have a genuine need for the financial support and that the other party has the capacity to pay the spousal support.
When two people with children separate they are required to provide financial support for their children in the way of child support. Child support is designed to provide for the needs of the children.
Administrative Assessment Most Child support is based upon an administrative assessment through the (Commonwealth) Department of Human Services. There is a “Calculator” on their Centrelink website which estimates the child support that is payable. The child support varies depending upon, in particular, the income of each parent and the parent’s percentage time of caring for the child. The parent’s percentage time of caring for the child could be based upon a Parenting Plan (assuming it is being followed by the parties). Lees Luke Family Law can assist you in drafting and negotiating a Parenting Plan. Child Support Agreements Payment of child support can also be based on a Child Support Agreement, or a Limited Child Support Agreement, that the parties negotiate and enter into. To enter into a Child Support Agreement: 1. you need to seek legal advice (unless it is a Limited Child Support Agreement); 2. there must be an administrative assessment already in place; and 3. the amount payable under the Child Support Agreement must be no less than the amount that would be payable under an administrative assessment. Lees Luke Family Law can assist you in drafting and negotiating a Child Support Agreement. Court Orders Courts can make child maintenance orders in respect to children not covered by the relevant legislation, for example where children are over 18 years of age or in respect to step-children.