Family Law

The end of a relationship is a difficult time for all, but it is important to ensure that your legal interests are protected, and the best possible outcome can be achieved in the circumstances. With assistance from a legal expert, your options can be presented so you can make informed decisions that are in the best interests of you and your family.

Have you separated from your partner or spouse?

Separating from a partner or spouse can be traumatic for all involved. There are many practical and financial matters to consider, usually when decision-making can be difficult and emotionally draining. Getting advice early from a professional can help prioritise the steps you need to take, while ensuring your legal rights are protected. We provide a range of family law legal services, including:

  • Prenuptial agreements (prenups)
  • Divorce in Australia including preparing and serving divorce papers
  • Legal separation issues
  • Annulment of marriages
  • Spousal maintenance
  • Property settlements
  • Binding Financial Agreements
  • Domestic and family violence and apprehended violence orders (AVOs)
  • Family mediation
  • Legal aid for family law matters
  • Legal representation at Family Court
  • Children’s issues
  • Child support and enforcement of payments
  • Parenting plans for child custody and visitation
  • Parental rights, father’s rights, and grandparent’s rights
  • Guardianship of children
  • Adoption
  • Children’s Court

Divorce

Separated couples in Australia can apply to the court for a divorce if their marriage has broken down irretrievably. Essentially the parties must have been separated for at least 12 months, however in some circumstances, this time can include a period of separation under the one roof.

Unless certain exemptions exist, if you have been married for less than two years, a certificate from a family counsellor confirming that you and your partner have considered reconciliation must be provided.

If there are minor children of the marriage, the court will generally need to be satisfied that proper arrangements are in place for their care before granting the divorce.

What is a family law property settlement?

A property settlement concerns the formal division of assets, liabilities, and financial resources between a separated couple to legally finalise their financial affairs. A legal property settlement enables you to move forward with your individual financial affairs and triggers certain duty concessions when transferring assets such as real estate.

When can I obtain a property settlement?

You can start the process for a property settlement once you and your spouse or partner have separated. There is no requirement to be divorced before settling your financial affairs however the following time limitations should be noted:

  • for de facto partners, any court proceedings for a property settlement must be started within two years of separating.
  • the granting of a divorce triggers a twelve-month limitation period within which to bring court proceedings for a property settlement or spousal maintenance.

Even ex-partners on good terms should obtain independent legal advice to ensure that any agreement reached concerning the division of their property is fair and can be legally formalised.

What steps are involved in dividing property?

The division of assets after separating can be achieved through a financial agreement, consent orders or court proceedings, although most property settlements are finalised without going to court. Separating couples are encouraged to settle property issues amicably and full disclosure is essential.

When negotiating how property should be divided after a break-up the same steps that a court would take are generally applied. These are:

  • identifying the parties’ assets, liabilities and financial resources.
  • assessing the parties’ respective financial and non-financial contributions.
  • evaluating the parties’ future needs including their relative earning capacities, state of health, education, and responsibilities as primary carer of any children.
  • making just and equitable orders in consideration of all circumstances.

Should I receive financial advice regarding my property settlement?

You should be aware of the financial implications before finalising a property settlement. It may be in your interests to obtain financial advice, particularly in more complex matters.

When dividing property, the taxation and stamp duty implications should be considered, as well as your current and future needs. Consideration should be given to the type of assets retained or transferred, as it may be more advantageous to hold onto one type of asset over another. It is important to utilise the best structure to manage tax liabilities, and safeguard as far as possible, your financial future.

A superannuation split may form part of your proposed property settlement and it is important to evaluate the net result of this. Remember, a superannuation split does not mean you will have access to instant cash as this will still be governed by superannuation laws and will generally only be accessible at retirement age.

Children’s matters

Arranging for the future care and welfare of children after a relationship breaks down can be stressful for the parents, children, and other family members. The best interests of the children will be paramount, and the Family Law Act 1975 (Cth) provides a presumption of shared parental responsibility, unless extenuating circumstances exist.

Parties should make genuine efforts to resolve disputes regarding parenting arrangements and may do so through negotiation with the assistance of their legal advisors. Agreements may then be set out in parenting plans or consent orders.

Parenting Plans

A parenting plan is an agreement made between parents regarding the ongoing and future care arrangements for children. Parenting plans are not legally enforceable however may be considered if one of the parties subsequently applies to the court for a parenting order.

Consent Orders

A consent order is a legally binding agreement with respect to parenting arrangements and can also include terms regarding the division of property. Consent orders are made after agreement by the parties. They must be approved by the court, and although the parties do not need to attend court, the orders have the same force as if they were made after a court hearing.

If you need any assistance, contact one of our experienced Townsville divorce lawyers at [email protected] or call 07 4724 1152 for a no-obligation discussion and for expert legal advice.