Family relationships, disputes and breakdowns in Australia are governed by the Family Law Act, the Marriages Act, the Child Support Act as well as in Queensland, Part IXX of the Property Law Act of 1974 .
Family Law thus is separated into 5 distinct areas which may not be inter related; these are Divorce, Child and Parenting Matters, Property Settlement, Spousal Maintenance and lastly Child Support.
Accordingly as Family Law is divided into the 5 separate areas it is possible to deal with each area separately without involving other areas.
The latter area relating to Child Support lies outside the jurisdiction of the Family Law act and is dealt with a separate Tribunal.
All matters other that Child Support matters are dealt with either the Federal Circuit Court of Australia or the Family Law Court of Australia.
At Australink Alliance Lawyers & Migration Consultants we provide advice and assistance to families during the difficult period of the break down of the relationship by providing the benefit of over 26 years of experience and skill in this area of law with compassionate and understanding to ensure that a resolution is reached in a cost effective and timely manner to enable the parties to move forward in their lives.
Our services include the following areas of Family Law
Divorce
There is only one ground for divorce in Australia, which is that the parties have been separated for at least twelve months. The question is what constitutes a separation.
A legal separation involves both a belief and the physical aspects. For there to be a separation, at least one party must believe that the marriage has effectively ended.
Physically, a separation requires the ending of life as a husband and wife. Usually this involves living in separate residences and ending day to day social contacts. This does not mean the ending of all contact. If there are children, there should be ongoing contact, but in their roles as parents. Similarly, the couple may stay friends and see one another.
Some couples may even stay living under the one roof after they have separated. In that case the court will require some corroboration, usually from a friend or relative and covering matters such as separate bedrooms, the absence of social contact and that a separation has been made known.
Financial Agreements
In marriages and de facto relationships, couples can make binding financial agreements, whether before, during or after the relationship or marriage.
These agreements can cover a variety of matters:
- what is to happen if a separation occurs,
- what is to happen on a day to day basis, and
- what is to happen on the death of a partner.
Financial agreements are very desirable where there is a big discrepancy in the financial positions of the couple, and are often used when a young couple is receiving substantial help from one of their parents. They are also important in second relationships, where both parties may have children of their own whom they want to protect financially.
The benefit of a binding agreement is that if a relationship does not work out, there is no room for an argument about who gets what – that has already been agreed.
Property Settlements
The Family Law Act sets out the legal principles by which property settlements are worked out following a separation. Over the years judges have made countless decisions which enable lawyers to tell their clients what to expect.
We can assist you in the determining your entitlement by
Establishing what constitutes the matrimonial pool of assets and prepare a family balance sheet, of assets and liabilities. It does not matter in whose name an asset or a debt is, and a separate list for superannuation is required.
Then we provide an assessment of past contributions, both financial and non-financial. In a typical household where husband has been the primary earner and Mum the primary parent and homemaker, those contributions will normally be seen as equal.
Having established as to whether there are special contribution factors, then we make any necessary adjustments based on future needs and responsibilities. Typical of matters for which adjustments will be made are under Section 75(20 of the Family Law Act:-
- The ongoing care of children,
- Other financial resources, such as family trusts,
- Age, health and earning capacity, often related
Finally we look at the outcome to see whether it is “just and equitable”, in most cases must be determined on a case by case basis.
A similar process is applied to superannuation. Once an appropriate division is determined, some of one party’s superannuation can be transferred to the other party, but as superannuation.
It is not compulsory to sell assets. If one party wants to keep the family home, for example and can do so, then a formal valuation will normally be seen as acceptable evidence of the worth of the property.
Probably the most common way of finalizing a property settlement is by “Consent Orders”, which are final court orders obtained by a joint written application, without any court appearance or by a Binding Financial Agreement at Separation which does not involve Court process at all.
Property claims also apply to a de facto relationship if the parties have been together for two years, or have a child.
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