DIVORCE LAWYERS SYDNEY

Divorce & Separation Lawyers

Divorce & Financial Assets

A common misconception about divorce and separation is that it is a complex, drawn-out and expensive process. However, the right counsel can ensure the administrative and legal side of things remain relatively straightforward, speedy and inexpensive.

Anyone considering or undergoing a legal separation is advised to engage the services of an experienced family lawyer. Doing so will help you understand your rights and responsibilities, and avoid confusion about the informal and formal procedures involved.

Equally, failure to properly adhere to the many complex requirements can result in unnecessary delays, meaning extra expense and stress. Again, a good family lawyer will ensure you avoid the pitfalls.

Separation is likely to be a turbulent time for any family. An objective legal expert working on your behalf means you can worry less about the technical, administrative and bureaucratic elements, and instead focus on the emotional well-being of yourself and your family.

WHEN CAN I APPLY FOR A DIVORCE?

The law requires couples to have been separated for a minimum, continuous period of at least one year (i.e. 12 months) before divorce applications can be made. This can most easily be demonstrated in situations where separating spouses have resided at different addresses during this period. A filing fee will be applicable, and a divorce application can be made jointly, or by one party. In this era, applications are e-filed through the Commonwealth Courts Portal.

Couples that have led separate lives for this length of time while remaining under the same roof are also eligible to apply for a divorce. In such cases, the court – which ultimately has the power to grant a divorce – will ask for an independent third-party, such as a family member, friend, colleague or neighbour, to provide confirmation of separation via an affidavit (i.e. a written legal statement).

Where you and your spouse are remaining at the same address you can talk to a lawyer for advice on ensuring you maintain the acceptable level of independence to qualify as a separated couple in the eyes of the law. You should also seek guidance from a legal professional if circumstances dictate an order to remove one spouse from the family home is necessary.

In any case, it is advisable to confirm the ‘official’ date of your separation in writing at the time it is decided. This can be provided as evidence to demonstrate the length of your separation if you ultimately decide to apply for a divorce further down the track.

IS IT ALWAYS NECESSARY TO SEEK LEGAL ADVICE TO GET A DIVORCE?

Technically, the answer to this question is no.

However, legal advice during a divorce or separation is strongly advised for a number of important reasons. For a start, the right legal guidance can help make a potentially complex process more straightforward, speed up proceedings, and ultimately minimise the overall legal costs associated with the various phases. The divorce process can be very simple for some, but much more complicated for others.

If you are unable to locate your marriage certificate, were married overseas or cannot locate the other party to serve a divorce application on, it’s likely that you will benefit from the assistance of a family lawyer. Even in more straightforward cases, family law specialists can guide you through the process and help you to understand necessary steps.

Whether you’re considering or actually undergoing a legal separation, a family lawyer can help you understand your rights and responsibilities, and explain all the relevant informal and formal procedures in a way that’s easy to understand.

Essentially, the role of your lawyer is to offer all the information you need to make informed choices, and help identify all options and the various outcomes. Furthermore, taking legal advice may actually enable you to resolve many matters associated with separation through negotiations, rather than going through the courts.

Failure to properly address the requirements for divorce can lead to frustrating delays, extra costs and added stress. It’s usually already an upsetting time for the family, and being able to hand over the administrative and bureaucratic aspects of your separation to a trusted expert allows you extra time and energy to focus on the wellbeing of you and your loved ones.

DO YOU HAVE ADVICE ON MAKING ARRANGEMENTS FOR THE CARE OF OUR CHILDREN FOLLOWING OUR SEPARATION?

More importantly than the division of assets and liabilities are the decisions you make around who dependent children will live with following their parent’s separation, as well as arrangements that ensure they maintain healthy relationships and the appropriate level of contact with both parents.

Many divorcing parents are capable of successfully discussing and agreeing on arrangements for the ongoing care of their children. If possible, you and your former partner should work together to agree on a ‘Parenting Plan’. Ideally, this will allow for as close to equal time spent with both parents as possible. Legal support and mediation can be utilised to help this process along, especially in instances of complex family law matters.

A Parenting Plan should also take into consideration the role of grandparents and other significant extended family members involved in the lives and care of your children.

Any plan developed in relation to parenting should be as flexible as possible. This will allow for the future changing needs of your children, particularly as they mature and their educational commitments and extra-curricular interests evolve.

Financial child support payments between former spouses will be determined based on a variety of factors including the income and financial situation of each parent, as well as the percentages of care.

In exceptional circumstances following an application by one parent, the court may intervene to issue an order dictating how parenting expenses should be divided. The court may also get involved in negotiating a custody arrangement considered to be in the best interests of the children involved.

HOW DO WE MAKE DECISIONS ABOUT OUR PROPERTY AND FINANCES?

Aside from the technical processes required under the Family Law Act during a legal separation, there are lots of practical questions that need to be answered too.

• Common questions include:
• What will happen to the family home?
• Will you sell it, or will one party stay living there?
• If the latter, which party will stay?
• What will happen to your joint bank accounts and other shared assets?
• What happens with businesses we have shared interests in?
• Do the same laws apply if I’m in a de facto relationship?
• Will there be matters of child support, financial support or spousal maintenance matters to consider?

Remember, an official court-issued ‘Divorce Order’ does not dictate how your shared assets and liabilities are divided, this is just an official ending to your marriage. Financial matters and parenting arrangements require additional decisions, negotiations and agreements.

These are all hugely important decisions, and in many instances need to be made in a relatively short space of time. This pressure can add to the stress experienced by many people going through a separation, which is why an experienced family lawyer will guide you through legal issues with a focus on achieving successful outcomes for you.

The ideal scenario would avoid a lengthy court process by agreeing on the most positive outcomes for you and your family between yourselves. If a separating couple is able to work amicably together to make informal short-term decisions until long-term agreements are reached, this benefits the wellbeing of everyone involved.

Once an informal agreement about how to divide these assets and liabilities has been reached, it is advisable to develop a legally binding ‘Property Settlement’ outlining what will happen to the likes of homes, money, valuable personal effects, debts and more. These are known as binding financial agreements and will solidify any decisions made with your former spouse or de facto partner.

This process can be initiated as soon as you make the decision to end the relationship. You do not need to wait for a Divorce Order to be granted. Ultimately, having this sort of ‘head start’ can help ensure the process does not end up being more drawn-out than is necessary.

A good family lawyer can help you address a wide range of asset and liability matters, and negotiate a settlement without the need to go to court.

CAN ISSUES RELATING TO PROPERTY AND THE CARE OF CHILDREN BE RESOLVED WITHOUT THE NEED TO GO TO COURT?

Yes. In fact, this is preferable for a variety of reasons, including speeding up the time it takes to properly separate, reducing legal costs and stress, and giving you the power to make your own decisions about important matters relating to your family, rather than having somebody else decide.

In cases where matters relating to property and children are under dispute, Australian law requires a demonstration that a genuine effort has been made to resolve issues through family dispute resolution (FDR).

FDR does not involve legal advice, but instead might include counselling, mediation and negotiation. This will support you and your former partner as you discuss the issues, assess your options, and work towards reaching a mutually acceptable agreement. FDR must be undertaken before filing an application to the court for the various associated orders needed to make these decisions for you.

There are circumstances which make FDR inappropriate, including cases that involve domestic and family abuse. In these instances, you should seek legal advice on the best and safest way forward for you and your family.

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MY SPOUSE AND I HAVE JUST MADE THE DECISION TO SEPARATE. DO YOU HAVE ANY TIPS ON HOW BEST TO COMMUNICATE WITH EACH OTHER FROM NOW ON?

Once the decision has been made to separate, one of the most important considerations for an amicable and efficient process is effective communication.

It’s important to acknowledge and accept that you and your former spouse may be at different stages of acceptance when it comes to separation. For that reason, you should try to approach it calmly, and with understanding and flexibility.

If you are the one initiating the separation, be clear about your decision and the reasons behind it. If your partner is the one making the decision, take some time to gather your thoughts and access any emotional support you may need from friends, family or a professional counsellor.

Once you and your partner have both taken some time to process the decision to separate, you will be in a better position to rationally work out your next steps, as well as your thoughts and expectations going forward.

WHAT IS THE BEST WAY TO COMMUNICATE NEWS OF OUR SEPARATION TO OUR CHILDREN?

If you share dependent children, this adds a further level of complexity that makes effective and sensitive communication about a separation even more crucial.

Talking to your children about these changes is likely to be one of the hardest things you will ever have to do. Make sure to approach the conversation in a way that will make sense to them based on their age and level of comprehension. Encourage them to ask questions and communicate their feelings. And remember, you may have to explain things on more than one occasion, particularly if your children are young.

Wherever possible, both parents should be involved in these conversations, sharing the news together. Be careful not to blame one another for the break-up or say negative things about your former spouse. Making sure these conversations are calm and amicable can significantly impact how well your children accept the separation.

Contact our team of divorce lawyers in Sydney for your free initial consultation.

How are Financial Assets Shared?

A court-issued ‘Divorce Order’ does not automatically resolve issues relating to how shared assets and liabilities are divided. Additional decisions relating to these matters are required.

It is advisable to develop a legally-binding ‘Property Settlement’ to formally break financial ties. This will outline what will happen to the likes of homes, money, valuable personal effects, debts and more. This process can commence as soon as the relationship ends, prior to a Divorce Order being granted.

It is important to note that once a Divorce Order becomes effective, the separating couple has twelve months to commence legal proceedings relating to any asset and liability separation, without first needing to obtain special permission from the court.

Helpful Resources

Separation and Stress
Family Court of Australia & Federal Court of Australia
Download the helpful guide (PDF 2.25MB) | Visit the site

Children & Separation Booklet
Family Relationships Online
Download the helpful guide (PDF 769 KB) | Visit the site

Customer Feedback

Please pass on my thanks to Jeff and your team with this difficult divorce. I am extremely happy with my new life and have a wonderfull caring man who is so different – thank god.

K.G – Sydney

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