Expert Divorce Lawyers who are on your side
Separation and relationship breakdown are usually one of the most stressful times in life. Our professional divorce lawyers can assist by providing you with practical legal advice so you can make informed decisions and achieve the best possible outcome.
Separation – Where to Start
After separation from your ex-partner you have five options to resolve child custody and or financial matters:
- Consent Orders: A secure and economic way to resolve both child custody and financial matters which requires an application to the Family Court. Parties do not attend Court as the application is reviewed and approved “in Chambers” without parties or legal representatives attending and appearing in Court. Consent Orders provide a legally binding and enforceable agreement;
- Binding Financial Agreement (BFA): Usually a swift way to resolve financial matters. Binding Financial Agreements do not involve the approval of the Family Court, although they must be drafted pursuant to the Family Law Act 1975 Cth. Usually, solicitors draft the BFA pursuant to your instructions. After parties and their lawyers execute the BFA it becomes an enforceable Agreement. Unlike consent orders, parties must be independently represented and so at least two lawyers must be involved. Child related matters cannot be resolved as part of a BFA;
- Going to Court: Usually the slowest and most expensive method to resolve child custody and financial matters. If parties cannot reach agreement or there is a risk to a child or children it may be appropriate to commence Court action. Matters resolve by way of Court Order following hearing or by consent orders and agreement by parties after Court action has been commenced;
- Parenting Plan: An unenforceable agreement between parties, usually drafted by or with the assistance of solicitors. If there is minimal parental conflict or parties require an informal temporary agreement pending Court proceedings a parenting plan may be appropriate to provide some certainty. Parenting Plans are usually fast and simple to draft and do not require Court approval or intervention; or
- Informal Agreement with your ex-partner: Informal agreements may be appropriate if there is a small asset pool and minimal or no parental conflict. Informal agreements are not binding and a common issue with informal agreements is that parties breach the agreement and or seek a different agreement in future which they are at liberty to do, as an informal agreement is unenforceable by the Court.
Everyone’s situation is unique and requires considered advice tailored to you and your family’s needs. The experienced family law experts at Next Legal & Conveyancing are determined to achieve the best possible outcome for you.
Applications for Divorce
You can apply for a divorce after the expiration of one year from the date of separation. You can apply solely (a “sole application”) or jointly with your ex-partner (a “joint application”). Joint applications are easier and faster to complete.
Sole applications require that your ex-partner sign an “Acknowledgement of Service” and if they refuse to do so, or, if their whereabouts is unknown, we can assist you with filing an application with the Court to dispense with the requirement for service or for an order for substituted service on someone who has contact with your ex-partner.
If there is a child or children of the relationship under the age of 18 and you file a joint application for divorce you are not required to appear at Court. If you file a sole application and there is a child or children of the relationship under the age of 18 you must attend Court for the divorce hearing.
The family law team at Next Legal & Conveyancing are experienced with assisting clients with applications for divorce and making the process as fast and simple as possible.
Payment of Our Fees
We are flexible with plans for payment of our fees for eligible people. Contact our office or speak with our divorce lawyers to discuss which payment options are available to you.
Let us help you by:
- Taking instructions and advising you with respect to your legal rights and entitlements pursuant to the Family Law Act 1975
- Providing you with advice on the best option to resolve and finalise child custody and or property matters
- Corresponding and negotiating with your ex-partner or their legal representative
- Completing and assisting you with an application for divorce
- Drafting and executing a Binding Financial Agreement tailored to your case
- Representing you at mediation
- Representing you at Court – and
- Drafting, executing, and filing consent orders.
Common Family Law Misconceptions Your Divorce Lawyers Can Clarify
As expert family and divorce lawyers, Next Legal & Conveyancing can help you navigate some of the common misconceptions about divorce, including:
- Superannuation does not form part of the asset pool: Not true. The Family Law Act 1975 was amended in 2002 to allow superannuation to be treated as property so that it forms part of the asset pool available for distribution on the breakdown of a marriage. The superannuation provisions now apply to both de facto relationships and marriages. The exception are cases in Western Australia as currently, superannuation splits are not available for individuals separating from a de facto relationship.
Custody of Children
- The children will live with each parent equally: Not true. The Court considers a range of factors when determining the living arrangement and the paramount consideration is the child or children’s best interests. Some of the Courts primary considerations include:
- Whether there is parental conflict
- How close the parents live from one another
- Whether there are any relevant risk factors
- The child or children’s views may be considered – and
- Whether there are existing or historic family violence issues.
- Property acquired after separation is not relevant: Not true. Assets acquired post separation form part of the asset pool. Whether your ex-partner receives a share or benefit will usually depends on a range of factors, however, the Court must address and consider property which belongs to each party at the day of the hearing rather than at the time of separation. This is an incentive for parties to resolve financial matters soon after separation.
- The asset pool will be split 50/50: This is incorrect. The Court takes a range of factors into account when determining a “just and equitable” property split. Some of the Courts primary considerations include:
- The length of the relationship
- Whether there are children of the relationship
- Both parties financial and non-financial contributions during the relationship and post separation;
- The income and employability of each party – and
- The future needs of the parties.
It is common for property division which do not reflect a 50/50 split to be ordered by the Court by consent or as a result of litigation.
- We only just separated so we must wait a year to finalise financial and child custody matters. This is incorrect. Unlike applications for divorce which requires that parties wait a year post separation to apply, parties are at liberty to resolve financial and child custody matters as soon as separation occurs and often preparation occurs prior to formal separation. Unlike applications for divorce which requires that parties wait a year post separation to apply, parties are at liberty to resolve financial and child custody matters as soon as separation occurs and often preparation occurs prior to formal separation.
If you have any further questions, our family law experts and professional divorce lawyers will be happy to answer them during your consultation. From our Newcastle office, we provide informed legal advice to clients across Australia.