Separations, Family & Relationship Law

A ‘Property Settlement’ is the process of dividing or re-allocating assets, liabilities and financial resources of a relationship between the parties. This applies to married, de facto and same sex couples after separation.

A common misconception is that assets are divided equally regardless of the facts. While a 50/50 division may be the requirement in other countries, this is not the case in Australia. A party’s entitlement to a property settlement depends upon several factors, all of which can have varying importance from case to case, namely:

• value of the property pool;
• contributions which each party has made at the outset, as well as during the relationship and post separation;
• nature of the contributions made by each party (such as financial, non-financial, parenting, homemaker);
• future needs of both parties (depending on factors such as age, health, income earning capacity and financial dependents);
• duration of the relationship.

These issues are carefully assessed, and any proposal must also be just and equitable in the circumstances of the case.

Another misconception is that a party cannot take steps to conclude a Property Settlement until after the Divorce has been granted. It is often important to take steps immediately after separation occurs. On occasion protective steps need to be taken at an early stage, to prevent assets being diminished or disposed of. Delay in applying for a Property Settlement often has the consequence of making the issues and the process much more complicated, stressful and costly. Time limits also apply.

At Laurier Lawyers our family lawyers have many years’ experience and expertise in negotiating property settlements including complex disputes involving company or trust arrangements.

We encourage agreements to be promptly reached and adopt a practical collaborative approach to help you achieve a successful negotiated result. When agreements are reached, it is very important to finalise them carefully and in the appropriate manner to ensure a full and final settlement. In most cases, a Consent Order is appropriate, but in other circumstances, a Binding Financial Agreement may become necessary. If you record your division of property in an informal agreement without a Family lawyer’s assistance, the agreement will not be binding, and the Court can proceed to make other orders in disregard of the informal agreement.

While we see Court proceedings as a last resort, sometimes Court may be the only option. In that instance, we have the experience to provide you with the expertise you will need to achieve a successful outcome.

Navigating your way through the twists and turns of a property settlement can be challenging and complicated at times. It is crucial that you promptly seek our expertise regarding your rights, responsibilities and likely entitlements to ensure your interests are advanced and your rights are protected from an early stage.

If you have separated or are intending to separate, you should consult with Laurier Lawyers regarding your entitlements and any time limits which can vary depending on your circumstances. Delayed advice and inaction may result in your rights and interests becoming compromised, lost or adversely affected.

We can help you obtain a Divorce, although it is a relatively simple process which you can complete yourself.

You can apply for a Divorce at any time provided you have been separated for at least 12 months. The Court does not need to know about the reasons for the breakdown of the marriage, and there is no requirement for the Court to find that one party is at fault.
If there are children under the age of 18, the Court must be satisfied that there are proper arrangements in place for them before making a Divorce Order. We can assist you to negotiate a Parenting Plan or Parenting Order setting out what those arrangements will be.

If you have assets and liabilities to divide, this does not need to be resolved prior to the making of a Divorce Order. However, time limits do apply once a Divorce Order has been made should you need to commence Court proceedings for property settlement, so you should consult with our family lawyer at Laurier Lawyers regarding time limits prior to taking any steps.

We are happy to help if you have any questions regarding the Divorce Application process, time limits and any other issues arising from a separation such as parenting matters and property settlement.

Separation is often hardest on the children of the relationship, particularly in circumstances where parents can no longer communicate, if the children are being used as pawns to hurt the other parent, or if there are circumstances of family violence.
Children have the right to know and be cared for by both parents, and to spend time and communicate with both parents and other people who are important in their lives on a regular basis. What is in the children’s best interests must be at the forefront of any decision making.

Our family lawyer at Laurier Lawyers has the expertise to guide you and negotiate all of the important issues such as where the children will live, how much time they spend with the other parent and other important people (such as grandparents), arrangements for special occasions like religious dates and important family events. Negotiating and documenting how parents will communicate, facilitate changeovers and exchange information and resolve future disputes is equally important.

We encourage amicable solutions where this is possible you may wish to record your agreement by way of a Parenting Plan or more formally by way of Parenting Order. In most instances, a Parenting Order will be preferred as it is legally binding and enforceable which is not the case for a Parenting Plan. Our family law at Laurier Lawyers will guide you through the pros and cons of all your options to best achieve what is right for you in your circumstances.

We also deal with Recovery and Location matters, where children are being withheld. Before you decide to relocate you should consult Laurier Lawyers and seek our expert family law advice.

One way to minimise the risk of a dispute relating to financial matters on separation is by having a Financial Agreement. They are often used where there is an inequality of financial positions, or if there are certain assets which you may seek to protect in the event of separation. They can address a whole host of issues, including how assets including superannuation will be divided and what maintenance (if any) is to be provided by one party to another. This type of Agreement is not lodged with the Court for approval.

A ‘pre-nuptial agreement’ is often the term used to describe a Financial Agreement made before a marriage or de facto relationship. A Financial Agreement (or commonly known as a ‘cohabitation agreement’) can be made during a relationship, as well as after a relationship breakdown (sometimes referred to as a ‘separation agreement’).

If Financial Agreements are finalised correctly, they can be an effective tool to protect your assets and create certainty should a separation occur. However, there are several strict legal requirements for the drafting of Financial Agreements, and they can often be complex in nature, particularly if made at the outset or during a relationship.

The consequences for failing to meet the stringent legal requirements and relevant considerations may be serious and could result in the Financial Agreement not being binding or being set aside by the Court. It is vital at the outset that you obtain experienced advice from Laurier Lawyers to represent you in negotiations and to consider any alternatives which may be a sounder alternative to a Financial Agreement, such as Consent Orders.

Domestic and family violence is not only physical abuse. The definition of what may constitute domestic violence is far-reaching and encompasses the many forms it may take, such as verbal, emotional, psychological, financial abuse, or behaviour that is threatening, coercive or in any other way controls or dominates another person to fear for their safety or that of someone else.

Men, women and children can be the victims of family violence and abuse.
Domestic violence can be difficult to talk about. However, you can talk to us in complete confidence. We can refer you to community support groups. We can assist you to prepare an application for a domestic violence order and ultimately obtain a protection order to safeguard you and your children. Your associates may also be covered by the order in circumstances. You may also wish to seek assistance from the Police, particularly in circumstances of urgency where your safety or that of others may be at risk.

Care should be taken when preparing an application for a protection order and supporting evidence to ensure that you have the best prospects of being successful in obtaining an order.

If you already have a protection order in place, we can also advise you about your options regarding varying or extending an existing order.

Alternatively, if you have been served with an application or a Temporary Protection Order we recommend you seek Laurier Lawyers legal advice regarding your options which may involve defending or opposing the application, agreeing to an order without admissions, or negotiating undertakings. Applications for protection orders are often sought as a precursor to Family Law applications regarding parenting disputes and as such should not be disregarded or treated lightly.

If you are experiencing family violence or abusive behaviour, we recommend you seek the advice of our family lawyer regarding your options. You can talk to us in confidence, and we can guide you through the process.

The law imposes a responsibility on a person to provide financial assistance to their spouse or former de facto partner if that person cannot adequately support themselves. This is not to be confused with Child Support which is a wholly different obligation.
In such matters, the Court considers whether a person is able meet their own reasonable needs from their own income or assets and whether the other party has the capacity to pay. If the relevant criteria are met (which may vary particularly if there are circumstances of urgency), maintenance may be successfully negotiated or ordered by the Court.

Maintenance can be paid as a lump sum, ongoing regular payments for a certain period or in some circumstances, by way of transfer of an asset/s.

We strongly recommend that you obtain prompt legal advice in relation to this issue, particularly if you are experiencing financial hardship as a result of the breakdown of a relationship. Time limits do apply to matters of this nature which can vary depending on the circumstances of the case. If you do not apply within the relevant time limits, you will need permission of a Court to apply. The Court’s permission is not always granted.

Parents have a legal obligation to financially support their children, even if parents separate or if a parent is not spending as much time with their children as they like (or if any).

Usually, child support is handled by the Child Support Agency (CSA) rather than the Court which has a limited role in certain circumstances. However, we can still assist you in understanding your obligations and negotiating private child support agreements (both limited and binding child support agreements) as well as assisting you in your dealing with the CSA and the Court such as appeals from the Social Security Appeals Tribunal to review or object to child support assessments and decisions, departure applications and stay orders.

Mediation is often successfully used to resolve family law disputes. It can occur as part of a Court-ordered process, or as an attempt to reach a resolution without having to go to Court. Mediation can occur in different forms, including round table mediations, or shuttle mediations where the parties are separated, and the mediator goes back and forth.

You can expect the mediator to identify the issues in disputes, and explore he options of how to achieve a mutually agreeable resolution or test how possible solutions may occur. You can freely negotiate and consider possible outcomes with the knowledge that the process is confidential.

We find the key to successful mediation is preparation and having the right advice during the process. We recommend you ask Laurier Lawyers about your options, and whether mediation is appropriate in your circumstances.