Below you’ll find answers to the questions we get asked the most about family law.
How long do I need to be separated before I can get a divorce?
A minimum of 12 months from the date of separation.
How long is the divorce process?
It’s a relatively simple process if it’s a joint application that is made, meaning both parties applying. It can be a little more difficult if one party is required to be served with Divorce proceedings, but still very achievable. Once an application is filed with the Court, a Court date in a few months is usually achieved.
How much is it going to cost?
The filing fee for a divorce application is expensive – over $1,000. The professional fees vary from firm to firm and depend on whether it is a joint application or sole. Our professional fees can be discussed in your initial consultation with your lawyer.
Do I need to attend mediation?
If negotiations fail and Court action is required, the Court requires parties to have exhausted all avenues to resolution before they will accept an Application. This often includes mediation but there are exceptions to this. Mediation can be a great way to resolve issues.
If we separate, do we need to get a divorce or can we just do a property settlement?
It is advisable to do a property settlement as soon as possible after separation, as long as you are certain that the relationship is well and truly over. Divorce is personal preference but required if either party intends to remarry.
What is the difference between a divorce and a property settlement?
Divorce is the legal ending of a marriage and does not involve the division of any property. A property settlement finalizes the division of assets between the two parties, but does not legally end a marriage.
Do my assets stop counting towards the property pool upon date of separation?
No. Generally speaking, the value a person’s assets
Am I responsible for payment of the mortgage if I have moved out of the house?
Technically you’re still named on the mortgage and responsible for payments, however, as you’re no longer deriving the benefit of the payments (i.e. living at the property) it is common practice that the party remaining in the property maintains payments alone.
Does our agreement for property settlement need to be documented by the Courts?
Not necessarily. The parties may enter into a Binding Financial Agreement and avoid the cost of filing with the court. However, if a party does not comply with the Agreement, then the matter will need to be dealt with before the Court.
She wants ‘full custody’ what does this mean and when will I see my kids again?
The Court only considers what is in the best interests of the children, it does not consider what you or your ex-partner ‘want’. Generally speaking, unless there is family violence involved, it is in a child’s best interests to have a meaningful relationship with both parents. This doesn’t always mean equal time, it can look like a lot of different things, depending on the circumstances of the family. Remember, wherever possible, it’s better to try to come to an arrangement with your ex-partner without a Court intervening. Parenting is a lifelong endeavour, and you will need to co-parent with your ex-partner long into the future. It’s always better if you both get a say in the arrangements, and not someone who isn’t known to you making decisions about your children.
There was a lot of DV during the relationship. I’m scared about what might happen. What should I do?
If you are in danger, you should always call ‘000’. If you are not in imminent danger, there are a range of services available that may assist. (DV Assist number here?) The Court can impose Orders on those they are satisfied have committed family violence to protect the parties impacted.
Do I need a formal parenting arrangement to set out shared time with the kids?
If things are amicable and you’re able to come to an agreement with your former partner, a formal parenting arrangement may not be necessary. If you want to be able to rely on this agreement as binding, however, you will need a formal arrangement. Parenting plans can provide parents with some helpful guidance.
Am I able to relocate with the kids? What is required for me to do this?
Yes, if you have the consent of the other parent. If not, things can be more complicated and you might need to consider Court proceedings. It is important you obtain legal advice in these circumstances.
What information do I need to disclose for a property settlement?
The most obvious answer is your financial disclosure is everything related to your current financial position. Think bank statements, tax returns and pay slips. The reason this is important is so we can properly assess your assets and liabilities and determine the matrimonial property pool, and what your entitlements are. For a full list of the financial disclosure documents required, read our Understanding Financial Disclosure Blog here.
We’ve finished our property settlement and obtained our Orders / signed our Binding Financial Agreement, what happens next?
If there is property dealt with under the Orders/Agreement you may need to arrange for a transfer of title. If this is the case and you would like us to assist you with the transfer, speak to one of our conveyancing professionals here.
Now that your family matters are finalized, it is the right time to update your Will and Enduring Power of Attorney. If you would like us to assist in this process, speak to one of our estate management professionals here.
