Property division between separated parties in any kind of relationship – marriage, de facto, same-sex or otherwise – is decided according to the Family Law Act 1975 (Cth).
The division of assets after separation can be achieved through a binding financial agreement, consent orders or court proceedings. Most family law property settlements are finalised without going to court, which should only be considered as a last resort.
Separating couples are encouraged to settle their property issues amicably and full disclosure is essential. When negotiating how property should be divided after a break-up the same steps that a court would take are generally applied. These are:
- identifying the parties’ assets, liabilities and financial resources;
- assessing the parties’ respective financial and non-financial contributions;
- evaluating the parties’ future needs including their relative earning capacities, state of health, education and responsibilities as primary carer of any children;
- making just and equitable orders in consideration of all circumstances.
To legally end a marriage, an application is made to the court. Australia has a no-fault divorce system and the court is not concerned with attributing blame. To obtain a divorce order:
- the marriage must have broken down with no likelihood of reconciliation; and
- the parties must have lived separately and apart for a continuous period of 12 months; and
- if there are children under the age of 18 years, the court must be satisfied that appropriate arrangements are in place for their care and wellbeing.
In determining whether a couple has lived apart for 12 months, the court recognises that there are many reasons why a couple may live under the same roof, despite their decision to separate. This may be for practical, financial, religious, cultural or other reasons.
We understand that separation can be very distressing, and when children are involved, emotions run high. The last place you want to be after separating is in court fighting over the children you both love.
The best interests of the children are the paramount consideration in any family law children’s matter and children are entitled to have a meaningful relationship with both parents. Unless extenuating circumstances exist, there is a presumption of shared parental responsibility.
Parents and caregivers should make genuine efforts to resolve disputes regarding children’s arrangements and may do so through considered negotiation with the assistance of their legal advisors. Agreements may then be set out in parenting plans or consent orders.
Consent orders must be approved by the court and are legally enforceable. Parenting plans are not approved by the court but may be taken into consideration in any subsequent court proceedings concerning the children.
We try to assist our clients to avoid litigation wherever possible, however sometimes urgent court proceedings are required.
Injunctions and restraining orders may be necessary to provide urgent financial assistance in the form of spousal maintenance, or to prevent one party from removing assets out of the jurisdiction.
Urgent applications may also be needed in cases where family violence is present and / or the best interests of the children of a relationship are, or may be, threatened.
In such cases, we will urgently prepare the relevant documentation, advocate on your behalf, and guide you through the court process.
Binding Financial Agreements – protecting your assets before saying ‘I do’
If you are entering a domestic relationship or getting married and want to protect your assets, we may recommend preparing a Binding Financial Agreement (BFA).
A BFA sets out the assets and liabilities of each party to a relationship, identifies who has brought those assets and liabilities in, and, in the event that the relationship fails, sets out a process to be applied when dealing with those assets and liabilities.
In addition to providing some certainty about how assets will be distributed should a relationship end, a well-drafted BFA can protect family wealth by ensuring that your assets are left to those you wish when you die.
BFAs can be entered before, during or after a relationship ends – they are particularly important for blended families and can avoid expensive litigation. They are not approved or registered in court however are enforceable provided they are prepared in accordance with the legislation, and circumstances do not exist which would make them void. Both parties are required to receive independent legal advice and acknowledge that they are each aware of their rights and obligations under the proposed agreement.
Helping families with adoption and surrogacy
Altruistic surrogacy arrangements are legal in Australia and can provide benefits for all concerned. Before taking the surrogacy journey, it is important for all parties to understand the legal and personal implications and to ensure they are appropriately guided through their decision-making.
Surrogacy arrangements are regulated in each Australian jurisdiction, except for the Northern Territory which currently has no specific surrogacy laws. Legislation sets out the laws and processes governing surrogacy arrangements and to transfer parentage rights from the surrogate to the intended parents.
We have specialised in adoption and surrogacy for some time, helping clients throughout Australia. We prepare surrogacy agreements to ensure arrangements for the resulting child and the roles of the parents and surrogate are clearly defined well in advance of the relevant implantation and insemination. We also assist our clients to seek parentage orders at the appropriate time.
The right for couples to marry in Australia is no longer constrained by sex or gender and the family law regime in Australia now applies to both heterosexual couples and same sex couples, whether married or in a de facto relationship.
Same-sex marriages that were solemnised and are valid in a foreign jurisdiction, subject to some exceptions, may also now be considered legal in Australia.
If you are uncertain about the legal status of your relationship, you can discuss your concerns with our experienced lawyers and implement steps to ensure that your legal affairs are appropriately managed.