1. Now we have separated - What should I do?

As soon as you separate it is important to see a lawyer to find out your rights. It is also important to gather as many documents as you can in relation to your and your spouse's/partner’s finances. We have listed the important documents here: click to view

Swaab Attorneys will provide you with a relationship breakdown checklist, which should be considered by you if you separate from your spouse/partner.

Top

2. What happens at my initial conference? What should I bring?

When you call Swaab Attorneys to make an appointment, we will tell you about our lawyers, their experience and we will talk to you about costs. You may already know which lawyer you want to act for you. All our lawyers are experienced, professional and caring.

In family law, no 2 clients are alike. During our initial conference we will listen to you to find out your needs and concerns. We then take a history of your marriage in financial terms (if your case relates to money matters) or if your case relates to children’s matters, a history of the involvement of you and your spouse in respect of the children. We are then in a position to provide you with preliminary advice, which will be expanded upon after you provide us with required information and documents. You should bring as many of the important documents as possible, click here to view.

Initial conferences usually take between 1 and 2 hours. You should allow sufficient time when making your appointment. It is our normal practice to write to you confirming the history you have provided to us and our advice after the initial conference. As the initial conference can be an emotional time for clients and there is a lot of information to take in, we have found that Swaab Attorneys’ clients benefit from having the written advice following the initial conference. The advice represents a base for all future negotiations or court proceedings.

Top

3. What is a divorce? When can I apply?

Divorce is the legal ending of your marriage. You can apply for divorce after you and your spouse have lived separately and apart for a period of 12 months.

Many people separate under the one roof. However, if you do, to prove that you are actually separated (so that you can apply for divorce), the Court requires evidence from an independent witness, such as a relative, neighbour or housekeeper.

In some circumstances, it is possible to apply for a divorce even if you have reconciled for a short time (up to 3 months) since you separated.

You do not need to be divorced to finalise your property settlement, spouse maintenance or children’s issues. However, if you get divorced first, you will then only have 12 months to apply for a property settlement or spouse maintenance.

You must be divorced in order to remarry. If you are thinking of remarrying, you should not plan to do that for at least 15 months after you separate, so that there is enough time for you to apply for a divorce and for it to be granted

Top

4. What happens to my children? Who will they live with?

In many cases parents are able to agree with each other about the arrangements for the care of their children. They may reach agreement with the help of a family dispute resolution service. Swaab Attorneys can help to formalise that agreement into Consent Orders or a Parenting Plan.

If you cannot agree on the arrangements for the children, an application may need to be made to the Court. Orders can be sought in relation to where the children will live, what time they will spend with the other parent and matters such as the provision of school reports and each parent notifying the other if one of the children is seriously ill or hospitalised.

On 1 July 2006, laws came into effect relating to “shared parental responsibility”. These laws mean that, in most cases, parents will equally share the responsibility to make major long-term decisions for their children, such as in relation to education, health and religion. These laws do not mean that in every case children will spend equal time with both parents. The best interests of the children is always taken into account. Each case is different and Swaab Attorneys can advise you about what the shared parental responsibility laws mean for you and your children.

Except in cases of violence or where a child is at risk, separating parents must try to settle parenting issues through community based mediation, known as family dispute resolution, before an application can be made to the Court. To obtain more information about family dispute resolution services and to find a registered family dispute resolution provider visit Family Relationships Online.

Top

5. Relocation – What if I or my spouse wants to move away with the children?

There is no rule that says that a parent may or may not relocate away from the other parent after separation. Every case is different.

If one parent wants to relocate, the Court will take into account the best interests of the children. In determining the children’s best interests, the Court will have regard to issues such as the importance to the children of having a meaningful relationship with both parents, how travel costs which may be incurred by the parent who spends time with the children will be met, whether the parent opposing the relocation is prepared to also relocate and the impact on the parent wishing to relocate, including his or her ability to effectively parent the children if he or she is not permitted to relocate. This is not by any means an exhaustive list of all of the relevant considerations. Swaab Attorneys will advise you about the relevant factors and what the outcome might be in your case.

Top

6. What is property settlement? How will the court divide our assets?

Each case is different and there is no formula to work out how property will be divided after separation. There is no presumption of an equal division of property. The Court uses a 4 step process to work out a property settlement that is fair.

The 4 steps are:

1. Identify and value the net property and financial resources of the parties (“the pool of assets”). This includes everything you own, everything your spouse owns, everything you jointly own, as well as superannuation (including assets acquired after the date of separation).
   
2. Consider the contributions each of you has made to the acquisition, conservation and improvement of the pool of assets and to the welfare of your family. Those contributions can be financial or non financial, direct or indirect or by way of homemaker or parent. The Court usually decides the contributions made by each of you in percentage terms.
   
3. Consider what adjustment, if any, needs to be made to the percentage division of the pool of assets reached at step 2, having regard to future needs factors such as age, health, income & earning capacity, the care of any children and financial resources, such as an interest in a trust or a possible inheritance.
   
4. Lastly, the Court reviews the percentages arrived at at step 3 and determines whether the outcome is just and equitable.

It is difficult to predict the exact orders a Court will make, as different Judges could give different outcomes in the same case as they have a very wide discretion. However, after taking your detailed instructions, Swaab Attorneys will tell you the range of likely orders that a Court would make in your case.

Top

7. What is spouse maintenance?

Spouse maintenance is an amount of money paid by one spouse to the other for the support of that spouse. Spouse maintenance is separate from child support.

A person will only be eligible to receive spouse maintenance if he or she has a shortfall between his/her income and his/her expenses and if his/her spouse has an ability to pay (ie. surplus income). The Court looks at each person’s property and financial resources, as well as their income and earning capacity when making a decision in relation to spouse maintenance.

Spouse maintenance is often ordered on an interim basis until a case is finalised in the Court. It is rare for spouse maintenance to be ordered for a long period of time after final property orders have been made by the Court.

Top

8. What is child support?

If you and your spouse/partner have children under the age of 18 years, then the likelihood is that when you separate you will either have to pay, or be eligible to receive, child support.

Child support is dealt with by the Child Support Agency and is calculated according to a formula. For more information on the child support formula, how to apply or for an estimate of the child support payable, visit the Child Support Agency website. The current child support formula is due to change on 1 July 2008. The aim of the changes is to bring about a more equitable sharing between the 2 parents of the costs of raising children.

It is possible to apply for the child support formula to be varied in your case. Reasons for a variation include that you agreed that the children would be educated in a certain way (eg private school fees ), the high costs of spending time with the children (eg if they live a long way away), or if the payer has a duty to maintain other children from a new relationship or remarriage.

Alternatively, if you and your spouse/partner come to an agreement in relation to child support which is different to an assessment by the Child Support Agency, that agreement can be registered at the Agency. Swaab Attorneys will provide you with advice as to what should be included in your agreement, will negotiate on your behalf, prepare the agreement and register it with the Child Support Agency.

Top

9. What is adult child maintenance?

If children are over the age of 18 years and need money to complete their education or are mentally or physically handicapped, then orders can be made for their maintenance. The Courts, not the Child Support Agency, deal with adult child maintenance.

Top

10. If my spouse and I reach an agreement, do I still need a lawyer?

Yes. If you want your agreement to be enforceable and binding, you will need a lawyer. If you do not properly document your settlement now, your spouse may be able to come back and ask for more in the future.

If you and your spouse reach an agreement, Swaab Attorneys can help protect you by formalising that agreement by way of Consent Orders or Binding Financial Agreement. We can advise on which form of documentation is best in your situation.

Top

11. What happens if we have to go to Court?

A family law case (for property orders, spouse maintenance or parenting orders) can be started in either the Family Court or the Federal Magistrates Court. However, the procedure in each of the 2 Courts is different. Swaab Attorneys can advise you which Court is the appropriate one for your case.

Before starting a case in Court, the parties must first try to settle. If children are involved, the parties must engage in family dispute resolution (see Q4 for more information). If it is a financial case, parties can try to settle by making and responding to settlement offers, attending a settlement conference or engaging in mediation with an experienced family law mediator.

Family Court

Once a case is started in the Court, the Court arranges 2 meetings between the parties, their lawyers and Court officials – a Registrar for financial cases and a Family Consultant for parenting cases. The first such meeting is called a Case Assessment Conference. It is an opportunity for the parties to discuss their case with the Registrar and Family Consultant, to try to settle the case or at least to attempt to narrow the issues in dispute. If the case does not settle at the Case Assessment Conference, the Registrar will make orders so that the parties will be ready for the next Court event. Click here for more information about the Case Assessment Conference.

The second Court event is a Conciliation Conference. Before the Conciliation Conference, the parties will have exchanged documents and information about their finances and may have made a settlement offer. At the Conciliation Conference the Registrar will try to help the parties to compromise and reach an agreement. Click here for more information about the Conciliation Conference.

From 1 January 2008 new parenting cases will be involved in a Child Responsive Program, designed to assist parents to focus on the best interests of their children. As part of that program, the Family Consultant will meet with you, your spouse/partner and your children (depending on their ages) and will prepare a Children and Parents Report.

If your case does not settle at the Conciliation Conference, the Registrar can transfer it to the Federal Magistrates Court (see below) or can list it before a Judge for the first day of a Less Adversarial Hearing and further case management. Click here for more information about Less Adversarial Hearings. Since 1 September 2007, financial and child-related proceedings are conducted as Less Adversarial Hearings.

Federal Magistrates Court

When a case is started in the Federal Magistrates Court, it will be given a first Court date before a Federal Magistrate. On that day, the parties and their lawyers must attend. The Federal Magistrate will make directions for the exchange of documents and any orders that are needed so that the case can be prepared for a hearing. The Federal Magistrate can also arrange a Conciliation Conference with a Registrar. Click here for more information about Conciliation Conferences.

Settlement

If proceedings are commenced in the Family Court or the Federal Magistrates Court, you can still settle your case at any time. Most cases settle, with only a small percentage of cases commenced in Court going to a final hearing. At Swaab Attorneys we know that most clients wish to avoid the stress and cost of litigation. For that reason, we regularly talk to our clients about whether or not to make or accept a settlement offer, even after a Court case has been started.

Top

12. Domestic Violence Issues

If you are in fear of your spouse or partner you should contact your local Police Station or go to see a Chamber Magistrate at your nearest Local Court to apply for an apprehended violence order (AVO). It is not necessary to prove that there was physical violence, only that you are in fear. Verbal abuse, threats, harassment or stalking can be enough to obtain an AVO, if you establish that you are in fear of your spouse or partner. Alternatively, you could apply for a restraining order from a Family Law Court.

Top

13. We weren't married. Is the law the same?

The laws that relate to children – child support and where children will live and spend time – are the same whether or not the parents were married.

The laws that relate to financial issues for de facto couples (whether heterosexual or same sex) are not the same as those that apply to married couples.

When considering a property settlement between a de facto or same sex couple, the Court looks at 2 things:

1. The net pool of assets;
   
2. The contributions made by each of you to the acquisition, conservation and improvement of those assets. Those contributions include direct and indirect financial and non-financial contribution and contributions as homemaker and parent. However, unlike in the case of a married couple, the Court pays more attention to financial contributions and gives less weight to non-financial and homemaker contributions.

Even if there are children involved, the Court does not consider the “future needs” of the parties when working out a property settlement.

The government is considering changing the law so that it is the same for heterosexual de facto couples as it is for married couples. That has not yet occurred.

In very limited circumstances, the Court can order that one party to a de facto relationship pay maintenance to the other person (in addition to child support). Maintenance is ordered if one party to the relationship is unable to support himself/herself because:

1. he/she has the care and control of a child of the relationship or a chid of the other party who is under 12 years of age or physically or mentally handicapped and under 16 years of age;
   
2. he/she is unable to support himself/herself because his/her earning capacity has been adversely affected by the relationship and the court considers that maintenance would increase his/her earning capacity by enabling that person to undertake a course of training or education. Such an order can only be made for a period of 3 years from the date the orders are made or 4 years after the date that the relationship ended.

Top

14. I'm starting a new relationship. How can I protect myself?

Whether you are getting married for the first time or remarrying or moving in with your partner (heterosexual or same sex), you will benefit from advice about whether a pre-nuptial or domestic relationship agreement is right for you.

Such an agreement can deal with how you will manage your finances during the relationship, how you will divide up your assets if you separate and whether either spouse/partner will pay maintenance to the other person during the relationship and/or after separation.

Rather than implying that the relationship may end, pre-nuptial or domestic relationship agreements can be part of a solid foundation for a healthy future relationship.

Pre-nuptial or domestic relationship agreements are not for everyone. Swaab Attorneys can advise you about that and can document your agreement to make sure it will be binding if needed.

Top

15. My Will. Do I need a new one?

Now you have separated from your spouse/partner, it is a good time to reconsider the terms of your Will or make a Will if you do not have one. Many married and de facto couples make Wills in which they leave assets to their spouse/partner.

Separating from your spouse/partner will not alter the terms of your Will, but your wishes about the distribution of your assets and the appointment of your Executor are likely to have changed.

If you are married and do not have a Will, the law provides that your spouse will benefit from your estate if you die while you are separated but not yet divorced. This may not be what you want.

If you divorce, any reference to your former spouse in your Will will be omitted in the distribution of your estate. This may not be what you want.

Swaab Attorneys can advise you about what to do with your Will and if necessary prepare a new Will for you.

If you are planning to marry or remarry, you should also consider a new Will. Marriage invalidates a Will, so that any new Will should be signed very soon after your remarriage, not before.

Top

16. Why Swaab Attorneys?

Swaab Attorneys is an award winning law firm, renowned for its client service. Our Family Law Group is widely recognised as leaders in our field, with an outstanding reputation for expertise, service and client care. We strive to offer clear legal and strategic advice, combined with support and understanding at what can be a very stressful time. Our lawyers are supported by a dedicated team of assistants, in a modern, professional environment.

Top

17. What will it cost?

All cases are different and, as with any litigation, the amount of costs will depend on a number of factors, including the attitude taken by the other side.

At Swaab Attorneys, we understand that clients are concerned about costs. For that reason, we discuss costs with clients during the initial conference and we endeavour to provide accurate cost estimates at the beginning and throughout your matter. Those cost estimates, combined with fortnightly billing, mean that clients can always keep track of their legal costs and not receive an unpleasant surprise at the end of their case.

In addition, we have relationships with litigation funders, who can assist clients to meet the ongoing costs of their case.

Top