Family Law

1.  You should make a note of the date you separate from your spouse as this date will be important for your Application for Divorce (for married spouses) and the time limits to commence property settlement proceedings (for defacto couples). It may also be an important date when you are negotiating a settlement.

2.  You should collate your relevant financial information such as income tax returns, bank statements, superannuation statements, and any other documents that may be relevant regarding your assets and debts that would assist with your property settlement; and keep a diary of all significant events regarding your children and parenting matters.

3.  We would recommend that you obtain advice from a lawyer shortly after your separation so you understand how the law applies in your particular circumstances to help you have discussions with your former partner directly (if possible) or through family dispute resolution to try and reach an amicable agreement.

It is necessary for parties to participate in family dispute resolution to try and reach an agreement about parenting arrangements for their children and the division of the assets of the relationship before an application can be made to the Court. There are some exceptions to this requirement, such as the application is made in circumstances of urgency: there are reasonable grounds to believe a child or one of the parties to the proceedings has been abused or is at risk of abuse, or there has been family violence or a risk of family violence to one of the parties.

It is not be necessary to attend family dispute resolution if a party is seeking to enforce a Court Order or there has been a contravention of a parenting order. We can assist you with recommendations to family dispute resolution services, or determine if any of the exemptions apply to you.

We would recommend that you seek advice before attending family dispute resolution so you understand your rights and entitlements. If you can reach an agreement at family dispute resolution, we can assist you to formalise the agreement into a binding document. It is important to note that any agreement reached at family dispute resolution is not binding until you have either obtained a Consent Order from the Court or entered into a Binding Financial Agreement.

Once parties reach an agreement regarding the division of their property after separation, it is important to have the settlement formalised by either a Court Order or a Binding Financial Agreement.

Sometimes people will simply write up an informal agreement at home and sign it. However, without either a Court Order or Financial Agreement, any agreement you reach will not be binding or enforceable. This means that either party can seek to renegotiate the agreement, or make an application to the Court for a property settlement at a later date. This can lead to the burden of legal costs and the stress of dealing with a Court proceeding for a property settlement, sometimes many years after you separated.

Having an agreement formalised once you reach a settlement is highly recommended and will alleviate any concerns about a settlement being challenged at a later date (other than in exceptional circumstances). It will also give you the comfort of being able to deal with any assets in the knowledge that a settlement with a former partner has been dealt with.

Arrangements regarding your children do not necessarily need to be by way of a formal binding agreement if both parties can make amicable arrangements for the children. However there will be occasions when having a Court Order regarding the parenting arrangements for your children may be required, or a sensible way of dealing with the arrangements so there is no doubt about when the children will spend time with both of their parents or other significant people in their lives. We would recommend that parties seek advice about these matters.

Superannuation is considered an asset of a relationship and it is included in the pool of assets to be divided between the parties at separation. Superannuation in an industry superannuation fund can be ‘split’ between the party’s respective superannuation funds.

A self-managed superannuation fund can also be divided between parties, but there may be other important issues to consider regarding a self-managed superannuation fund that owns assets such as real estate.

It is important to obtain advice about your superannuation and how it may be dealt with as part of a settlement before you finalise an agreement with your former partner.