Partners separating and breakdown of the family unit can be one the most stressful periods your life. Dealing with the emotion of separation as well division of property and arrangements for both parents spending time with children can be difficult. Not only is it important to take care of these fundamental issues but also to work through communication, emotion and well being of not only the children but parents as well to a successful outcome.
We are committed to resolving these matters as early as possible and are experienced in Alternative Dispute Resolution processes so that the highly emotional and difficult matters can be worked through and resolved without the necessity of a full Hearing in Court.
We will work with you to achieve a resolution to best suit your needs in a cost-effective manner.
If it becomes difficult to resolve, we are experienced family law litigators and will fight hard for you to obtain a fair and equitable result.
Property Issues
The Family Court takes a staged approach to determining the division of matrimonial property.
Those stages are generally:
- Ascertain the pool of assets
- Place a value in terms of percentages on the contributions of the parties to the acquisitions, preservation and maintenance of the matrimonial assets.
- Adjust those percentages where appropriate to obtain a percentage distribution of the matrimonial assets to each of the parties.
In the large majority of cases the Court considers that two parties to the marriage make equal contributions to property. Short marriages or cases where a large lump sum contribution was made in the latter stages of the marriage may be dealt with differently. Contributions at home as primary parent and home maker usually equal contributions of the primary financial contributor throughout the relationship (subject to large lump sum contributions).
The Court will also adjust the division of the property away from a 50:50 split to allow for the different needs of the parties. If one parent has sacrificed work skills and experience to remain home looking after the children or performing the majority of the domestic chores, that person often could not get a job in the future earning a similar income to the parent who has remained in the workforce. The needs of the parent who has fewer skills is therefore greater especially if there remain children under 18 to be cared for by that parent.
Many other factors must be considered by the Court when dividing property. It is also the case that only about 5% of matters are decided by the Judge leaving the large majority of cases to be resolved by agreement between the parties. Lawyers form an important part of the process leading to an agreement by advising their clients of their entitlements and negotiating on that client's behalf.
Parenting Issues
When two parents separate often an immediate result is the child/ren remain initially with one of the parents for the majority of the time. The other parent will spend time with the child/ren regularly such as alternate weeks, alternate weekends, a period of the school holidays or a combination of alternate weekends and nights through the week. There are no set rules which state which parent the child/ren should be with the majority of the time or what amount of contact the other parent should have. The Court’s starting point is usually equal time with both parents unless there are reasons for equal time not to occur. Some reasons for equal time not to be in the best interests of the child/ren are work commitments, distance, age or special needs of the child/ren. When it is not practical to spend time together or less time together the child/ren may still be in contact with the other parent by telephone, email, Facetime/Skype, letters or some other means.
Even if the child/ren don’t spend equal time with both parents, both parents still have equal responsibility, equal care and equal decision making in relation to the child/ren unless the Court finds some reason that it is not in the child/ren’s best interest.
Usually it is in the child/ren's best interest as they grow to spend time with both parents and the parents are encouraged throughout the Family Law process to come to an arrangement themselves if possible, which promotes the best interest of the child/ren.
The child/ren who spend the majority of time with one parent is/are said to live with that parent and spend time with the other parent as set out above. However, "Parenting Orders" are not confined to parents and may relate to grandparents or other significant people in a child's life.
Divorce
There is only one ground for Divorce and that is that the marriage has irretrievably broken down. The Family Law Act provides that the test to be applied in determining the irretrievable breakdown of the marriage is whether the parties have been separated for at least twelve months prior to the application being lodged.
Separation occurs sometimes with the parties both remaining in the home. This is called "separation under the same roof".
It is rare for a Divorce to be contested. The Divorce hearings are conducted in an informal manner and only take about 5 minutes if the Application is in order. If there are no children of the marriage or if there are children and the application is a joint application then usually there will be no need for either party to appear in Court.
A Divorce is granted in two stages. They are Decree Nisi at the date of the divorce hearing and a Decree Absolute one month later.
We would strongly advise you to obtain legal advice relating to your specific circumstances to ensure that you have all the information you need on your rights and obligations together with the options available to you to assist you in resolving any family law matter.