Family law disputes can be complex and confusing. We find that there is a degree of uncertainty on the part of many clients when they initially consult a lawyer as to the meaning or effect of certain phrases such as 'Divorce", 'separation', 'Property Settlement', 'Parenting Orders' and 'Child Support'. We believe it is important that clients have a basic understanding of what each of these concepts mean.
Once a marriage has broken down, the first matter that often comes to mind for many people is to consider applying for a divorce. However, a divorce only refers to the status of being married and does not resolve property or parenting issues. Since the Family Law Act was introduce, Australia has adopted a 'no-fault' divorce system, with the irretrievable breakdown of a marriage now being the sole ground for a divorce. To establish this ground, parties must have been separated for a period of at least 12 months before they can apply for a divorce. Separation can include being separated under the one roof.
Although whether there are appropriate arrangements in place in relation to children is a matter the court can take into account when considering whether to grant a divorce, the granting of a divorce itself does not formalise parenting or financial matters.
To formalise parenting arrangements, this requires the parties to make either a separate Application for Consent Orders to the court or the parties may choose to enter into a Parenting Plan instead. If the parties cannot agree on parenting arrangements then an Application can be made to the court to determine this dispute. Parties are normally required to participate in Family Dispute Resolution before commencing any proceedings in respect to parenting disputes.
Child support is not an issue that is ordinarily dealt with directly by the court. Instead it is normally dealt with administratively as a separate matter by the Child Support Agency based on an administrative formula. There is a process for making an appeal to the court for orders to depart from the formula in certain circumstances. Parties can also enter into private Child Support Agreements. There are strict rules and requirements surrounding these agreements.
It is important to note that Spousal Maintenance is also a separate matter to Child Support, the former dealing with financial support for a spouse and the latter dealing with financial support for a child. Adult Child Maintenance is a further concept that applies to adult children who may be in need of financial support.
A Property Settlement refers to the division of assets and financial resources between the parties. Where the parties have come to an agreement, this can be formalised through Consent Orders or a Binding Financial Agreement. Again, strict requirements apply to such agreements. If no agreement can be reached then an Application can be made to the court to resolve this dispute.
Applications for Consent Orders or Applications to the court to determine a dispute can involve both property and parenting matters in the same application or these can be dealt with in separate applications. However, it should be kept in mind that proceedings for property settlements must be brought within certain time limits, being within 12 months after the granting of a divorce order if the parties were married, or within 2 years from the breakdown of a de facto relationship.
In deciding how to divide the property and financial resources of the parties, the Court will generally embark on a four-step process which involves pooling the assets of the parties to determine the value of the assets, take into account the financial and non-financial, direct and indirect contributions of the parties, as well as their future needs to arrive at a property settlement which the court considers just and equitable.
The above outline is, of course, general in nature. If you have any questions about the family law process, you should seek advice specific to your circumstances, or contact our friendly staff to arrange for a consultation with one one of our solicitors.