As a general guide whether the property is in one name your partners name or joint names, whether you have a company or a trust – it doesn’t matter who owns it – depending on any argument as to contribution and pre-ownership which can affect whether these assets should be brought into the matrimonial pool – it’s to be treated as matrimonial assets.
Assisting you with Family Law Matters - FAQ'S
FREQUENTLY ASKED QUESTION'S
The property and everything we have is in one name does that mean everything goes to that one person?
Both parties are interested in a private mediation. I understand we can go to mediation and then we take that agreement to Solicitor? Is this the cheapest and most secure legal way to do this?
If you bring an agreement, to us then we don’t have to get involved in the negotiations for the property settlement and so a lot of work and hence cost can be saved but we can’t just sign off on it.
We have a legal obligation to provide you with legal advice and the court will only process an agreement if it in one of two forms a binding financial agreement or consent orders lodged with the court.
The Court has an obligation when considering the consent orders must ensure the agreement is ‘equitable’. If not then it won’t be approved.
What are some of the differences between a consent order compared to a Binding Financial Agreement?
The major difference is that you must have independent legal advice for a Binding Financial Agreement for both parties and the solicitors sign off on the certificates attached to the agreement.
In a consent order one party normally draws up the court documents and will get the advice because that party will need the Solicitor to draft it. The other party is required to sign off on the consent order but doesn’t have to prove to the court that advice was sought; the court then considers the document and it will decide if it is fair and reasonable.
A Binding Financial Agreement will only be binding if both parties independently engage a Solicitor. It does not need to be lodged in court.
What is the difference between a private agreement compared to a Binding Financial Agreement?
A private agreement can not be enforced through the court system and has no effect and so will be disregarded by a court should there be a dispute.
Can a Binding Financial Agreement (BFA) be used for children’s matters?
No, You will need to have the BFA document for the property matter and a separate one for your children – the children’s matters will be dealt with by way of consent orders or you could have both property and childrens matters dealt with in the same consent orders.
In a perfect world ideally an agreement is reached between two people and then we see you to document the agreement by way of consent orders – it therefore goes to Court and is approved or sanctioned by way of an ‘Order’. So will the documents be accepted by the Court or is there something that may stop it the agreement from issuing ?
A Court will say no if the court thinks that the settlement is not a fair agreement.
For example in a long marriage you get 5 percent and the other party gets 95 percent – That may not be considered to be ‘fair & reasonable’ under the circumstances.
This causes “alarm bells” to go off at court and may result in the Court requesting further information before a decision can be reached or at worst not approving the terms of settlement.
We have already agreed that is what we want to do. Then we come here and ask for an agreement to be drawn up –can you look after both of us?
One Solicitor cannot be acting for both parties, you need independent advice.
I am going overseas to live. Can the other party start court proceedings if I am not in the country?
Yes so Ideally you would take care of your affairs before you left the country. However to answer your question another way, if you have come to an agreement you can proceed with your agreement even though internationally. We are able to communicate with you via email, skype or fax.
If Court proceedings are initiated, do I have to appear?
You will be required to appear in Court at some stage or we may ask the Court for permission if you can appear via the phone, which can make things more complicated – at some stage however you will be needed in person.
If our matter went to mediation or court hearing what information do I need to bring?
The Court instructs that both parties have an obligation by law to disclose documents. This is so we can ascertain what the ‘property settlement pool’ is and it is essential to the validity of any agreement – it is called full and frank disclosure.
Can we go through the mediation process without a Solicitor?
The simple answer is yes – but Mediators are not qualified to give legal advice or draw up legal documents, only Solicitors can do this.
They can assist you by way of reaching an agreement with another party which then needs to be bought to us to complete the agreement.
Would you recommend that the agreement process is initiated before the family home is put onto the market?
Yes, you can run both matters side by side.
Because of process delays, it can take weeks or months to complete and file the documentation in the Court system.
If the property is sold in the interim and in joint names the funds could be sitting in an account until your matter is finalised.
Can I initiate a property settlement before I get a divorce?
Yes, you don’t have to wait until your divorce to start the property settlement process- but beware the court has time limit of 12 months after your divorce to bring your property settlement proceedings.
Do we have to go to Court?
Whether or not you have to appear before the Court depends on several circumstances.
If there are no children of the marriage under 18 years of age, then neither you nor your spouse are required to attend the hearing.
If there are children of the marriage under 18 years of age, and you and your spouse have made a joint application, then neither you nor your spouse are required to attend the hearing.
If, however, there are children of the marriage under 18 years of age, and either you or your spouse have made a sole application, then we will need to attend the hearing on your behalf.
If we have to go to Court, when do we?
When the application is filed with the Court, a time and date for a hearing will be allocated.
How long do I need to wait to get divorced?
You must have been separated for 12 months before signing and filing your Application for Divorce.
If you have been separated under the same roof for a portion or all of this twelve month period, you will need to file an Affidavit, along with an Affidavit of a third party (friend or family member) to provide evidence to the Court that you were separated during this time.
Can I get a Divorce if my ex won’t sign the Application?
Yes. Either party can make a sole Application for Divorce. You do not need the other party’s consent. The Application will, however, need to be served on the other party.
Do I have to say why I want a Divorce?
No. There is no fault divorce in Australia.
Who can get divorced in Australia?
An Application for Divorce can be filed in Australia if either party is an Australian citizen domiciled in Australia or ordinarily resident in Australia and has been ordinarily resident in Australia for at least one (1) year prior to filing their Application for Divorce.
What happens if I was married overseas?
You need to file a copy of your Marriage Certificate with your Application for Divorce. If your Marriage Certificate is in a language other than English, you will need to file a translation of the Marriage Certified by a certified translator.
What if we have not been married for more than two (2) years?
If parties have been married for less than two (2) years, they must first have considered reconciliation with the assistance of a counsellor.
A certificate from the counsellor confirming that they have discussed reconciliation with the parties must be attached to the Application for Divorce.
Either the husband or wife can make a sole Application for Divorce provided that the Certificate is attached to the Application or they have received permission from the Court to make the Application before the expiration of the two (2) year time period.
The two-year time period runs from the date of marriage until the date of the Divorce Application.
Alternatively, parties can simply wait for the two (2) year time period to expire prior to making the Application.
Does it matter if we have not worked out the property settlement or the parenting arrangements for the children?
No, provided that you have been separated for 12 months.
Please note that obtaining a Divorce Order creates a time limitation in relation to making an Application to the Court for spousal maintenance and/or property settlement. Both parties have twelve (12) months from the date that their Divorce Order becomes final to make an Application to the Court for spousal maintenance and or property settlement. The leave of the Court is required to make an Application outside of the expiration of this twelve (12) month period. This leave is not granted automatically.
When am I divorced?
When the Court is satisfied, it will issue an order for divorce, known as a Decree Nisi. This order is temporary, and after a month and one day becomes final, known now as a Decree Absolute. It is with this final order that you are officially divorced. Note however that it may take a few hearings for the Court to approve the application.