harrington family lawyers
Thursday, 23rd of November, 2017

Frequently Asked Questions 

  1. Does my matter have to go to court?
  2. If I do commence proceedings in court, will there be a hearing?
  3. Do I need a lawyer?
  4. If I do engage a lawyer, how much will it cost me?
  5. What happens at the first consultation?
  6. How does the court divide property between married partners?
  7. Can a court divide superannuation?
  8. What if my spouse and I reach an agreement about the division of matrimonial property?
  9. Is there a presumption following separation that the care of the children is shared equally between parents?
  10. How does the court make decisions about the parenting of children?
  11. If I want to go to live in another city and I have children, do I need to notify my former partner?
  12. When can I apply for a divorce?
  13. Can orders be made for property settlement and parenting orders before a divorce is granted?
  14. How long will it take to get a divorce?
  15. Can I get a divorce quickly because I want to re-marry?  

  

 

1. Does my matter have to go to court?

No. In many cases parties reach agreement without the assistance of the court. There are alternatives to commencing proceedings in court and these include mediation, conciliation, counselling and conferencing. However, it is important that any agreement be properly formalised.

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2. If I do commence proceedings in court, will there be a hearing?

Statistics show that only about 6% of matters that are started in court proceed all the way to a final hearing. The other 94% are resolved through negotiations, generally with the assistance of lawyers and the court.

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3. Do I need a lawyer?

Lawyers generally assist separating couples to resolve their differences through advising them of their entitlements and attempting to negotiate a settlement. This is not always possible and this is why there are courts and judicial officers. However, by advising clients of their entitlements, the law and the consequences of litigating, lawyers are generally able to assist parties to resolve their disputes without a final hearing.

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4. If I do engage a lawyer, how much will it cost me?

This is a difficult question to answer. In general, if a dispute is resolved quickly and through negotiation costs will be less than if the matter proceeds to a hearing in court. Our aim is to give clients accurate advice about the process, the likely outcomes, the consequences of litigating and what each step is likely to cost them. Clients can then make their own decision about how they want to run their case.

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5. What happens at the first consultation?

The first consultation is very important. It enables us to talk to you to obtain complete details regarding your circumstances and then to give you some preliminary advice about things like your lawful entitlements, the legal process, whether any urgent action is required and the likely future cost. Because we need to obtain sufficient details regarding the matter, often the first consultation is lengthy. It may assist us if you are able to bring with you details regarding important dates and a summary of the assets, liabilities, and superannuation of you and your spouse.

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6. How does the court divide property between married and de facto partners?

The court must make an order for a just and equitable division of matrimonial property. The court follows a four step process:

Step 1: Identify the pool of matrimonial property
This means a value is attributed to everything owned by each spouse. It does not matter whether the property is   in the husband’s name, the wife’s name, joint names or another entity controlled by either party. For these purposes superannuation is treated as property. Any debts owed are subtracted.

Step 2. Assess contributions
The court identifies contributions that each party has made to the acquiring, conserving or maintaining the matrimonial property. The court looks at not only financial contributions but also non-financial contributions and contributions as homemaker and parent. The court also takes into account what assets each party brought into the marriage and any inheritances or gifts received from third parties.

Step 3: Section 75(2) or 90SM factors
The court looks to the future to assess the likely future needs of each party. A spouse likely to have greater child care commitments will generally be regarded as having greater needs. Similarly, a spouse with the lesser ability to earn an income to maintain themselves in future will be generally regarded as having  greater need.

Step 4: Just and equitable
The court must make an order which is just and equitable. Although the usual preferred approach is to determine a division on a percentage basis, the court may treat particular assets differently.

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7. Can a court divide superannuation?

Yes. Since 2002 the Family Law Act has provided that superannuation can be split. However there are many cases where each party retains their own superannuation. 

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8. What if my spouse and I reach an agreement about the division of matrimonial property?

It is important that any agreement reached is properly formalised. This is generally done by way of an application for consent orders to the court. The most important advantage of having a properly formalised agreement is so that one party at a later time cannot seek more property from their former spouse. There may also be a saving in stamp duty if there are transfers of property. 

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9. Is there a presumption following separation that the care of the children is shared equally between parents?

No. Following amendments to the Family Law Act in 2006 the court  must consider making an order that children spend equal time with their parents. However the court will only do so if it is in the best interests of the children and it is reasonably practicable. 

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10. How does the court make decisions about the parenting of children?

In each case the welfare of the child is the paramount consideration. However there are also other considerations and these are set out in the Family Law Act.

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11. If I want to go to live in another city and I have children, do I need to notify my former partner?

Yes, but there are exceptional circumstances. In general a parent should not move with the children to live in another place without obtaining either the consent of the other parent or an order of the court  to allow them to do so.

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12. When can I apply for a divorce?

Either party can apply for a divorce after twelve months of separation. The process for applying for a divorce is relatively straight forward.

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13. Can orders be made for property settlement and parenting orders before a divorce is granted?

Yes. Orders for property settlement and parenting orders can be made at any time. However (with exceptions) an application for property settlement or spouse maintenance must generally be made within  twelve months of the the divorce being finalised.

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14. How long will it take to get a divorce?

It usually takes about three months, sometimes longer. When applying  for a divorce the application is set down for a hearing which is generally six to eight weeks after filing. If the court is satisfied the divorce should be granted the decree nisi becomes absolute one month and one day after the hearing.

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15. Can I get a divorce quickly because I want to re-marry?

In some circumstances a court will abridge the periods of time involved. It assists if both spouses agree for the divorce to go through quickly.

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