Frequently Asked Questions - Family Law

The Family Law Act 1975 operates on a "no fault" basis. Therefore, it is not necessary to establish that either party is at fault in the marriage breaking down in order to be granted a Divorce Order by the Court. The only ground necessary in order for a party to obtain a Divorce Order is an “irretrievable breakdown of the marriage". To establish such a ground for Divorce, the husband and wife must have lived separately and apart for a period of at least 12 months. In some circumstances, the husband and wife may separate and still live under the one roof. In order to establish an irretrievable breakdown of the marriage, evidence will need to be produced to the Court to the extent that the marital relationship has broken down and that the parties have lived separate and independent lives for a period of at least 12 months prior to the filing of the Application.

Once the 12 month separation period has elapsed, either party (the husband or the wife) may complete and file an Application for Divorce with the Family Court of Australia or the Federal Magistrates Court of Australia. At the time of filing the Application for Divorce, the Court allocates a Hearing date, which is normally around 6 to 10 weeks after the date of filing. A filing fee is payable to the Court at this point in time. The Application is then served upon the other spouse. The parties do not need to attend Court at the Hearing of the Divorce Application unless there are children of the relationship who are under 18 years of age.

If there are children under the age of 18, prior to granting a Divorce Order the Court will need to be satisfied that proper and adequate arrangements have been made for the welfare of such children, including as to their housing, education, health, contact and financial support arrangements.

Upon being satisfied that all necessary requirements have been met, the Court will then grant a Decree Nisi of the marriage with such an Order becoming absolute and final one month and one day later (Decree Absolute). A party cannot re-marry until the Divorce Order becomes absolute.

Once the Divorce Order becomes absolute, each party then has 12 months within which to bring an Application before the Court seeking property division and/or spouse maintenance Orders. Thereafter, the parties will become statutorily barred from commencing such proceedings without the leave of the Court.

You do not need to be divorced prior to finalising arrangements about the division of the matrimonial assets, resources and liabilities, or about the care arrangements for the children of the relationship. However, it is important to remember that there is a one year limit from the date your Divorce Order becomes absolute within which to commence Court proceedings seeking property division and/or spouse maintenance Orders. Thereafter, you will be statutorily barred from commencing such Court action. The Court will only provide an extension of this limitation period in exceptional circumstances.

Initially, and in accordance with the Family Law Rules 2004, our firm will attempt to negotiate a fair settlement of your matter by way of negotiation, Mediation or Arbitration. If a matter can resolve early, legal costs are minimised. It should be noted that the bulk of our Family Law matters settle without the need for contested Court proceedings being instituted.

If your matter cannot be resolved by mutual agreement, then in order to protect your interests, it may be necessary to commence proceedings in the Family Court of Australia or the Federal Magistrates Court of Australia.

Court proceedings are commenced by filing an Application with the Court which sets out details of the Orders you wish the Court to enter. A filing fee is payable to the Court upon the commencement of Court Proceedings. In support of your Application, an Affidavit (which is akin to a formal statement) may also need to be filed detailing the history of the relationship and all other relevant issues. If property or financial orders are being sought, a Financial Statement will also need to be filed which verifies your current income, expenses, assets, liabilities, superannuation and financial resources. A sealed copy of these documents is then served upon your spouse/former partner, following which he or she has the opportunity to file a Response and their own supporting documentation.

Very few matters actually proceed to a final determination by the Court. Most matters resolve prior to the final Hearing stage in the proceedings. Should your matter proceed to a final Court Hearing before a Judge or Federal Magistrate, a Solicitor from our Family Law Department will instruct a Barrister on your behalf. A Family Law matter from start to finish can run from anywhere between a couple of months to a number of years. The length of time that a matter takes to be finalised will depend on a number of issues, such as the children's ages, the assessment of a party's financial circumstances by a forensic accountant and the co-operation (or lack thereof) received from the other side.

Should it be necessary to obtain urgent Orders from the Court, for example if urgent access to a child is required or in respect of financial support, an Application seeking Interim Orders may be made to the Court.

Such an Application enables a party to obtain Orders from the Court expeditiously. The purpose of such an Application is so that Orders may be entered by the Court until such time as the Court has had the opportunity to hear the matter in full and make Final Orders.

Please do not hesitate to contact our Family Law Department if you wish to obtain further advice about protecting your rights and obtaining Orders as a matter of urgency.

Child support is administered by the Child Support Agency and is calculated under the Child Support (Assessment) Act. This legislation provides a formula that is used to assess the amount of child support payable by a parent. If you believe you may be entitled to child support payments from an estranged spouse/partner, we recommend that you immediately contact the Child Support Agency for further details.

The Child Support Agency will advise you of the amount of child support likely to be assessed in your particular situation. Factors which will influence the level of child support you may be entitled to receive or pay include the age of each child, the income and other financial resources of the payer and of the payee, together with details as to whether the payer has any other children whom he or she has to provide financial support for.

Since the amendments to the Family Law Act 1975 introduced in the year 2000, appropriate recognition has been given to Binding Financial Agreements however the Court continues to have ultimate jurisdiction to determine whether or not the terms of such Agreements should be binding. Financial Agreements can be entered into before marriage, during marriage or after divorce.

Parties enter into Financial Agreements with different intentions, including the following:

• To protect assets which may be inherited during a relationship;
• To protect the assets of one party where there is a significant difference in the wealth of the parties;
• For subsequent marriages, such an Agreement can protect prior assets and ensure that children of previous relationships inherit those prior assets;
• To protect the rights of a party who wants the certainty afforded in a formal agreement rather than face the discretion available in the Courts under the Family Law Act 1975 (subject of course to the Court’s ultimate discretion);
• To protect assets which have been in a family for generations.

Yes, parties can enter into a Financial Agreement before or during cohabitation, or after separation. Defacto couples in New South Wales are also now governed by the Family Law Act 1975 which provides that the parties may enter into a "Binding Financial Agreement" in contemplation of their entering into a domestic relationship, or whilst they are in one. Such Agreements have the same effect as binding Financial Agreements do for married couples.

Binding Financial Agreements may make provision with respect to financial matters including as to the maintenance of either or both of the parties, the property of the parties and/or the financial resources of the parties.

A Binding Financial Agreement entered into between a Defacto couple must contain Certificates confirming that each party has received independent legal advice concerning the effect of the Agreement on the rights of each party and as to the advantages and disadvantages of entering into the Agreement at the time the advice was provided. These Certificates need to be signed by the solicitor for each respective party.

Yes, a Court may make an Order setting aside a Financial Agreement if the Court is satisfied that:

• The Agreement was obtained by fraud (including non-disclosure of a material matter); or
• Either party to the Agreement entered into the Agreement for the purpose of defrauding or defeating a creditor or creditors of the party; or
• Either party to the Agreement entered into the Agreement with reckless disregard to the interest of a creditor or creditors of the party; or
• The Agreement is void, voidable or unenforceable; or
• In the circumstances that have arisen since the Agreement was made it is impracticable for the Agreement or a part of the Agreement to be carried out; or
• Since the making of the Agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the relationship) and, as a result of the change, the child or if the Applicant has caring responsibility for the child, a party to the Agreement will suffer hardship if the Court does not set the Agreement aside; or
• A party to the Agreement engaged in conduct that was, in all the circumstances, unconscionable; or
• The Agreement covers at least one superannuation interest that is an unsplittable interest.

The Financial Agreement must include a statement to the effect that before the Agreement was signed by both parties, they each received independent legal advice by separate legal practitioners, including as to the effect of the Agreement on the rights of that party and if it was to the advantage or disadvantage of that party to enter into the Agreement at that time.

The Financial Agreement must contain Certificates signed by the solicitor for each party providing that the solicitors gave independent legal advice to each respective party.

Binding Financial Agreements provide for how assets, resources and liabilities will be divided between the parties if a marriage subsequently breaks down. Financial Agreements can deal with property, financial resources and/or spouse maintenance of the parties or matters incidental to those issues. Financial Agreements must not cover matters dealt with in a previous Agreement, which is still in effect. The previous Agreement must be terminated either by a separate written agreement being a "Termination Agreement" or a provision in the new agreement terminating the previous Agreement.