Considerations when Applying for a Divorce

Considerations when Applying for a Divorce

A divorce is legal recognition of the termination of a marriage and a means of ending the legal duties and responsibilities spouses owe to each other. Obtaining a divorce is also the initial step in making future arrangements concerning children, property and spousal maintenance. It is possible for parties to live together and still be separated, however, in most cases it is beneficial for both parties to go through the process of a divorce.

Am I eligible to apply for a divorce?

If there is no reasonable likelihood of the parties reconciling and resuming married life and you and your spouse have lived apart continuously for 12 months, you should consider obtaining a divorce. For example, if you wish to remarry, it will be necessary to obtain a divorce first.

You can apply for a divorce in Australia if either you or your spouse:

  • regard Australia as your home and intend to live in Australia indefinitely, or
  • are an Australian citizen by birth, descent or by grant of Australian citizenship, or
  • ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

Importantly, the time frame for seeking any property or financial orders in the Family Court is twelve (12) months from the date of the divorce being granted.

Divorce cases where children are involved

If there are any children under the age of eighteen (18), a court can only grant a divorce if it is satisfied that proper arrangements have been made for the children. The Court’s paramount consideration is what is in the child’s best interests. When deciding what is in the child’s best interests, the Family Law Act 1975 requires the Court to take primary and additional considerations into account.

Primary considerations consist of the benefit to a child of having meaningful relationships with both parents and the need to protect a child from physical and/or psychological harm (from being subjected or exposed to abuse, neglect or family violence).

Additional considerations in relation to a parties’ conduct include, but are not limited to, the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent, each parent’s ability to provide for the child’s needs, the maturity, sex, lifestyle and background of either of the child’s parents and the attitude of each parent to the child and to the responsibilities of parenthood. As a result conduct can matter in parenting cases.

Other considerations

However, the granting of a divorce does not determine the issues relating to property and maintenance or parenting arrangements for your children. If you want to make arrangements about these issues you can:

  • make an agreement with your spouse and file it with a court, or
  • seek orders from a court, when you and your spouse cannot reach an agreement.

Contact us

We know that the divorce process can be strenuous for both parties. If you would like more information on how we can assist you with your property settlement matter or any other family law matters, do not hesitate to contact us on 9963 9800 or via the contact form here.

Child Relocation

Child Relocation

Child relocation is a consideration which requires the changing of a child’s living arrangements and is one of the most important concerns in a relationship breakdown. International relocation is becoming an increasingly common occurrence, with many people and families moving across the globe for business, opportunities and lifestyle changes. If parents have equal and shared parental responsibility of the children, the following factors in relation to child relocation must be considered.

Family Law Act 1975

Disagreements on child relocation matters in a Family Law context can often lead to intervention by solicitors and the court system. Whilst freedom of movement is an accepted right, different principles apply for children and the removal of a child from a country, state or area that is significantly distant from the non-resident parent.

The relevant section of the Family Law Act is section 65DAA. This provision explains the process the Court is required to follow in determining if a child should spend equal time or a substantial and significant time with each parent. The definition of ‘substantial and significant time’ in the Act is time that involves the parent in the child’s daily routine and significant occasions for both the parent and child.

Factors taken into consideration

The first consideration which is taken into to account is whether the decision for relocation is in best interests of the child. Secondly, whether it is reasonably practicable for the child to spend equal time or significant and meaningful time with the each parent, and how the time that they currently spend with that parent would be affected by the relocation.

It is generally advised that relocation of a child should not occur until the consent is obtained from the non-resident parent. If consent cannot be obtained, then it is appropriate to seek the Court’s intervention on this issue.

Contact us

Etheringtons Solicitors have recently acted in several complex child relocation matters, and in each we have achieved successful outcomes for our clients. If you are currently in the situation where you are thinking about relocating, whether that be interstate, or to another continent and require advice on a child relocation issue, do not hesitate to contact us on 9963 9800 or via the contact form here.

Case Study: When Binding Financial Agreements Aren’t Enforceable

Case Study: When Binding Financial Agreements Aren’t Enforceable

A binding financial agreement also commonly referred to as a ‘pre-nuptial agreement’ is an agreement which can allow for certainty, trust, and peace of mind in a relationship.

However, the High Court has made it clear in a recent case that it will not enforce any binding financial agreements as a consequence of unconscionable conduct, particularly when there is a significant power imbalance between the parties. Unconscionable conduct is defined to mean conduct which is so harsh that it goes against good conscience. A common instance is when an innocent party is subject to a special disadvantage which seriously affects the ability of the innocent party to make a judgment as to their own best interests.

What are Binding Financial Agreements?

Binding financial agreements are legally binding agreements that address what happens to a couple’s finances and property in the event that there is a break down in a marriage or de-facto relationship.

The Family Law Act 1975 is the relevant legislation which applies to binding financial agreements. Importantly, a binding financial agreement can protect assets including cash, property, superannuation and inheritances. However, in order for a binding financial agreement to be binding on the parties’, it is prudent that each party obtain independent legal advice, and the binding financial agreement must contain a statement from a legal practitioner.

Recent Case: Thorne v Kennedy

A recent High Court case has demonstrated that if a binding financial agreement is entered into in circumstances of unconscionable conduct, the agreement will not be upheld.

Thorne v Kennedy involved a binding financial agreement between a wealthy Australian property developer and his ex-wife.

The couple met online in 2006 on a website for potential brides. At the time, Ms Thorne was 36 years old, living in the Middle East with no substantial assets. Mr Kennedy was 67 years old and had assets in the vicinity of  $18 million – $24 million.

Ms Thorne moved to Australia. Then, ten days before their wedding Mr Kennedy took Ms Thorne to a solicitor to obtain advice about the terms of a binding financial agreement which was purported to be entered into between them. The lawyer told Ms Thorne it was the worst agreement they had ever seen, and advised Ms Thorne not to sign it. Mr Kennedy told Ms Thorne that if she did not sign the agreement then the wedding would not go ahead. Despite the lawyer’s ‘advice, Ms Thorne signed the agreement and the wedding continued.

The couple separated in 2011 and Ms Thorne was provided with what the High Court described as a ‘piteously small’ lump sum payment based on the terms of the binding financial agreement. After lengthy legal proceedings, the High Court ruled that Mr Kennedy had taken advantage of his ex-wife’s vulnerability to obtain an agreement which was ‘entirely inappropriate and wholly inadequate.’ The agreement was entered into as a result of undue influence, illegitimate pressure and unconscionable conduct. As a result, the binding financial agreement was not enforceable and was subsequently set-aside.

Impact on Binding Financial Agreements in Australia

This ruling has been considered a landmark case in the interpretation of binding financial agreements in Australia. As a consequence of the Binding Financial Agreement being set aside, the Federal Circuit Court allowed Ms Thorne to bring a property settlement application against Mr Thorne.

This case serves to reinforce that binding financial agreements are not cheap documents and therefore appropriate advice and caution must be taken when entering into these agreements.

Contact us

If you would like more information on how we can assist you with your binding financial agreement or any other family law matters, do not hesitate to contact us on 9963 9800 or contact us via the form here.

Superannuation and Family Law Property Settlements

Superannuation and Family Law Property Settlements

If you and your partner separate, you must consider what will happen to the property you own and how it will be divided between the two of you. The process of deciding what assets, financial resources and liabilities to divide is known as a property settlement under family law.

Property settlements can be done between parties who are or have been married as well as couples who have been in a de facto relationship. A property settlement can also be dealt with or without the intervention of the Court. In this blog, we discuss property settlements, particularly in relation to what happens to superannuation during the property settlement process.

What is property?

The Family Law Act 1975 defines property as “property to which those parties are, or that party is, entitled, whether in possession or reversion”. It is commonly accepted that property can include, but is not limited to, superannuation entitlements, inheritances and business interests.

What happens to superannuation in property settlements?

Superannuation is commonly included in property settlement matters. If parties have superannuation entitlements, they can be dealt with as part of the same property settlement. This may be undertaken by way of an agreement between the parties, which can be implement through Consent Orders or a Financial Agreement, or by the intervention of the Court and obtaining court orders.

However, it is important to note when dealing with a superannuation interest, the first step is to ascertain the value of the superannuation interest. In most situations, this will be done according to various methods set out in the Family Law (Superannuation) Regulations 2001. A particular method to be used in each individual case will depend on the superannuation fund. If the parties are dealing with a fund for which there is no specific method of valuation provided in the Regulations, the Court will determine the value as it considers appropriate. Once the superannuation is valued, it is included in the property pool (assets that arose out of the relationship) either amongst the other assets or as a separate list, depending on particular circumstances.

Consent order

Once the superannuation fund is valued, it can then be ascribed a value in the matrimonial property pool and can be dealt with by way of a consent order. A consent order is a written agreement that is approved by a court. A consent order can finalise financial arrangements between the parties, A consent order can either contain provisions that the parties either retain their superannuation entitlements or whether a portion is to be split to the other party. In such event that the superannuation entitlements of one party are to be divided, this is to be carried out by way of a ‘splitting order’.

Splitting order

A splitting order can be achieved by an order which allocates either an amount or a specified percentage from that party’s superannuation interest to the other party, which subsequently directs the trustee of the superfund to transfer their newly created entitlements into a separate superannuation scheme.

In some cases, it is unpractical to determine the splitting of superannuation entitlements at the same time when other property issues are being dealt with. For example, such determination may need to be postponed until a later stage in the proceedings because of certain difficulties with respect to the valuation of a particular superannuation interest. However, there may still be a need to protect the interest in question from being disposed of, which may occur in a situation where the member party who is the member of the fund is in the position to access his or her entitlements.

Contact us

It is vitally important to understand how superannuation will be dealt with in your family law proceedings. If you would like more information on how we can assist you with your property settlement or if you have any family law general enquires, do not hesitate to contact one of our family law solicitors on 9963 9800 or at via the contact form here.

Separating Assets and Liabilities Upon Separation

Separating Assets and Liabilities Upon Separation

It is important during a breakdown of a relationship or marriage both parties consider the issue of separating assets and liabilities. It goes without saying that separation is often a time that is highly emotional and stressful, however it is almost always a significant life changer as it may leave the vulnerable with significant financial strain.

Property Settlement

Often long term de-facto relationships and marriages involve jointly owned assets, including properties, home contents and motor vehicles that have been accrued during the relationship or contributed by one party.

It is common for most couples to be able to agree on how shared assets should be divided (known as a “property settlement”), and arrangements may involve the jointly owned property being sold and the proceeds divided, or the joint property being transferred into one of the parties’ sole names. Whichever it may be, it is advisable to formalise the property settlement agreement in a legal document. The main reasons for doing this are to:

  • Ensure that the agreement is clear and concise and legally binding.
  • Achieve a sense of closure.
  • Ensure that neither party can make a claim on the other in the future and thus obtain certainty.
  • Achieve an exemption from stamp duty when transferring a piece of property to the other party.

In some cases, couples are unable to agree on how assets and liabilities should be divided. When this occurs, it is best to seek legal advice from a solicitor to be informed of your rights and to allow for negotiations to occur with your former spouse. Unfortunately, where agreements simply cannot be reached through negotiations or alternative dispute resolution, the only available avenue is to proceed to court.

Why seek legal representation?

People who have gone through a separation are often more satisfied with the outcome in the circumstances where they can mutually agree on it, whether that be through negotiation or between themselves with minimal legal intervention, as opposed to a court judgment.

We know that a mutually beneficial and cost-effective resolution is the most desirable in the circumstances. If you would like more information on how we can assist you with your property settlement matter or any other family law matters, do not hesitate to contact us on 9963 9800 or via the contact page form here.

Separated Under One Roof – How Do I Apply for Divorce?

Separated Under One Roof – How Do I Apply for Divorce?

Can You Apply for a Divorce?

To be eligible to apply for a divorce, you or your spouse must have been separated and living separately for a minimum of twelve (12) months, with no reasonable likelihood of resuming married life.

What If you are separated but Still Living Together?

It is possible to be separated even if you are still living together. This can occur for a variety of reasons, often for the sake of the children. If you live under the same roof during all of or part of the minimum twelve month separation period, you will need to file an Affidavit (a sworn statement) from yourself and at least one witness.

What Should the Affidavit Contain?

Your Affidavit should address changes that have occurred between you and your spouse before and after separation. This is to show that even though you’re living in the same residence, your relationship doesn’t reflect a marriage. You can include the following matters in the Affidavit:

  • Do you have separate sleeping arrangements?
  • Has the sexual relationship ceased?
  • Have you changed the domestic services you perform for each other since separation?
  • Do you have separate financial arrangements such as separate bank accounts?
  • Have you stopped attending social functions and activities together?
  • Why are you still living separated under one roof? For example, financial pressures, stability for children of the marriage.
  • What arrangements are in place for children under the age of 18?
  • Have you informed any government departments such as the Department of Human Services – Child Support of your separation?
  • Do you think there will be a change to the living arrangements? If so, when will this occur?

Filing the Affidavits

The Affidavits are filed with the Divorce Application, Marriage Certificate, documents establishing citizenship (unless a citizen by birth) or for non-citizens an Affidavit establishing that one of the parties is domiciled and/or ordinarily resident in Australia.

After the application for divorce is filed, the other side may file a Response to Divorce within 28 days, if they disagree with any of the facts set out in the Affidavit and Application for Divorce. The court will process the Application and arrange a hearing date thereafter.

Contact us

If you and your partner are going through a separation or divorce we recommend seeking legal advice to ensure the best outcome. We have experienced family law solicitors who can provide advice and draft Affidavits. If you would like more information on how we can assist you with your family law matter, do not hesitate to contact us on 9963 9800 or via the contact form here.