There are five important things to do before leaving your relationship. In Australia, de facto relationships are recognised by law, therefore when de facto or married couples split, there are legal considerations which must be dealt with before ‘walking out the door’.
1. Gather Important Documents and Protect your Information
Before leaving the family or matrimonial home gather documents like your Will, passport and birth certificate. If there are children involved and you are a primary carer, consider the birth certificates and passports for your children too.
It is important to note that a separation will not change your Will. If you fail to amend your Will, your former partner could benefit as a result of this. Your ex-partner may also have a level of control over your finances or medical decisions unless this is amended.
For an effective property settlement which is fair and reflective of your financial position, you should also gather any relevant financial documents including bank account statements, tax returns, pay slips and superannuation statements. This information can be subpoenaed if necessary, or requested directly from the institution, however, full and frank disclosure of your financial position is required, and having the information readily accessible will save you time and money.
Protect your privacy and security by changing your banking, email, social media, your Apple ID and passwords for your phone. It is also important to change any PINs for your ATM cards. If your partner or spouse is emotional or vengeful, having access to your sensitive information could be an issue for you.
2. Plan for the Children
The parties should reach an amicable agreement about how the children will be looked after and the time each parent will spend with them. A mediation with Relationships Australia is a valuable resource that may help you make plans for the children that are in their best interests. If you are unable to agree on arrangements for the children, a certificate, called a Section 60i, will be provided to you, and you will need to provide this before you can file an Application with the Court in relation to parenting matters. An exception to this rule is where family violence has occurred or there are matters of urgency.
If the parties have reached an agreement, it should be written down and provided to a lawyer so that a Parenting Plan or Consent Orders can be drafted.
3. Access to Funds
Consider whether it is appropriate to limit your partner’s access to joint funds by obtaining a joint authority or closing your account and splitting the balance if the parties so agree. The bank could freeze the account and this may be disruptive for both parties. We recommend keeping a separate bank account and considering freezing a joint credit card if necessary.
4. Sort out the Bills
If you are leaving the family home or business, you should contact creditors and let them know in writing that you are not responsible for future liabilities.
If you are the primary income earner and your partner cannot afford these costs, you may be required to pay them anyway. We recommend that you do this to avoid the other party applying to the Court on an urgent basis for spouse maintenance. Attending Court is costly and should be avoided unless necessary.
5. Consider Third Party Involvement
Before leaving a relationship, consider discussing your issues with a third party who is valued by both partners. Involving a third party, such as through a mediation, can help to avoid emotions clouding your better judgement and assist you to reach resolutions that are in your best interests.
There are many legal considerations that arise following a relationship breakdown. If you are considering leaving your relationship and need more information, or if someone you know needs help, please contact Etheringtons Solicitors to speak to one of our experienced solicitors on (02) 9963 9800 or contact us here.
Grandparents are very special people in children’s lives and play a significant role in family law matters. The Family Law Act 1975 (Cth) contains provisions allowing grandparents rights in relation to their grandchildren.
Rights of Grandparents under the Family Law Act
The Family Law recognises that children have the right to maintain regular communication with people who are considered important to their welfare, care and development. However, this does not mean that grandparents do not have an automatic right to spend time with their grandchildren.
Unless there are allegations of abuse or violence, it would be unusual for the Court not to make an order for a child to spend time with their grandparent. Among the factors that the Court will consider is the nature of the relationship between the grandparent and child including whether it is ongoing and of significant value to the child. In some cases, it may be necessary to apply for access or custody of grandchildren where the parent is:
- Unwilling to care for the child;
- Unable to provide for or care for the child; or
- Lacking the capacity to care for the child.
Alternative Dispute Resolution options
Through mediation or settlement negotiations with your children and their spouse, you may be able to reach mutually agreed arrangements about the time you spend and communication you have with your grandchildren. The agreement you reach can be included in a written agreement called a Parenting Plan which is between your children and their spouse. A Parenting Plan is not legally binding or enforceable but will be considered by a Court, if there are later difficulties.
Applying to the Court
If you have been prevented from seeing your grandchildren, you are able to rely on the Family Law Act 1975 to apply to the Court seeking orders in relation to spending time with your grandchildren, including communication with them, or in some circumstances seeking an order that they live with you. As a grandparent, you are able to do this despite the parents of the children being together or separated.
What often occurs when a family relationship breaks down is that the grandparents will only be able to spend time with their grandchildren when their son or daughter is spending time with them. The Family Law Act 1975 recognises the importance of children having a relationship with their extended family members including grandparents, however, what is in the best interests of the child will remain the Court’s priority.
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 our contact page.
Spousal maintenance is a responsibility you or your former partner might have to financially support the other person after separation or divorce. Spousal maintenance is not automatic and, in most cases, is only payable where one partner cannot reasonably support themselves and the other person has the capacity to pay maintenance. It can be a series of regular payments or it can be paid in one lump sum.
Parties should attempt to reach an agreement out of court or upon negotiating a property settlement before commencing legal proceedings. If an agreement cannot be reached, an application can be made for a financial order.
Court Order for Spousal Maintenance
Parties to a marriage have the right to make an application for Spousal Maintenance (section 72 of the Family Law Act), and similar provisions enable parties to a de facto relationship to apply (section 90SE). When assessing an application for spousal maintenance, the court will take into account many factors outlined in section 75(2) which include:
- Income, property, debts and financial resources;
- Ability to earn an income;
- A suitable standard of living;
- Children living with you or your former partner.
Common situations that result in spousal maintenance include when a spouse:
- Has had to give up work to care for young children and either it is unreasonable for them to obtain work or they do not have necessary current skills enabling them to re-enter the workforce;
- Is unable to work due to ill health or health issues or because they are suffering a mental or physical disability;
- Is responsible for taking care of children under 18 years or adult children who are disabled.
When to apply for a Spousal Maintenance order?
There is a strict time limit if you are applying for spousal maintenance for the first time, but once an order has previously been made, time limits do not apply. If applying for the first time, an Application must be made to the Court within:
- One year of a divorce becoming absolute for married couples (when a Certificate of Divorce is actually issued by the Court);
- Two years of separation for de facto couples.
An application to the court outside the time limit will be granted in limited circumstances.
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 contact us here.
A de facto relationship is legally defined as a relationships between two people, who are not legally married or related by family, and having regard to all of the circumstances of their relationship, who lived together on a genuine domestic basis.
Does a de facto relationship require cohabitation?
At this point there have not been any cases where the Court has ruled that a de facto relationship existed where the couple had never lived together, however, the Family Court has indicated that the concept of living together is not necessarily based on the proportion of time a couple spends living under the same roof.
Factors considered when defining de facto relationships
In practice, a Court decides if a de facto relationship exists based on a number of factors, including:
- The duration of a relationship.
- Whether a sexual relationship existed.
- The nature of the couple’s common residence.
- The degree of financial dependence or interdependence between the couple.
- The degree of mutual commitment to a shared life.
- The ownership, use and acquisition of property.
- The care and support of children.
- The reputation and public aspects of the relationship.
If you were in a de facto relationship and have separated from your partner, you have a two year time limit from the date your relationship ceased to make a property claim against a former de facto partner.
There are circumstances when this could be extended and you should seek professional legal advice.
If you would like more information on how we can advise you following a relationship breakdown, whether it is a marriage or de facto relationship, do not hesitate to contact us on 9963 9800 or via this contact form.
An ‘AVO’ refers to an ‘Apprehended Violence Order’, issued by a court against a person who has made another person feel fearful of assault, harassment, further violence or intimidation.
There are two types of Apprehended Violence Orders:
- Apprehended Domestic Violence Order (ADVO), which is issued where the two parties are married, de facto, family or related.
- Apprehended Personal Violence Order (APVO), which is issued where the two parties are not related. Examples include colleagues, friends and neighbours.
How to apply for an AVO
An AVO can be pursued by the police, or in the absence of the police, through a private application in the local court. If the police will not make the application on your behalf, you can still make an application, but you should get legal advice first. For instance, sometimes the police will not take action where no assault has taken place, but yet the Court may still grant you an AVO.
The police and the courts take AVOs very seriously, and applications will be refused if they do not seem legitimate, appear exaggerated or appear fraudulent. If you are considering applying for an AVO, it is useful to write down as much information as you can including dates, times and places of incidents, and how you felt at the time, so you can provide this to your solicitor to obtain the relevant advice.
This may come as a surprise, but the defendant (the person who the AVO is issued against) can consent to the AVO being made without admitting to any of the behaviour they have been accused of. However, if you are a defendant, it is highly recommended that you consult a lawyer before consenting to an AVO, because it can have serious ramification and may affect your access to your children and your family law case. It can also result in you losing a firearms licence and in certain types of employment, it can affect your position.
If the defendant does not consent to an AVO, the court will hear the matter to first determine whether an provisional order should be made. Usually an provisional order is made and then the Court will refer the matter to a hearing.
At the hearing, both parties will present their facts to the judge, and the judge will determine whether or not to issue the AVO, how long the AVO will be imposed for and what the conditions of the AVO are.
Defending an AVO
There are many ways to defend an AVO. If you are a defendant, it is very important to obtain legal advice before defending yourself in court. If you have not had time to obtain legal advice, you may ask the court for additional time.
As mentioned above, you can consent to an AVO being made against you without admitting to any of the reasons the AVO was issued (e.g. violence, harassment, etc). If the evidence against you is strong, you may wish to consent to it instead of having a contested hearing. In some circumstances, you can apply for the AVO to be revoked or changed.
Our experienced lawyers can assist you in defending an AVO that has been brought against you. We will consider the reasons for the AVO, hear your side of the story, look at all of the facts and advise you accordingly.
Breaching an AVO
It is important to remember that breaching an AVO is a criminal offence. The maximum penalty is a fine of $5500 and/or two years in prison. We strongly recommend obtaining legal advice before acting outside of the terms of any AVO issued against you.
The team at Etheringtons Solicitors are skilled at handling all matters relating to AVOs and are able to assist with complex cases. If need assistance with any area of litigation, do not hesitate to contact us on 9963 9800 or via the contact form here.
If you have been involved in family law matters, then you may be familiar section 75(2) factors. This section of the Family Law Act relates to adjusting a property settlement based on the contributions of the parties. It also considers factors which can “soften” the effect of looking at a property settlement. In this article, we break down what section 75(2) factors are and explain what they mean for you.
What is Section 75(2)?
This section of the Family Law sets out numerous factors that the Court may take into account in deciding how to distribute property in property settlements when determining property and maintenance cases.
What are the Factors?
Section 75(2) of the Family Law Act 1975 (Cth) sets out numerous factors that may be taken into account by the Court in property settlements when determining whether there are any special circumstances that require adjustment to the property settlement amount.
The factors are:
- The age and state of health of each of the parties
- Income, property, finances and ability to earn an income.
- Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
- Commitments relating to support of themselves, a dependent or other person.
- Eligibility for a pension, allowance or benefit.
- Where the parties have separated or divorced.
- The extent to which payment of maintenance could enabling further education and therefore increase their earning capacity.
- The effect of any proposed order on the ability of a creditor of a party to recover a creditor’s debt.
- The extent to which one party has contributed to the income, earning capacity, property and financial resources of the other party
- How the length of the marriage affected the earning capacity of the party seeking maintenance
- The need to protect a party who wishes to continue their role as a parent.
- Financial circumstances of any current cohabitation by either party
- Orders made under Section 79 of the Family Law Act, if any. This section regulates how assets are to be divided
- Any child support that one of the parties is liable for
- Any fact or circumstance which the court feels needs to be taken into account for reasons of justice
- The terms of any financial agreement binding on the parties to the marriage
What Do They Mean for You?
If you are going through a separation, it is important to understand what these factors mean for you. These factors are important for the court’s consideration and assessment of what each party’s ‘future needs’ are likely to be. This requires the court to anticipate what each party’s life is likely to look like in the future and award a percentage uplift to the party with the greater ‘need’. As seen above, there are many factors that the court will take into consideration when deciding who gets what portion of the assets. It is therefore important to understand that property settlements can become quite complex.
If you would like to discuss your family law matter with one of our family lawyers, please contact us on 9963 9800 or at via our contact form.