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 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 from your previous partner 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 of each parent during the divorce can play an important role in later proceedings.
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.
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 Etheringtons Family Lawyers in North Sydney on (02) 9963 9800 or via the contact form here.
Understanding Australian Child Custody Laws
Australian child custody laws recognise that fathers have an important role in the caretaking of children by the creation of an equitable agreement between parents that is first and foremost in the best interests of the child. There is a common misconception that mothers retain primary custody of children because they are traditionally viewed as more suitable for the role of primary carer. On the other hand, fathers were considered less likely to retain custody because they were considered more likely to be employed and have a better overall earning potential.
In Australia, child custody laws provide the equitable foundations for a fair child custody split between parents, however there may be many equitable reasons as to why an even split is unattainable.
Research from the Australian Institute of Family Studies
The Australian Institute of Family Studies has recently found that approximately half of mothers would prefer to see increased paternal involvement in their children’s lives. In the same study, a majority of fathers also expressed a preference for increased involvement. Interestingly, the fathers cite the following most common factors that prevent such involvement:
- Work commitments;
- Belief that the child’s mother would oppose more involvement;
- and Physical distance/travel costs.
Child Custody Laws
Australian child custody laws have been reformed in this area to make it clear that there are no specific parents’ rights and that there is no legal distinction between fathers and mothers in terms of child custody. The Court is instead governed by, and legally obliged to consider, the child’s rights and best interests above all else.
The Family Law Act 1975 (Cth) covers diverse matters such as divorce and separation, parenting arrangements, property settlement and financial maintenance of one party by the other.
With respect to parenting matters, the Act states that a “child has a right to be known and cared for by both parents”, without prioritising either the rights of the father or mother. Unless there are allegations of domestic violence or abuse, the Court typically adopt a view that it is in the child’s best interests to spend as much time as reasonably and practically possible with both parents.
How the Family Law Act Applies to Child Custody
When considering parenting arrangements following separation, the court has to determine who the child will live with and spend time with. Both parents have a responsibility for the care of their children, including their financial support. Despite this, the law does not guarantee an equal-shared parenting arrangement in all matters.
If the court does decide that an equal-shared-care regime is not in the best interests of the child, they will try to allocate substantial or significant time to the non-resident parent. The exception is in a case where there is a history of domestic violence or abuse. In the latter case, the Court will prioritise the child’s safety and wellbeing and make appropriate parenting orders.
Further Considerations for Child Custody Rights for Fathers
In determining what is in the best interests of a child, the court will consider the wishes of the child, as well as the nature and history of the relationship the child has with each parent. There might be practical difficulties of long- distance parenting and specific emotional or intellectual needs to consider, as well. Communication between both parents and availability of either parent will also be taken into account.
The family law legislation does not enable the court to take into consideration stereotypical gender roles. Rather, the court’s decisions are strictly governed by the principle of the children’s best interests. If you have any questions with respect to parenting arrangements of your children, please contact Etheringtons Solicitors for advice on (02) 9963 9800 or contact us via our contact form.
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 may 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 negotiate a formal property settlement, before commencing legal proceedings. If an agreement cannot be reached, an application can be made for a maintenance 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 numerous 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:
- Had to give up work to care for young children and it is either unreasonable for them to obtain work or they do not have necessary skills enabling them to re-enter the workforce;
- Is unable to work due to health issues or because they are suffering with 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 being finalised 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 regarding a property settlement matter or any other family law matter, do not hesitate to contact Etheringtons Family Lawyers in North Sydney on (02) 9963 9800.
In Australia, both marriages and de facto relationships are recognised by law, therefore when couples split, there are legal considerations which must be dealt with before leaving your relationship.
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. They may also have a level of control over your finances or medical decisions unless you modify this in your will.
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 if matters proceed to court, 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, them having access to your sensitive information could be an issue for you.
2. Plan for children
Parties should aim to reach an amicable agreement about how 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 children that are in their best interests. If you are unable to agree on arrangements for children, you may need to file an application with the court for parenting orders. 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. 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 may assist you to reach resolutions that are in both parties 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.
Child support agreements are contractual arrangements between parents or non-parent carers to enable financial support for their children. The Child Support Scheme was introduced by the Australian government in 1998 to ensure the adequacy of court ordered child maintenance. Child support is payable for all children living in Australia (up to the age of 18 years) following separation, regardless of whether the couple were married to each other or not.
Child Support Assessment
The Department of Human Services can make an assessment for child support based on income tax records and other financial information held by the ATO and the Commonwealth Government. The assessment is a complex formula and will broadly take into account the following:
- Parents’ income Combined income
- Time each parent cares for the child Child’s age
- Living expenses
Child Support Agreements
If parties are able to reach an agreement, then a family lawyer can prepare a binding Child Support Agreement which is registered with the Department of Human Services. The agreement may include a combination of cash payments and non-cash payments (such as health insurance and school fees). There are two types of Child Support Agreements that can be formed depending on your circumstances.
1. Limited Child Support Agreement
This agreement requires a Child Support Assessment to be undertaken before the Child Support Agency accept the terms of the agreement. A Limited Child Support Agreement is based on the Child Support Assessment, and payments under this agreement must be equal to or more than the what was found to be reasonable by the assessment.
2. Binding Child Support Agreement
A Binding Child Support Agreement can be entered into between the parties whether a child support assessment was undertaken or not. It can be made for any amount that is mutually agreed upon. However, both parties must obtain independent legal advice from an experienced family lawyer before making or terminating the agreement.
Court Ordered Child Support
A court may make a child maintenance order for children not covered by child support legislation, such as for the maintenance of children from carers who are not eligible for a child support assessment. The Family Law Act regulates the process of enforcing child maintenance orders.
The team at Etheringtons Solicitors are skilled at handling all matters relating to Child Support Agreements, and are able to assist with complex cases and the modifying of agreements after they are in place. If you are currently thinking about entering a Child Support Agreement or need assistance with any area of Family Law, do not hesitate to contact Etheringtons Family Lawyers in North Sydney on 9963 9800 or via our contact form here.