The breakdown of a relationship can be traumatic, with couples facing uncertainty about their future, the wellbeing of children and their financial security. The ability to make rational decisions at such an emotional time can be challenging and working out what steps to take can be difficult.
First steps after separating
- Prioritise personal safety. If you fear for the wellbeing of yourself or your children, contact your local police. If necessary, obtain advice about applying for a restraining order.
- If possible, make interim arrangements that are in your children’s best interests, that provide for minimal disruption in their routine, and foster a meaningful relationship with both parents.
- Prepare a list of assets and liabilities – include personal and home loans, credit cards, bank accounts, shares, investments, superannuation, etc.
- Obtain originals or copies of important documents such as passports, marriage certificates, birth certificates and insurance policies.
- Update passwords and login details for all online accounts.
- Review an existing Will or make a Will to take into account your new personal circumstances and obtain advice, particularly about jointly held property.
- See a lawyer – even if you have separated on reasonable terms, getting legal advice early can clarify your rights, protect your interests, and help to explore options to resolve your matter as efficiently and cost-effectively as possible.
Applying for a divorce
To legally end a marriage, an application is made to the court. Australia has a no-fault divorce system and the court is not concerned with attributing blame, however, to obtain a divorce order:
- the marriage must have broken down with no likelihood of reconciliation; and
- the parties must have lived separately and apart for a continuous period of 12 months; and
- if there are children under the age of 18 years, the court must be satisfied that appropriate arrangements are in place for their care and wellbeing.
In determining whether a couple has lived apart for 12 months, the court recognises that there are many reasons why a couple may choose to live under the same roof, despite their decision to separate. This may be for practical, financial, religious, cultural, or other reasons. In such cases an affidavit explaining these circumstances is filed with the application for divorce.
Dividing property after separation
A legal property settlement formalises the division of the parties’ assets and liabilities and may be obtained as soon as a married or de facto couple separate. It is important to remember however that any court proceedings for a property settlement must be commenced within 2 years of separating from a de facto partner, and within 12 months after a divorce is granted.
Most family law property settlements are finalised by negotiation between the parties and their legal advisors, without going to court.
During negotiations, the steps for dividing property under the Family Law Act 1975 (Cth) generally apply. Essentially, the parties’ joint and individual assets, liabilities and financial resources are identified, and their respective financial and non-financial contributions assessed. The parties’ future needs are then considered, and the proposed division of property should reflect a just and equitable outcome in all circumstances.
Agreed settlements can be documented in a financial agreement or consent orders, the latter of which are approved by the court. Court proceedings may be necessary as a last resort.
Why you should formalise the division of your property
It can be tempting to avoid formalising a legal property settlement, however there are good reasons for doing so.
The transfer of most real estate is liable to stamp duty, however certain exemptions apply when the property is transferred pursuant to the Family Law Act 1975 (Cth). These exemptions cannot be obtained through an informal agreement.
An informal property settlement is not legally recognised as bringing the couples’ financial affairs to finality and may leave them vulnerable to future issues such as a claim by either party on post-separation assets, income and inheritances.
Why financial advice?
The retention, transfer, disposal or division of assets must be considered in light of taxation and stamp duty implications, the effect on your personal circumstances, and your current and future needs.
Consideration should be given to the nature of assets retained or disposed of, as it may be more advantageous to hold onto one type of asset over another. It is important to understand and utilise the best structure to manage tax liabilities, achieve legitimate tax savings and safeguard, as far as possible, your financial future.
A superannuation split may form part of your proposed property settlement and it is important to evaluate the net result of this. The splitting of superannuation does not convert its value into cash as it is still governed by superannuation laws and will generally only be accessible at retirement age.
With assistance from a legal and financial expert, your options can be presented and explained so you can make informed decisions that are in the best interests for you and your family.
Arranging for the future care and welfare of children after a relationship breaks down can be stressful for the parents, the children and other family members. The best interests of the children will be paramount in all parenting matters and there is a presumption of shared parental responsibility, unless extenuating circumstances exist.
Parties should make genuine efforts to resolve disputes regarding parenting arrangements and may do so through considered negotiation with the assistance of their legal advisors. Agreements may then be set out in parenting plans or consent orders. Consent orders must be approved by the court and are legally enforceable. Parenting plans are not approved by the court but may be taken into consideration in any subsequent court proceedings concerning the children.
Our lawyers are sensitive but knowledgeable in family law property and children’s matters and will provide valuable assistance with the intricacies of divorce, separation and property settlement.