FAQs

Listed below are a number of frequently asked questions and answers to those questions.

This information is provided as a guide only. It is not, nor is it intended to be, legal advice.

1. What happens at my first consultation? What should I bring?

During our first consultation with you we will:
- Inform you about our services and how we can help.
- Inform you about our fees and method of charging for work undertaken on your behalf.
- Talk with you and ascertain your particular needs and concerns.
- Provide you with preliminary advice on your options and how you should proceed.
It is not necessary to bring any information with you to your first consultation with us. It will however be useful if you bring some of these documents (if they apply to you and you have them) with you:
- Your marriage certificate.
- Your children's birth certificates.
- Any child support assessment you have received.
- Any Court documents served on you that relate to the matters for which you ask our advice.
- Documents evidencing the current financial position for you and your partner. This would include a list of assets, liabilities and financial resources and supporting documents for each, such as bank statements, real estate market appraisals, share certificates, pay slips, tax returns, superannuation statements etc.
- Title searches for real estate owned by you or your partner.
- Documents evidencing any inheritance, redundancy or other lump sum payments received by you or your partner during the relationship.
- A breakdown of your weekly income (from all sources) and your weekly expenses if you are seeking that your partner pays you maintenance.
We can advise you further as to what, if any, documents you can bring to the first consultation when you book your appointment.

2. What is a Divorce? When and how can I apply for a divorce? What happens once my application is filed?

A divorce legally confirms that you are no longer married. You are free to remarry once a divorce is finalised.

Either party to a marriage can apply for a divorce if you have been separated for 12 months. The separation for that period is evidence of the irreconcilable breakdown of the relationship and no other evidence is required.

In certain circumstances it is possible to establish separation for the period of 12 months even though you have lived together under the one roof for that period or some of it.

A divorce application can be prepared jointly or separately.

A divorce application can be filed only in the Federal Magistrates Court. A copy of a divorce application can be found on the Federal Magistrates website.

Once you have filed the divorce application, it must be delivered to your spouse.

A hearing is generally allocated some 6 to 8 weeks after the divorce application is filed.

If there are children under the age of 18, one of the parties must be present at the hearing. It is usually the party that filed the divorce application.

The Federal Magistrates Court must be satisfied that you have been separated for 12 months. If there are children under 18, the Court must also be satisfied that proper arrangements have been made for the welfare of any children. The divorce application must include details as to the housing, education, health, financial support and other arrangements for the children so the Court can make that finding.

If the Court is satisfied that the grounds for a divorce have been met it will make a divorce order which will become absolute in one month and one day from the hearing. Once it becomes absolute a divorce certificate will be issued by the Federal Magistrates Court.

If your partner is living overseas or you were married overseas, there are still circumstances in which the Federal Magistrates Court would entertain a divorce application.

Obtaining a divorce has implications for making an application for a property settlement and/or spouse maintenance. It also impacts on the validity of your Will. You should obtain legal advice regarding these matters.

3. Can I enter into a financial agreement with my partner? If so when? Do we have to be married?

You can enter into a financial agreement with your partner, regardless of whether or not you are married.

You can enter into a financial agreement before, during or after marriage in the case of married couples and before, during or after cohabitation in the case of de facto couples and same sex couples.

Please see our advice: Pre-nuptial and Other Financial Agreements for Married Couples and Financial Agreements for De Facto Couples and Same Sex Couples

4. What happens if we go to Court?

The Court is there to assist you and your partner resolve matters in issue.

If you have children the Local Court or the Family Court are the appropriate Courts to assist you. Those Courts will encourage you to try and resolve matters amicably through counselling or Court appointed events such as case assessment conferences and conciliation conferences. The Family Court also requires parents to attend mediation or counselling before applying to the Court for Orders in relation to children. There are only limited circumstances where this will not be required. See our advice: Parenting Arrangements for Children.

For married and de facto couples, the Local Court, Federal Magistrates Court of Family Court are the appropriate Courts to assist to resolve property issues. As in parenting matters, the Family Court will encourage you to resolve your matter before a final hearing.

For de facto couples that separated before 1 March 2009, the Local Court, District Court and Supreme Court deal with property adjustments. Mediation is encouraged by those Courts.

The Courts noted above have different practices and procedures for progressing your matter to a hearing, if that is required. The Courts have information on their web sites about how your matter will proceed. Please see our Links section which allows you to access those sites easily. We will discuss with you the steps to be taken in your matter when we meet you.

5. Do de facto couples have the same rights as married couples?

For couples that separate after 1 March 2009, they now have the same rights as married couples under the Family Law Act.

For couples that separated before 1 March 2009, they still fall under the Property (Relationships) Act NSW 1984. This means that the Court will not consider the future needs of the parties when adjusting property interests and a party's right to maintenance is more restricted.

Please see our advice: Property Settlement for Married Couples, Spouse Maintenance for Married Couples and Property Settlement for De Facto Couples, Maintenance for De Facto Couples and Same Sex Couples

6. How does the Court divide assets between married couples?

The Family Court and the Federal Magistrates Court (with some limitations) have the power to deal with property and financial resources held by the parties to a marriage and divide them after taking into account a number of factors.

There is no presumption of equality between spouses in the division of assets.

Applications for property settlement between married couples may be made anytime within 12 months of the date of a divorce becoming final.

Please see our advice: Property Settlement for Married Couples, Property Settlement for De Facto Couples and Same Sex Couples.

7. How is child support calculated? Do I have to go to the Child Support Agency?

Child support is usually calculated in accordance with formulas set out in the governing legislation. The Child Support Agency undertakes the calculation and issues an assessment reflecting it. The Child Support Agency will only issue an assessment on the application of one or both parents or the child.

Child support may also be agreed between the parties. That agreement can be set out in a child support agreement, which can act in substitution for a child support assessment. Accordingly you do not always have to go to the child support agency to settle financial arrangements in respect of your children.

Please see our advice: Child Support Applications, Reviews and Agreements.

8. What does the Court consider when it makes decisions about children?

The Court encourages parents to reach agreement about care arrangements for their children. The Court assists in this regard by providing counselling services.

If agreement cannot be reached the Court assesses what is in the best interests of the child having regard to the competing proposals put before it.

For details on what factors the Court has regard to in reaching its decision please see our advice:Parenting Arrangements for Children and Relocation of Children.

9. What happens if I want to take the children to another state or overseas?

It is preferable for you to reach agreement with the other parent before relocating with your children interstate or overseas. If you try to move without their consent they may seek an order from the Court restraining you from moving or, if you have moved, requiring you to return with the children.

If there is a parenting order of the Court in place regarding your children, it is a criminal offence to remove, or have someone else remove your children from Australia to a place outside Australia.

Please see our advice: Relocation of Children.

10. Can the Family Court make orders dealing with superannuation?

The Family Court can make orders dealing with superannuation.

Please see our advice: Superannuation for Married Couples and De Facto Couples and Same Sex Couples

11. Do I have to change my Will if we separate?

It is advisable to change your Will if you separate. This ensures that your Will reflects your current intentions.

If you divorce and your Will provides for your spouse to receive a distribution, the Will may be ineffective.

If you do not have a Will we recommend that you obtain one.

We are not Wills and Probate Specialists. We recommend that you seek the advice of such a specialist.

12. Can I challenge a family member's Will?

In some circumstances, people can make a claim agains a person's estate under the Succession Act.

Please see our advice: Family Estate Disputes