6 Things to Consider When Separating or Considering a Divorce

A marital or de facto separation and the breakdown of the family unit is often one of the most difficult and stressful of life’s experiences. To assist parties in understanding their entitlements and legal rights, we have highlighted six important factors for parties to consider if they are separating or considering a divorce.

PARENTING

1. Long term decision-making for children is equal

Irrespective of the care arrangements in place (and unless a Court Order states otherwise), both parents have the joint and equal responsibility for making long-term decisions for their children. This includes decisions relating to the children’s schooling, religion, cultural upbringing and medical care.

A parent can apply to the Family Court for sole parental responsibility in certain circumstances, including situations that involve family violence, abuse and/or neglect.

2. Care arrangements following a separation

It can be difficult to change the care arrangements initially agreed upon following a separation. Therefore, it is important to ensure appropriate care arrangements are put into place at the time of separation, particularly upon a parent relocating out of the former family home.

We recommend that parents obtain legal advice before implementing a care arrangement to ensure that it is appropriate in all of the circumstances.

3. Equal care or ‘week about’ parenting is not automatic

There are a number of reasons why equal care or ‘week about’ care may not be appropriate for some families. Some of these reasons can include the age of the children, the children’s needs and high parental conflict.

A shared care arrangement can work well for some families where the parents live in close proximity to each other and where they have a positive and respectful co-parenting relationship.

PROPERTY

4. An informal property settlement is not legally binding

If an agreement to divide property between spouses is not documented by way of a Court Order (namely a consent order that is filed with the Family Court) or a Binding Financial Agreement, the informal property settlement is not legally binding or enforceable. This means that either party may make a further claim against the other party’s assets in the future. The parties’ circumstances and financial positions at the time of the future court proceedings will be considered, which may have changed significantly since the informal property settlement was implemented.

A property settlement application lodged some years after an informal settlement may result in significant disadvantage to a party, particularly in circumstances where there is a large disparity in the parties’ financial positions at the time of the court proceedings.

Formalising a property settlement will provide certainty and security for the future.

5. A 50/50 division of property is not automatic

There are a number of factors that are taken into account and many forms of contributions are recognised to determine the property each party will receive following a separation. Some of these factors and contributions include the length of the relationship, the financial position of both parties at the commencement of the relationship and the inheritances and gifts received during the relationship.

Factors relating to the parties’ future needs are also relevant to the property division, including the age of the children and their health and developmental needs, parenting arrangements, both parties’ qualifications and income earning capacities, their age (including proximity to retirement) and health considerations.

6. Time limits for a property settlement

Parties to a de facto relationship have two years from the end of a de facto relationship, and parties to a marriage have one year from the date of a divorce, to claim a property settlement from their former spouse. However, a party may be able to apply for an extension of time for a property settlement outside of these time limits in certain circumstances, including for example, hardship.

As a result of this uncertainty and the potential exposure to a future claim, we strongly recommend that our clients formalise their property settlement as soon as possible following a separation.

We are here to help you

Obtaining legal advice before a separation or shortly following separation, can assist parties to understand their entitlements and protect their legal rights. The Family Law team at Norman Waterhouse Lawyers are specialist family lawyers and are experienced in all areas of family law.

If you require assistance in relation to any family law enquiry, please contact:-

Elissa Riach, Principal +61 8 8210 1262 eriach@normans.com.au
or Alexandra Talbot, Solicitor +61 8 8210 1206 atalbot@normans.com.au