Our team regularly advise clients on how to best deal with family law disputes and/or prescribe preventative measures to avoid issues escalating to disputes.

Binding Financial Agreements

The Family Law Act 1975 (the Act) allows individuals who are married or planning on marrying to enter into a Binding Financial Agreement (BFA):

• before marriage (also known as a pre-nuptial agreement);
• during marriage but before divorce; or
• after divorce. 

A BFA can deal with the division of property and superannuation in the event of separation. It can also provide for the payment of spousal maintenance.

BFAs usually operate to exclude the jurisdiction of the Family Court. They are agreements, signed by both parties, which provide that the parties do not want the Family Court to make a decision regarding the division of their assets in the event of separation and set out how financial matters are to be resolved.

BFAs entered into before marriage may be appropriate:

• in second marriages to protect assets acquired prior to the marriage; 
• to protect the assets of one party where there is a significant difference in the wealth of the parties; 
• to protect assets which may be inherited during the relationship; 
• to give greater weight to contributions made during the marriage by a high-income earning spouse than might be recognised 
  under the Act.

BFAs are a valuable addition to other financial and succession planning tools such as trusts and family companies, Wills and Testamentary Trusts. They are particularly useful for asset protection.

Divorce 

You can apply for a divorce after you and your spouse have been separated for one year. Parties may be separated for one year despite the fact they continued to live under the one roof. Additional evidence is required to corroborate a separation under the one roof.

Property

If you agree

Consent Orders - many separating couples divide their property without going to Court. They reach an agreement between themselves often with the help of their lawyers. The Family Court can approve the agreement making it a Court order and legally binding. We can provide advice and assistance in having your agreement approved by the Court.

Or in appropriate circumstances, and with the assistance of a lawyer, you and your spouse can enter into a Binding Financial Agreement (BFA). The difference between a BFA and consent orders dealing with the division of property is that the BFA does not need to be lodged with the Court for approval.

If you cannot agree

If you and your spouse cannot agree on a financial settlement, either of you can apply to the Court for orders pursuant to the Act. You can make an application any time after your marriage has broken down. If you have already divorced you must apply to Court for orders within 12 months after the divorce, otherwise you will need the permission of the Court to proceed with your application.

Defacto property disputes

There have recently been some important changes to the Act concerning domestic couples (defacto couples). A person is generally regarded as being in a defacto relationship after living together for two years. Previously, the Act applied only to married couples. However, as of 1 March 2009 the Act also applies to domestic couples. The definition of ‘domestic couples’ includes same-sex couples.

These changes introduced a new system for the distribution of property, as well as the right to spousal maintenance, following the breakdown of defacto relationships.

We recommend that if you are in a domestic relationship you should seek legal advice to ensure you are fully aware of your rights and obligations, and understand the potential impact these changes may have on your financial circumstances.

Children's matters

The Act governs the rights and responsibilities of parents for their children in the breakdown of the parents' relationship, regardless of whether the parents were married, lived together in a domestic relationship or never lived together.

A Court will put a child's 'best interests' before everything else. 'Best interests' include everything to do with your child's care, welfare and development.

Child support

Under the Child Support Assessment Act 1989 every parent has a duty to maintain their children. Child support is assessed and collected by the Child Support Agency (CSA) which is part of the Australian Government’s Department of Human Services.

Usually the parent with whom the child lives with applies to the CSA for an assessment of the amount of child support payable by the other parent. The CSA makes an assessment of child support by applying a formula to both parents’ gross annual income, considering the age of the child and the costs of caring for the child, the amount of time the child spends with each parent and whether the payer has an obligation to maintain a child from another relationship.

Child Support Agreements

If parents agree, a Child Support Agreement can be entered into on a private basis between the parties. This agreement can be registered with the CSA or the parties can elect to comply with the agreement privately.