“In an area of law which is complex, constantly changing and often emotionally stressful and testing, you will greatly benefit from empathetic, appropriate, practical and timely advice that Terry Anderssen Lawyers provides.”
If you are contemplating separation, it may be a good idea to get a clearer picture what post separation could look like in term of parenting arrangements for children and for a financial settlement.
We can go through your different options, provide you with a clear picture of what the steps ahead look like and any potential costs that could be involved. We always encourage parties to try to come to an agreement without needing to go to Court and to try to resolve the matter without too much conflict. However. If there is domestic violence or other serious issues of risk for children, this may not be possible.
So, what does it mean to come to an agreement you may be thinking! Usually both parties will not immediately agree on an offer by one party, whether it is a parenting matter or a financial matter. However, over time with both parties receiving good legal advice, the parties may realise that negotiating a settlement earlier is the best way forward. It probably is never going to be the ideal outcome as in family law matters there is always a feeling of loss. A loss of the relationship, a loss of the previous family unit. However, what we encourage our clients to focus on is that they are gaining an opportunity to start again and live a life on their own terms.
Sometimes parties have already come up with an agreement. Our role is then to examine the agreement and provide advice as to whether the agreement would be considered just and equitable if it is a property matter or in the best interests of the child for parenting matter. We then can draw up the appropriate documentation such as Consent Orders or a Parenting Plan (link to those sections).
If there are still a few issues to negotiate, it may be a good idea to attend a mediation to try to figure out and agree on the details of the matter. It is really important to do everything possible to come to an agreement without going to Court.
If no agreement is reached and the matter has to go to Court, parties often reach an agreement at some point along their court journey. Trials are expensive and only a very small amount of matters reach this stage.
In our role as lawyers, we advise about the potential costs involved in your matter and will always encourage parties to reach agreement if possible, without going to Court or through to a trial.
If you are going through a separation, it is VERY important to find other professional supports to help you work through this difficult process. Conflict is inevitable in a separation and the stress of trying to figure out the practicalities of the separation can be overwhelming.
The end of a marriage is when a divorce is obtained. To move beyond separation and start proceedings for a divorce, an application for divorce has to be made. This is often an emotionally difficult decision to make.
What are reasons for divorce?
It is not obligatory after separation to obtain a divorce however if one of the parties to the marriage wants to re-marry a divorce is necessary. Other reasons for divorce may include property settlement or estate planning purposes.
What is an Australian divorce?
Divorce according to Australian law, is a completely separate issue from the arrangements for the children and is also separate from the property division. Divorce in Australia is not the same in other jurisdictions around the world. In Australia, divorce is more of an administrative process, and you do not have to prove fault in Australia to get a divorce.
Process for divorce application:
The process for applying for the divorce is not complicated, and the application can either be made by one party or by both parties jointly. You however must be validly married and must also be separated from your spouse for twelve months before you are eligible to apply for a divorce.
The timing of applying for a divorce is an important consideration when there is property involved. The reason for this is that when there are property matters still to be finalised, you only have twelve months from the date of divorce to make an application for the property matter.
If you are seeking a divorce, we can provide you with legal assistance.
What services does Terry Anderssen Lawyers provide for separation and divorce?
Terry Anderssen Lawyers go beyond other lawyers to provide their clients on Brisbane’s Northside with a compassionate approach and support during this process with an understanding of divorce and any legal ramifications. Terry Anderssen Lawyers will advise clients:
- The process involved in applying for a divorce after separation;
- A client’s eligibility to apply for a divorce;
- The process of serving your Application for Divorce on your spouse; and
- Whether the client will need to go to Court.
Terry Anderssen Lawyers will also:
- Draw your divorce application documents;
- Organise service on your spouse;
- File your application and service documents;
- Appear in Court for your divorce application if required.
One of the most stressful parts of a separation for parents is often wondering about what will happen to the children.
Some parents are able to come to an agreement between themselves about how the children will spend their time with each parent without the need to go to Court or without even coming to a written agreement *such as a parenting plan.
It is also important that parents do their best to minimise the impact the conflict from the separation has on the children and coming to an agreement early can be of help with this. Of course, this is not always possible.
It is our approach to try to resolve disputes with as minimal conflict as possible and as quickly as possible and therefore legal advice is imperative.
However, many parents find this area either complex to navigate and seek a formalised agreement. Sometimes, it may be necessary for lawyers to become involved due to the high level of conflict between the parties or risks to the children.
If you believe that there are risks present such as (including but not limited to)- domestic and family violence, drug or alcohol abuse, mental health issues or neglect, it is important to get legal advice early on.
Separation is a complex area of law and, if there is a high level of conflict between you and your partner or ex-partner and you have separated or are thinking of separating, it is important to get legal advice.
What sort of things are advised upon for parenting matters matters:
Each matter is unique and it is important to discuss- where the children will live, who will care for the children and how much time they spend with each parent. There are other issues to discuss such as how the parents communicate about the children, the parents communicating with the children when they are not in their care, whether the parents can make important decisions about the children together- decisions such as the children’s schooling, religion, medical decisions and so on.
The paramount consideration of the law is what is in the best interests of the child/children. The law sees that it is important that children be able to have a relationship with both of their parents. However, the law also considers that children also need to be protected from harm.
Other legal advice will include information about the process and steps required for pre-action procedures (before going to court). The advice will also include what your potential options are and part of our role as Lawyers is also to help you to gain an understanding about how the Court (The Federal Circuit and Family Court) will make decisions about your matter and how the law is applied in parenting and property matters. We will also discuss with you certain practicalities when going through the process. Moreover, we will also check in with you in terms of whether you have been able to seek outside services and help such as counseling or other types of support to help provide you with some scaffolding whilst you are going through this difficult time.
What you decide in relation to parenting arrangements from an early stage, will impact what happens later on if the matter goes to Court. It is therefore very important to receive good legal advice from an early stage. It is also very important to discuss your property matter at an early stage as time limitation can apply.
Please contact us for a confidential discussion about your case, so we can provide you with legal advice specific to your situation.
At the breakdown of a marriage or de facto relationship, parties may come to an agreement about property, financial and/or parental arrangements. Consent orders enable such agreements to become binding and therefore are also able to be enforced in court if not followed. However, it is important for parties to note there are time limits for applying for court orders.
In relation to Consent Orders, parties are not required to attend court if the parties agree on a final basis, however, will have to submit the agreement for the approval of the court. It is ideal if parties can reach agreement prior to Court. However, consent orders can be made at each stage when the parties also attend Court.
Additionally, the court will look at whether the agreement is in the best interests of the child for parenting matters.11 In relation to parenting matters, sections 60B, 60CA, 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth) apply.
In relation to care arrangements for a child or children, the Family Law Act 1975 states that parents should utilise the legal system as a last option and should endeavour to reach an informal agreement in the form of a Parenting Plan. It is a mandatory requirement that separated parents attempt Family Dispute Resolution (FDR) or mediation before they apply to the court for parenting orders. Once an agreement is reached at FDR or mediation, it can be recorded as a parenting plan or parties can apply to court for consent orders.
A Parenting Plan is made in writing, is made between the parents of the child and is dated and signed by the parents of the child. When parents are reaching an agreement in relation to the Parenting Plan, what is in the best interests of the child should be the paramount consideration. The Parenting Plan must also be made free from any threat, duress or coercion. Matters to be included in a Parenting Plan are set out in the Family Law Act s63(2) and include but are not limited to; parental responsibility for the child, the person or persons of whom the child is to live with and the time a child is to spend with the other person or persons. A Parenting Plan can be revoked or varied by making a further agreement.
The division of property after separation can be a particularly stressful and difficult territory to navigate. It is important to know your legal rights and find out what you are entitled too.
This is a complex area of the law and to work out a potential property division, is not just a simple mathematic exercise that someone can work out and there are a lot of myths that circulate about what people are entitled to after separation. Each matter presents with a different set of facts.
It is important early on after separation or when contemplating separation, that parties get preliminary legal advice in relation to the division of their property matters in order to know what is the best way is forward.
The Family Court determines the way property is divided between married persons and de facto partners after separation depends on the Family Law Act 1975.
If property orders are being sought in relation to a marriage, sections 75 and 79 and Part VIIIB of the Family Law Act 1975 (Cth) apply whereas for financial orders for a de-facto relationship sections 90SK, 90SL, 90SM and Part VIIIAB of the Family Law Act 1975 (Cth) apply.
Usually when we start having a conversation with a client, a client will ask straight away what they are entitled to in relation to the property division? We then explain that in order to get to that point that we can give legal advice about a potential entitlement we need to get the whole picture often from the client before we can give that advice. It certainly is not an exercise of simply adding up the numbers and splitting them down the middle. The process of giving advice on property matters is complex and requires some time.
In summary, in order for us as lawyers to just give advice in relation to each individual matter, we need to gain an understanding of:
- the background of the relationship including initial contributions;
- the length of the relationship;
- whether there are children of the relationship or step children;
- what the parties have contributed during the relationship in terms of direct, indirect and homemaker contributions;
- the parties assets and liabilities
- information about factors will affect the parties in the future including the parties respective ages, health, financial resources, who will have care of the children and so on; and
- Other complex factors such as whether a parties conduct led to losses (through gambling or via other avenues).
Another vital part of the process is what is referred to disclosure and there are legal rules that must be followed in relation to the provision of disclosure by the parties.
Where parties reach an amicable settlement, we are able to work with our clients to draft and file the necessary documents without the need for a court appearance in order to properly formalise the terms of their agreement (in a Consent Order and/or Financial Agreements).
Financial arrangements can be formalised by court orders or by a financial agreement. It is important that property arrangements are formalised, as in some circumstances, an application for property orders can be made many, many years after separation. The Court will consider property as at the date of a trial, not property as at the date of separation.
When Consent Orders are filed in relation to property matters, the Court then reviews all the financial details in light of the agreement to decide if the division is “just and equitable”.
A property division can be achieved at any time after separation; however, there are time limits to take into account if the parties cannot reach agreement and have to go to Court.
For de facto couples the time limitation that couples have to file a court application for a property division as set out in the Family Law Act limitation is two years from the date of separation. From the date of a final divorce order, parties have 12 months to file a court application for a property division.
Terry Anderssen Lawyers are highly experienced in family law matters relating to the division of property and can advise on all aspects of separation, divorce, children’s matters and and the division of property between the parties and can help you navigate this process.
A financial agreement (binding financial agreement is the term most people will commonly associate with a financial agreement or a prenuptial agreement) is a document that sets out how the division of the assets of the couple (or some of the assets) will occur if their marriage or relationship breaks down. Spousal maintenance can also be included in a financial agreement.
A financial agreement is legally binding and both defacto and married couples can enter into financial agreements and The Family Law Act 1975 (Cth) is the legislation that details this. Parties may enter into a financial agreement before entering into a defacto relationship (living together), before getting married or at any point during the relationship.
There may be valid reasons for entering into a financial agreement, however it is vital that your receive legal advice to see if in fact this is the right option for you. It is also a legal requirement that you are provided with legal advice prior to signing.