Frequently Asked Questions
For your convenience, we’ve set out some frequently asked questions about common family law matters below:
- Divorce in Australia
- What do I need to apply?
- What about the children?
- What about property?
- How long does it take?
- What is equal and shared parental responsibility?
- Where do I start?
- Why use a lawyer?
- Child Support
- How can I work out what child support I am entitled to?
- Can I overturn a decision made by the Child Support Agency if it’s not fair?
- What if my ex-partner doesn’t pay?
- Do I have to be divorced to split the property?
- Do we have to go to Court?
- What if we can’t agree?
- How does the court decide?
- We can help
Divorce in Australia
Australia has the benefit of no-fault divorce, therefore there is no need to provide any reasons for divorce other than that the relationship has broken down irretrievably. If you have been separated for more than 12 months the court takes this as evidence of the fact, and even if you still live under the same roof you can obtain a divorce by swearing evidence to that effect, and have a corroborating witness.
What do I need to apply?
You will need your marriage certificate, identification, and proof of citizenship (if you were not born in Australia).
What about the children?
The court needs to be satisfied that proper arrangements are in place for your children before a divorce is granted, however it is not expect that you have a formal agreement in place in relation to parenting matters.
What about property?
You may be able to reach agreement with your ex-partner without having to go to Court. However, bear in mind that if you can’t reach agreement, a formal application for property orders must be lodged within 12 months of your divorce becoming final.
How long does it take?
When you lodge your divorce application, the court will allocate a divorce hearing date, usually within 2 – 3 months of filing. The hearing is not long and in some circumstances, you may not be required to attend. The divorce order becomes final in one month and one day from the date of the hearing, provided that the divorce is granted.
Australian law focuses on the rights of children to have an ongoing relationship with both parents so that separating from your partner or spouse does not mean that you are separating from your child or children.
Although the terms ‘custody’, ‘residence’, ‘contact’ and ‘access’ are no longer used much by lawyers today, the issues behind the jargon are still on the top of the list of concerns for separating couples, namely:
- Who will the child or children live with?
- How will they spend time with the other parent?
- How will both parents be kept in the loop in regard to important decisions such as education and health?
What is equal and shared parental responsibility?
Equal and shared parental responsibility means that parents share equally in the long-term decisions that affect the welfare and development of the children pertaining to matters such as their health, education and religious observance. It does not mean that the child will spend half of their time with each parent.
Even if the child lives primarily with one parent the law presumes that parents have equal and shared parental responsibility of children.
But doesn’t the law now say that children have to spend equal time with each parent?
Not necessarily. The law ensures that the best interests of the children are served first. When considering what is in the children’s best interests, the court has to consider facilitating a meaningful relationship between the children and both of their parents and also to protect children from harm.
If the court is to provide equal and shared parental responsibility then it will also consider whether equal time is in the best interests of the children and whether equal time is practical. Rather than equal time, for example, the court may order substantial and significant time be spent with the other parent, which may translate to be 4 or 5 nights per fortnight rather than 7.
Where do I start?
Firstly, get legal advice. Your lawyer will take you through all of the areas which need to be considered and document what you think is a fair approach to arrangements for your children. If your partner is agreeable, your lawyer can help you formalise your agreement without proceeding to costly court action.
If your differences are unable to be settled, then you will need to commence on the path to having parenting orders issued by the Family Court or Federal Circuit Court
Recent changes to the Family Law Act 1975 mean that you will need to attend family dispute resolution before applying for parenting orders. An accredited family dispute resolution practitioner will issue a certificate which must be filed with the court application and simply states that your differences were unable to be resolved.
If your case does end up in court, a legally binding decision will be made through a hearing where the judge will decide what is in the child’s best interests.
Why use a lawyer?
As lawyers experienced in this process, we can advise you in regard to the complexities of your specific situation as well as guide you through what can be a stressful and confusing process. We can help take the heat out of a difficult emotional situation and negotiate on your behalf to obtain the best possible result for your children. And if it comes to court, we are deeply familiar with the court system and can use our experience to your advantage.
If your children spend most of their time with you, you are likely to be entitled to child support payments. The amount of child support payable varies according to your specific circumstances and is decided upon and monitored by the Child Support Agency.
The child support payable to you is calculated based on the income of both parties, the cost of the care of the children and the percentage of time the child spends with you.
How can I work out what child support I am entitled to?
There is an online child support calculator provided by the Child Support Agency which can help you estimate both your child support and family assistance payments. This is an estimation only though, as the calculation is quite complex and tailored to your situation.
You might also benefit from reading the Parent’s Guide to Child Support.
Can I overturn a decision made by the Child Support Agency if it’s not fair?
Yes, you may be able to. You have the right to object to the decision within 28 days and then an internal review of the decision will take place within 60 days of the objection being filed.
You can also continue to appeal if the original decision was upheld by applying for a review through the Social Security Appeals Tribunal.
What if my ex-partner doesn’t pay?
The Child Support Agency has the power to investigate and enforce payment which includes the power to collect the payment from employers, the tax office and social security. It also has the power to stop people from leaving the country while there are outstanding payments.
Family Law Property Settlement
Do I have to be divorced to split the property?
As soon as you have separated you can make arrangements to split your property and debts between you and your ex partner. You do not have to wait until you are divorced.
Do we have to go to Court?
No, not at all. If you have already agreed on how things should be divided between you, your lawyer can draw up property settlement documents which will finalise the arrangements, and then implement the legal processes which will split the assets.
What if we can’t agree?
There is an established process in cases where there is disagreement over how property should be split. Firstly, the court needs to be satisfied that you have attempted to reach agreement, and to this end you will be ordered to participate in pre-action procedures for financial cases, which involves full and frank disclosure of your respective financial positions.
If this doesn’t resolve the matter then an application for property orders must be filed with the Family Court or Federal Circuit Court. This application must be made within 12 months of your divorce becoming final.
The matter will be set down for hearing and a legally binding decision will be made by the court.
How does the court decide?
Firstly, the court will calculate the total assets owned by both parties, including property, shares, cars, jewellery, savings, furniture etc. This includes things you brought into the relationship, those acquired during the relationship and also those purchased after separation.
Next the court will weigh up the contributions from both parties, including financial, inheritances and assets brought into the relationship, non-financial contributions, and contributions to family and homemaking.
Then the court will look at the future needs of both parties, including factors such as your capacity to earn money, any disparity in income between the parties and your parental responsibilities.
Lastly the court will make a decision based on what is just and equitable to both parties.