Frequently Asked Questions

Divorce, unlike a property settlement, is the official dissolution of the marriage. Sometimes couples don’t realise that these are separate and they can obtain a divorce without finalising a property settlement, or vice versa. Divorce in Australia is a ‘no fault’ system which means that the Court is not concerned with why the marriage broke down or whose fault it was. All you need to show is that you have been separated for 12 months.

Sometimes there is confusion about the official date of separation and clients ask if they need to formalise an agreement to separate. The answer is ‘no’. Parties are separated on the day that one person communicates to the other their intention to separate. One person does not need to move out of the house on that day in order for the relationship to be over. For financial reasons, a lot of couples remain in the same house for weeks, months or sometimes years after the relationship ends. These circumstances are known as ‘separation under one roof’. If you and your ex-partner have been ‘separated under one roof’ for any part of the 12 month period then you also need to file an affidavit with the Court about the separation.

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The general rule for all family law matters is that each party pays their own costs. Even in circumstances where parties agree to formalise a property settlement or obtain a divorce, each party may wish to take a copy of the agreement to their own lawyer to receive independent advice and they will be responsible for the cost of that lawyer. In some circumstances, parties may agree to split the cost of formalising the agreement or obtaining the divorce, but that is up to each individual and there is no obligation to contribute. Where the parties do not agree to share the costs of obtaining a divorce, then the person preparing and filing the application will be responsible for paying the fees.

There is no automatic presumption that each party walks away with 50% of everything. The court takes into account several factors including what assets and debts each party had at the beginning of the relationship, what each party contributed during the relationship, and who is going to need more of the assets moving forward. It is common to see divisions of the asset pool such as 55/45, 60/40 even 70/30.

The only way to avoid the unknown is to get a binding financial agreement prior to entering de facto relationship or before marriage. This agreement is sometimes referred to as a ‘pre-nup’. A binding financial agreement can outline how the assets and debts will be divided in the event of a relationship breakdown. If you do not have a binding financial agreement then the general legislative principles will apply to you. Contact us today for separation advice tailored to your circumstances.

When couples separate and undertake the process of dividing their assets, the court looks at all assets and debts in either party’s name at the date of the final hearing.

During the relationship, one party may be working and earning money while the other is caring for children and working part time or not at all. In that case the working party will usually have a much higher super balance, but they could not have gone out to work every day and earned that super if it were not for the other party looking after their children. That’s why both parties’ super balances are considered part of the asset pool. 

In other circumstances there may be a big salary difference between the parties. For example, if one person is a doctor and the other works in an administrative role then there will be a large discrepancy in their incomes. But if they’re both working full time and contributing what they can into the asset pool then the court will consider they are putting in the same effort and therefore making equal contributions. For that reason, all assets in both parties’ names are still in the asset pool for division.

In ordinary circumstances, parents have what is called ‘equal shared parental responsibility’. This means they share decision making for all the big aspects in a child’s life including where they live, what school they go to, their religion (if any), medical treatment, and the child’s name. Unless there is a Court Order stating otherwise, then parents will share decision making responsibility for these big ticket items and are expected to consult with each other before any big decisions are made.

For all other day to day decisions, this falls on each parent when the child or children are in that parent’s care. This will include simple things like what the child eats, what they watch on TV and discipline in each parent’s household.

Where parents have equal shared parental responsibility, the Court will consider whether ‘shared care’ is appropriate. Keep in mind, although the Court will consider this, it is not bound to make an order for shared care. As long as there is no abuse, domestic violence or substance abuse, then it’s assumed to be in children’s best interests to have a meaningful relationship with both parents to the greatest extent possible. In achieving this the court will take into all sorts of factors, including the age and maturity of the child, how far the parents live from each other (and whether it is practical to share care), who has been the child’s primary parent up until and after separation, the child’s developmental needs and their attachment to each parent.

There are three circumstances where shared care is generally not appropriate or in the best interests of the child:

1. Where the child is an infant or toddler
The research tells us that infants and very young children are forming secure ‘primary attachments’. This means it will not be in their best interests to be away from the primary carer for long periods as this disrupts their ability to form secure attachments and healthy relationships later in life. Research has shown there are lasting impacts for children who have been unable to develop healthy primary attachments. Time between young children and the non-primary parent should be gradually increased over time.

2. Where one parent lives far away
In situations where one parent moves away after separation then shared care is not recommended as the child is the one who has to do all of the back and forth. One parent living far away also impacts on the child’s ability to consistently participate extra-curricular activities or spend time with friends outside of school. This is also simply not practical in circumstances where the child has forgotten a homework folder or violin at the other parent’s home and they are required to travel excessive distances to retrieve it.

3. Where the parents can’t communicate with each other

In order for shared care to meet the child’s best interests, the parents need to be able to effectively communicate with each other about the child’s needs. Just like the above example, if a child forgets their homework folder at one parent’s house then they need to be able to organise to deliver it to the other parent. There is no expectation that separated parents be best friends, but if they cannot communicate in the child’s best interests then the child is the one that ultimately misses out. That’s why in such circumstances the child would live primarily with one parent and spend time with the other parent.

Where parents have separated and they are amicable, flexible and able to co-parent in their children’s best interests, then they don’t always need to formalise an agreement. However, in more contentious parenting matters we recommend formalising any agreement so that there is no confusion about what should be happening and when.

We always recommend formalising a property agreement, and this is for several reasons. Firstly, formalising the agreement protects each party’s future assets and means neither party can change their mind later if they run out of money. From the date an order is made, any future assets or liabilities are also the sole property of that party. For example, if 6 months after an order is made you receive a large inheritance then the other party cannot come back and ask for a share of those funds. If you did not formalise your property settlement, then that inheritance will be considered when dividing the joint asset pool.

If your property division involves transferring a house into one party’s name, or a transfer of superannuation, then you must formalise the agreement. Without a formal agreement you would have to pay transfer duty (formerly known as stamp duty) on the transfer of a home, whereas if you have the agreement then you are exempt from paying any duty. In our experience the cost of transfer duty is almost always more than the cost of a consent order. Also, a superannuation fund will not transfer any money into the other person’s super fund without a copy of a formal court order.

Spousal maintenance is the financial support paid from one spouse to the other after separation. This is not to be confused with child support, which is paid towards the expenses of a child. Spousal maintenance is a contribution toward the expenses of the other party to the relationship (think groceries, rent, bills etc).

In some circumstances one party was the sole financial earner and supported both parties financially during the relationship. Upon separation, the party who isn’t working may not be able to meet the basic costs of living. In cases such as these, the working party may be required to continue to financially support the other party until they are able to get on their feet.

Whether spousal maintenance will be paid depends on two factors – whether one party can demonstrate a need for maintenance and whether the other party has a demonstrated ability to pay. If you cannot satisfy both factors then maintenance won’t be paid. The amount to be paid will depend on the circumstances of the case. Contact us for expert advice tailored to your situation.