Capon & Hubert Lawyers & Mediators

Family Law

Property Settlement

Married Couples

How do I physically divide assets, liabilities and our financial resources when my marriage has ended?

If you separate our advice can assist you to resolve the distribution of assets (ie: the family home, business assets, cash, shares and superannuation) in a discreet and proficient manner. This is a highly emotional charged time and we will recognise your individual needs and concerns and we will place an emphasis on helping you to resolve your property settlement without needing to go to Court.

What if we have reached an agreement to split everything and do not want to go to Court?

If you are able to reach an agreement, we will assist you to draft an agreement and this can either be in the form of Consent Orders or a Binding Financial Agreement. The best agreement for you will depend upon your personal circumstances.

How do you work out how much I get?

The distribution of your assets will depend on your finances, the assets you and your partner have and your circumstances.

If we cannot agree and we have to go to Court what does the Court do?

If you are unable to reach an agreement you will need to go to Court and there are two specialist Family Law Courts which are the Family Court of Australia and the Federal Magistrates Court. We are familiar with both Courts and we will advise you as to which Court will best deal with your Application.

When considering a property settlement the Court will consider:

  • The assets including superannuation
  • The past contributions to the marriage, both financial and non financial
  • The Section 75(2) factors
  • The Section 79(4) factors
  • How the assets should be divided so that each party is treated fairly

The Family Law Act 1975 (Cth), (insert link here to Act) applies to property and spousal maintenance matters between married couples.

Property settlement outcomes will depend on many factors, there is no immediate 50/50 split rule. Some factors affecting your matter will be the contributions to the marriage that you or your partner have made, whether financial or non financial and any future needs ie: health costs or caring for children.

Married Couples

Defacto Couples and Same Sex Couples

Defacto couples, including same sex couples may enter into Cohabitation Agreements in order to formalise the financial aspects of their relationship. These agreements may be signed before they live together or during their relationship.

After the breakdown of the relationship the couple can then formalise their property settlement by a Separation Agreement.

The law which regulates defacto couples is now found in the Family Law Act 1975 (Cth).

Cohabitation, Separation and Recognised Agreements for Defacto Couples

Divorce

There is no formal process for a separation for married or defacto couples. However there is a formal Court process for divorce for married couples.

When can I get a Divorce?

You can apply for a divorce if you can satisfy the Court that you and your spouse have lived separately and apart for 12 months and 1 day and that there is no likelihood that you will resume married life.

How do I apply for a Divorce?

To apply for a divorce, you must complete an Application for Divorce and file it with the Court and pay the Application fee. You may be eligible for a fee exemption or waiver.

Do my spouse and I have to apply together for a Divorce?

No. You may apply for a divorce yourself, you will be the sole applicant and your spouse is the respondent.

If you do apply for a divorce with your spouse, it is a joint application and you and your spouse are joint applicants.

Do I have to have a lawyer prepare the Divorce Application?

No. You may prepare your own divorce application and the Court will be able to assist you with the Application for Divorce Kit which has instructions for completing the application and filing it. (Insert link to Divorce Kit here).

What does the Court consider when it determines my divorce application?

The Court is not concerned as to why the marriage has ended. The only grounds for divorce is that the marriage has broken down irretrievably. This means that there is no likelihood that you will get back together.

Does the Court worry that there are children involved?

If the children involved are under 18 years of age, the Court will grant a divorce only if it is satisfied that proper arrangements have been made for the children.

What is the Court Application fee for a Divorce?

$432 unless you are eligible for an exemption or waiver of the fee.

What are the exemptions for the Application Fee?

If you hold a government concession card or you are experiencing financial hardships you may be eligible for an exemption or a waiver of the fee.

Do I have to attend the Divorce hearing?

If there is no child or children of the marriage aged under 18 years, you are not required to attend the Court hearing.

If there is a child of the marriage aged under 18 years and you have made a joint application neither you nor your spouse are required to attend the Court hearing.

If you have made a sole application and there is a child aged under 18 years of the marriage you must attend the Court hearing.

I have applied for a divorce, can I set a wedding date for my new marriage?

No. You should not remarry until the divorce order is finalised. In most cases, this is one month and one day after the divorce hearing. However, you should not assume that the divorce will be granted at the first Court hearing. You may be asked to provide the Court with more information and the divorce will be then be heard at another Court hearing.

If you intend to remarry a Notice of Intended Marriage is given at least one month before the wedding date to comply with the Marriage Act 1961.

We have been married for less than two years is there anything else that we have to do?

Yes, if you have been married less than two years and wish to apply for a divorce you must attend counselling with a family counsellor to discuss the possibility of reconciliation with your spouse. If you have not attended counselling you must seek the permission of the Court to apply for a Divorce.

The two years is calculated from the date of marriage to the date that you apply to the Court for the divorce. You and your spouse must also have been separated for 12 months and one day before applying for a divorce.

I can’t find my spouse to serve the Divorce Application, what can I do?

If you have made a sole application, you need to serve the divorce application on your spouse. If you have taken all reasonable steps to locate your spouse and you are unable to do so you can apply to the Court for substituted service or a dispensation of service.

We will be able to advise you further if this is the case.

Spousal Maintenance

Spousal maintenance issues only apply to people who were or are married. This does not include defacto partners. Spousal maintenance is when one person provides financial support for their former wife or husband.

Applications for spousal maintenance are uncommon. The issue may apply when one spouse earns a high income and there is a need for the other spouse to care for children. It may also be considered if one spouse is unable to support themselves financially due to ill health.

Spousal maintenance is often considered as part of an overall settlement. Under the Family Law Act, spouses have a duty to support and maintain each other, even after you have separated or divorced. The extent of this support is determined by:

Income, property, financial resources and debts

Children and who they live with

Age and health

Earnings ability and whether this has been affected by the marriage

Often if spousal maintenance orders are made they are of limited duration ie: whilst the spouse retrains so as to obtain employment or whilst a child is very young.

Pre-nuptial agreements or Binding Financial Agreements

No one enters a marriage or relationship expecting it to end, but some of our clients think ahead and make an agreement in regards to the division of their finances and assets, especially if they are entering a relationship or marriage and they have personal financial means.

For couples who plan to marry this agreement is called a “Pre-nuptial Agreement”. Under the Family Law Act 1975 they are known as “Binding Financial Agreements”. These can be made during a marriage, after separation or divorce.

For defacto couples they may enter into what is called a “cohabitation agreement” before they live together or during their relationship. At the end of their relationship they may enter into what is called a “separation agreement”.

It is necessary for both parties to seek independent legal advice in relation to the drafting of these agreements and as part of the requirement for the agreement to be binding.

We can provide you with advice on an existing agreement or draft an agreement for you.