Family Law

Client’s often ask when the best time is to see a lawyer. Is it before you separate? Straight after you separate? A few months later?

I will always suggest you do so at the earliest opportunity. Why? Because you will likely be worried about what the future holds, and unsure of where to start. Sometimes a meeting or discussion with a Solicitor can give you clarity, peace of mind and some assurance regarding how the process will work and what information you may need to get together. The initial meeting with your lawyer is your opportunity to get some general advice so that as you go forward, you can make informed decisions. It will also ensure that you are aware of any time limitations that may apply to your family law matter.

You may be worried that by seeing a lawyer you are committing to signing up with them at your initial meeting. What happens if you don’t like the lawyer you meet with? Or if their strategy doesn’t fit with yours? You might be worried about how to pay for a consultation because you either do not have access to funds at the time or do not want it to show up on a bank statement that your partner might see. You might just be worried that you will be paying a few hundred dollars for an appointment and not receive the value you expected for it.

We see the Initial Consultation as an opportunity for us to meet, get to know each other, and so we can gain an understanding of what assistance you may require. Our Initial Consultation is obligation free, and we are happy to arrange an appointment at our office or via telephone if that is more suitable. Our goal is to ensure that you walk away from the consultation feeling more informed about your legal position, and comfortable both with us and our legal advice.

When you reach an agreement, it is often documented by way of a Consent Order that is filed with the Family Court. From there, your Consent Order makes its way to a Registrar’s desk for review and approval.

The job of the Registrar is to review the documents you have filed. When they do, they are looking to see whether the agreement is reasonable and falls within the paramaters of the law. They are also looking to make sure that the documents are completed correctly.

It would be rare for a Court to simply reject your agreement. That being said, if the agreement is for example, grossly in favour of one party and there is no explanation for this, the Registrar may write to you querying why that is the case. You may be asked to consider amending your Orders, or file further documents to clarify the agreement reached. If the Registrar finds that there are items in the document which need to be corrected, they may also write to you requesting that those issues be fixed before they can progress further.

If you receive a notification from the Court for these reasons (or any other reason), you should not ignore it, as your Orders will not be made until those issues have been addressed. The Registrar will also give you a time frame to respond to any such notification (usually 90 days). You should ensure you respond within this time frame or in the event you need more time, ensure that you communicate and request more time. If you do not, it is possible your Orders will not be made.

It is certainly important to get your documents right before you file. Doing so will help avoid delays and will reduce the need to take further steps which otherwise, could have been avoided.

You and your former partner have talked and negotiated, and you’ve managed to come to an agreement regarding your parenting and/or property matters.  Things are going so well, in fact, that you might think you don’t need to document the agreement. You trust each other to stick to it – shouldn’t that be enough?  Maybe you even wrote the agreement down informally and both signed it – that’s binding isn’t it? 

Unfortunately, a verbal agreement or an informal written agreement both leave you open to various risks, and I strongly recommend that you get proper legal advice on your agreement.

Far too many times, I have had a client come to me because they made an informal agreement with their former partner, often months or years ago, which was never documented and the former partner has now reneged on the agreement.  Often this is a result of circumstances changing – perhaps they’ve lost their job, or they’ve since re-partnered. Whatever it is, they have decided the agreement was not right or not good enough and they want something else, or often something more.   Many of these clients admit having said at some point in time “that won’t be me” or “that won’t ever happen to us” or “they would never do that to me”.  They truly believed it when they said it, and yet, it has happened, despite the best of intentions. 

Sometimes clients show me a handwritten or typed agreement that was signed by both parties, but unfortunately the agreement they show me is not a recognised method of documenting their family law matter.  The agreement may be evidence, but it is not a binding or enforceable document.  Even if you have given effect to the agreement you reached, the Court might still interfere, particularly if the agreement was not fair and equitable as required by the law. 

No, you do not have to wait until you are divorced to sort out your property matters, this can be done at any time after separation.

Legally, your divorce is a separate matter altogether.  A divorce is an Order from the Court that essentially says you are no longer married.  To be eligible to apply for a Divorce, you must be separated for a period of 12 months.  This is a long time to wait to sort out your property matters, and I tell most of my clients that the sooner they can do it, the better.

This is because it allows you to disentangle your financial affairs with the other party, and to start taking positive steps into the next stages of your life.  As well as the personal benefits, if you do end up going to Court, the Court will be interested in the value of your assets and liabilities as at the date an agreement is reached or, if litigated, the date when a matter comes before the Court.  Waiting too long could therefore make this more complicated if items have been sold, or values have decreased or increased substantially.

Although I recommend that it is best to sort out your financial matters early on after separation, I also understand that this is a very vulnerable time for my clients, and that they are often feeling overwhelmed with everything they have to do.  Ultimately, you need to be comfortable and ready to take the first steps.  I would suggest that you do, however, seek some general advice on your financial and property matters as soon as you can, as the feedback I get from clients who come to see me early on after separation is that doing so helps to answer many questions, gives direction and provides them with peace of mind.

If you are already divorced but have not yet finalised your property matters, just be aware that you only have 12 months from the date of your Divorce Order to do so.  If this time limitation expires before you have finalised matters, you will need to apply for leave from the Court to proceed out of time.  Not only is this an extra and avoidable step which will be costly, but such applications are not simple or guaranteed to succeed.

You and your ex-partner have reached an agreement. As part of that agreement, you have decided that their super fund will be ‘split’, meaning that you will receive a portion of their super as part of your settlement. So what actually happens with this transaction?

If you’re thinking that your ex-partner can withdraw from their super and pay you in cash, this is not the case. The transaction is still subject to superannuation laws, and ‘splitting’ super does not simply convert that into a cash asset. In stead, in most cases the agreed amount of super will be transferred from their fund to your fund, where it will usually remain until you reach retirement age.

‘Splitting’ super does not require you to split both parties superannuation accounts. For example, let’s say you have $50,000 in super and your ex has $100,000 in super. You have agreed to split super 50/50.

In this instance, it is not necessary for both parties to split both funds. You do not need to transfer your ex $25,000 from your fund at the same time that they transfer $50,000 from their fund (being 50% of each parties’ super). In this case, you only need to disturb one fund, being theirs. For example, they would transfer $25,000 of their super to your fund, giving each of you $75,000 overall in super. Each of you would continue to accumulate super, and would then each access your individual supers upon reaching retirement age.

The split occurs after you have entered a recognised agreement. You would not need to wait until each party retires to effect the split.

To give effect to this, there are many requirements and factors to consider as each case is different. You should therefore ensure that you have sought legal and financial advice before entering into any binding agreement.