Family Law FAQs
Author(s):LAC Lawyers
Publish Date: April 23, 2008
Q. Do I have to tell my ex-partner everything about my finances when seeking a divorce?
A. Yes.
Q. Should I make a formal agreement concerning the splitting of property?
A. It is advisable because where you have a formal agreement in place you can enforce the agreement if necessary, saving unnecessary legal expense at a later date.
Q. I am 48 years old age with substantial assets and I am due to marry in 6 months time and I want to protect my assets - what should I do?
A. Simply enter into a pre-nuptual agreement covering all of your current assets and what will happen to your assets acquired during the course of your marriage. In this way you are better able to protect yourself financially should the relationship subsequently break down. It is important the agreement is property drafted.
Q. My children are in foster care with DOCS. Is there anything I can do?
A. Retain a solicitor and instruct him/her to approach the Children's Court and obtain the appropriate order.
Q. My ex-wife is an alcoholic and currently we take turnabout with our children but every time they come back they smell putrid as she doesn't properly care for them and they don't want to go and visit her any more. Is there anything I can do?
A. You need to have your solicitor approach the Family Law Court of Australia to seek appropriate orders to ensure that the children are properly protected and that they remain with you on a full time basis whilst she remains a drug addict.
Q. A will was drafted on my behalf last year, and I got married this year. Is my will still valid?
A. No. A will is revoked by marriage.
Q. I wish to divorce my husband of 5 years, does he have to consent to the divorce before I can apply to the Court?
A. NO. YOU ARE ENTITLED TO MAKE A SOLE APPLICATION FOR DIVORCE.
Q. Do I need to be an Australian Citizen to apply for divorce in Australia?
A. You can apply for divorce in Australia if either you or your spouse:
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regard Australia as your home and intend to live in Australia indefinitely, or
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are an Australian citizen by birth, decent or by grant of Australian citizenship, or
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ordinarily live in Australia and have done so for 12 months immediately before filing for divorce;
Q. Is there a filing fee for a Divorce Application?
A. Yes there is. Please confer with your solicitor or the Court registry in relation to the fee as the amount changes from time to time. However please note that the fee may not apply in some cases, and you may be eligible for an exemption.
Q. If the Court grants my partner and I a divorce, does the Court in that instance also make orders in relation to our property settlement and our children?
A.No. In granting divorce, the Court only deals with the marital status of both parties. However, should the parties wish to obtain Court orders in relation to the children of the marriage and the property of the parties, this is a separate matter from the Divorce proceedings.
Q. My husband and I have had marital problems for years, and I have now made the decision that I can no longer live with him. I wish to apply for a divorce, but he doesn't know - we aren't even separated. Can I apply?
A. No. To be granted a divorce, the parties must satisfy the Court that they have lived separately and apart for at least twelve months, and there are no reasonable likelihood of resuming marriage life. However, it is possible for you and your partner to be separated but live under the same roof during the 12 months before applying for divorce. If the later applies to your situation, you need to prove to the Court that you were separated during this time. Your solicitor will help you in drafting the required documents in relation to this.
Q. My partner and I have been granted a divorce. We've reached a verbal agreement about our children and the division of our property. Can we get Court orders to formalise our agreement?
A. Where both parties are able to come to agreement in relation to the children and the division of the property, they can draft and file at Court an Application for Consent Orders, which sets out the terms of their Agreement. However, there are consent orders that cannot be sought using an Application for Consent Orders. Hence it is advisable that you consult a Family Lawyer prior to drafting or signing any consent Orders, and that you engage a solicitor to draft these Orders on you behalf to ensure that they comply with the required Legislation and Court Rules.
Q. My partner and I have been granted a Divorce. What happens if we cannot come to agreement in relation to who the children live with and how the property is to be divided?
A. Where the parties cannot come to agreement about the children and the division of property issues, they can initiate legal proceedings whereby they apply for Court orders in relation to these issues. Each party is required to file certain documentations in which they are to set out the Orders they are seeking, and a decision is made by the Court as to whether these Orders should be granted or not.
Q. My husband and I have been married for 1 year, can I apply for a Divorce?
A. If you have been married for less than 2 years and you wish to apply for a divorce, you must, before filing a divorce application, either:
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attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse, or
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if you have not attended counselling, seek permission of the Court to apply for a divorce.
Q. Divorce was granted to the mother of my children and I last week. She now informs me she will initiate proceedings against me in the family court and will take from me all the assets of the relationship and leave me with nothing. Would the Court grant such orders?
A. In making orders in relation to property the Court will take into account a number of factors some of which are: contributions to the marriage (whether financial or as home maker), state of health of the parties, whether the parties are employed, the length of the relationship, the age of the children and who the children live with. However, to obtain an estimate as to the split that you should seek from the Court, you need to consult a Family Law Solicitor who should be able to advise you on this based on their experience.
Q. If I want to seek a divorce, do I have to go to Court?
A. This depends on a number of factor such as whether there are children of the relationship under 18. Please consult your Family Law solicitor who will advise you on this issue, based on the circumstances of your case.
Q. How much will divorce cost me?
A. Applying for a divorce is a straightforward procedure if you have a family Lawyer acting for you. However the cost will depend on the circumstances of the case, the level of experience of the lawyer and which firm you engage. The cost is usually between $1,500 and $3,000.00
Q. If my children live with my ex-wife and she wont let me see the children of our relationship, what can I do about seeing them?
A. You can apply for Court orders stipulating the times and days on which you wish to see the Children, as well as contact on holidays and other occasions. Your Family Law Solicitor will assist you in drafting the required court documents and will give you advice about what orders you can seek, depending on the circumstances of your case.
Q. I don't have a job and I cant afford legal representation. Who do I speak to?
A. Many family Lawyers are on the Legal Aid panel. Check with your solicitor if they do Legal Aid matters and whether you are eligible for a legal id grant.
Q. I received my divorce certificate yesterday. How does that affect the will I drafted and signed 2 years ago when I was married.
A. You will need to discuss this issue with a solicitor, as the granting of a divorce may affect or revoke a will.
Q. My partner is very violent. What can I do to avoid him hurting me or the children.
A. Speak to your solicitor about applying for an Intervention Order.
Q. I am getting married next month but I own a lot of property. What can I do to ensure that if in the future my future wife and I get divorced, I get all my property back without her obtaining a share in it?
A. Speak to your lawyer about drafting and signing a financial agreement.
Q. I have court orders allowing me contact with my children but my wife does not come to the designated exhchange point and refuses to allow me contact. What can I do.
A. Your Family Lawyer can assist you in either discussing this matter with your ex-wife/her solicitor, or in bringing this matter to the Court's attention and obtaining Court orders in relation to this issue.
Q. Can I stop my ex-wife taking our children overseas without my permission?
A. yes you can obtain court orders to that effect.
Q. I applied for divorce, the hearing for which is next month. I want to marry my new partner in 3 weeks. Can I do that?
A. No. you can only re-marry after the divorce order is finalised, which in most cases occurs one month and one day after the divorce hearing. However, to be certain that the divorce order has been granted, see your family law solicitor
Q. I've been serviced with Family Court documents from my wife's solicitor. What do I do ?
A. Please contact your family lawyer who will advise you as to what documents you are required to file in respond.
Q. I need to file a Financial Statement at the Family Court. Do I have to reveal all property or can I hide some?
A. No you cannot hide any such information. You need to make a full and frank disclosure of your financial circumstances to the Court, as there are ramifications if you don't. There are court rules that oblige you to make full and frank disclosure of such information. Your Lawyer will give you more advice on this issue.
Q. I was served with an Application for Final Orders and it says that the court hearing is in two weeks. Do I need a Lawyer?
A. You can be a self represented litigant, and the court will give you assistance as best they can, but a family lawyer is obliged to do what is in your best interest and has the experience and advocacy skills which you will need to obtain the best results.
Q. My wife wants to take my kids to another state which means I can't see them pursuant to the Court Orders that we have. What do I do ?
A. Speak to a Lawyer.
Q. Are child support and spousal maintenance the same ?
A. No. They are different. Spousal maintenance goes to your partner.
Q. Can either party apply for spousal maintenance ?
A. Yes but for spousal maintenance orders to be granted the court has to be satisfied of certain requirements. Speak to your Lawyer to obtain advice as to whether you may be eligible and whether you should apply.
Q. I got married. Do I have to change my name ?
A. No. Change of name after marriage is a matter of custom not Law.
Q. I've been contacted by child support who informed me that they are assessing my income and that I have to pay child support for my kids. Does that mean I have to see my wife although we are separated so I can pay her each week?
A. No. The Child Support Agency can deduct the money from your pay or you can place it in a nominated bank account. There are a few options. Speak to the Agency and they will advise you.
Q. The father of my children and I are divorced. My child is under 18 and I wish to change their surname from that of their father's to that of their step-father, but the father won't provide consent. What do I do. ?
A. You need to apply to the Family Court or the Federal Magistrates Court for Court Orders in relation to the change of name. A lawyer should be able to advise you of the required procedure and the costs.
Q. I've got my step children in my care, but I don't know the whereabouts of their natural parents. Can I adopt them?
A. You would need to apply to the court but it would be very difficult to obtain. The other option is to apply for Family Court orders. See your Family Lawyer for more advice.
Q. A child support assessment was made on my income but I think it's too high. What do I do. ?
A. Apply to the Child Support Agency for a change of assessment But only if there are special circumstances.
Q. I am not sure if I am the parent of our son as I believe my wife has always been disloyal to me. What can I do ?
A. The court has power to order parentage testing procedures. Although failure to take the test has no penalties, but the court can draw inferences from this. Please see a lawyer as to how to obtain these orders.
Q. My ex-wife said she's applying for residence orders in relation to our child who has been living with me. What does that mean?
A. Residence Order is an order stating with whom the child is to live.
Q. If my ex wife is granted residence orders in relation to our child, does that mean I can't see my child at all?
A. No if she is granted residence you can apply for contact orders stipulating the kind and frequency of contact to be had with the children. Your family lawyer can advise you of the sort of orders you can apply for and how to word such orders.
Q. My step child lives with my husband and I, can I adopt him?
A. Yes you can. Your lawyer can advise you of the procedure.
Q. We have parenting orders in place but my daughter turns 18 next month. What happens then?
A. The parenting orders stop when the child attains 18 years of age, marries, enters into a de facto relationship or is adopted.
Q. I'm considering adopting my step child. What's the difference between that and obtaining Parenting Orders.
A. Parenting Orders expire when the child turns 18, adoption doesn't.
Q. Do I have to wait until I am 18 to get married?
A. No. The marriageable age for males and females is 18 in most cases, but some exceptions and limitations exist.
Q. If I am under 18 and pregnant, can I apply to the judge for permission for marriage?
A. Pregnancy is not a guarantee that the Court will grant this. See your lawyer who will advise you of the circumstances in which you can apply and whether there is a chance of obtaining the order.
Q. My husband and I are disputing about our child's name. What can we do?
A. Either of you can apply to the Court for a resolution of the dispute.
Q. I have left home and wish to commence divorce proceedings. Can you help?
A. Yes. Divorce can be a tricky matter at the best of times. Most people think the obtaining of a divorce fixes all issues between the parties. It does not and involves proceeding to divorce, effecting a property settlement, dealing with questions e.g. child custody (contact, residence etc.), child support and spousal maintenance.
Q. What is the greatest single impediment to the parties of a divorce trying to effect a property settlement?
A. The matter always depends upon the attitude of the individual parties. If both parties approach the situation wanting to be fair and reasonable, non-combative and co-operative then a satisfactory outcome from everyone’s point of view can be achieved. If either or both parties want to go to war then costs escalate and the time taken to reach a result is substantially extended and nobody is ever really happy with the outcome.
Q. I want to obtain a prenuptial agreement as I am getting married shortly and I need to protect not only my current assets but what I am likely to inherit in the future. Can you help me?
A. Given the nature of your current assets and what you are likely to inherit in the future you need to obtain a prenuptial agreement before marrying. A prenuptial agreement needs to address your circumstances not only now but in the future and if it does not then it is likely it will be set aside by the court at some time in the future. Prenuptial agreements are a form of binding financial agreement and they need to follow particular formalities otherwise they will fail. They require a high level of expertise and they are not like any other form of agreement in that they require, once drafted to be sent to the other party’s legal representative so they can obtain independent legal advice and a certificate. During the course of this they may want amendments which necessitates its return to the originating solicitor who will then have discussions with their client before making any changes and despatching it to the other party’s solicitor hopefully for execution and return before it is executed by the moving party.
Q. Until recently I was in a defacto relationship and my ex-partner has now denied me access to our child? Can you help me?
A. It doesn’t matter whether you are married or in a defacto relationship all matters involving children are dealt with by the Family Law Court of Australia. In your circumstances we can approach the court for orders which may include custody, but this may depend on the age and circumstances of the child at this stage in their life.
Q. I am involved in a property settlement and am unsure whether the advice I have obtained is correct. Can you assist?
A. Yes. Whenever parties are involved in a property settlement both financial and non-financial contributions need to be kept in mind. If you are a mother with children and have earned no income at the date of separation and have been involved in domestic duties and attending to the children of the marriage this does not prevent you from obtaining a substantial settlement. Unfortunately most people want to talk about percentage splits of a combined matrimonial pool before the full circumstances have been explained which is a very dangerous way of proceeding as it may severely curtain that person’s opportunity to obtain a larger settlement.
Q. I have been attending counselling for over 20 months with my wife and it seems to be leading no where as I use my best endeavours to address our problems however she remains distant and aloof and on a number of occasions has not turned up at all. Can you help me?
A. Yes. Where counselling proves ineffective the only real option for you is to obtain legal advice. Obviously you are at liberty to approach the court through your legal adviser to remedy the problem and if this includes divorce or any other matter whether property settlement, spousal maintenance, child custody etc. then you may do so. Unfortunately we usually only see clients who have been undergoing long term counselling with little or no effect as it appears to us that attitude is a core component of resolution and if this has not changed counselling is of little benefit.
Q. If I hold property both in Australia and overseas and wish to avail myself of the protection of a prenuptial agreement will it cover all my assets or only those in Australia?
A. A local prenuptial agreement is only valid in Australia and not elsewhere. In whatever jurisdiction you have property you need to ensure you have a valid prenuptial agreement covering that jurisdiction.
Q. I am involved in a property dispute with my ex defacto who is refusing to sign the contract to see our joint property. Is there anything you can do for me?
A. Yes. Where parties are in dispute over joint property the one who wishes to sell may approach the Supreme Court for a power of sale to force the other to sell it at market value.
Q. I haven’t received any child support payments from my ex-spouse and although the child support agency is saying they have made every possible effort to recover them I have lost faith in the system. Is there anything you can do?
A. Yes. The difficulty though is that you can either opt to remain in the system or you need to opt out of the system to seek private legal assistance. If you are unsuccessful where you opt out you cannot re-elect to re-enter the system and have the child support agency take on the matter once again to recover payment.
Q. I have entered into an HIA building contract for a modular home to be designed and constructed by the supplier. The house was to be built on an estate which has certain covenants governing the type of construction allowed there. The manufacturer, supplier and the builder are one and the same and they have indicated at all times they would be able to obtain all the necessary consents allowing my home to be built there. Despite this council has served me with a notice indicating that as I do not have the relevant consents I am not at liberty to proceed with construction. What can I do and can you help me?
A. Yes. What you need to do is to obtain competent legal advice. The lawyer will serve a notice of termination on the supplier, seek to have all monies expended on the project returned to you and provided the circumstances warrant it seek damages for negligence at common law and/or under the Trade Practices Act for misleading and deceptive conduct.
Q. I am looking for a divorce lawyer with extensive experience in children’s custody cases and complex property settlements. Can you help me?
A. Yes. We have an extensive family law practice and a particular interest in child custody cases. Most family law matters get back to property, spouse maintenance, child custody and child support.
Q. I have been married for approximately 20 years and have three children with my husband who has recently been diagnosed with Aspbergers Syndrome. He is an extremely difficult and overbearing person who always things he is right and is unable to effectively communicate with me and it doesn’t matter what I do I always seem to be in the wrong. Are you familiar with Aspbergers Syndrome and can you assist me?
A. Yes. We are one of very few firms of lawyers in Australia who have dealt with a number of Aspbergers Syndrome cases where this condition has threatened the very substance of the relationship. Unfortunately we cannot handle these matters as any other family law matter as there are stresses, strains and pressures that must be properly understood before you can property advise a client. Suffice to say that once you are aware of the nature and extent of the problem and the type of individual with whom you are dealing then you can formulate a strategy to more effectively deal with the matter securing your client’s position before you proceed. ASPIA recognises that we have a particular level of expertise in this area and recommends us to its members.
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