Family Law

There are two key aspects to family law – parenting and property. If you are separating from your de facto partner or spouse, getting the right advice from an experienced family lawyer is crucial to help protect your rights and secure an outcome that is in the best interests of you and your family. Even if your separation is amicable, sound professional advice can provide you with options to divide your property in the most beneficial way possible.

Separation & Divorce

The legal side of separating if you are married is to seek a divorce order from the Federal Circuit and Family Court of Australia. There is a minimum period of separation to be eligible to apply for a divorce and it is also necessary that there are no prospects of reconciling the relationship. This is demonstrated through affidavit evidence from one or both of the parties

Once the court is satisfied that the preconditions have been met, a decree nisi is granted. After a further month, the divorce becomes absolute. These dates are important if you intend to remarry.

De Facto Couples

De facto couples can also access remedies under Australian family law legislation. When a couple has not been legally married, a number of factors will be considered to determine whether they were in a de facto relationship, for example, the length and nature of the relationship, financial dependence or interdependence, the care and support of children, or whether the relationship was registered under state law.

For de facto partners, any court proceedings for a property settlement must be commenced within two years of separating.

One aspect that many people might not consider upon divorce or separation is the importance of updating their estate planning documents – Wills, powers of attorney, enduring guardianship and binding death benefit nominations.

Talk to your lawyer about the effect of divorce and separation on your current Will so you can review and update your testamentary wishes to take into account your new circumstances.

Dividing your Property

Regardless of the circumstances and assets involved, it is important and beneficial for both separating parties to legally formalise their financial affairs. An informal property settlement is not legally binding and can leave both parties vulnerable to future claims. Additionally, any relevant transfer duty exemptions on the transfer of certain assets such as real estate will only apply if the settlement is formally recognised.

Each party should seek independent legal advice to ensure a fair outcome and will need to understand the financial implications of a proposed property settlement. In many cases, it can also be beneficial to involve a financial professional before finalising your property settlement, particularly for more complex matters involving high net worth, trusts and/or business interests.

The division of property following separation should be fair and equitable in the circumstances. When determining what is fair and equitable, the following factors are considered:

All assets and liabilities, whether held jointly or individually are considered – the family home, investment properties, cash, shares, motor vehicles, superannuation and other investments, as well as mortgages, loans, credit cards and other debts.
The financial and non-financial contributions made to the relationship by each party are relevant – non-financial contributions include domestic contributions such as childcare, household duties and emotional support.
The future needs of each party are taken into consideration.

Children’s Arrangements

When it comes to parenting matters, the children’s best interests will take priority over all else. Parenting arrangements can be documented between separating parents through a parenting plan or consent orders. If the parties cannot agree, the court may need to decide.

The starting point in Australia for several years was a presumption that both parents should have equal and shared responsibility for their children, meaning that each parent would be equally responsible for making major decisions such as those concerning healthcare and education. Shared parental responsibility, however, has never meant that a child would necessarily spend half of their time with each parent – a concept often confused by separating parents. Reforms that commenced in May 2024 have removed the presumption of shared parental responsibility. Rather, the responsibility for major decisions will be based on various core factors with the best interests of the children and the children’s safety being paramount.

How Guy Sara & Associates can help

With over 15 years of experience in family law, particularly complex property orders, we are here to help. We have a track record for strong advocacy and have represented clients across a range of family law property and parenting matters in and out of court – from simple mentions to trials and appearing as Counsel in the Family Court Appeal jurisdiction.

We understand how confusing and confronting family law matters can be, particularly during some of the most vulnerable stages of life. We are accessible and compassionate, with a depth of knowledge and expertise to guide you through the legal challenges of separation and divorce.

If you need assistance, contact [email protected] or call 0415 260 521.