FAQ
It depends who is asking or judging. Centrelink and other government agencies have different requirements and/or interpretations to the Family Court. The Family Court generally has jurisdiction to make financial orders if the parties have been living together for a period of 2 years or more. There are some exceptions however, so it is best to get legal advice from an experienced family lawyer and check.
Although obtaining legal costs from the other party is difficult in the Family Court, it is possible. The default position in the legislation is that each party bears their own costs.
Yes, you can but under those circumstances, there are particular requirements to meet before a divorce can be granted.
Parties can be separated under one roof. It can make it more complicated to meet government requirements for financial assistance as well as the requirements to obtain a divorce if the parties were married.
No, you don’t need your spouse to agree to a divorce, nor do you need them to sign the application. An application for a divorce can be made jointly, or by one party.
No, you do not need to be divorced before a property settlement can occur.
You need to be separated for at least 12 months before you can apply for a divorce.
It can take between 2 to 6 months from the date of lodgement of the application to the date the divorce is made final.
It depends. Sometimes it is a quick process, sometimes it can take years of negotiations and litigation. Ideally, a family law matter is resolved amicably, quickly and inexpensively. However, some disputes are harder to sort out and can take longer. Sometimes the Family Court is required to resolve matters that the parties cannot themselves.
Where matters are urgent, West Family Lawyers are able to accommodate a prompt appointment with one of the senior lawyers.
Aside from superannuation splitting provisions, the legislation in relation to de facto and married partners is almost identical. In WA, superannuation splitting provisions are expected to change in the near future. Watch this space!
Yes. You should always consider a change to your will if there has been a change in your personal circumstances.
Educate yourself as to your rights and obligations. Knowledge is power and will help you resolve your family law matter more efficiently and have more realistic expectations.
It is not necessary to involve lawyers; however, it is advisable to see an experienced family lawyer before you engage in settlement negotiations, and to assist you to prepare any documentation.
No, we at West Family Lawyers devote energy into resolving matters before they get to Court, however some matters are simply unable to be resolved without the Court’s assistance.
Yes. If you do not formalise the division of property then you leave yourself open to an application being made by your former partner in the future.
That would be disappointing, and although we make every effort to resolve matters outside the Family Court, the Family Court is there to assist when it is simply unachievable to settle.
Mediation is a generally successful process where all parties come together to discuss an outcome that they can live with, facilitated by an experienced and qualified mediator. You can attend mediation with or without your lawyers. No decision is made for you at mediation, it requires an agreement to be reached by the parties. Sometimes you will resolve all issues in dispute at a mediation, and other times you may only resolve some interim issues.
Spousal maintenance is a payment from one party to another, based on an assessment of needs and ability to assist. In short, if one party can afford to pay and the other party needs assistance the Court can make an order for spousal maintenance on an interim or a final basis.
Child support is usually assessed by Services Australia through its child support division and is a payment made by one party to the other to assist to meet the financial costs of raising a child. Spousal maintenance on the other hand is assessed by the Family Court and is generally a periodic payment made by one party to the other to assist in the payment of expenses such as cost of living and re-training.
Care, integrity, strength.
Sometimes yes, sometimes no, sometimes – it depends. Each family law matter depends on the particular facts and circumstances.
Pre-nuptial agreements are called Binding Financial Agreements in Australia and are formulated according to Australian family law legislation and principles. They can be entered into before, during or after a relationship.
Sometimes yes, sometimes no – it depends. Each family law matter depends on the particular facts and circumstances.
No. Australia is a no fault jurisdiction. In other words, it does not matter who left who, or why.
No, they will be considered by the Family Court. They may be treated differently but generally, they are included in the asset pool available for division. It does depend however on a number of different factors and obtaining good family law advice is key.
Yes, you can obtain a court order for Fluffy; your dog is deemed to be an asset of the relationship.
Generally speaking, all assets are included although post-separation contributions can be considered in isolation by the Court and sometimes dealt with in a different manner.
There is no specific formula that is used to determine who retains what in a property settlement, however the Family Court considers the contributions of the parties and the future needs of the parties, amongst other things, when making a determination for property settlement. Family lawyers generally use the same legislative framework as the Family Court when they provide advice to parties.
There is no default position in relation to property settlement. Each case is determined on its own merits.
No.
It depends on the age and stage of development of the child. There is no hard and fast rule as to when a child’s views are considered.
Each case is different and the just and equitable division of the relationship assets depends on the circumstances of the case.
No.
No. The Family Court refers to children “spending time with” and “living with” their parents, or other caregivers.
Depending on the age and maturity of the child, and other relevant factors, the Court may make orders in accordance with a child’s views, however it is at the Court’s discretion and on a case-by-case basis.
If an agreement cannot be reached between the parties, you can seek the Court’s assistance to make Orders in the best interests of your children.
No. The Family Court can make orders for another person to interview a child and provide their views to the Family Court.
It is not unusual for the Family Court to appoint an independent lawyer who represents the child’s best interests.