Separating from a partner can be traumatic with many practical and financial considerations. A break-up places stress on our emotional wellbeing and decision-making capacity – getting advice early is important to ensure you reach the best possible outcome in your circumstances.
Married couples in Australia may apply for a divorce if their marriage has broken down irretrievably. To make an Application for Divorce there are a number of matters to consider but essentially the parties must have been separated for a period of at least 12 months, however this time can include a period of separation under the one roof.
If you have children under the age of 18 years, you will be required to attend Court for the hearing of the application. The Court will need to be satisfied that proper arrangements have been put in place for the children.
What is a family law property settlement?
A property settlement concerns the division of assets, liabilities and financial resources between a separated couple to legally finalise their financial affairs. The conclusion of a legal property settlement enables the parties to move on with their respective financial activities and enables various stamp duty concessions when transferring certain assets such as real estate.
When can I obtain a property settlement?
A person may seek a property settlement once he or she separates from a former spouse or de facto partner. There is no requirement to be divorced before settling your financial affairs however the following time limitations are important:
- for de facto partners, any court proceedings for a property settlement must be commenced within two years of separating;
- the granting of a divorce triggers a twelve-month limitation period within which to bring court proceedings for a property settlement or spousal maintenance.
Even ex-partners on good terms should ensure that any agreement reached concerning the division of their property is legally documented and each receives independent legal and financial advice before finalising their affairs.
What steps are involved in dividing property?
The division of assets after separating can be achieved through a financial agreement, consent orders or court proceedings.
Most family law property settlements are finalised without going to court which should only be considered as a last resort.
The Family Law Act 1975 (Cth) encourages separating couples to settle property issues amicably and full disclosure is essential.
When negotiating how property should be divided after a break-up the same steps that a court would take are generally applied. These are:
- identifying the parties’ assets, liabilities and financial resources;
- assessing the parties’ respective financial and non-financial contributions;
- evaluating the parties’ future needs including their relative earning capacities, state of health, education and responsibilities as primary carer of any children;
- making just and equitable orders in consideration of all circumstances.
Why financial advice?
Whatever share of the property pool you receive, it is essential that you are aware of the financial implications before you finalise a property settlement.
The retention, transfer, disposal or division of assets must be considered in light of taxation and stamp duty implications, the effect on your personal circumstances, and your current and future needs.
Consideration should be given to the nature of assets retained or disposed of, as it may be more advantageous to hold onto one type of asset over another. It is important to understand and utilise the best structure to manage tax liabilities, achieve legitimate tax savings and safeguard, as far as possible, your financial future.
A superannuation split may form part of your proposed property settlement and it is important to evaluate the net result of this. The split may permit the creation of a new interest for the non-member spouse / partner or a transfer or roll-out of benefits for the non-member spouse / partner to another fund.
The splitting of superannuation does not convert its value into cash as it is still governed by superannuation laws and will generally only be accessible at retirement age.
With assistance from a legal and financial expert, your options can be presented and explained so you can make informed decisions that are in the best interests for you and your family.
The overriding principles considered by the Family Court with respect to parenting arrangements are that the best interests of the child are paramount, and that:
- children should have the benefit of a meaningful involvement with both parents in their lives;
- children should be protected from physical and psychological harm and harm resulting from being subjected to family violence;
- children should receive parenting conducive to their achieving their full potential;
- unless a child is at risk, parental responsibility should be equally shared and children should have the right to spend time on a regular basis with both parents and other people significant in their lives;
- parents should co-operate in determining what is best for the children rather than fighting in Court.
It is important to understand that shared parental responsibility does not mean that the child or children will spend equal time with each parent. In this respect, various practical and other factors are considered such as the ages of the children and their ability to cope with change, the existence of and their relationship with other siblings, schooling, location and the parents’ respective work commitments.
A parenting plan is an agreement made between parents regarding the ongoing and future arrangements for children. Parenting plans are not legally enforceable however are taken into account if one of the parties subsequently applies to the Court for a parenting order to vary the parenting plan. Parenting plans may be made before or after divorcing.
Consent Orders – Parenting
A consent order is a legally binding agreement with respect to parenting arrangements and can also include terms regarding the division of property. Consent orders are made after agreement by the parties without the need to attend Court, however they have the same force as an order made after a Court hearing.
We appreciate that no two families are alike and that parenting matters may be fraught with emotion and conflict. This is evident in the discretion available to the Court in determining orders that are in the best interests of the child.
Children & International Travel
International travel with children after separation can cause significant stress for parents and caregivers. This is a time when cooperation and trust is tried and emotions strained.
Generally, if there are no parenting proceedings on foot or Court orders in place, a parent is not technically required to obtain consent from the other parent to take their child overseas. In most circumstances, this is inappropriate and unwise and the other parent’s consent is, in any event, required if the child needs to obtain a passport.
The unauthorised removal from Australia of a child who is the subject of parenting orders or Court proceedings may result in a penalty of three years’ imprisonment. Accordingly, it is important for parents and guardians to understand their legal responsibilities when considering international travel with children.
A child may not be removed from Australia during Court proceedings that affect that child or where a parenting order has been made, without prior written consent of the parties to the proceedings, or in accordance with a Court order.
If consent is not given to remove a child from Australia an application may be made to the Court indicating the proposed country of destination and date of return.
In assessing the application, the Court will consider the safety of the country of destination, the applicant’s ties to Australia and intention to return with the child after the planned trip.
If you have concerns that a child may be issued an Australian passport without consent or will be unlawfully removed from Australia we urge you to seek urgent advice from our experienced Lawyers.
If you are having trouble obtaining consent for a child to travel or for the issue of a child’s passport, our family law team can assist in lodging the appropriate application and supporting documentation.