FAQs - General Law
Both financial and non-financial contributions made by each party in the relationship are assessed during a property settlement. These contributions are set out under s79(4) of the Family Law Act 1975 (Cth) and s90SM(4) for de facto relationships.
Homemaker and parenting contributions fall under the category of non-financial contributions. These can include parenting, cleaning and house maintenance duties. The courts have consistently viewed these non-financial contributions as equal to any financial contributions made.
The length of the relationship and when the contribution was made, is also taken into consideration during a property settlement.
Superannuation funds are generally considered part of the property pool and will be identified and valued during a property settlement.
Whether an inheritance will be considered in a property pool depends on the circumstances of the relationship. The factors to determine whether an inheritance will be included in the property pool can include; when the inheritance was received, the size of the property pool, and the future need of both parties in the relationship.
It is strongly recommended that you update your will after separating. A person does not need to wait until a divorce is formalised to prepare a new will. In fact, when a person makes a will and then later divorces their partner, any provision in the will that permits the former spouse to act in an executorial role, will be revoked and excluded from the will.
This law only applies once the divorce has been formally granted and does not apply if the couple is only in the process of separation.
Your children’s views on which parent they wish to primarily reside with should be taken into consideration when making a decision. There is no definitive age for when a child is able to decide on where they live. The amount of weight given to the child’s views will be dependent on the age, independence, and maturity level of the child in questions.
The overriding principle in parenting matters are the child’s best interests, pursuant to section 60CC of the Family Law Act 1975 (Cth). This section provides a full list of factors.
In Australia, there is a legal obligation for parents to financially support their children. This also applies to same sex and adoptive parents. If a parent has no contact with their child, there is still a primary obligation to provide financial support.
The amount of child support you pay is determined by applying a specific formula, which takes into account various factors including; how many children you have, the children’s age, the income of each parent, the income each parent needs to support themselves, the amount of care each parent provides for the child, which is then determined as a percentage.
For more information on calculating child support, you can follow the link below to the Services Australia website.
When decisions are made in relation to children, the courts must consider if it is in the child’s best interests. S60cc of the Family Law Act 1975 (Cth) sets out a list of factors that needs to be considered when deciding what is in the best interests of the child.
This list is divided into two tiers; primary and additional considerations. Primary considerations include whether it is in the best interests of the child to maintain a meaningful relationship with both parents and the need to protect the child from harm. Additional considerations can refer to the views of the child, the child’s age, the relationship the child has with the parents, grandparents and others etc.
If a DVO has been ordered, this does not automatically mean that a person cannot spend time with their children. Spending time with your children can depend on various factors such as the conditions of the Protection Order and the level of domestic violence involved.
It is imperative that you carefully read the conditions of the Protection Order or seek legal advice, as there may be exemptions allowing you to contact the aggrieved in relation children matters.
Even after parents separate, they both continue to share parental responsibility for any children under the age of 18, unless there is a court order in place removing a parent’s parental responsibility. This is referred to as the presumption of equal shared parental responsibility. This means that any decisions made in relation to the child’s schooling, medical requirements or any other important issues, should be made together.
It is important to note that equal parental responsibility is not the same as equal shared care. There is no law that requires children to spend equal time with each parent.
If both parents can come to an agreement in relation to the amount of time the child spends with each parent, they can arrange a parenting plan or apply for consent orders through the Family Court.
Under s60B(b) of the Family Law Act, children have a right to regularly spend time with and communicate with people significant to their care, welfare and development. This specifically includes grandparents. However; this does not mean the grandparents have an unrestricted right to contact or care for their grandchildren. It means that grandparents have the right to make an application to the court in relation to their grandchildren, after attempting mediation first.
It is recommended that you have a written agreement as this can be referred to later. Written orders are also recommended as you are exempt from paying stamp duty on property interest transfers that are made under s90(1)(a) of the Family Law Act 1975 (Cth).
A divorce is the dissolution and legal termination of your marriage. You have to wait one year from the day of separation before you can apply for divorce.
The process of dividing your assets and liabilities is a separate legal matter and can take place as soon as you have separated. You do not need to wait until your divorce is finalised to enter into property settlement negotiations. A property settlement can be finalised without applying for a divorce.
Once you are divorced, you only have twelve months to finalise your property issues. So, it is recommended that you enter into a property settlement first, then apply for divorce.