Legal Matters

The definition of de facto relationships also encompasses same sex couples. A de facto relationship is defined as a relationship between two people whilst;

• the persons are not legally married to each other; and 

• the persons are not related by family; and 

• having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

 

Couples who were not legally married do not require a Divorce Order. They may make applications for parenting orders and property orders including the splitting of eligible superannuation.

From 1 March 2009, couples who did not marry but had an eligible de facto relationship, can apply to the Family Court or the Federal Circuit Court to have financial matters determined in the same way as married couples, when dissolving their relationship.

Before the Court can determine your financial dispute, you must satisfy the Court of all of the following;

• you were in a genuine de facto relationship with your former partner which has broken down

• you meet one of four gateway criteria (see below)

• you have a geographical connection to a participating jurisdiction

• your relationship broke down after 1 March 2009 (or after 1 July 2010 if you have a geographical connection to South Australia only), although you may be able to apply to the Courts if your relationship broke down prior to the date applicable to your state.

 

In addition to satisfying the Court that a de facto relationship exists, an applicant must also satisfy the Court that one of four possible ‘gateway requirements’ are satisfied;

• the period, or the total of the periods, of the de facto relationship is at least 2 years; or

• there is a child of the de facto relationship; 

• or the party to the de facto relationship who applies for the order or declaration made substantial contributions and a failure to make the order or declaration would result in serious injustice to the applicant; or 

• the relationship is or was registered under a prescribed law of a State or Territory.

 

The person making the application must prove that a de facto relationship existed for a period of at least two years. There are some instances where proof of the two year time period will not be required, including:

• where there is a child of the relationship; or 

• where the applicant has made a substantial contribution that would not otherwise be adequately compensated for if no order is made; or 

• where the applicant has the care and control of a child of the respondent and there would be a serious injustice to the applicant if no order was made.

 

There are some differences from state to state (particularly in WA) as to how de facto relationships are treated in family law. If you have been in a de facto relationship, you should seek legal opinion about your specific circumstances. You can do this by contacting a private family lawyer, Legal Aid, Relationships Australia or the Family Court. The family court can offer you advice as to which laws apply in each state and the processes involved but they will be able to advise you of how the principals of the law would be applied in your situation.

 

You can apply for a divorce in Australia if either you or your spouse;

• are an Australian citizen by birth, descent or by grant of Australian citizenship; 

• regard Australia as your home and intend to live in Australia indefinitely; or

• ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

Australia adopted a ‘no fault’ policy regarding divorce in the Family Law Act (1975). Since then, for eligibility to divorce in Australia you no longer have to have any other grounds for divorce other than to prove that at least one of you believes the marriage has irretrievably broken down and that you have lived apart for at least one year.

If there are children of the marriage, you will need to satisfy the court that adequate care and financial provision has been made for the children before granting a divorce.

If a couple has been married less than 2 years, they will be required to participate in prescribed marriage counselling before being eligible to apply for a divorce.

 

An affidavit is a written statement prepared by a party to the marriage or by a witness.

Your affidavit is the main way you present your facts about the matter, your evidence, to the Court.

Your affidavit should contain as much relevant information as you know about the topic you are seeking to have resolved.  An affidavit is a statement of facts therefore, you should not include your opinion or how you feel about the matter.  

The exception to this is where the person completing the affidavit is an expert witness such as a psychologist or licensed valuer. 

Generally, an affidavit must be based on facts not your beliefs or views and only on facts that you are able to substantiate, and not the hearsay evidence of things you have been told by third parties. 

Once it is completed, you must swear or affirm the affidavit by signing it in front of a a person authorised to witness affidavits; for example, a lawyer or Justice of the Peace.

If any alterations (such as corrections, cross-outs or additions) are made to the affidavit, the person making the affidavit and the witness must initial each alteration.

Although you can prepare your own affidavit, it is often not easy. If you need help preparing your affidavit, you should seek legal advice.   

In the Family Court, you need to file an affidavit with an interim application, response or when directed by the Court.

Family Court blank affidavit form 

Family Court of WA blank affidavit form

In the Federal Circuit Court, you need to file an affidavit with your application or response, for both interim and final orders, and when directed by the Court.

Federal Circuit Court blank affidavit form

 

The forms you need to file an application with a Court are free and available from the following websites.

• Federal Circuit Court

• Family Court of Australia

• Family Court of Western Australia

Each application you make to Court must be accompanied by the appropriate fee.    

The following are links to the current schedule of fees for:

• Federal Circuit Court

• Family Court of Australia

• Family Court of Western Australia

 

You can no longer pay filing fees in cash.  

You may incur sundry fees for photocopying, postage, applying for supporting documentation or certifying documents.

The applicant who filed cannot serve documents on the respondent.  If there is no person available to do the serving you, you may have to engage a professional document server which will attract an additional fee. 

The cost of making any application will increase if you use a lawyer or other professional to assist you in filling out the application or collating the supporting documentation.

Fees for a family lawyer start at around $330 per hour with partners and specialist lawyers charging at least $550 per hour + GST.  You may qualify for legal assistance from Legal Aid.

The cost of a completing the divorce application should not run too high but contested property settlement or seeking parenting orders varies from case to case.

It is common for litigant spouses to spend tens of thousands of dollars each in fees to settle these matters.

 

Eligibility for fee reduction

You may be eligible for a reduced fee if in the opinion of a registrar or an authorised officer, payment of the fee at that time would cause you financial hardship.

The registrar or authorised officer is required to consider your income, living expenses, liabilities and assets.  A financial hardship exemption must be considered on each occasion a fee is payable in any proceeding.

If you are seeking an exemption on the basis of financial hardship, you must complete an 'Application for exemption from fees – financial hardship'. 

You must complete an application with each time a fee is payable and your case will be assessed on each occasion, even if you have been exempt in the past.

 

Eligibility for fee exemption

If you fit one of the criteria below, you may be eligible for an exemption and may not have to pay court fees.

You are entitled to an exemption from court fees in a proceeding if:

• you have been granted legal aid for that proceeding from a state/territory Legal Aid Office or an approved legal aid scheme or service 

• you are the primary holder of a health care card, a pensioner concession card, a Commonwealth seniors health card or any other card certifying entitlement to Commonwealth health concessions (this does not include a dependent of a primary cardholder)

• you are an inmate of a prison or otherwise legally detained in a public institutions

• you are under 18 years of age, or

• you are receiving youth allowance, Austudy payments or ABSTUDY benefits.

There are many different types of agreements and orders which you can enter into or apply for in family law matters.  For a complete listing of orders which you may apply to have the court hear on your behalf, visit the Family Court of Australia website. 

Some of the more common orders and agreements which are used to resolve disputes between couples are listed below.

 

Divorce Order

After an application for divorce has been made by one spouse or jointly, and the Court is satisfied that the grounds for divorce are established, an order called a "decree nisi for dissolution of marriage" will be granted.  This order is generally referred to as the Divorce Order.

The decree nisi becomes a decree absolute after one month, finalising the divorce.  It is possible to rescind a decree nisi during the one month that it is in existence and this means that the parties do not have to go through with the divorce.  

Once the month has passed, the final Divorce Order is made.  Both parties are then free to remarry.  

Since February 13, 2010, divorce certificates are no longer issued.  The Divorce Order is the proof that you are legally divorced.  

If you divorced before 13th February, 2010 you can request a Divorce Certificate from the Dept. of Births, Deaths and Marriages.

 

Property Agreement

This is an informal agreement which may or may not be a written agreement. It deals with how you agree to divide your assets and liabilities and cater for any ongoing financial support to each other if appropriate.

It is not legally binding and is not ratified by the court. Divorce Resource does not recommend this option.

 

Legally Binding Financial Agreement

This is a document which specifies in detail how you agree to split your assets and liabilities, including eligible superannuation. It also deals with the issue of ongoing financial support payments if appropriate.  

A legally binding agreement must be drawn up by a lawyer and requires that you both take independent professional advice before signing every page.

Legally binding agreements between couples are recognised by the Family Court but there is no scrutiny of the content of the agreement when it is sealed. The onus is on you to have taken professional advice before signing.

As the name suggests, the document is legally binding. Therefore, if you have taken advice and sign the agreement, it may be difficult to overturn the agreement in future.

 

Interim Orders

Interim orders are usually made in urgent cases.  These orders are made on a temporary basis and last in effect until the matter can be fully resolved and other orders or final orders are made.

Generally, you cannot file an application for interim orders unless you have filed an application for final orders.  Interim orders can be sought where just part of a more complex matter which is in dispute is urgent.  

Examples of when interim orders may be made are when the well-being of a child or other family member is at risk, or when there is a risk that one party may be running down a business or otherwise eroding the joint asset pool.  

The court will usually make interim orders to minimise the impact of the urgent threat and make final orders once the matter has been examined more closely.

In some urgent cases, the court may conduct an interim hearing on the day and make interim orders at that time.

If the matter is urgent but the court doesn't have time to hear the matter on the day of the application, then a date of hearing for the interim matter will be made.

 

Final Orders

Final Orders refers to the orders (of any type) that are made at the end of any case to finally resolve the issues. 

 

Consent Orders (Property or Parenting)

Consent orders formalise arrangements that you and your ex-partner agree on.  

Consent orders have the same legal effect as if they had been made by a judicial officer after a court hearing. 

Property (Finance) Consent Orders specify the agreements you have reached by consent with regard to the split of your property and any ongoing financial maintenance payments.  

Parenting Consent Orders formalise the arrangements you have agreed to for the care and financial provision for your children. You may include both property and finances in apply for Joint Consent Orders.

Consent orders are drawn up from information about your agreement which you provide to the court by way of an Application for Consent Orders. This is also referred to as a Form 11 for a property split.  

The form can be completed by you, a lawyer or mediator. It is not mandatory but highly advisable to take professional legal and financial advice before signing an application for consent orders.

The court will review your application for property consent orders in relation to the four step process and the evidence you provide. 

The court must be assured that the proposed property settlement is ‘just and equitable’ before it will ratify the consent orders.  

For parenting consent orders, the court will review that the child is adequately provided for and that the arrangements are in the child's best interest. 

If you are in full agreement and have made an application for consent orders, it is unlikely that you would have to appear in court.  

If the court does have any queries regarding the details of your application, a Notice will be issued asking for clarification and in most cases, you can reply to this without attending court.

There are costs involved with lodging an application for consent orders but it is usually less expensive than drawing up a legally binding agreement.

 

Property (Financial) Orders

Property Orders, are final orders handed down by the court to resolve financial matters if you and your former partner cannot decide between you about arrangements for the division of your assets and liabilities and one person has made an application for property orders.

The court listens to the evidence, considers all the factors of the four step process and makes a ruling which is then ratified by the court and becomes legally binding. 

Property Orders are drawn up by the court to detail the specific division of assets and liabilities, including eligible superannuation and any ongoing financial support made as per the magistrate's ruling. 

 

Parenting Orders

Parenting Orders, are final orders made by the court, to resolve parenting matters.  There are four types of parenting orders; residence orders, contact orders, specific issues orders and child maintenance orders.

These orders are only made if you cannot decide between you about arrangements for the ongoing care an provision for your children.

The court listens to the evidence, which may include evidence from affected third parties such as grandparents. Expert witnesses such as psychologists may also be asked to provide evidence.  

The judicial officer considers all of the factors in terms of what is in the best interests of the child and makes a ruling which is then made into orders and becomes legally binding. 

 

Parenting Plan

A parenting plan is an informal agreement between parents which sets out the general philosophy and approach to parenting you and your child's other parent have agreed to.  

A parenting plan deals with long term matters such as education and cultural issues as well as the day-to-day matters such as bed times and approaches to disciplining.  

A parenting agreement, whilst highly recommended, is not legally enforceable unless it has been specifically registered with the family court.

 

Child Support Agreement

This is a private agreement that you enter into with your child's other parent to formalise the arrangements for financial provision for your child outside of the Child Support Agency’s mandatory requirements. 

These private child support agreements don’t require a Child Support Assessment to be in place.  If you opt for a private child support agreement, there are two types, Limited and Binding.

A Limited Child Support Agreement can include periodic or lump sum payments of child support but also can provide for support in kind, such as maintenance of a family health insurance policy, payment of private education fees etc.

A Binding Child Support Agreement allows parents to set the level of child support to be paid until a terminating event occurs, such as a child turning 18 or obtaining employment.

This type of agreement is preferred by some families as the payer knows how much they will pay, and the payee knows how much they will receive.

 

Memorandum of Understanding  

This is a term sometimes given to a document drawn up by a Family Dispute Resolution Practitioner to outline the matters which were discussed in mediation.

 It gives the details of the matters which were agreed and the undertakings made to action those agreements and outlines the areas which are still in dispute.  

Any report written after mediation to outline the issues discussed is not legally binding.

If you wanted to formalise such agreements you would need to file a Consent Order or draw up a Binding Financial Agreeement.

 

Police Order

Police may make an on the spot restraining order called a Police Order in situations of family and domestic violence. A police order may be made for up to 72 hours.    

A police officer cannot make a police order against a child that might affect the care and well-being of a child unless they are satisfied that appropriate arrangements have been made for their care and well-being.

 

Protection Order

A Protection Order, is a legally binding order made by the Court designed to stop threats, harassment, property damage, violence, and emotional abuse by restricting the access of the perpetrator to the victim(s).

Family Violence Protection Orders have different names from state to state:

• Protection Orders (ACT/QLD)

• Apprehended Violence Orders (NSW)

• Restraining Orders (NT/SA)

• Restraint Orders (TAS)

• Intervention Orders (VIC)

• Violence Restraining Orders (WA)

A family violence protection order instructs the offender to stay away from the applicant and/or to stop behaving in certain ways towards them.

It’s worded specifically to address the particular behaviour of the abuser and will vary from case to case.

 

There are three widely acknowledged approaches to negotiating a divorce settlement outside of reaching an agreement with your ex-partner without assistance from trained professionals.

 

Collaboration

Collaborative Practice began in earnest in Australia in 2005. There are an increasing number of International Academy of Collaborative Professionals (IACP) members and collaborative practice groups throughout the country. You can find contact details in our resources pages.

Also known as collaborative divorce, the process requires all parties, the couple and the representative lawyers, to sign an agreement at the outset to agree arrangements for children and reach a property settlement out of court, and within a set time frame.

The couple may also engage the services of a financial expert, counsellors and possibly a child specialist to represent the needs of themselves and/or their children, either jointly, or as separate advisor to each party.

In the collaborative process, divorcing couples, along with their lawyers and other neutral professionals such as the finance, business or taxation advisers always meet together.

All of the information is presented to all parties, to resolve negotiations around co-parenting, financial support, division of assets, debts and superannuation, realigning of business interests and any other issues which may arise.

Legal privilege between client and lawyer is forfeited as there is full disclosure of facts and information to the other side.

Children’s needs are given priority. Face-to-face meetings with you, your spouse and all relevant professional adivsors present make negotiations direct and efficient, eliminating much of the written communication.

If successful, this process can be less stressful, less costly and reach a more satisfactory resolution far more quickly than litigation and no one has to go to court to agree a settlement.

The decisions regarding the important issues in the divorce are made jointly between you and your spouse with the needs of both of you and any children fully considered. The agreement is drawn up into a draft agreement which is then ratified by the family court as an order or drawn up by your lawyer in to a legally binding agreement.

Collaborative practice has a very high rate of success in reaching settlement. If the collaborative attempt is unsuccessful, and the couple decide to proceed through the court process, previous offers, negotiations and disclosures are no longer admissible in the case and each party must start the entire process anew with different legal representation.  

 

 

Mediation

Mediation is a co-operative approach by the couple under the guidance of a trained dispute resolution practitioner.

The mediator, or dispute resolution practitioner, is a neutral person who does not represent either you or your spouse or offer independent legal advice.

They are there primarily to keep you focused on the issues which need to be resolved and to maintain a safe and respectful environment for the negotiation to occur.  

They may initially meet with each of you individually but after the initial meeting, they will usually only meet with you and your spouse together.

Even when they are meeting with you privately, they are not representing you. They will merely be gathering and imparting neutral information.

Mediation is commonly used to settle disputes about parenting and/or property. In terms of property settlements, before you go into a mediation session, you should have a very thorough understanding of what you actually have to split between the two of you and what you will need to cover living expenses, so you can negotiate from a position of knowledge.

The mediator may provide you with an overview as to how a Court might view your circumstances in terms of Family Law and give you a reliable guide as to the range of outcomes you could expect, should you proceed to trial.

Often though, they do not provide this information at the outset as their role is to facilitate and not to advise. It is up to you to have sought legal and financial advice before mediation. Some mediators are qualified in family law, some are not.

A mediator can also assist you with paperwork including financial disclosures, child parental care and financial support agreements, spousal support agreements and your final divorce and property settlement order. 

If you reach agreement with the use of a mediator, it is very important for you to seek advice from a qualified lawyer before you sign a legally binding agreement of consent order.

 

Litigation – Full Blown Legal Representation

This is the divorce settlement method most people initially think of when considering divorce. Both spouses have a divorce lawyer to represent them and advocate for their rights, legal petitions are filed and court hearings are held to reach conclusion in the case.

This method is invariably more costly than the other methods.

It is important to note that at any point during the litigation process, you are at liberty to reach an agreement with your spouse, outside the legal arena.

If you feel that litigation is the appropriate path for you, be aware that at each turn in the case, a lawyer may only ever act upon your instruction.

In order to get the best result, it is unlikely that you will just hand over the reins to your lawyer. You will need to be prepared to fully engage in the exchange, to source and collate detailed information with supporting documentation and to research likely outcomes and evidence for your case.

When each of you have legal representation, your lawyer must not communicate directly with your spouse, just as their lawyer must not communicate directly with you. They will most likely ask you not to communicate directly with your spouse either, so as not to interfere with legal privilege.

Usually, communication will be by way of writing between the lawyers and then your lawyer conveys the information to you, either in writing or by phone or meeting.

In Australia, over 95% of cases are settled without the need to go to trial but in some cases, litigation is unavoidable.

Work hard to fall into the 95%!

 

If you have an existing Will, upon your divorce it will automatically become null and void.

You may wish to make a new Will as soon as you are separated because if you have left part of your estate to your ex-partner and you were to die before you were divorced, your existing Will still stands.

If your ex-partner is nominated as the executor of your Will, they would retain this role and may not distribute your estate to reflect your altered circumstances and current wishes.

You can draw up a simple Will to suffice throughout the separation period which would also become null and void once you are divorced.

Alternatively, you may wish to engage the assistance of a Wills specialist to ensure that a Will you put in place after you are separated remains valid after your divorce is granted.

If your ex-spouse was the executor of your Will and you die having not written another Will, this may will lead to the Court appointing someone else to administer your estate.

Any gifts you left them fall into the residue of your estate and may not be distributed how you would have wanted.

As well as your Will, you should also draw up a new Power of Attorney and Enduring Power of Attorney upon your separation.