Do I have to be divorced to split the property?
As soon as you have separated you can make arrangements to split your property and debts between you and your ex-partner. You do not have to wait until you are divorced.
However, there may be time limits on resolving property matters after separation. Married parties generally have up to 12 months from the date of a divorce order coming into effect to resolve their property split or to issue court proceedings if necessary. De facto couples generally have up to 2 years from the date of separation.
Do we have to go to Court?
No, not at all. In property matters, if you have reached agreement about how things should be divided between you, we can assist you to draw up the documents necessary to formalise that agreement, and assist you with any steps required to give effect to that agreement, such as transfers of property and superannuation splits.
If agreement is reached between parties in parenting disputes, the parties may choose to formalise the agreement by way of a Parenting Plan or Consent Orders. We can advise you and assist you with the terms of the proposed agreement and the best method of formalising that agreement.
What if we can’t agree?
We will always try to assist you in resolving a final property settlement without court proceedings if possible, unless there are grounds of urgency requiring urgent court proceedings. Before issuing court proceedings, generally the court needs to be satisfied that you have attempted to reach agreement.
In relation to parenting disputes, the parties are generally required to try family dispute resolution through a provider such as Relationships Australia or the Family Relationships Centre, before issuing court proceedings to seek children’s orders. There are some exceptions to this requirement, where court proceedings could be filed earlier.
Where the parties cannot reach an agreement or property and/or children’s matters, we can assist you through the court process to obtain final property and/or parenting orders.
How does the court decide?
In property disputes, the court will work out the parties’ total assets owned by the parties, including property, shares, car, jewellery, savings, furniture, etc. The court will also ascertain the parties’ liabilities and superannuation entitlements. This includes things you brought into the relationship, those acquired during the relationship, and also those purchased after separation.
Next the court will weigh up the contributions of the parties including financial, non-financial, contributions as homemaker and carer to any children, inheritances, and any assets brought into the relationship by the parties.
The Court will then also look at the future needs of the parties, taking into account factor such as the income earning capacity of the parties, age and state of health of the parties, parental responsibilities and maintaining a standard of living that in all the circumstances is reasonable.
The court will make a final decision based on what is just and equitable to both parties.
How does the court decide in children matters?
The court applies a presumption of equal shared responsibility between parents. This does not necessarily mean equal time between parents. This presumption can be rebutted in certain circumstances. Where the parties have equal shared parental responsibility for the child, the court is required to look at equal time where it is in the child’s best interests and where it is reasonably practicable. If not equal time, the court is required to look at the non-resident parent having substantial and significant time with the child if this is in the child’s best interests and reasonably practicable.
The court will consider the best interest of the child as paramount. This may not necessarily be what seems ‘fair’ to each of the parties.
The primary considerations in determining what is in the child’s best interests will be the need to protect the child from psychological or physical harm from being subjected or exposed to abuse, neglect or family violence, and the benefit of the child having a meaningful relationship with both parents. There are a broad number of other factors the court will look at in making their decision, including any views expressed by the child weighted against the child’s age and level of maturity, the nature of the child’s relationship with each parent, the attitude of the parents to the responsibilities of parenthood, the likely effect on the child to any possible change in the child’s circumstances, practical difficulty and expense, and any other fact or circumstance that the court finds relevant.
We can help
Dealing with the complexities of property settlement and/or parenting disputes is stressful but the consequences of not doing it properly can impact on the rest of your life. We are experienced negotiators and will make sure you get the best possible outcome.
Contact us to discuss your particular situation with an experienced family lawyer in Gladstone.