CONSIDERING DIVORCE
Relationship breakdown can be a particularly stressful time for all parties involved. At 360 Legal, we appreciate that no two relationships are the same, so we take the time to understand your individual situation. It is important to remember that divorce does not establish how property will be divided or determine the custody of the children. Divorce simply means that the marriage has been terminated in the eyes of the law. �?No fault’ divorce in Australia means that you do not need a reason to get divorced, it is only essential that the marriage has broken down irreversibly. It is important, however, to understand your specific rights and responsibilities when getting divorced, such as:
- Requirements around separation;
- Service of documents; and
- In some cases, mandatory counselling
Whilst navigating your divorce, there may be other issues that need to be dealt with relating to your marriage such as the marital asset pool and custody of children. Our team of experienced solicitors will guide you through the process whilst maintaining your best interests at all times. We also provide advice on:
- Binding financial agreements and settlements
- Child support
- Spousal maintenance
- Division of property
Property Division
Property division in NSW is highly dependant on individual circumstances. There is no pre-determined formula to establish how property will be divided. In most cases, property division following relationship breakdown can be resolved outside of Court through a process of mutual consent such as through mediation or negotiation. In other cases, parties who cannot reach an agreement on how to divide assets can apply to Court where assets will be divided on a case-by-case basis in a just and equitable manner. The general principles that the Court consults when determining such disputes include:
- The worth of your assets and debts
- Direct financial contributions
- Non-financial contributions such as caring for children
- Each party’s future requirements such as capacity to earn money, age, caring for children
As such, your individual circumstances will determine how much of the asset pool you will be apportioned. In some instances, complex company structures or trusts can mean that certain assets are deliberately left out of the asset pool. With our extensive experience in asset discovery and targeted searches, we can advise you on how you can achieve the best possible outcome.
Spousal Maintenance
Spousal maintenance or de facto partner maintenance are payments that need to be made to your former marital partner or de facto partner when they are unable to financially support themselves. These payments can be made in lump sums or periodically following separation or divorce. Our team of dedicated lawyers can assist you with your spousal or de facto partner maintenance application.
The application needs to be made within 12 months of your divorce or within 2 years of the breakdown of your de facto relationship. Alternatively, if you do not want to apply to the court for a financial order, our team can help both parties negotiate an appropriate amount. We can also help you if you need to apply for spousal maintenance but your time limit has expired or you want to apply to Court for a variation to the maintenance order.
In deciding how much maintenance is to be paid, the Court will consider many factors including:
- The financial situation of both parties
- Your ability to earn and capacity to work
- An appropriate standard of living
BINDING FINANCIAL AGREEMENT
A binding financial agreement (BFA) is essentially a contract between two parties who are getting married, are married or divorced. Such agreements can also apply to de facto relationships. BFAs are financial agreements that detail how the asset pool and financial resources, including superannuation and debts, are to be divided following relationship breakdown.
For a BFA to be legally binding, it is imperative that both parties seek independent legal. After receiving such advice, a signed certificate from each legal advisor will be attached to the agreement. By having a BFA, parties can avoid the Court’s jurisdiction in deciding how assets will be divided. Depending on whether the BFA is being made before, after or during the relationship, there can be time limits on its implementation as well as differing requirements effecting its validity.
At 360 Legal, we specialise in drafting, preparing and approving BFAs. In instances where the BFA needs to be challenged, our team of experienced solicitors can help you apply to have the BFA amended or set aside. The circumstances in which the Court will set aside a BFA include but are not limited to:
- The agreement is fraudulent, for instance, the concealment of assets or for the purpose of evading a creditor
- The agreement is void or unenforceable, for instance, one party failed to receive independent legal advice
- A substantial change has transpired which will result in hardship if the Court does not set aside the BFA
CHILDREN’S MATTERS
Following relationship breakdown, the care of children can be divided between both parents (or legal guardians). In some cases, parents may reach a mutual agreement that incorporates the care of their children. These non-legally binding agreements are known as Parenting Plans. In some instances, parents may seek the advice and guidance of experienced third parties to negotiate or mediate contentious details of Parenting Plans. At 360 Legal, we have helped countless families draft and integrate their Parenting Plans into their lives. In the event that there are any disputes regarding the Parenting Plan, we advise on points of contention to ensure the longevity of the Parenting Plan.
In other cases, resolution may not be feasible due to irresolvable disagreement between parents or domestic violence. As such, the Court will impose a Parenting Order/ Court Order which has the effect of being binding on both parents. In such instances, the Court’s will place the best interests of the child above any other concern. The Court will consider a number of factors including but not limited to:
● Protecting the child from harm
● Ensuring the child has beneficial relationships with both parents
● The relationship of both parents with the child
● The impact of changed circumstance on the child
● The capacity of each parent to look after the child
● The child’s preference/view
If both parents agree, but require a binding agreement, we will prepare the consent order based on the agreement reached and have it sealed before the Court without either parent having to attend Court. In this way, the Court will not decide which arrangements are most suitable. At 360 Legal, our team of experienced solicitors will exhaust all non-contentious avenues such as mediation, negotiation and conciliation before resorting to the Family Court of Australia or the Federal Circuit Court. No matter which stage of the resolution process you are at, we will advise you on your rights, responsibilities and how you can best manage your child’s interests.