What is the difference between adult child maintenance and child support?  People commonly use the terms “child maintenance” and “child support” interchangeably in Australia. There is, however, a distinct difference between these payments, how they apply and what they achieve.  What is child support? There is a requirement for parties to support children, regardless of […]

What is a child support agreement?  A Child Support Agreement is an agreement between parents that sets agreed terms that they have reached in terms of child support. Child Support Agreements allow parents to determine child support payments by agreement between them, without the involvement of the Child Support Agency or the need for a formal assessment that […]

People remain under the same roof for various reasons after separation. The reasons can be financial such as waiting for a home to sell or the inability to afford separate households. Can I file for divorce if we still live together? Yes, you can get a divorce if you are under the same roof or […]

You can apply for a divorce on your own without your former spouses consent, this is called a sole application for divorce. You might need to do a sole application for divorce if:   Your former spouse does not want to get a divorce; or   You are unable to locate your spouse.   So long as you […]

What Happens to Post-Separation Assets?  Parties can build up significant assets after separation and should be aware of how those assets are treated in family law proceedings. Property that is acquired after separation but before a formal property settlement is considered part of the property pool up until the property settlement time limits have been […]

Getting a divorce in Australia is a national process. It is the same for all states in Australia. The steps vary between whether or note your a sole applicant or joint applicant and whether or not you have children. Step 1  – Meet the eligibility requirements  In order to get a divorce in Australia, a person […]

Is my ex de facto/wife/husband entitled to my superannuation? In all Australian states (except Western Australia) superannuation is considered an asset in the same way property is with a property settlement. This means that like any other asset, it is included in the property pool and can be divided under a Superannuation Agreement if necessary. […]

You have many options when a child isn’t to your care. You have these options regardless of whether you have existing parenting orders or not. You can talk to the other parent, have someone else speak to them, or you can apply to the Court to have the child returned to you.

The recent pandemic COVID-19 will have an impact across all facets of Australian society, including participants and solicitors in Family Law and domestic violence matters. The level of the effect, however, varies and ranges from minimal impact where parties have already sought Consent Orders, made an application for divorce or are not in Court, to a higher level of impact for those who have recently commenced proceedings before the Court.

Family law property settlements are not calculated on the date of separation but at the date of final orders or agreements. That means assets can be included in the property pool even if they get obtained post-separation. It depends on the type of asset as to whether it gets included in the property asset pool.

It is no secret those that come out of family law unscathed are those that reached a mutual agreement and formally documented that agreement early. Many separating couples are amicable at some point and agree on things without lawyers. However, it’s at that exact point separating couples need to inject some law into the agreement and formalise it.

If something is a loan, then it will need to be paid back out of the property pool, whereas the property pool will include gifts. Disputes often arise as to whether an asset or money is a loan or a gift, and then if it is a gift whether or not it is a joint or sole gift. If it is a joint gift, it is a joint contribution; if it is a gift to one person, it is considered a sole contribution.

The Family Court considers debts as genuine if they are for proper purposes. A good purpose might be to move out of the house or to pay for maintenance on an existing asset. If the debt is for gambling or another activity, then that debt is seen to be dissipating the asset pool. If a party wastes the asset pool after separation, then a lawyer might make what they call a ‘wastage’ argument.

Family Law Gifts and Property Settlements We have talked about how to determine if something is a gift or loan in family law and we have discussed at length who gets what in separation, however what if something is a gift intended only for one person? Should they keep that gift or does that gift […]

How do you get sole custody? In order to get sole custody you need to rebut the presumptions of equal shared care, to do this: prepare an affidavit of why the other parent should not have time with the child compile evidence to support your case apply to the court for a no time order […]

Is it 50/50 in a financial separation? There is a common assumption that property settlement has to be a straight 50/50 split, however, there is no default rule to have a 50/50 split. It is important to realise that each person’s settlement will probably be different from others you may have heard about. This is […]

What is dissipating the asset pool? To understand what dissipating asset pool is we first need to explain what the assets of a family law settlement are. The asset pool consists of everything owned minus all of the liabilities at the date of the court orders. That is right you heard it, it is AT […]

Loans and gifts in family law When separation occurs it is necessary to do a property settlement and calculate what assets, superannuation and liabilities are in the property pool. Liabilities are including debts except alleged debts that are vague, uncertain or unlikely to be enforced (such as an unsecured loan from a parent of a […]

Maybe you’ve had a sudden realisation that if you don’t quickly formalise your financial separation, their debts could be your debts and your assets could be their assets…. Yes, that’s true, as it is not the date of separation that the court uses to calculate the relationships networth but at the date the final order […]

When can a BFA be set aside? A review of Thorne and Kennedy [2017] HCA 49 There is a reason most family lawyers shy away from BFAs, and that is because they can be overturned even when you give them the utmost amount of consideration. In Thorne and Kennedy that is exactly what happened, a […]