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Women and Family Law
This is the tenth edition of Women and Family Law. It states the law as at April 2014 that applies to married and de facto couples (including same sex de facto couples) after relationship breakdown. This booklet provides a starting point for finding out information about the law. It provides some answers to comm...
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An Invitation to Split!! Binding Financial Agreement / Pre-Nuptial Agreement
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DE FACTO RELATIONSHIPS
If your de facto relationship has broken down, our family lawyers can provide you with the sort of tailored expert legal advice and assistance you need to help secure a facilitated agreement with your former partner. It is always preferable for partners to try and reach a mutually agreeable settlement before engaging the costly court system.
Through a structured process of negotiation and mediation, our professional and empathetic family lawyers will do their utmost to help you secure an amicable solution with your former partner before commencing court action. Parties to a de facto relationship can make voluntary financial agreements between themselves which our expert family lawyers can draft for you so it is framed in a legally enforceable format. If a compromise cannot be reached with your former partner, we will use our expert legal skills and knowledge to obtain the best result possible for you in the Family Court or Federal Magistrates Court.
Disputes relating to de facto relationships are dealt with under the Family Law Act 1975 in a similar fashion to other relationships, including same sex relationships. Under the Act, there is no precise definition of what constitutes a de facto relationship. Instead, there are several ‘indicia’ that determine whether you and your partner are living in a ‘genuine domestic basis’, which in turn determines whether you are in a de facto relationship for legal purposes.
These indicia include things such as the duration of your relationship, the nature and extent of common residence, the degree of financial dependence or interdependence, any arrangements for financial support between the partners, the care and support of any children involved and public aspects of the relationship, such as how your friends and family view your relationship.
Filing for property orders with the Court can be expensive, time consuming and stressful. For this reason, it is always preferable to try to reach an agreement outside of court. If a stalemate has been reached, we can assist by conducting a respectful mediation session aimed at securing a mutually agreeable outcome for both parties.
Failing a facilitated settlement, our family lawyers have the expertise necessary to secure for you the best property settlement possible in the circumstances through court ordered financial agreements, consent orders, or property orders. Our family lawyers will treat you with the utmost respect, thoroughly advise you of all your legal rights, and ensure that you are kept fully informed at all times during this trying process.
Factors determining a de facto relationship
- the length of the relationship;
- the nature and extent of living arrangements;
- whether there is or was a sexual relationship;
- the degree of financial dependence or interdependence and arrangements for financial support;
- the ownership, use and acquisition of their property;
- the decree of mutual commitment to a shared life;
- whether the relationship is or was registered under a prescribed law of a State/Territory;
- the care and support of children; and
- the reputation and public aspects of the relationship
Additional jurisdictional requirements
- The period (or total of the periods) of the de facto relationship is at least two years
- There is a child of the de facto relationship
- One of the partners made substantial or non-financial contributions to the property or as a homemaker or parent and serious injustice to that partner would result if the order was not made
- The relationship is or was registered under a prescribed law of a State or Territory.
Rights and obligations of the parties
- A share of the intestate estate
- Compensation under workers compensation law (if your partner dies during the course of employment).
- A financial assistance claim
- A Social Security claim
Property settlement when de facto relationship breaks down
There are various way property can be divided:
a) Financial Agreement:
Some de facto couples choose to draw up financial agreements before or during their relationship, similar to “pre-nuptial” agreements for married couples. Such agreements can also be drafted right after a relationship breakdown and are free from any Court involvement.
Parties needs to receive independent legal and financial advice and sign the agreement to make it binding before the law.
To cancel or change financial agreements, one party must prove:
- There was a fraud (dishonesty)
- The agreement is not practical to carry out (more than simply inconvenient)
- There is a major change in the children’s care and welfare
- The other person acted in an ‘unconscionable’ way (unfair or unethical)
b) Consent Orders
Once parties have signed a financial agreement, it is always a good idea to speak to a lawyer about the possibility of registering your agreement with the Family Court in the form of Consent Orders. Such practice will ensure that neither party can change its mind at a later date and ask for more assets.
The grant of Consent Orders will depend of whether the Court is satisfied that the agreement is “just and equitable” to both parties, and that both parties have sought independent legal advice.
c) Property Orders:
If the parties cannot come to an agreement on property settlement with a financial agreement or Consent Orders, then they must apply for property orders.
Generally parties must make a claim for property orders within two years of the relationship breaking down. The decision will be made during a court hearing based on the four factors listed below.
4 key factors considered by the Court when assessing property settlements:
- The total value of the net pool of assets owned by both parties
- The contributions from both parties (both financial and non-financial)
- financial contributions
- non-financial contributions as a homemaker or primary carer of children
- gifts, bonuses and inheritance
- initial contributions (assets attained before marriage)
- The future needs of both parties:
- Age and health
- Capacity to earn money
- The property and assets of each party
- New relationships
- Future parenting responsibilities
- The practical effect of the proposed property settlement, and whether it is just and equitable.
Please note that both parties are expected to fully disclose their respective financial circumstances, as a failure to do so will be taken very seriously.
GMH Legal and your property settlement
Please refer to the Australian Government ‘Property division when de facto relationship breaks down’ section.
In assessing the Spousal maintenance application, the Court will consider the relative financial position of each of the partners and will make an order only if:
- The applicant cannot adequately support himself/herself financially for reasons of health, having the care of the child of the relationship or another reasons; and
- The former partner is able to support him/her financially.
A Maintenance Order is usually made a limited period of time and the Court has the power to vary such order (increase, decrease, or cease payments) provided there has been a significant change in circumstances. It is important to note that the applicant’s entitlement to maintenance will end if he/she marries or enter into another de facto relationship.
Parties can contract out of spousal maintenance obligations by signing a financial agreement.
Please refer to the Department of Human Service ‘Spousal and de facto maintenance order’ section.
a) Pre-action procedures
Parties are always encouraged to reach an agreement outside Court to save considerable amount of time, money and stress
Before applying for parenting orders in the Family Court or the Federal Circuit Court, parties are always required to attend mediation and make a genuine attempt to reach an agreement in relation to the arrangements for the child. The mediation will take place in the presence of a qualified family dispute practitioner who will provide the parties with a Certificate upon completion of the session. Such Certificate must be attached to the Application for parenting orders.
If one party refuses to attend the mediation or does not make a genuine attempt to reach an agreement, then that party will not be issued with a section 60i Certification.
If domestic violence is present to such an extent as to impede a parent’s ability to negotiate, the mediator will determine whether the matter is appropriate for mediation, if not he/she will issue a section 60 I Certificate to both parties.b) Application for Parenting Orders
If the parties cannot come to agreement regarding the parenting arrangements for the child outside of Court, then an application for parenting orders must be submitted to either the Family Court or the Federal Circuit Court.
A parenting order is a set of legally binding orders made by a Court about parenting arrangements for a child:
Parenting orders may deal with one or more of the following:
- Who the child live with
- How much time the child will spend with each parent and with other people such as grandparents
- The allocation of parental responsibility
- How the child will communicate with a parent they do not live with, or other people
- Any other aspect of the care, welfare or development of the child.
The decision is will be made by a Judge through a court hearing based on what is in the best interest of the child. If the parenting order provides that two or more people have equal share responsibility, then any decision about a major long-term issue in relation to a child must be made jointly.
The status of a parenting order may be altered in the future if a parenting plan is developed by both parties.
c) Child maintenance
Parents are responsible for the financial support (maintenance) of their child. That responsibility is not changed by:
- Separation and divorce
- Where the children lice or the amount of time spent with a parent
- The remarriage of one or both parents
According to the Child Support (Assessment) Act, the primary carer of the child can make a claim for child support from the other parent. The Department of Human Services (formally known as the Child Support agency) is in charge of assisting the parties with making child support arrangements, including the amount of support that should be provided. The decision by the Department of Human Services will be based on each party’s income, the number of children involved in the dispute and their living arrangements.
If one party is not satisfied by the child support assessment made by the Department of Human Services, an application can be made for an independent review of the assessment by a Senior Case Officer (SCO) through a hearing.
In the event both parties agree about the child support arrangements, they can enter into a private child support agreement. In such circumstances, parties do not need to apply to the Department of Human Services or the Federal Circuit Court but instead are encouraged to incorporate the agreement in a parenting plan
GMH Legal is experienced in drawing up private child support agreements and can assist the parties from the early stage of negotiations to the formalization of a private child support arrangements.
Please refer to the Department of Human Services ‘Child Support Collection’ section.
- That either or both of the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the order was made; and
- That either:
- 1. Both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or
- 2. The applicant for the order made substantial contributions, in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); in one or more States or Territories that are participating jurisdictions at the application time; or
- 3. The parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.
Time limitation on Property adjustment or Maintenance applications
They must apply for de facto financial orders within 2 years of the breakdown, otherwise parties will need the Court’s leave to apply.
A party may seek leave after two years if the Court is satisfied that either:
- Hardship would be caused to the party or a child if leave were not granted; or
- In the case of an application for an order for the maintenance of the party, the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.
To register your de facto relationship
The parties should note that registration will leads to the formalisation of rights and obligations that are similar to marriage. Such rights and obligations may be created even though the parties have lived together for less than 2 years.
The Family Law Act 1975 now deals with property and maintenance issues for heterosexual and same sex de facto couples.
For more information on the changes to the Commonwealth laws for separating de facto couples and how it might impact your claim, please click here.
Call the experienced team at GMH Legal to assist you in your matter.
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