Do I need to engage a solicitor to get a divorce?
No, a divorce can be initiated by one or both parties to a marriage. The party or parties making the Application for Divorce can find useful information (including a Divorce Kit) online at www.familylawcourts.gov.au. The website also provides information on e-filing your documents.
As there are a number of forms that need to be completed and filed with the Federal Circuit Court, then served correctly on the other party, some people prefer to bring their divorce matter to a solicitor to handle. In special cases, one or more affidavits are required to be filed, and clients often prefer to have such documents prepared and filed by their family lawyer.
After separation, does the mother automatically receive custody of the children?
“Custody” is an outdated term, and the law now refers to the terms “lives with” and “spends time with”. The Courts are not gender-biased and in the event of a dispute between the parents of a child as to which parent the child will live with, there are many different factors which need to be taken into account. Among other things, factors such as the geographical proximity between the parents and the nature of their post-separation relationship will help to determine the most appropriate primary residence for the child. Children sometimes spend roughly equal time with each parent if this is practicable. In some cases, it is more suitable for the child to spend more time with one parent, and substantial time with the other parent. The Court considers a wide range of factors when making decisions about children and their living arrangements, but the decisions are always based on achieving the best interests of the child.
I have been told that my partner will automatically receive 50% of everything in the divorce – is this true?
No. In the absence of agreement the division of the matrimonial property pool between separated parties is usually arrived at by consideration of several factors. Among other things, the length of the relationship combined with the financial and non-financial contributions of the parties to the relationship are considered. A range of “future needs” factors is also considered, including, among other things, whether or not there is a significant discrepancy between the parties’ regular incomes. Every case is different, and the division of matrimonial property between the parties is usually decided through a negotiated agreement, or if litigated, by an Order of the Court. The underlying principles in all cases are justice and equity for the parties.
An experienced family lawyer can assess your likely entitlements, and can help you achieve a just outcome, whether by negotiation, alternative dispute resolution, collaborative teamwork, or through the Court process.
Must I go to Court to get a matrimonial property settlement?
Not necessarily. If, after separation, the parties are able to agree on the way their matrimonial property is to be divided, then the making of legal binding documents is a way of formalising and finalising the distribution of the couple’s assets and liabilities. The legal and binding documents which a solicitor drafts to settle property matters can be either Consent Orders or a Binding Financial Agreement. When signed, sealed and delivered, the document addressing property settlement provides a path to implement the terms of agreement between the parties (eg selling the family home, dividing the proceeds, transferring ownership and title of real property or goods and chattels, and the like). No Court attendance is required when Consent Orders or Binding Financial Agreements are entered into by the parties.
If you consult a family lawyer prior to signing agreements as to matrimonial property settlements, you will be given legal advice as to whether or not the proposed agreement reflects your just entitlements.