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If you’re involved in a separation or divorce, the couple often pools their assets to be divided between the both of you.

While assets like a car or a house are simpler, your Superannuation may not be as obvious to determine or calculate. That’s because your Superannuation is an accumulated fund as a part of your salary and wage earnings over time to provide an income stream when you retire. It’s generally inaccessible until you reach 65 years of age.

So, is superannuation classed as an asset in a separation?

In nearly all circumstances, your superannuation is considered an asset which forms part of the property pool and can be divided between the separating parties.

When you separate and you begin to calculate your total assets, you have an obligation to disclose all of your superannuation funds.

How to obtain my superannuation balance

You can obtain the details and valuation information about your superannuation, or your spouse/partner’s superannuation by completing a Form 6 Superannuation Information Request and writing to the superannuation fund.

They will supply the information and amounts you need for your separation.

In some cases, the superannuation fund may not be able to provide you with a value of the fund but will instead provide the information you need to have the fund valued for the separation asset pool.

For example, many defined benefit funds such as those held with the Defence Force, Military Super or Commonwealth Superannuation Scheme (CSS) do not provide you with a valuation. However, the information they do provide will allow you to have the superannuation valued by a specialist Superannuation Valuer – this is a separate service.

However, in most cases, simply submit the Form 6 Superannuation Information Request form above.

When is superannuation not considered an asset?

There are some limited circumstances when your superannuation may be considered a financial resource, not an asset. However, in most circumstances, your superannuation interest will be considered an asset.

How do you determine what your superannuation should be?

If you are unsure if your superannuation interest should be considered an asset or a financial resource for your separation, you should seek legal advice.

There may be situations regarding child custody or child support matters when you consider using a DNA test to determine who the biological parents of a child are.

To learn more, here’s how DNA testing can establish parentage.

What is a DNA test?

Also referred to as a paternity test, a DNA test is conducted by a medical specialist to determine whether a person is the biological parent of a child.

What can a DNA test be used for?

DNA tests aid in establishing the parentage of a child. Legally, they allow you:

  • to obtain child support from a parent
  • to oppose child support being sought
  • to prove paternity in parenting matters

Aside from these legal reasons, DNA tests can also help provide you with peace of mind regarding parenting matters during a divorce or separation.

What are the procedures for DNA testing?

There are generally two types of parentage testing procedures.

First is the ‘peace of mind testing’ (which is non-legal testing). This is known as non-NATA testing or self-sampling, and it does not meet the legal requirements of a Court-ordered test.

Here, simple mouth swab samples are taken by the individual (usually in their own home), as opposed to an authorised medical collector like a Pathologist. Once a sample is collected, they will be sent to an authorised collector for analysis. Peace of mind DNA testing can cost anywhere upwards of $150+.

The other type is called legal paternity testing or NATA accredited testing and usually costs around $825 or more.

Legal paternity testing is conducted by an accredited medical Pathologist laboratory which collects samples from both of the parents and the child. Both parents and the child are required to have formal identification before undertaking the DNA testing procedure.

NATA approved DNA testing in Australia requires the consent of the child’s mother. However, a peace of mind test can be taken without the mother’s consent – samples just need to be collected by the father and be sent to a laboratory for results.

Whether a peace of mind test or a legally binding DNA test is performed the results will still be presented in the same way.  If the person is NOT a parent of the child then the result will come back as 100% accurate.  If the person is determined by the test to be the parent then the result will be displayed as a percentage of likelihood that the person is a parent.  For example There exists a probability of 99.9887780% that Person A is a parent of the child.  No test proving that a person is in fact a parent is 100% certain.

In cases where one parent refuses to participate in paternity testing, the Family Court may make a Court Order to require that person to participate. This Order requires the mother to present the child for the collection of a sample and the father to present himself for the collection of his own sample.

What should I do if I need to establish parentage for child support purposes?

The parents of a child have a duty to look after them when separated or divorced. In Australia, this happens by providing child support payments.

The Family Law Act 1975 (Cth) states that if a person is listed as the father on a child’s birth certificate, he will be under the presumption of the law that he is indeed the father of the child. Usually, this will be sufficient for child support purposes.

However, if the child’s birth certificate does not list the biological father as the child’s father, the Department of Human Services will not mandate that the father must pay the mother child support payments unless one of the following is produced:

  • An updated birth certificate listing the biological father
  • A statutory declaration signed by the biological father declaring that he is the father of the child (there is a specific template which should be used)
  • An Order from the Court stating that the father is the biological father of the child from to the results of a DNA test

It is always preferable to provide the father with these three options and ask him to select one. If the father did not agree with updating the birth certificate or signing a statutory declaration for the Department, you should request he take part in a DNA test.

Nevertheless, if both parties have agreed to take part in a DNA test, the intervention of the Court won’t be required.

The following steps must be done instead:

  • The biological mother of the child (if the child is less than 18 years of age) and the father are to sign the application for a DNA test.
  • The application will be processed by the company selected by both parties. Each party is then provided with an appointment time to provide a DNA sample.
  • After a short period of time, the parties will be provided with a report which analyses the samples and outlines the possibility that the father is the biological father of the child.

If it is found that there is a very high probability that the child and the father are biologically related, you should ask the father to sign the statutory declaration that will then be passed to a child support agency.

If the father refuses to sign the statutory declaration, you will have to apply to the court for an Order that states the father is the biological father of the child, as evidenced by the DNA report. This Court Order is needed because the DNA report itself is not sufficient to establish parentage for child support purposes.

Just keep in mind that if you are considering DNA testing for child support issues or parenting matters, you should always choose the legal paternity testing option.

What should I do if I want to disprove I am the father of a child?

If you believe you are not the biological father of a child, then you can use a DNA test to provide sufficient proof.

A DNA test is the simplest and most cost-effective way to prove or disprove paternity.

If cost is a factor, the father can request the mother to pay half the costs of obtaining a DNA test.

Here’s a recent DNA test example.

A mother of a six-month-old child was having difficulty obtaining child support from the father. The father had blocked all communications from the mother and refused to recognise the son.

The father was provided with the following options:

  1. Sign the birth certificate of the child.
  2. Complete the statutory declaration provided by the Department.
  3. Take part in a DNA test with the costs to be shared between the parties.

The father agreed to take the DNA test so that this matter didn’t need to proceed to Court for a DNA test to be ordered.

The father and child provided samples to the testing facility and a report was produced. It was found that there was a very high probability of them being biologically related.

As a result of that report, the father agreed to sign the statutory declaration produced by the Department. After this, the mother was able to start receiving child support payments.

If in doubt, always seek legal advice about establishing parentage.

During a separation or a divorce, you’ve probably heard the term “Consent Orders”.

But what does a Consent Order really mean? Why are they important?

If you have children with your ex-spouse or you share assets, then it’s important to become well-informed about this topic. So, to help, here is a quick guide to Consent Orders.

What is a consent order?

A Consent Order refers to the legally enforceable agreement made by a Judge or approved by the Family Court. It is negotiated between two or more parties to settle disputes and involves actions that need to be upheld.

For Family Law, where the case involves separation or divorce, a Consent Order can relate to either parenting of a child or property settlement i.e. the division of assets and allocation of debts.

A Parenting Order is a set of orders made by a Court about parenting arrangements for a child, while Property Orders are a set of orders from a Court regarding the division of assets, debts and payment of money to a spouse or partner.

How to apply for a consent order

A Court can issue you with a Parenting Order or a Property Order either during Court proceedings that have already been commenced where there were issues in dispute (contested matters), or prior to either party having started Court proceedings, where there is an agreement between the parties involved (a Consent Order).    .

If you opt to settle your parenting arrangements and property matters through an agreement with your partner or spouse, you can formalise it into writing and make it legally binding  by applying to the Family Court of Australia for Consent Orders.  You do not need to appear in Court before a Judge when filing an Application for Consent Orders, where Court proceedings have not already been commenced.

If the Court is satisfied that your proposed orders are “just and equitable” for property and financial matters and/or are in the ‘best interests of the children’ for parenting arrangements, the Court will approve them and provide you with a sealed copy of the Orders.

Parenting Orders and Property Orders made by consent have the same weight and enforceability as if they were Orders that had been decided by a Judge after a contested hearing.

What is a minute of consent for?

If you’ve made an Application for Consent Orders, or have reached an agreement after Court proceedings have been commenced, as per the above, you are requesting the Court to make Consent Orders.  You file a Minute of Consent Order which is a document setting out the Orders you are asking the Judge to approve that has been signed by both parties.

How much will it cost to file consent orders?

The current Court filing fee for Consent Orders is $165.00 (although this is subject to change – check your local Family Court for the latest fees).

Nevertheless, you may be exempted from paying if you are going through financial hardship or if you are the primary cardholder of a Health Care Card, Health Benefit Card, Pensioner Concession Card, Commonwealth Seniors Health Care or any other card issued by Centrelink or the Department of Veterans’ Affairs that entitles you to commonwealth health concessions.

How long do consent orders take to process?

If you have submitted your documents correctly and the Family Court is satisfied in making the Consent Orders, you will usually receive the sealed orders within 4 to 6 weeks from the filing date.

If in doubt, contact the Court directly for an update.

Are consent orders legally binding?

Yes. It is important to remember that Consent Orders are legally binding.

While Consent Orders are generally enforceable by the Family Court, there are still limited circumstances when such Property Orders concerning property and financial matters can be overturned due to:

  • fraud
  • duress
  • suppression of evidence
  • failure to disclose relevant information
  • giving of false evidence
  • Proceeds of Crime Order subsequently made
  • circumstances have arisen since the Court Order was made where it is impracticable for part of the order to be carried out
  • circumstances of an exceptional nature have arisen since the Court Order was made relating to the care, welfare and development of a child of the relationship where a party caring for the child suffer hardship if the Order is not varied
  • due to a person’s default under the Orders, it is just and equitable to vary the order

For parenting matters, on the other hand, it’s expected that Parenting Orders made will be in force until the children turn 18 years of age – unless, of course, a new Parenting Order is put in place.

So, if you and the other party agree to change these arrangements, you may enter into a parenting plan or apply for Consent Orders that will modify the existing ones.

Why is it necessary to get consent orders over a parenting plan?

A parenting plan is a written agreement signed by the parties that emphasises the parenting arrangements you have with your former partner.

This is not legally enforceable by the Court, which is why it does not bear the same consequences and legal rights as a Parenting Order.  However, the Court will have regard to the terms of the most recent parenting plan if doing so would be in the best interests of the children.

If you wish to make your parenting agreements binding and enforceable, you should formalise them into Consent Orders.

What happens if consent orders are breached?

Provided that it has not been altered by a subsequent parenting plan, the Court can penalise you or your former partner or spouse if there is a failure to comply with a Parenting Order or enforce the terms of a Property Order that hasn’t been complied with.

If your former partner or spouse has not complied with a Property Order, you may need to commence enforcement proceedings so that the terms of the Order are carried out.

If a Parenting Order is breached, you may wish to file a contravention application (in other words, notifying the Court of a breach).

The Court will, then, consider all the facts to determine if:

  • the contravention was established or not
  • the contravention was established but there was a reasonable excuse
  • if there was a less serious contravention without reasonable excuse
  • if there was a more serious contravention without reasonable excuse

If the Court determines a party has failed to comply with a Parenting Order without a reasonable excuse, depending on the circumstances and the type and seriousness of the contravention, the Family Law Courts have the power to:

  • vary the Parenting Order
  • order a post-separation parenting program be attended
  • compensate for lost time with the children as a result of the contravention
  • require a bond be entered into
  • order the other party’s legal costs to be paid (either partially or in full)
  • order compensation for reasonable expenses lost as a result of the contravention
  • require community service to be participated in
  • order a fine to be paid
  • order a sentence of imprisonment
  • adjourn the case to allow the other party to apply for a further Parenting Order

You may not actually want the other party punished for breaching the Parenting Orders.  Instead you may simply want to ensure the resumption of the existing Parenting Orders, or alternately you want to vary the Orders given they have not been complied with and there may be circumstances that have changed such that they are no longer workable or best for the children.

In these circumstances, you may be able to file and Application in a Case rather than a Contravention Application.  You should seek legal advice as to your individual situation so that the Application you file is the most likely to achieve the outcome you are seeking.

It is important to obtain independent legal advice to ensure you are aware of your rights and responsibilities when it comes to Court Orders.

Attaining professional help can also allow you to understand the meaning, effect and consequences of the Court Orders you are seeking. Our referral lawyers can advise you if your agreement is just and equitable and/or in the children’s best interests and likely to be approved by the Family Law Courts.

If you are separated or divorced and you have children with your spouse or partner, then you’ve probably been involved  parenting agreement discussions and trying to work out a parenting arrangement.

These are agreements between you and your ex-partner regarding how you will both continue to look after your children. Sometimes, you may be issued a legally recognised parenting order from the Family Law Courts which you both have to follow.

Here’s some more information about Parenting Orders and what to do if you wish to make changes.

What is a parenting order?

A parenting order is a set of official orders made by a Court regarding parenting arrangements for a child or children involved in a separation.

They are set in place until the child becomes an adult at 18 years old. However, over time, the needs and circumstances of the child can change – meaning that the orders may need to adapt or be varied at some point.

Children naturally develop over time, from infancy to young adulthood, which means that their needs are unique and highly individual. As a result, don’t expect the parenting orders to continue to remain the same over time.

Parenting orders will likely need to change at some point, to align with where your child will be developmentally, socially, and intellectually in the weeks, months and years ahead. The Family Law Courts recognise this.

So, why then have parenting orders?

Even though parenting orders may change at some point, they still have an important role to play to create a structure for your child, open communication between  parents and reduce the risk of conflict between parents.

Having parenting orders means that there is a structured set of arrangements for your child put in place by the Court, enabling the parents to then structure their life around this and provide a routine and stability for their child. Parenting orders also provide an agreed framework for the parents to spend time with their children, which means that the risk of conflict or confusion is reduced.

How to change parenting orders

Sometimes, parenting orders may not always complement your schedule and can sometimes be highly impractical. If that is the case, you will need to seek legal advice around your options to vary the existing parental orders.

To change Parenting Orders, you may need to:

  • confer with the other parent to try to come to an agreement
  • consult a Family Dispute Resolution Practitioner to arrange a mediation
  • engage a Family Report Writer or Parental Coordinator to assist in determining the best interests of the child
  • commence court proceedings seeking orders to vary the existing parenting orders

What if parenting orders are breached?

Both parents should follow the parenting arrangements made by the Judge in the Court Orders, unless both parents agree in writing to change the arrangements set out in the Parenting Orders.

However, any action made by either parent that goes against the parenting agreement may have legal consequences. Serious ramifications for breaching the orders can include:

  • fines
  • make-up time
  • community service
  • participating in parenting programs
  • jail time
  • paying the legal costs of the other party and
  • other consequences depending on the seriousness of the contravention.

Please, seek legal advice immediately if there has been a breach of your parenting orders by the other parent or you are considering breaching the orders for a specific reason or if you believe the existing parenting orders should be changed.

Family dispute resolution prior to changing parenting orders

If the other parent will not agree to change the existing parenting orders, your first option is to try family dispute resolution.

Family dispute resolution, also known as mediation, is an effective way to resolve the differences between you and your ex-partner before resorting to starting proceedings in the Family Law Courts – especially when emotions are running high and it’s hard to find a middle ground.

When is mediation (family dispute resolution) not appropriate?

There are some exceptions that may apply to participating in mediation prior to attending Court.  This will bee assessed by your family dispute resolution practitioner (mediator).

These include:

  • if there is an agreement and the parenting orders are by consent (i.e. both parents have agreed to make a new Parenting Order or amend an existing Parenting Order and wish to formalise the new agreement by Consent Orders)
  • there are reasonable grounds to believe that there has been child abuse or family violence by a party or there is a risk of child abuse or family violence
  • there are reasonable grounds to believe that a person has behaved in a way that shows a serious disregard for their obligations under the Order
  • in circumstances of urgency; or
  • one or both parents are unable to participate effectively in mediation.

What if you reach an agreement with family dispute resolution?

If you reach an agreement with your ex-partner in mediation, you can formalise this agreement in the form of a parenting plan or a parenting order. However, a parenting plan is not legally binding, as it is more of a general discussion between parents.

So, if you have been able to reach an agreement through mediation, you may wish to consider obtaining Parenting Orders by submitting an Application for Consent Orders to the Family Court. This way, the changes will be legally recognised and therefore, enforceable. In this circumstance, you may wish to also seek legal advice to oversee the new Consent Orders that are drafted.

If you are in the unfortunate situation where you have attended mediation and were unable to reach an agreement, you will need to consider your next option – commencing proceedings in Family Court.

Commencing proceedings in court to change parenting orders

Whether minor or major, any changes to Parenting Orders which have not been agreed will not be considered by a Court unless there has been a significant and substantial change in circumstances.

If a parent seeks to vary the Parenting Orders, they must satisfy the court that there has been a significant and substantial change in circumstances that warrant a variation of existing parenting orders.

Broadly speaking, there are two classes of change:

  1. The parent seeking to vary the existing Parenting Order is able to establish to the Court that there was a material fact that was not disclosed to the Court when the Parenting Orders was made, or
  2. The parent seeking to vary the existing Parenting Order is able to present evidence of new circumstances that have arisen since the making of the original Orders.

So, what is a significant and substantial change?

The Family Law Courts have accepted (in some cases) the following matters as being a significant and substantial change in circumstances such to allow the parents to reopen the proceedings and seek to vary the existing parenting orders:

  1. Where one or both parents failed to disclose domestic violence perpetrated by one parent against the other prior to the making of final parenting orders
  2. Significant opposing behavioural changes in a child
  3. Where a child has been diagnosed with a significant health issue since final Parenting Orders were made which required a level of care for the child that rendered the existing Parenting Orders impracticable
  4. Re-marriage of one or both parents where the re-married parent was able to provide stable accommodation and care for the child after having re-married
  5. Where one parent has relocated or wishes to relocate or
  6. Where one parent has contravened and/or continues to contravene final Parenting Orders.

It is important to remember that unless the court has approved to vary an existing order or both parents have mutually agreed, both parents must comply with the existing parenting orders.

Ultimately, it is at the discretion of the Court to vary existing Parenting Orders and the Court will only do so if it’s in the child’s best interest.

Changing family court oOrders

If you are considering varying your existing Parenting Orders or believe you may fall into one or more of the categories that allow Parenting Orders to be varied, you should seek legal advice.

One of our referral partners’ who is a suitably qualified lawyer should be able to tell you whether or not your circumstances satisfy the conditions.

When a couple separates, it can be a difficult time – especially when children are involved.

Should you and your partner decide to separate, and you have dependent children together, the family law system encourages both parents to work out amicable arrangements for the children, either through a Parenting Plan or a Parenting Order.

What is a parenting plan?

A Parenting Plan is a written document which sets out the agreed arrangements that have been put into place for your children. This doesn’t require having to go to Court.

What is a parenting order?

A Parenting Order is a list of legally enforceable instructions made by a Court concerning the parenting arrangements of a child involved in a separation or divorce. Either this Parenting Order is based on an agreement between the parties and legally recognised (known as consent orders) or after a Court hearing or trial.

What types of clauses should a parenting plan or parenting order include?

No relationship is the same.

Because of this, there is no official set template or parenting clause checklist. So, while there are many different clauses that can be included in parenting orders or parenting plans for the ongoing care arrangements for children, the most common include:

  • Parental responsibility for the children
    – who makes what decisions for the children
  • The living arrangements for the children during the school term
    – including where they stay and how they get to and from school
  • The living arrangements for the children during school holidays
    – this may detail out a roster for certain vacation periods or school breaks
  • The arrangements for special days including birthdays, Easter, Christmas
    – special conditions or agreements may be applied for certain events
  • Changeover locations and times
    – including perhaps a calendar of pick up and drop off times for children
  • Access to information about the children including educational and medical information
    – which can mean sharing the details of each child
  • Telephone and video communications between the children and each parent
    – it’s often important to set boundaries around who can connect with each child at certain times
  • Restrictions on the children relocating outside a certain distance
    – stipulating where a child can live so as to not separate too far from each parent
  • Non-denigration clauses that prevent denigration of parents and extended family members
    – this involves being firm about unfairly criticising or insulting the other partner or their family members in front of the children
  • Interstate and overseas travel arrangements including obtaining and maintaining passports for the children.
    – being clear about what travel is allowed and what is required for this process

Having these set of clauses means that both parents understand what rules and responsibilities each have for the children involved in a separation.

In general, these clauses should be realistic, practical and in the best interests of the children.

Not every Parenting Arrangement will include the same clauses and this list is not exhaustive. It’s recommended to consider what parenting separation clauses you need to include to suit your specific circumstances – if you’re unsure, then you may wish to consider legal advice.

If in doubt, seek legal advice about making agreements for the arrangements for children.

Divorce or any legal separation between you and your partner is more than just parting ways. It also involves the process of calculating a fair distribution of assets and determining the responsibilities required for the children.

Property settlement is a part of the distribution of assets in a separation or divorce.

What is a property settlement?

As the name implies, property settlement is the decision around how to divide  the assets and allocate the debts between you and your partner.

Property settlement can be an especially exhausting issue involving many factors. However, you can reduce or prevent conflict by following these tips:

Identify all the property you can divide

When we refer to “property”, it’s not limited to real estate. In fact, property settlement involves all assets owned by both parties (or in which they have an interest) including bank accounts, motor vehicles, boats, aircraft, shares, superannuation, pensions, contents, chattels, collectables, loans that are owed, life insurance policies, brokerage accounts and any other items that may be considered of value.

To guarantee that you’ll receive fair value when you divide any property,  you may need to seek the help of a registered valuer.

Settle all issues involving dual signatures on your bank accounts

You wouldn’t want your partner to withdraw large sums of money from your joint bank account without your knowledge, particularly if this person may hide funds for their sole benefit. So, take the initiative to contact your bank or financial institution to ensure all access to your joint accounts will require both signatures – both you and your partner.

Conversely, if you are being supported financially by your partner and you do not have an income stream or other cash available to you, you may wish to consider withdrawing money from the joint bank accounts before your partner potentially arranges dual signatures to be placed on them.

Take note that you will still be accountable for this money. Withdrawing it earlier will just help you meet your immediate living costs in the event of separation. If you’re in this kind of situation, it’s best to seek help from a lawyer to find out if you could obtain spousal maintenance from your partner (which is money paid to you to meet your usual and everyday living expenses).

Arrange necessary credit limits

To prevent your partner from using money without your consent, talk to your financial institutions to cancel redraw facilities from your loan accounts.  You may also wish to cancel your partner’s secondary cardholder access to credit card accounts that are in your sole name or reduce the credit card limit.

On the other hand, as with joint bank accounts, if you are being supported by your partner with no other income or cash available to you, you may consider redrawing money available from loan accounts to meet your everyday living costs before your partner cancels the redraw facility or reduces credit limits.

However, just like above, you are still accountable for this money. Withdrawing it earlier will just help you meet your immediate living costs in the event of separation.

Copy financial documents and records

Save your own copies of important files, so you’ll get a reliable perspective of your property settlement entitlements.

Some documents and reports that are important when preparing for a property settlement include:

  • bank statements
  • credit card statements
  • loan documents
  • superannuation statements
  • valuations
  • tax returns and notices of assessments
  • employment contracts
  • payslips
  • contracts and settlement statements for the purchase and sale of assets
  • any documents referring to the value of assets or debts held by each of you at the commencement of your relationship
  • documents relating to any inheritances, payouts or gifts received by either of you during the relationship
  • other financial records you may be able to locate relating to assets, liabilities, income or financial contributions made by either you or your partner

Nevertheless, if you are unable to obtain this information, you can get legal help for other possible methods of disclosure. Your lawyer can assist you by conducting searches through various online systems or issuing subpoenas.

Secure valuables, cash and sentimental items

If you are concerned about your partner removing cash, valuables or sentimental items from your marital home without your permission, you should ensure these things are placed somewhere safe. It’s also essential to secure those items you know may be sought after by both parties, so you can be certain of their whereabouts in the future.

Change the locks

Once you’ve officially separated, you can now decide to prohibit your partner from entering your property without your knowledge. For your own peace and safety, you can even change the locks.

However, this depends if it’s a joint property or not. If you’re not sure, seek legal advice as they’re technically entitled to enter if they’re a co-owner.

Handle caveats, injunctions (restraining orders) and undertakings wisely

Whether assets are in joint names, either parties’ sole name (or your partner’s name with someone else) or the name of an entity operated or controlled by your partner, property settlement arrangements take into account all assets, regardless of who is the named  owner.

So, in instances where you made indirect, financial or non-financial contributions towards an asset, know that you have an equitable interest in it even though you may not be a registered owner.  This means you may be able to register a caveat against real property (real estate – land, houses, units) to ensure your partner will not be able to sell, transfer, encumber or otherwise deal with the property contrary to your interests.

Similarly, you may wish to consider obtaining an injunction or restraining order and/or suitable undertaking to prevent your partner from disposing or dealing with marital assets that you have an interest in (regardless of whether these assets are in your name).

For any property settlement agreement, always remember to seek formal legal advice before taking this type of action. You wouldn’t want to be liable for damages just because your actions lack reasonable grounds.

Update your Will and Enduring Power of Attorney

If you don’t get your Will and Enduring Power of Attorney updated, your assets may pass to your partner or spouse upon your death or they may still be able to act as your attorney – regardless of your separation.

Because of this, even before your divorce is formally granted, it’s best to ask advice from a lawyer who handles Wills and Estate matters. This will ensure your Will and Enduring Power of Attorney is up to date and legally binding.

If in doubt, always seek legal advice about property settlement.

If you are separated and you’re considering applying for a divorce, you’re probably doing a lot of research around the legal divorce process right now.

Applying for a divorce can be a confusing and emotional journey, whether you’re applying for a divorce by yourself with a sole divorce application or together with your spouse, known as a joint divorce application.

To help provide you with more information about what to be aware of when applying for a divorce, here are some tips to think about.

Visit the Federal Circuit Court of Australia

The Federal Circuit Court of Australia provides an online resource full of information regarding how to apply for a divorce and all the divorce paperwork that you need to submit.

You don’t need to apply to the Family Court of Australia to obtain a divorce. The Federal Circuit Court is a division of the Family Law Courts and can grant applications for divorce. The process to apply for a divorce is cheaper and quicker through the Federal Circuit Court than applying through the Family Court.

Joint applications allow you to apply for a divorce with your partner

Making a joint divorce application means that both your spouse and you sign the divorce application before filing.

By doing this together, you can avoid the need to serve the divorce application on your spouse and show the Court proof of service. It also means that it is not mandatory for either your spouse or yourself to attend the divorce Court hearing.

However, one or both parties may wish to attend the hearing to ensure you can address any questions should the Court require clarification or have any issues with the divorce application documents that have been filed. Otherwise, your application may be adjourned or dismissed entirely.

How to apply for divorce using a sole application

If your spouse refuses to sign an application for divorce, you can still obtain a divorce order by applying to the divorce Court with you being the sole applicant and your spouse as the respondent.

This means that once you have applied, you will need to serve a sealed copy of the divorce application on your spouse and file documents proving this service has been carried out. Attendance at the divorce Court hearing is mandatory if there are children under the age of 18 years, but not if there are no children of the marriage under 18 years of age.

However, it is still advisable that the person who has applied for the divorceattends the hearing to ensure they can address the Court if there are any issues with  the application.

To apply for a divorce, you need your marriage certificate

Make sure you have an official copy of your Marriage Certificate to submit.

If your spouse has your marriage certificate — which is required to apply for a divorce — you can easily obtain another copy through the Births, Deaths and Marriages registry.

A counselling certificate is required when you’ve been married for less than two years

If you have been married for less than 2 years, you need to file a counselling certificate. The two years is calculated from the date of the marriage to the date of applying to the Court for a divorce.

If this time frame applies to you, you and your spouse must attend an appointment with a counsellor to discuss the possibility of reconciliation before you apply for a divorce.

Visit here for more information regarding this: Factsheet – If you have been married for less than 2 years).

The divorce court filing fees

The current Court filing fee for a divorce in the Federal Circuit Court is around $900 (which can change over time – please check the Court website for the most up to date figure).

However, you may be eligible for a reduced filing fee if:

  • you have a health care card
  • a pensioner concession card
  • a senior’s health card
  • any other card issued by the Department of Human Services or the Department of Veterans’ Affairs that certifies your entitlement to Commonwealth health concessions
  • or have been granted Legal Aid
  • or are receiving youth allowance, Austudy or ABSTUDY payments
  • or are under 18 years of age
  • or an inmate of a prison
  • or legally detained in a public institution
  • or are otherwise in financial hardship

However, you should note that to be eligible for the reduced filing fee, if you are filing a joint application, both applicants need to meet the criteria to be eligible for the reduced filing fee (See Guidelines for Reduced Filing Fee for Divorce).

 

When you’re separated or divorced, there may come a point where you need to work out a property settlement between you both.

Property settlement works by dividing a couple’s combined net assets, but it’s not as simple as it seems.

To ensure that all of your assets are divided and debts allocated fairly with your former partner or spouse, the Family Law Courts considers a range of factors – from identifying which among your assets are obtained during your marriage, all the way to determining each person’s likely needs in the future.

The Court provides 4 important steps to work out your property settlement entitlements:

  1. What is the net asset pool (assets less debts)?
  2. What have been the financial and non-financial contributions?
  3. What are each party’s “future needs”?
  4. Is the division of assets “just and equitable”?

Let’s discuss them more thoroughly.

Step 1 — What is your net asset pool (property pool)?

Property settlement begins with determining your asset pool.

You need to calculate the assets and debts that are to be divided between you and your former partner or spouse. When arranging a property settlement agreement, don’t forget to take note that:

  • All assets are included – whether they are held in joint names, either person’s sole name or the name of a company, trust or other entity that either person has an interest in, or  held by someone else on your behalf or held by you on behalf of another person, such as a child; all of these assets are included the asset pool
  • The Court also has the power to make Orders concerning assets held overseas and requires that you disclose overseas assets, not just assets in Australia
  • Assets purchased either before your relationship commenced (i.e. when you started living together, irrespective of if you later married) or after your separation are still included in the asset pool
  • Property settlement in Australia takes into account the value of assets and debts considered at the time of the agreement, not the separation date
  • Liabilities are included, irrespective of whose name they held in
  • Superannuation is generally included, because superannuation accounts held by either person are usually considered as an asset and can be divided in a property settlement. However, there are some circumstances where superannuation is not an asset but instead considered a financial resource. You should seek legal advice if you are unsure if the superannuation of either yourself or your partner or spouse is considered an asset or a financial resource.

Here are some examples of assets and debts that may be taken into account in your property settlement:

Assets:

  • Houses
  • Units
  • Land
  • Cars
  • Motorbikes
  • Savings/bank accounts or building society accounts
  • Investments
  • Money that is owing to you
  • Shares
  • Companies
  • Trusts
  • Businesses
  • Jewellery
  • Furniture/household contents and appliances
  • Artwork
  • Superannuation
  • Caravans
  • Trailers
  • Timeshare
  • Tools
  • Boats/vessels
  • Life insurance that can be cashed in before death – i.e., has a surrender value

Debts:

  • Mortgage
  • Overdraft
  • Line of credit
  • Personal loan
  • Credit card
  • Business loan
  • Motor vehicle loan
  • Loan/monies owing to other third parties such as a family member or friend
  • Taxation debts
  • Centrelink debts
  • HECS/HELP debts
  • Selling costs on a property or other assets such as commission, brokerage fees, auctioneer’s costs and costs to prepare a property for sale

It’s possible that you may not know your former partner or spouse’s assets and debts.

In cases like this, you can directly ask the other person for information. If the value of an asset is not agreed to by both of you, you may need to jointly instruct a professional valuer to provide a valuation.

We can refer you to one of our trusted partners who can prepare a joint registered valuation should you require.

In this step 1 of t he property settlement process, keep in mind that you and your former partner or spouse have an obligation to provide what is referred to as financial disclosure – meaning all documents and information relevant to your assets and debts, financial resources, incomes and anything otherwise relevant to your financial circumstances should be stated and disclosed upon request.

Step 2 — What have been the financial and non-financial contributions?

It is wrong to assume that financial contributions are the only things that matter in a property settlement agreement.

In fact, the Court considers every financial and non-financial contribution to your household – including contributions made when you first started living together, during the relationship and after separation.

For financial contributions, the ones you and your former partner have each provided are broken down into initial contributions, contributions during the relationship and contributions after separation. These kinds of financial contributions can include:

  • Assets already owned when you started living togther
  • Earnings over the length of the relationship
  • Gifts
  • Inheritances
  • Redundancies
  • Payouts

Post-separation contributions, on the other hand, refer to any payment you or your former partner or spouse made after the relationship had ended. These could include things such as mortgage repayments, rates and water on the former matrimonial home.

For non-financial contributions, these day to day duties ensure the household runs smoothly and are given valuable merit in a property settlement agreement:

  • Cooking
  • Cleaning
  • Caring for children
  • Bookwork
  • Gardening
  • Doing renovations
  • Managing finances

Step 3 — What are each party’s future needs?

Sometimes, one party may have greater needs in the future than the other. As such, the Court also considers this kind of situation when doing adjustments in the percentage split of properties.

How is this possible?

Either you or your former partner might need more support in the future due to the following reasons:

  • Having to handle the primary care of a child or children
  • Earning less income than the other
  • Having health concerns that require ongoing treatment or needs
  • Being at a much older age than the other (therefore, having less working life before retirement age to re-establish themselves)

Step 4 — Is the division of assets “just and equitable”?

The final step of property settlement evaluates if the proposed asset division is just and fair to your circumstances. However, it’s not entirely up to you to decide what’s fair or not – the Court holds that power.

The Court will begin by looking at the types of assets each party holds. Assets such as shares, properties, cars or bank accounts can be sold or converted into cash, whereas superannuation can only be accessed at retirement age. However, if you are close to retirement, your superannuation may be treated as a cash asset.

Your circumstances are unique, which is why the Court considers all important factors like contributions (both financial and non-financial) and future needs when managing the division of assets between you and your former partner.

If in doubt, always seek legal advice about property settlement.

If you and your partner separate and you have responsibility obligations over dependent children, then you both should come to an official parenting agreement regarding the future arrangements of your children.

What is a parenting arrangement?

A Parenting Arrangement is a title given to the discussion and mutual parental agreement between separated parents or legal guardians around how your children will be looked after, now that you’re both apart.

Every family dynamic is unique, which is why there’s no one way to develop your Parenting Arrangement. This is why there are no strict guidelines about how parents or legal guardians should make an agreement to care for a child after a separation.

What is included in a parenting arrangement?

While there isn’t an official Parenting Arrangement template, it should include determining things like:

  • who picks up which child on what day
  • who has each child during school holidays
  • where each child lives at certain times of the year
  • who the children can spend time and communicate with
  • medical issues
  • cultural and religious practices
  • how the parents will communicate or make changes and so on.

How does a parenting arrangement work?

Generally speaking, it’s usually best for everyone involved if separated parents come to an amicable agreement, with terms that are realistic and practical, and focus on the needs and the best interests of each child.

How do you put parenting arrangements in place?

When arrangements for children are agreed upon between the separated parents, they can be put in place in one of three ways:

A Verbal Agreement

Some couples simply discuss how to implement their agreed parenting care arrangements for their children without putting the parenting agreement into writing.

A benefit of a verbal parenting agreement for the children’s ongoing care is that it offers a lot of convenience and flexibility for parents, as they can simply plan on an ongoing basis and discuss changes as needed.

However, the disadvantage is that a verbal parenting agreement is not recorded, which can lead to potential misunderstandings around times and dates. Verbal parenting agreements also cannot be legally enforced and can have potential problems if the parents are unable to communicate effectively or a dispute arises.

Parenting Plans

A Parenting Plan is when parents discuss their verbal parenting agreement and then put the details into a written and signed document.

A disadvantage of formalising a parenting care arrangement using this method is that a Parenting Plan is not legally recognised and enforceable by a Court.

It does, however, provide the parents with clarity and shows their intentions as to the agreed arrangements. It also allows for some flexibility as the Parenting Plan document can be edited if agreed on between the parents.

Consent Orders

A Consent Order is a parenting agreement plan that is signed by the parents and sent to the Court. If the Court considers the parenting agreement to be practical and in the best interests of the children, the agreement will become a legally recognised parenting order, also known as a Consent Order.

Neither parent is required to go to Court for the orders to be made. The paperwork needs to be submitted according to the instructions provided by your local Family Court.

A Consent Order is enforceable by the Court, which means that if a parent does not comply with the order, they run the risk of the Court issuing them with a fine, punishment or even imprisonment.

A Consent Order is usually drafted in a way that includes a provision for parents to change the terms of the agreement as they wish through dispute resolution. However, any changes must be agreed upon, otherwise you will need to apply to the Court for the orders to be changed.

If in doubt, seek legal advice about making agreements for the arrangements for children.

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