Family Law FAQs

Family law frequently asked questions

Learn more about how we can help you by cutting through the jargon, with our family law faqs. If we have not answered your questions with the information below, please contact us.

What defines separation?

Pursuant to Section 49(1) of the Family Law Act 1975 (Cth) separation can occur or be shown to occur from the actions or conduct of one of the parties. The most obvious is the parties’ cessation of living together.

What about the occasion where parties separate under one roof?

In the matter of Pavey (1976) FLC 90-051 the Court held that the parties needed to explain why they continued to live under the one roof and at the same time show there was a change in their relationship, gradual or sudden, that showed a separation.

The date of separation is important particularly in de facto matters where an Application for a Property Settlement is being considered. In de facto matters parties have two years from the date of separation to bring an application for property settlement.

Sections 79 and 90SM of the Family Law Act 1975 give the Court powers to make orders adjusting financial and property settlements between parties to a marriage and parties to a de facto or same sex relationship.

In determining an application for division of property the Court adopts a four step process, which consists briefly of:

Step 1    Identifies the property available for distribution.

Step 2    Identifies and assesses the respective financial and non-financial, direct and indirect contributions.

Step 3    Identifies and assesses the “future needs” factors.

Step 4    Considering if making orders for property adjustment would be just and equitable.

 

step 1 – assets and liabilities

The second step is to compile an accurate list of assets and liabilities and their values.

The property available for distribution in family law proceedings is “the property of the parties to the marriage or either of them”.   Accordingly, the property is not just limited to property in the joint names of the parties but also the property that is in each of the parties’ sole names. This includes liabilities and may also include any interest that either party may have in a family trust or any other trust of which a party is a beneficiary.

step 2 – contributions

The third step is to assess the contributions made by the parties towards the acquisition, conservation or improvement of your assets.

step 3 – future needs

The fourth step is to consider whether there should be any adjustments in favour of either of the parties on the basis of “future needs”.

The thresholds that gauge whether an adjustment may be made in favour of one party for future needs factors include, but are not limited to:

  • Who has the primary care of children (if any);
  • The disparity between the parties respective income and earning capacities;
  • The extent to which one or either of the parties have contributed to the earning capacity, property and financial resources of the other; and
  • The extent to which the relationship has affected the income earning capacity of one or either of the parties.
step 4 – just and equitable

The overarching consideration is whether or not it is fair and equitable in the circumstances of your case to make any adjustment to the way the
property is currently held.

The law recognises that in most cases the best people to decide what is best for children are the children’s parents.   But what happens when parents can’t agree? Unless a child is at risk of serious harm or there are issues of domestic violence parties are expected to resolve their differences by attending mediation.

Only when a dispute is intractable and has not been resolved by counselling or mediation can parties approach the Court for assistance in determining what is in their particular child’s best interests.

The law as set out in section 60 CC of the Family Law Act details the issues that need to be considered by a court. The primary considerations are the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm.

All parents in Australia have an obligation to help financially support their child or children. Parents can come to a mutual agreement about what types of support they consider is best for their child and have that agreement drafted into a Child Support Agreement. Issues sometimes canvassed in these Agreements include school fees, after school activities, and weekly living expenses.

More commonly parents choose to have their child support obligations and or entitlements assessed by the Child Support Agency. The formula applied by the Agency is influenced by the amount of time the children spend with each of their parents, the age of the children and the respective earning capacity of each parent.

Section 90SM of the Family Law Act 1975 is relevant to a Court determining what Order to make in property matters concerning de facto parties, or same-sex parties.

  • The financial contributions made directly or indirectly by, or on behalf of a party to the relationship.
  • Any non-financial contributions made directly or indirectly.
  • The contributions by the parties to the welfare of the family.
  • The effect of any proposed Order upon the earning capacity of either party.
  • The age and state of health of each party.
  • The income, property and financial resources.
  • Whether either party has the care or control of a child.
  • The commitments of each party that are necessary to enable the party to support themselves or a child.
  • The responsibility of either party to support any other person.
  • The eligibility of either party for a pension allowance or benefit.
  • Any child support that a party has paid or is, or might be liable to provide in the future.
  • The financial circumstances relating to co-habitation with another person.
  • The extent and the duration of the relationship.

Under Section 72(1) of the Family Law Act, it is possible in some cases for one of the parties to a marriage to be liable to maintain the other post-separation, to the extent that they have the capacity to meet the needs of the other.

How does the court determine whether a party is entitled to spousal maintenance?

In Eliades (1981) FLC 91-022, Nygh J answered this question when he said:

Is the Applicant in a position to finance him or herself from his or her own resources? whether by reason of earning capacity, capital or other sources of income which have accrued independently. Is the Applicant in a position to look after herself?”

What if the parties were not married?

The right to maintenance also exists for those in a de facto or same sex relationship should they too, be able to establish a need and their spouse or ex-spouse has the capacity to meet that need. Unlike where parties are married, in de facto matters rights to spousal maintenance only arise where the relationship is of the requisite length (equal to or greater than 2 years) or where there is a child of the relationship or a substantial contribution was made to relationship assets.

Regardless of whether a party is married de facto or a same sex partner, there is no principle that the pre-separation standard of living must automatically be awarded.   The Court is often empowered with a wide discretion in the circumstances of awarding maintenance. There are time limits on a parties’ rights to seek spousal maintenance and de facto maintenance claims.

In Australia, the grounds for granting a divorce is that the marriage has irretrievably broken down. This is usually established or evidenced by the parties living separately for a continuous period of 12 months. That being said issues of reconciliation and separation under the one roof often cause difficulties for people.

Alternative Dispute Resolution is a general term used to describe alternative means of resolving disputes between parties, aside from a judicial determination. The most common method used by family lawyers is mediation.

Mediation

Family Law is, by its nature, an emotive area and the legislators and Courts try wherever possible to give parties the opportunity to resolve their disputes. For those who find themselves in need of additional support in determining issues with regard to their children or issues with regard to their property there are a number of alternative dispute resolution processes. Mediation is one of those. We have been trained at Bond University in mediation and have attended mediations in Family Law matters for over a decade.

Contact Merridy Elphick Lawyers

We welcome your enquiry and look forward to assisting you resolve any of your family law matters.