Divorce in Australia is not based on either spouse establishing fault causing the marriage breakdown.

Where the marriage lasted for less than 2 years, marriage counseling is required to explore prospects of reconciliation. It is necessary for an applicant who has been married for less than 2 years to attach a Counseling certificate to their Divorce Application.

Where there are children of the relationship, the Court needs to be satisfied that there are proper arrangements in place for the children. Therefore if at the time of the Divorce hearing, there are inadequate care arrangements for the children the application will be adjourned until the matter is resolved.

It is possible to live separately and apart under the same roof so long as the Court is satisfied that the nature of your relationship with your partner has changed. Supporting affidavit material will need to be filed in conjunction with the Divorce Application if it is claimed that any part of the 12 month separation period was under one roof.

A divorce is obtained by filing an application in the Federal Circuit Court along with payment of the filing fee. There are three elements that must be proved prior to the application for divorce being approved – marriage, separation and jurisdiction. Prior to granting a divorce, the court must first be satisfied that a valid marriage exists. This is done by producing a certified copy of a marriage certificate or, where the marriage certificate is in a foreign language, accompanied with an English translation prepared by a NAATI accredited/certified Translator. In circumstances where a marriage certificate cannot be produced, evidence of a valid marriage may need to be given by way of affidavit.

The court must also be satisfied that the parties to the marriage have been separated for a period of at least 12 months. The separation date claimed by most people is the date at which one of the parties leaves the marital home, but it doesn’t need to be. Separation under one roof is acceptable where at least one of the parties to the marriage regards the marriage as over, and this can be proved by way of affidavit.

Jurisdiction for the purpose of the court granting a divorce is established if either party to the marriage regards Australia as his or her home and intends to live in Australia indefinitely (ie. is domiciled in Australia), if he or she lived his or her whole life in Australia, is a citizen of Australia or ordinarily lives and has lived in Australia for the 12 months prior to filing the divorce application.

Preparing the divorce application and appearing at a divorce hearing is perhaps one of the most straight forward proceedings. However, difficulties may arise in producing sufficient admissible evidence to satisfy the court as to jurisdiction, the validly of the marriage and the period of separation. Proving service on the respondent can also be a source of problems and a reason for the court refusing to make the divorce decree. For these reasons, we recommend that you engage a family law solicitor to prepare your application and to appear before the court to ensure that the application travels smoothly.

At YFX Lawyers we are able to offer our clients a fixed fee for divorce matters so you can be certain of the total cost of your divorce application.

A Binding Financial Agreement is an agreement between two or more people that is compliant with the Family Law Act 1975 (Cth). Binding Financial Agreements cover the division of property between the parties, superannuation and/or spousal maintenance. In dealing with these matters a BFA will outline how the parties are to manage their financial affairs. The purpose of a Binding Financial Agreements is to avoid the parties going to court to deal with the division of their property.

A BFA might also deal with any potential claims to each other’s estate after death or potential inheritances. A Binding Financial Agreement entered into before marriage or before the commencement of a de facto agreement (also known as a “pre-nuptial agreement”) would generally outline how the parties are to distribute their property in the event of separation.

A Binding Financial Agreement (BFA) can be entered in to at different stages of the relationship, each of which is dealt with under a separate section of the Family Law Act. They are as follows:

In contemplation of a marriage (section 90B);

In contemplation of a de facto relationship (section 90UB);

During a marriage (section 90C);

During a de facto relationship (section 90UC);

After divorce (section 90D); or

After a breakdown of a de facto relationship (section 90UD).

family law property division after separation

WHAT MAKES A FINANCIAL AGREEMENT “BINDING”?

Pursuant to the requirements of the Family Law Act (section 90G) a BFA is only binding if the following occurs:

(a) the agreement is signed by all parties; and

(b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and

(c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and

(ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and

(d) the agreement has not been terminated and has not been set aside by a court.

If the above requirements are not met the BFA would not be binding on the parties.

SETTING ASIDE A BINDING FINANCIAL AGREEMENT

CAN A BINDING FINANCIAL AGREEMENT BE SET ASIDE?

A Binding Financial Agreement (BFA) can be set aside by a court in accordance with section 90K or 90UM of the Family Law Act, if:

1. there is evidence of fraud (this could include a failure to disclose assets or liabilities at the time the agreement was made).
2. the agreement was entered into solely for the purpose to defraud or defeat a creditor or was entered into with reckless disregard to a creditor’s interests.
3. one party is experiencing hardship due to the agreement or in relation to a child of the parties.
4. the agreement is found to be void or unenforceable. This could be due to mistake, public policy, misrepresentation, one party was under duress at the time of execution, there has been a breach of the agreement or unconscionable conduct.
5. the agreement is deemed to be impractical due to a change in one or both of the party’s circumstances.
6. there is an issue with superannuation, for example: the agreement provides for a superannuation interest that cannot be split.

An alternative of entering into a Binding Financial Agreement (BFA) is settling the property division by way Consent Orders (through the Family Court of Australia). This applies only to resolving the division of property after the relationship has ended.

A consent order is a written agreement that is approved by the court and can deal with both parenting arrangements (including parental responsibility) and financial arrangements (including orders for spousal maintenance). Consent orders have the same legal effect (and are just as enforceable) as if they had been made by the court after a defended hearing. Once final orders have been made (whether by consent or otherwise), they can only be varied or set aside under very limited circumstances.

Consent Orders are filed in the Family Court of Australia and are intended to end the financial affairs between parties once and for all. Consent Orders are exactly what they seem; orders entered in to by consent by both parties. Therefore if your relationship has ended and your partner and you have agreed to the terms of settlement, Consent Orders may be the suitable option.

The advantage to Consent Orders as opposed to a Binding Financial Agreement is that the parties do not need to obtain a certificate of legal advice to make them binding. Consent Orders are also (arguably) more difficult to overturn or vary once the orders are made.

Disputes often arise between separated parents as to care arrangements for children. If you are able to reach an agreement with your former partner or spouse as to parenting issues (including parental responsibility), it is best to formalise the agreement through Consent Orders filed at the Family Court of Australia. The benefit of obtaining parenting orders when the situation is still amicable is that should matters worsen, you can have the orders enforced by the court.

If you are unable to reach agreement our family lawyers can help you apply to the Family Court of Australia or Federal Circuit Court of Australia for parenting orders. Generally, it is a requirement for you and your ex partner to attend Family Dispute Resolution (‘FDR’) to try to mediate before commencing parenting proceedings. In exceptional circumstances, such as when the application needs to be heard urgently or where there has been domestic violence, mediation can be waived.

The Family Law Act provides that in determining parenting orders, the paramount consideration for the Court is to ensure that the orders made are in the ‘best interests of the child’. Therefore the Court does not look to achieve ‘fairness’ or ‘equality’ between the parents. In assessing what is in a child’s best interests, the Court must consider the benefit to the child of having a meaningful relationship with both parents balanced against the need to protect the child from harm. Additionally, the Court has regard to a number of other considerations including:

• the relationship between the child with both parents and all other relationships of importance to the child to assess the effect of the proposed parenting orders on these relationships
• the practical difficulty and expense of a child spending time and communicating with a parent
• the views of the child (the weight applied to any views expressed by the child will depend on the strength of the views expressed, whether the views are reasonable, the child’s developmental stage)
• the attitude to the child and the responsibilities of parenthood demonstrated by each parent
• the capacity of each parent
• the extent to which each child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
• the extent to which each child’s parents has taken or failed to take the opportunity to participate in long term decision making, spend time with the child and communicate with the child

A property settlement, through either court orders or binding financial agreement, outlines precisely how you and your ex-spouse divide up your property. Where there is agreement between the parties, the terms of the agreement can be formalised through consent orders filed at the Family Court of Australia or by a Binding Financial Agreement. At YFX Lawyers we can assist you with the preparation of these documents to ensure that your interests are protected. If agreement cannot be reached, we can file an application at the Federal Circuit Court of Australia or Family Court of Australia for court orders to resolve property matters.

THE 4 STEP PROCESS

The Family Law Act provides for a 4 step process to be considered in determining property settlement:

1. What are the assets, liabilities and financial resources of the relationship and what are they worth?

2. What are the parties respective contributions to the relationship (financial, non-financial, parenting and homemaker contributions). The Court will also consider whether the parties were in receipt of inheritances and/or gifts.

3. What are the future needs of the parties? This will have regard to parties’ parenting obligations, earning capacity, health amongst other considerations.

4. Finally, the Court will assess what is a just and equitable outcome in the circumstances.

Every case is unique. Our experienced and compassionate family lawyers will provide you with all the guidance and advice so that you know what your entitlements. We will work tirelessly for you to ensure that you achieve the best outcome. Time limitations apply to property settlement so do not delay in seeking legal advice.