Family Law FAQ

Can you help me get divorced?

At Herman Bersee Solicitors we have experience preparing and advising clients through the divorce process. We are able to offer a holistic approach to your separation, as our experienced solicitors can also advise you in relation to children’s’ issues and property settlements.

In Australia, you can obtain a divorce in either the Family Court of Australia of the Federal Magistrates Court of Australia. The Family Law Courts website also has information to assist you understand the Family Law process. Click here to read more.

To obtain a divorce there are several requirements you must satisfy:

  • You must be able to prove a valid marriage. This can usually be done by proof of a marriage certificate. If you require a translation of your marriage certificate, please contact Herman Bersee Solicitors to arrange this on your behalf.

You must be able to prove the Australian Family Courts have jurisdiction. This can usually be done by proof of one of the follows factors:

  • Regards Australia as home;
  • Intends to live in Australia indefinitely;
  • Has lived his or her whole life in Australia;
  • Is an Australian citizen; or
  • Ordinarily lives in Australia and has lived in Australia for the 12 months prior to the making of the application for divorce.

You must be able to prove that the relationship has broken down irretrievably. The Court usually requires a separation period of at least 12 months immediately prior to the filing of the divorce application to prove this is the case.

The Court will not grant a divorce unless appropriate care arrangements for any children of the relationship are in place. This does not mean that those arrangements must be formalised, or that the parties are in agreeance, but rather that at the time of the hearing, there are arrangements in place to ensure the children are being appropriately cared for.

Can I obtain a divorce myself?

Given that the divorce process is quite straight forward, if you are able to satisfy the above criteria, we would invite you to make an application on your own behalf unless you would prefer for us to make the Application on your behalf. At Herman Bersee we would like to assist you in any way possible, however we feel it important that as your legal advisors we should make you fully aware of every opportunity to save money.

Childrens’ Arrangements and Custody Disputes

Often when a relationship breaks down, there need to be quick and effective arrangements out in place in relation to the care of children. The Family Law Act 1975 (Commonwealth) outlines how Australian Family Law and the Family Law Courts deal with children’s issues. The law covers issues relating to child custody arrangements, residence of children and ongoing financial support of children.

What must I do before I can apply for Parenting Orders?

Family Law tries to encourage parties to sort out arrangements for their children without court intervention. When applications for parenting orders are filed with any of the Family Courts, both parties must have attempted “pre-action procedures” which include family dispute resolution. Generally, the court will require a certificate from an accredited family dispute resolution practitioner before an application for parenting orders can be filed with the court.

These pre-action procedures are a requirement except in circumstances where there is family violence, child abuse or urgency.

At Herman Bersee Solicitors we are committed to assisting you navigate the pre-action procedures outside of court as well as representing you in court. If you are able to reach a settlement out of court can save you and more importantly your family considerable money, time, stress and emotional hardship.

Applying for Parenting Orders?

  • Parenting orders are legally binding arrangements which can cover the following:
  • Parental Responsibility and decision-making responsibilities
  • With whom a child will live
  • The amount of time with which a child will be allowed to spend or communicate with each parent
  • Child maintenance orders (although these are now generally covered by the Child Support Scheme and are less frequent)

An Application to the Family Courts can be made by any person concerned with the care and welfare of the child/ren. This can include parents, grandparents or other significant persons in a child’s life.

How does the court decide children’s orders?

The Family Law Act 1975 (Commonwealth) provides that the court has a duty to make orders in the best interests of the children. When considering what is in the best interests of the children, the court has two primary consideration and several additional considerations.

The primary considerations are:

  • To facilitate a meaningful relationship between the children and both of their parents; and,
  • To protect the children from harm.
  • The additional consideration are:
  • The views expressed by the child taking into account the child’s maturity and understanding
  • The nature of the relationship of the child with the parents; and other persons (including grandparents)
  • The willingness of the parents to encourage a relationship between children and the other parent
  • The effects of the proposed changes on the child’s circumstances including separation from parents; or any other child or person they have been living with
  • The practicality and expense of communication and affect on relationships it may have
  • The capacity of the parents and other persons to provide for the child’s needs
  • The maturity, sex, lifestyle and background of the children and their parents
  • If the child is Aboriginal or Torres Strait Islander, the right to enjoy their culture with others who share it
  • The attitude of the parents to parenting
  • Family violence
  • Family violence orders
  • Orders that are likely to resolve issues rather than create further recourse to litigation
  • Other factors the court deems relevant

I want to relocate with my children? What should I do?

If you wish to relocate with your child and this will impact the nature of the relationship between your child and your former partner, an application can be made to the Court seeking the Court’s permission that you be allowed to relocate with the children.

The application should be made prior to you relocating, or where your former partner has relocated with the children and without your knowledge, as soon as you are aware of the relocation.

What will I need to include in my relocation application?

Relocation cases are emotionally difficult for all parties involved and ultimately the Court will need to resolve the dispute of each parties’ respective competing proposals and arrive at a decision which is in line with the best interests of the child.

At Herman Bersee we have experience in dealing with relocation orders. You application will need to explain how your proposal is in the best interests of the child. You will need to address the following issues:

  • Why the proposal is more suitable than the current arrangements;
  • Evidence of proposed schooling arrangements, housing arrangements etc; and
  • Additional factors including relationships with significant people, views of the child etc.
  • Arrangements that facilitate a meaningful relationship between the child and both parents;
  • Costs of travel, travel arrangements (including accompanying on flights if applicable);
  • Communications and technological applications – eg. Skype and requisite equipment.

Property Disputes and Financial Agreements

At Herman Bersee Solicitors, we are experienced in family law property matters. We pride ourselves on offering valuable assistance in determining how income, financial resources and debts are divided between you and your former spouse.

When should I start thinking about Property Issues?

It is important that you consider property issues not only after divorce, but also if you are separated or even considering separating. This is often an emotional and uncertain period, and short-term arrangements can have very long-term consequences. At Herman Bersee we are committed to assisting you in the short-term but also the long-term with regards to you and your family’s property.

What types of property matters should I consider after my relationship has broken down?

There are many issues you must consider if you are considering or have separated from your former partner. These include:

  • How to divide assets such as real estate ( matrimonial / family home and any investment property ), shares, cars, jewellery, savings, furniture and effects (property / divorce settlement),
  • How to split superannuation,
  • Whether one spouse will provide financial support for the other,
  • What arrangements will be made in regards to the financial support of the children (child support)

What must I do before applying for Property Orders?

Family Law tries to encourage parties to sort out arrangements for their property issues without court intervention. When applications for parenting orders are filed with any of the Family Courts, both parties must have attempted “pre-action procedures”.

These pre-action procedures are a requirement except in circumstances where there is urgency.

At Herman Bersee Solicitors we are committed to assisting you navigate the pre-action procedures outside of court as well as representing you in court. If you are able to reach a settlement out of court can save you and more importantly your family considerable money, time, stress and emotional hardship.

How long do I have to apply for property orders?

There are strict time frames within which you must apply for property orders. Usually an application must be made within 2 years of separation or 12 month of a divorce. It is important that you obtain quality legal advice as soon as possible to ensure that you comply with any limitation period which may apply to you.

What if we can agree about property issues?

At Herman Bersee Solicitors we are committed to assisting you navigate the pre-action procedures outside of court as well as representing you in court. If you are able to reach a settlement out of court can save you and more importantly your family considerable money, time, stress and emotional hardship.

There are two way that your agreement can be formalised. These are:

  • Financial Agreement
  • Consent Orders

Financial Agreements

A financial agreement is similar to the notorious pre-nuptial agreement, but are signed before, during or after a marriage.

For financial agreement to be legally binding, both parties must have signed the agreement and have received independent legal and financial advice before signing.

At Herman Bersee Solicitors we have vast experience negotiating, drafting and inspecting binding financial agreements. Please contact our friendly staff if you wish to discuss the process further.

Consent Orders

Consent orders are a written agreement between the parties that is approved by the Court and therefore legally binding. The Court must be satisfied that the orders are properly drafted and that the terms of the agreement are “just and equitable” before it will approve them.

Deciding whether a financial agreement or consent order is right for you can be a confusing process. If you would like further information and a realistic discussion about the advantages and disadvantages about each of these options, please contact Herman Bersee today.

How does the court decide property issues?

In all property settlements there is a four step process which is followed by the Courts:

Step 1 – Creating an asset pool

To create the net asset pool all assets and liabilities of your relationship will need to be identified. These include personal assets and liabilities. It is essential that you tell Herman Bersee Solicitors all of your assets and liabilities to ensure that proceedings are fair. If you hide or do not advise us of your assets you may be found in contempt of court.

Assets are the things you own that have a value. Assets could include:

  • Car
  • House
  • Furniture
  • Liabilities can be seen as debts, where money is owed. Examples of liabilities include:
  • Car loans
  • Mortgage
  • Loan
  • Credit card balance

The net asset pool figure will then be calculated. The net asset pool is generally calculated using this formula Total Assets – Total Liabilities = Net Asset Pool. The net asset pool figure is the amount of money that will be divided.

If both parties cannot agree on a value of an item/s, for example a car, an expert will need to brought in to value the item.

Step 2 – Each Party’s Contribution

The court looks at how each party contributed to the relationship. The court has broken the contributions into four specific groups:

  • Financial
  • Parental
  • Homemaker
  • Non Financial Contributions

1. Financial Contributions

Financial Contributions is all monetary contributions to the relationship and can include but is not limited to:

  • Wages
  • Amount of money each person had at the start of the relationship
  • Termination money
  • Lotto winnings

Once the financial contributions to the relationship has been identified, the court will look at which parties made contributions and when. It is essential that all information is disclosed to your representation, the other party and the court.

The court will only look at where the money in the relationship is being spent if there are allegations of wastage. Wastage is when a considerable amount of money is being used for the following:

  • Gambling
  • Drinking
  • Prostitutes
  • Drugs

A considerable amount of money will be determined on the weekly combined wage of the parties to the relationship. As a rule of thumb, 10% of the wage spent on any of the above is seen by the court as wastage.

2. Parenting Contributions

These contributions could be described as the amount of parenting that was done, such as helping children with homework, taking them to school, spending time with them etc. There is no specified amount, however when one party works and the other cannot due to parental responsibility, it is seen as an equal contribution to the wage that the other party contributes to the relationship.

The Court is not concerned with the quality of parenting performed by the person claiming to be the main contributor to the parental responsibilities in the relationship. The availability of the parent claiming to have made the significant contribution is essential in determining the contribution percentage.

If the parents have made parental help for example hiring a nanny this will often be considered as a factor in discounting the amount of parental contributions provided by the party.

3. Homemaker Contributions

These are the contributions made to the home for example vacuuming, cooking, washing etc. Homemaker contributions are very similar to parenting contributions.

The domestic duties performed in the relationship are considered as the homemaker contributions. When the Court looks at this contribution it is not concerned with the quality of the duties performed for example I vacuumed every day, but rather the fact that they were performed and who performed them.

When considering this contribution the main factors are whether or not the domestic duties were full or part-time concerned of the party who performed them and whether or not the parties made use of domestic help for example lawn mowing, cleaning lady, ironing lady. The use of domestic help whether it was paid of performed by a family member is often a factor in discounting the amount of domestic contributions provided by the person claiming that it was their responsibility.

Step 3 – Identifying Needs

During a property settlement, current and future needs will be taken into account. The following is a list of the needs that the court will look at:

  • Age
  • State of health
  • Income, property and financial resources
  • Physical and mental capacity to gain employment
  • Parent or sole carer under the age of 18
  • Commitments that are necessary to provide for themselves or a child
  • Responsibilities of either party to support another person
  • All parties are living a reasonable standard of living
  • Duration of the marriage
  • The maintenance of the property that affected the earning capacity of a party
  • The need to protect a party

Once the appropriate needs of each party have been identified the court will then look at the cost of each of these needs.

Step 4 – Who Gets What and Is It Just and Equitable

Once the splitting percentage of the asset pool has been decided it will then be determined what assets each person gets. In some cases the asset that the person obtains is over their percentage and they will need to pay the other person in order to keep with the percentages.

The final step in determining a property settlement is to assess if the settlement is just and equitable. The court will assess this by looking at:

  • The contributions to the relationship made by both parties and
  • The current and future needs of both parties.

The purpose of this final step is to determine whether the proposed settlement is fair, taking into account the above, to both parties.

Should I obtain a valuations?

Where assets and liabilities of your relationship can be agreed or accurately valued, you should do so. This may include exchanging market appraisals or online valuation services to assist the process.

Where parties are unable to agree to the value of any asset/s, the Court may appoint a valuer to do so and you may be required to share the costs of obtaining that valuation report.

You should be aware that all assets are valued at their second-hand value obtainable in the market, not necessarily their current replacement costs.