Family Law and Divorce – Basics of Property and Parenting Cases
Updated: Aug 19, 2020
Do we have to be divorced to divide the assets or to finalise parenting arrangements?
No, you do not have to wait to be divorced. As soon as you have separated you can make binding arrangements to settle all the financial affairs between you and your ex partner. You can also make binding parenting arrangements.
Do we have to go to Court?
No. If you can reach agreement on the ways that the assets and liabilities should be divided between yourselves, we can draft the documentation required to formalise the agreement. This can be done either with a Binding Financial Agreement or a Consent Order. Although a Consent Order is an order of the Court, it does not require you to physically attend the Court. Your documentation is posted to the Court with an Application asking that the Court make the terms of your agreement into a Court Order. If the Court thinks what you have agreed to is fair, it will make the Consent Order and post it back. This is a final Order of the Court, and is therefore the most certain way to formalise your agreement.
Even if you and your ex-partner cannot reach an agreement, it does not mean it will necessarily go to Court. We often find that once we are involved an outcome for our clients can still be negotiated out-of-Court. Statistically, most cases are settled like this (rather than contested in Court).
What happens if it goes to Court?
In a dispute about financial / property matters, you and your ex partner need to first disclose to each other all of the relevant information (such as bank balances, superannuation statements and tax returns) and make a reasonable attempt to try to resolve your disagreement (with or without lawyers) before going to Court. This financial disclosure is an ongoing obligation throughout the whole process.
In parenting matters, you will both usually be required to attend a mediation before going to Court. Many parenting disputes are settled at such a Mediation, with a parenting agreement being drafted and signed by the parents.
If agreement cannot be reached out of Court, then you or your lawyer can file an Application with the Court asking the Court to make Orders. For property / financial matters, this application should be filed within 12 months of your divorce becoming final (if a divorce has been obtained), or 24 months from the end of a De Facto relationship.
When the Court processes your Application, it will usually set the matter down for a First Court Hearing date. You must then arrange for your ex partner to be served with the Court documents. Your ex partner will then have to prepare their responding Court documents and file them with the Court.
How does the court determine a Financial / Property Matter?
If your Financial matter is not going to be resolved at the First Hearing date, the Court will often order at that Hearing that a Conciliation Conference take place at a later date (and the Court may make a range of other Orders too). A Conciliation Conference is similar to a mediation, but the Conciliator is often perceived to be more active, and will provide their legal opinion. In our experience, the majority of financial / property cases that proceed to a Conciliation Conference will be settled on a final basis at the Conference, or sometime after the conference, but before a Final Hearing.
In our experience, only a tiny fraction of cases will proceed to a Final Hearing. At a final Hearing, the Court will determine the outcome based on established legal principles and legislation.
In relation to property / financial matters, the court will calculate the total assets owned by both parties, including property, shares, cars, jewellery, savings, furniture etc. This includes things you brought into the relationship, those acquired during the relationship and also those purchased after separation.
The court will weigh up the contributions from both parties, including financial, non-financial, inheritances and assets brought into the relationship.
The court will look at the future needs of both parties, including factors such as your capacity to earn money and your parental responsibilities.
The court will make its decision with reference to these and other factors, as well as to what is just and equitable to both parties in the particular circumstances.
How does the court determine a Parenting Matter?
If your Parenting matter is not resolved at the first hearing, the Court may consider ordering that a Family Report is created which provides an independent assessment of your matter by a Family Consultant. Note that there are a large number of different Orders that the Court may make at the first hearing that may apply in your case which are not discussed here. Often be set down for hearing and a legally binding decision will be made by the court.
In relation to parenting arrangements, the Court will look at all of the relevant information and evidence available and make a decision based on what it thinks is in the best interests of the children, not the parents. Often this can be a long process, and it can involve the opinion of other professionals, such as psychologists.
Contact us to discuss your particular situation with an experienced family lawyer. There is no charge for an initial consultation.