Before relationship
A binding financial agreement can be drawn up before parties enter into a de facto relationship or get married. It is legally binding and enforceable as long as it complies with the requirements in this provision. It generally covers how financial matters shall be dealt with if the relationship breaks down.
Section 90B through section 90KA of the Family Law Act governs the financial agreement between a married couple, while section 90UA to 090UN of the Family Law Act applies to de facto couples, including same-sex couples.
Ending relationship
Ending a marriage or a de facto relationship is often difficult and stressful. You and your partner will need to make decisions about your joint assets, debts and children’s custody.
Divorce
Divorce is the legal end of a marriage. The Federal Circuit and Family Court of Australia has the power to deal with divorce under Part VI of the Family Law Act 1975. Spouses do not need to prove who caused the breakdown of the marriage. However, Family law requires the parties to satisfy that:
- The marriage broke down and there is no reasonable chance they will get back together.
- you have lived separately for at least 12 months. However, couples can separate under one roof.
- If there are children under 18 in the marriage, couples need to make proper arrangements for the children.
You are NOT allowed to remarry until your divorce order is finalized.
Obtaining a Divorce order does not decide the issue of your property, finance, maintenance, or parenting arrangement for your children.
Amicable separation
Some couples reach an agreement on how to divide the property and share the custody of their young children. There is no need for parenting and or financial arrangements to be decided by a court.
Nevertheless, it is best for everyone to document or formalize the agreement in order to help parties to comply with the agreement and to minimize future issues if any dispute is raised. A financial agreement is a contract made between parties made under Part VIIA of the Family Law Act 1975 for married couples or Division 4 of Part VIIAB of the Family Law Act 1975 for a de facto relationship.
Parties can make parenting plans and financial agreements after separation, and then apply consent orders for the agreement, which force parties to comply with orders.
Who should get more assets after separation?
It is not simple to decide if a wife or husband should get more assets after separation. According to the Family Law Act and case law, the court normally takes step by step to make the adjustment between the wife and the husband, to make just and equitable orders based on s79 and s75 of the Family Law Act.
First of all, the total value of the property needs to be ascertained, including your property, cars, superannuation, investment, debts and so on. Secondly, in accordance with s79 of the Family Law Act, the court is to consider the financial and non-financial contributions made by husband and wife, for example, who paid the mortgage and who took care of young children and domestic work; Lastly, pursuant to s75 of the Family Law Act, the court is to take into account of parties’ future needs, which the court considers parties age, health, earning capacities and so on.
When to apply?
If you are married, an application for property adjustment must be made within 12 months of the divorce becoming final.
If you were in a de facto relationship, your application for property adjustment must be made within two years of the breakdown of your de facto relationship.
Who should keep children?
The Family Law Act governs the time that the children will spend with each of their parents. Both parents are important to the children, unless there are safety or risk issues, the children should continue to have a loving and meaningful relationship with both parents. Both parents continue to have responsibility for the children.
When making arrangements for the children, you will need to consider their age, their routine and their wishes. If you are seeking orders concerning children, sections 60B, 60CA, 60CC, 61DA and 65DAA of the Family Law Act should be considered.
Speak to CFS Legal dedicated lawyers in confidence for family dispute advice. Email: info@cfslegal.com.au