When a relationship has ended, most separating couples want to make arrangements to divide their assets and liabilities between them in a fair, final and binding way, so that they can each move forward with some security that their former partner or spouse isn’t going to come back later and want some more.

How to work out what is ‘fair’ isn’t always easy. It isn’t always just a matter of dividing everything 50/50 because there are lots of times where that wouldn’t be fair.

Because every relationship is different, the Courts have laid down a number of principles that are applied to work out what a fair division would be in each individual situation. Some of the things taken into account are:

  1. what each person’s assets and debts were when the couple started living together;
  2. how long the couple lived together;
  3. whether there were significant gifts or inheritances received by either of them during the relationship, and then how that money was utilised;
  4. whether there are children of the relationship, their ages and, if they are under 18, with which parent they will live in the future;
  5. each person’s state of health and earning capacity moving forward (particularly if that earning capacity was affected in some way by the relationship e.g. having taken time out of the workforce to care for children).

These and other factors are all used in negotiations with the other party to try to reach an agreed property settlement. We can help you to work out how all those factors affect your particular situation, and help you to negotiate a good outcome for you.

Even if you have reached a ‘handshake’ agreement with your former partner, it is best to get some expert Family Law legal advice about whether that is or isn’t a good deal before proceeding further, contact Central Coast Family Law by clicking here.

If my partner and I are both happy with the settlement, why would I need to have it formalised?

Formalising a negotiated settlement has a number of benefits.

Firstly, it becomes binding and final, meaning that you can go forward with confidence and peace of mind that what assets you take with you out of the relationship, and those that you accumulate later, are yours and your former partner has no claim on them.

Secondly, you might be paying Stamp Duty and Capital Gains Tax unnecessarily. There are exemptions and benefits available that might apply to you.

Thirdly, there are clear enforcement procedures available if a Consent Order is breached by one of the parties.

We can help you to get the best out of your property settlement, so that you can look forward to the future with confidence and security, contact Central Coast Family Law by clicking here.

How is the agreement made binding?

Once an agreement about has been reached between the separated couple about how their assets and debts are to be divided between them, the agreement needs to be properly documented to make it both binding on the separated couple and enforceable by the Court. The most effective way to do that is by asking the Court to make “Consent Orders”.

We can help you with preparing, signing and filing the necessary paperwork to make an application to the Court for Consent Orders, contact Central Coast Family Law by clicking here.

What happens if we can’t reach an agreement ?

If an agreement can’t be reached then it might be necessary to commence Court proceedings, to bring things to a head. We can help you with all of the processes needed to promptly and efficiently bring your claim before the court and to represent you in any court appearances. We can make sure that you comply with all the Court’s requirements.

NB Importantly, there is a deadline for commencing Court proceedings for a property settlement. Applications for property settlement must be filed with the court, either:

  1. in the case of a married couple, within 12 months of a divorce being granted; or
  2. in the case of a de facto couple, within 2 years of the date of separation.

Outside of those times, the permission of the Court is required before an application for a property settlement would be able to be filed. Sometimes the Court gives that permission and at other times it does not, depending on the individual circumstances.

If you are in this situation then you should get expert Family Law advice. We can help you to navigate your way through this difficult time, contact Central Coast Family Law by clicking here.

If we do commence court proceedings, does that mean a long and costly fight?

The Court provides plenty of opportunities and lots of encouragement to resolve issues in dispute without having to have a Judge do so.

Settlement discussions can take place in a number of ways. The Court conducts Conciliation Conferences to enable the parties and their solicitors to have a confidential settlement meeting to either settle the matter altogether, or at least limit the issues in dispute.

Out-of-court settlement discussions can take place either just by way of discussions between the lawyers acting for each of the parties, or in a more organised format such as Mediation.

We are experienced in dealing with these matters and we can expertly advise and guide you through this process.

Maintenance is financial support paid by one party to the other party in circumstances where a party is unable to adequately financially support themselves.

The 2 factors the Court takes into consideration when deciding on whether to make an order for maintenance are:

  1. whether the person applying for maintenance has a need for financial support; and
  2. whether the other party has a capacity to pay financial support.

Success in an application for maintenance will depend upon the factors of each individual case. If you are considering making an application for maintenance, or have had a claim for maintenance made on you, we can help you with advice and assistance in dealing with that situation.

NB Applications for spousal maintenance must be made within 12 months of a divorce order being made. For De Facto maintenance, an application must be made within 2 years from the date of separation. Outside of these times, the leave of the Court is required.

If you would like to make an appointment about these matters, contact Central Coast Family Law by clicking here.

A major issue between parents on the breakdown of many relationships can be about the arrangements regarding their children, particularly:

  • with which parent the children will live; and
  • the amount of time and under what circumstances the children will spend time with the other parent.

Are you concerned about whether the current arrangements regarding your children, or your former partner’s proposal for arrangements regarding the children, are in their best interests? Or are you having difficulty communicating with your former partner about these issues? We are able to assist our clients in finding ways to reach a sensible agreement about parenting arrangements. We can also help in preparing the necessary documents to formalise that agreement. In some circumstances, parents can keep their arrangements informal. Whether it is more appropriate for you have formal or informal arrangements will depend on your individual circumstances.

If you would like to make an appointment about these matters, contact Central Coast Family Law by clicking here.

If my partner and I are can’t reach an arrangement, what do we do then?

If an agreement is unable to be reached, we are able to give you advice about whether to resolve the issues by out-of court methods like mediation or negotiations on your behalf, or in commencing Court proceedings.

Contact Central Coast Family Law by clicking here.

Making or updating your Will

It is important to have an up-to-date properly prepared Will so that you can decide who you want to receive your assets after your death (the ‘beneficiaries’) and who you want to be responsible for putting the Will into effect (‘the executor’). If you die without a Will, then your estate is distributed using a system based on who your closest relatives are. That fixed system is usually more expensive and causes more delay than having a proper Will in the first place. It’s just simpler and easier for all concerned to deal with a proper Will.

You might also need to change your Will after a significant life event occurs such as:

  • marriage, separation or divorce;
  • the death of the executor or a beneficiary; and
  • the birth of a child.

We can assist you to make or update your Will. If you would like to make an appointment about these matters, contact Central Coast Family Law by clicking here.

I am the executor of a deceased estate. What do I do now?

If you have been appointed as the executor of a Will, we can also assist you with going about all the things you need to do to properly administer the estate. We can advise you as to whether or not a grant of Probate of the Will is necessary, and to assist you in completion of the paperwork required for you to fulfil your duties

What if there is no Will?

If a close relative has died without a Will then it may be necessary to apply to the Supreme Court to get permission to deal with that person’s Estate and distribute it according to law. This can be a complicated area of the law but we have the skill and experience to advise and guide you.

If you wish to obtain some advice and guidance about the administration of a deceased estate, contact Central Coast Family Law by clicking here.

A Power of Attorney is a legal document that you can use to appoint someone (your attorney) to act on your behalf – that is, to be your decision maker – in property and financial matters. You can put conditions and limitations on how the Power of Attorney can be used, but generally they are used for such things as:

  • signing contracts to buy or selling real estate, shares and other assets for you;
  • operating your bank accounts; and
  • spending your money on your behalf;

A Power of Attorney might be useful if you are travelling overseas, hospitalised or want some assistance from a trusted person in looking after your affairs. You can also appoint an attorney to make financial decisions for you should the time come when you are no longer able to manage your own affairs.

We can advise you about whether a Power of Attorney is right for you and what terms or conditions might be needed. We can assist you in preparing and signing an effective Power of Attorney.

NB A Power of Attorney only relates to ‘money’ issues, not issues about your ‘person’. If you want to appoint someone to make decisions for you, if you are unable to do so, about such things as where you live and what sort of medical treatment you receive, you need to appoint an Enduring Guardian (see Enduring Guardianship for more info)

If you want some advice and guidance about Powers of Attorney, contact Central Coast Family Law by clicking here.

An Enduring Guardianship is a legal document by which you can appoint a trusted person to make lifestyle, health and medical decisions for you with respect to such things as:

  • where you live e.g. at home or in a nursing home or a retirement village;
  • what sort of health care you receive and from whom, e.g. treating doctor, community health care;
  • what other personal services you receive, e.g. home support services; and
  • to give consent to medical procedures.

NB An Enduring Guardianship only comes into effect and remains in effect while you are unable to make those decisions for yourself, due to some temporary or permanent incapacity.

We can advise you about whether an Enduring Guardianship is right for you and what terms or conditions might be needed. We can assist you in preparing and signing an effective Enduring Guardianship.

If you want some advice and guidance about Enduring Guardianships, contact Central Coast Family Law by clicking here.

There is only one ground for divorce in Australia, which is that the marriage has broken down irretrievably. That is established by the couple having:

  1. separated ; and
  2. lived “separately and apart” for at least 12 months before an Application for Divorce is filed;

The Court does not take into consideration who was at “fault” in the breakdown of the marriage. However, the Court may not grant a divorce if there are no proper arrangements for any children of the marriage under 18 years of age.

A couple can still be regarded as having separated even if they have continued to live under the one roof after their marriage has broken down. Independent evidence will be required to prove the breakdown of the marriage during that time.

The Hearing

You are required to attend the Hearing if you and your spouse have children under the age of 18, unless you have filed a joint application for divorce with your spouse.

At the hearing, the Court is concerned with ensuring that all the formalities of the process (including proof of marriage, proof of separation, and proof of service of the Application on the other party) have been fulfilled and that proper arrangements have been made for the care, welfare and development of any children of the marriage under 18 years of age (such as their living arrangements, education, health and financial support). The Court doesn’t need to know why or how the marriage ended.

Usually there is no need for us to attend the hearing, however, we will of course attend the hearing with you if you wish. We will assist in ensuring all the necessary details have been attended to so that the Divorce Hearing goes smoothly. Once the Court is satisfied as to all those matters, it will then make a Divorce Order, which will take effect and become final one month and one day later, on which day the marriage will be terminated. You cannot remarry until after the Divorce Order takes effect.

Further considerations

There is no need to delay making arrangements about the care of the children or division of your property until the divorce is finalised. Those sorts of things can be dealt with straight away. It is important to remember that there is a one year time limit after the Divorce Orders takes effect to file an application to start proceedings for a Property Settlement or an application for spousal maintenance in Court. After that time, such an application cannot be made without the leave of the Court.

A Divorce Order which has taken effect may revoke or affect your Will. You should also consider making a new Will, or changing how the title to the property you own jointly with your former partner is held, after you are divorced. You may not want your property to go to your former partner in the event of your death.

We will support and assist you with those matters – everything from applying for a Divorce, preparation of a new will, to the initiation of Court proceedings to protect your family, your future and your assets. In short, our aim is to ensure that the entire process is taken care of quickly, professionally and cost-effectively.

For more information about applying for a Divorce, click here.