FAQ About Family Law
Can my former spouse /de facto partner and I see the same lawyer if we reach agreement about our kids and/or property?
In Australia, it is not regarded as appropriate for the same lawyer to represent both parties to family law matter – even if the parties believe there is no dispute between them and they are in full agreement as to their property settlement or their planned future parenting arrangements. This is because lawyers have a fiduciary duty to their clients, which means they must act in their client’s best interests – and former spouses or de facto partners may have differing interests in the outcome of their settlement regarding property or parenting.
Even where the parties are substantially in agreement, if one or both parties seeks legal advice before entering into an agreement, it is necessary for those parties to see separate legal advisors so that their particular interests can be protected.
At Argent Law, if parties have reached an agreement as to their property or parenting settlement before they engage us, we do not seek to unnecessarily undermine agreements made amicably between parties! We will however, always seek to ensure that all issues have been considered, the Agreements are properly drafted (such as Court Orders or a Binding Financial Agreement), and if we believe that our client is being disadvantaged in the agreement reached, we will ensure our client is aware of that fact and assist them to remedy to bad agreement if that is what they instruct us to do.
I have an IVO against me. Does that mean I can’t see my kids?
It cannot be presumed that an IVO prevents a parent from seeing their children indefinitely. Although the terms of an IVO may say exactly that – and parties to a family law dispute should always ensure they comply with the terms of any IVO against them – under the Family Law Act 1975, a Federal Circuit Court Judge or Family Court Justice has the power to set aside any terms of an IVO that is inconsistent with Orders the Federal Circuit Court Judge or Family Court Justice regards as being in the best interest of a child so far as seeing their parents are concerned.
Therefore, if you have an IVO against you that is preventing you from seeing your children, contact Argent Law for advice and representation. It may be the case that one of our experienced family lawyers can assist you to have a Federal Circuit Court Judge or Family Court Justice set make parenting Orders that are designed specifically to override any terms of an IVO that prevent a parent seeing their children.
None of the assets are in my name. Does that mean I don’t have any right to those assets in the property settlement?
The law relating to family breakdowns in Australia recognises both legal ownership (where your name is on the title of an asset) plus equitable ownership (where your name is not on the title of an asset, but where the circumstances of the relationship between parties justifies the Court deciding that the person not named on title still has ownership of an asset).
Marriage and de facto relationships are a classic example of where the Court will often be persuaded that although only one party has legal ownership of an asset, both parties in fact own the asset, and the property is to be divided between them as part of a property settlement as though both parties held legal title.
Therefore, generally speaking, our family law clients are not disadvantaged in their property settlements because legal ownership of assets is only in one parties’ name.
If you are worried about the fact that your name is not on the assets, or if you want to know if your name being on the assets protects your interests in those assets when it comes to your property settlement, contact one of our experienced family lawyers at Argent Law for personalised advice regarding your specific circumstances.
My ex and I don’t need Orders for our property settlement or our kids. Do we have to have Orders?
When it comes to property settlements, however, at Argent Law we generally advise clients that it is their best interests to have their property settlements confirmed in legally binding Court Orders, or otherwise a Binding Financial Agreement. This is because property settlements often result the in the transfer of assets of great value – such as real estate, companies and superannuation – plus the transfer of great liabilities – such as home mortgages, credit card debt and car leases.
It can create unnecessary frustration, heartache and costs for parties if an agreement is reached but then one party backs out of the agreement. Thus Argent Law will usually advise clients that their property settlement agreements should be confirmed in writing – either as Consent Orders made by the Court, or by way of a Binding Financial Agreement.
Regarding parenting agreements, sometimes there is a lot of good will, good communication and trust amongst separated parents. Further, sometimes parents have a short-term plan for the care of their children, but want to retain flexibility of their parenting arrangements as their children grow and their needs change. In such circumstances, legally binding parenting orders that last until the child is – or children are – 18, may not be appropriate or necessary. If any type of written agreement is required between the parents in this situation for any reason, a Parenting Plan may suit their needs.
However, unfortunately, often there in not so much good will, good communication or trust among separated parents. For these reasons – and for the purpose of stability and certainty generally – parenting Orders may be necessary for the parents (and in the best interest of the child or children) in future. In these circumstances, one or both parents may see the benefit of entering into legally binding parenting Orders that will last until the Child is – or children are – 18 years old. Such Orders can be changed in special circumstances, but the parties are essentially committing to a long-term plan for their care of their children until the child (or children) reach adulthood. The Orders may nonetheless provide – and usually do provide – for flexibility of the parenting arrangements so long as both parents consent.
Otherwise, if legally enforceable parenting Orders do not appear to suit both parents’ needs, a Parenting Plan may suffice.
Whether Orders, a Binding Financial Agreement, or a Parenting Plan are needed in your case is something the Argent Law team can advise you on. Don’t hesitate to call us to make an appointment with one of our experienced family lawyers.
At what age can children decide what parent they live with?
It is a common misperception that children can decide which parent they live with if the parents are separated and the parents themselves cannot agree as to what parenting arrangements (including parenting Orders) should be made.
Under the law in Australia, the parents have equal shared parental responsibility for the children until they are 18 years old – which means (amongst other things) that the parents make major long-term decisions for the care of children, up until the age of 18. Where a child lives is, of course, a major long-term decision for the care of the child that is presumed to be made jointly by both parents after the end of a marriage or de facto relationship.
However, the law also provides that the views expressed by a child may be taken into account as one of the many factors that a Court must consider when making a decision regarding parenting arrangements for a child in contested parenting disputes. How much weight (or importance) the Judge or Justice is to give to the views of any child will depend on any factors the Judge or Justice thinks are relevant – such as the child’s maturity, or level of understanding.
As this issue usually arises for parents in the context of disputes before a Judge in Court, there are usually many considerations that factor into the Judge’s decision making process, of which the child’s views are only one – even where the child (or children) are mature and articulating their own preferences of which parent they wish to live with.
If you are a parent trying to reach agreement with the other parent regarding parenting matters, and your child is (or children are) expressing views about which parent they’d prefer to live with, our experienced family lawyers can advise you on whether those views are likely to be persuasive in the particular circumstances of your child (or children).
I am a grandparent and I love my grandkids. What a my parenting rights over my grandkids?
Under the law in Australia, it is not presumed that grandparents are to have any responsibility for the care of their grandchildren if the child’s parents separate, or that the child (or children) shall be presumed to spend time with their grandparents in circumstances where the parents do not willingly facilitate that relationship and ensure the child (or children) spend time with grandparents after the end of a marriage of de facto relationship.
However, the Family Law Act 1975 states clearly that any person who has a genuine interest in the welfare of a child (or children) may apply to the Court for parenting Orders. That means that any grandparent may bring an Application in the Court seeking Orders for parental responsibility over a child (or children), and/or Orders for the child (or children) to spend time with a grandparent.
If the Court determines such Orders are in the child (or children’s) best interests, the Court will make those Orders.
If you are a grandparent wanting to have parental responsibility for your grandchildren, or you believe it’s in the child (or children’s) best interest to spend time with you, don’t hesitate to call Argent Law to make and appointment with one of our experienced family lawyers.
If I win in my court case, can I get a costs Order against the other side?
The default position in family law litigation in Australia is that each party pays their own costs of litigation – whether the litigation relates to property matters, or parenting matters.
However the Court does have the power to divert from the usual procedure – and order that one party pay part (or all) of the other’s costs. Whether or not that is appropriate in your case is something your family lawyer can advise you on over the course of your matter. The court also has the power to Order that one party make contributions to the other party’s legal costs when the matter is ongoing – known as an Order for “litigation funding” made against a party.
At Argent Law, we understand that clients are often worried about their legal fees, and we are always happy to keep an open line of communication with our clients regarding this important matter. We also are happy to discuss with our clients at all times their payment arrangements. So if you wish to engage Argent Law to provide you with legal advice and /or legal deprotonation but legal costs are preventing you from doing so, you will be glad to know that usually in the first advice session with a client we can give a realistic costs estimate for their matter, plus reach agreement for how those future fees can be paid.
If my ex and I transfer our former home under the property settlement, who has to pay the stamp duty?
If real estate is transferred pursuant to family law marriage or de facto relationship breakdown, the transfer of property is exempt from stamp duty in the State of Victoria (where Argent Law is based).
One of our friendly family lawyers would be happy to advise you on what documents are necessary for your property settlement real estate transfer to be exempt from Stamp Duty in the State of Victoria.
We also have an experienced team undertaking conveyancing in house – so Argent Law is your one stop shop for family law property settlements (including the transfer of real estate with a stamp duty exemption of the property is located in the State of Victoria.
Will I get a 50/50 split of property in my settlement?
It is a common misperception that former spouses or former de facto partners will split their assets and liabilities equally in the event of a relationship breakdown, or that the Court can be presumed to make such an Order.
Under the law in Australia, it is necessary to consider:
1. Whether it is just and equitable to make any Orders for a property division;
2. What is the property pool available for division between the parties?
3. What were the parties’ respective contributions to the accumulation of the assets and liabilities?
4. What are each parties current and future needs, and how should this impact of the property division?
Further, the Court has the overall discretion to take into account any other factors that influence what a “just and equitable” property settlement should be.
So as you can see, it certainly cannot be presumed in Australian Family Law that a 50/50 split of assets and liabilities will be the result of a negotiated property settlement, or a Court case.
At Argent Law, our experienced family lawyers are willing and able to advise you on what a “just and equitable” property division is likely to be in your case – whether the settlement is being negotiated by the parties, or whether the matter is before the Court for determination. So if you have separated and need to get your property settlement in place, one of our experienced family lawyers will be happy to meet with you to give you advice and representation.
My ex had an affair, which led to the breakdown of our marriage? What are my rights?
In Australia, our family law system is a “no fault” system – which means that allegations of wrong doing by a party during the marriage will not have any impact on the property settlement, and unless a party’s behaviour is in some way damaging to a party or child (or children), wrongdoing between parents will not usually have any impact on the parenting Orders the Court makes, either.
However, in extreme situations of wrongdoing such as family violence (in parenting and/or property disputes) or wastage of assets (in property disputes) the behaviour of one of the parties to a marriage may have an impact on the ultimate property division or parenting Orders.
If there has been some troubling behaviour in your relationship and you just don’t know if it’s something that needs to be taken into account when making property or parenting Orders, the family law team at Argent Law can help you. Don’t hesitate to call us to make an appointment for legal advice.
Do I have to share my superannuation with my ex in my family law settlement?
Superannuation is often one of the largest assets held by parties to a marriage or de facto relationship. Often in family law disputes, the value of superannuation is second only the value of real estate held by one or both parties. As such, a lot of clients are very concerned about what will happen to their – or their former partner’s – superannuation, upon the end of the relationship.
Under the law in Australia, superannuation is an asset to be divided between the parties, and it will generally be treated as part of the property pool. Of course, special considerations are at play when considering which party is to keep superannuation – and how much – as part of a property division. This is largely because superannuation generally cannot be accessed until the party who has accrued the superannuation reaches retirement age, plus the superannuation may have been accruing for a party since the beginning of their working life – and long before the relationship with their former spouse or de facto partner commenced.
Further, the nature of the superannuation may raise questions as to the value of superannuation, or place further restrictions on the division of superannuation as a practical matter. These issues often arise when dealing with defined benefit superannuation benefits.
If you are about to embark on the process of negotiating a property settlement, or if you are contemplating a Court Application regarding a family law property division, Argent Law can assist you manage questions of superannuation, as well as all other assets, plus liabilities.
I got burned in my last relationship. What can I do to protect my assets in my new relationship?
It is possible to enter into a “pre-nup” in Australia – which are known by the name of a “Binding Financial Agreements”.
Binding Financial Agreements are often sought by clients wishing to have certainty between themselves and their spouse or de facto partner as to how their assets will be divided in the event of a future separation, but also to promote harmony generally with regarding financial matters within the relationship.
However in order for the Agreements to be binding in future as the parties intend, Binding Financial Agreements need to meet certain requirements as to their form and content.
At Argent LAW, our experienced family lawyers have a wealth of experience advising clients about Binding Financial Agreements, as well as drafting and enforcing the Agreement. We can help you protect your assets in the event of a future marriage or de facto relationship breakdown.
If a Binding Financial Agreement is something you’re interested in, don’t hesitate to call us for an appointment to discuss if a Binding Financial Agreement will assist you!