FAQ

How do I apply for a divorce?
What happens at my first consultation?
Do we have to go to court?
How does the Family Court divide Assets?
Does the Court give the same weight to Financial Contributions as to Contributions made as a Parent and Homemaker?
How does the court establish the value of Assets?
How does the court make decisions about children?

How do I apply for a divorce?

Divorce is never easy. It can be an emotionally charged time, let alone trying to deal with the Court’s administrative requirements. However, our firm has the experience and mechanisms in place to ensure that the entire process runs smoothly.

The Application:

There is only one ground for divorce in Australia, which is that the marriage has broken down irretrievably, established by the parties having separated for at least 12 months immediately before an application for divorce is filed. Who was at “fault” in the breakdown of the marriage is not a consideration.

Sometimes a couple can be regarded as having separated even if they have continued to live under the one roof. However, that will depend on the individual circumstances and independent evidence will be required to prove the breakdown of the marriage during that time.

An application can be made by either party, or a joint application can be made.

Your lawyer at Central Coast Family Law will assist you in filling out the application and filing it at the Federal Magistrates Court. The Court will return copies of the application with a date for the Hearing stamped on them. Generally, the hearing will take place 6-8 weeks after the date of filing. We will also arrange for a copy of the filed application to be served on the other party.

The Hearing:

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

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

Your lawyer at Central Coast Family Law will assist in ensuring all the necessary details have been attended to, and once the court is satisfied as to all those matters, it will then grant a “Decree Nisi” which will become final one month and one day later, when the Court will issue a Decree Absolute meaning the divorce is finalised. You cannot remarry until a Decree Absolute has issued.

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 1 year time limit after the Decree Absolute has been issued to start proceedings for a Property Settlement or an application for spousal maintenance.

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. You may not want your property to go to your former partner in the event of your death.

Central Coast Family Law will support and assist you with those matters - everything from 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.

What happens at my first consultation?

Sometimes people want to have a no-obligation preliminary chat to “see where they stand”, to gain a general overview of the processes involved, or to gather some general information to help them try to resolve things with their partners themselves (see below *). We understand that, and to assist you we offer a “first consultation free”.

Your initial consultation is also a chance to meet your solicitor, and give him or her the background and circumstances of how you got to where you are today.

You will get practical advice, and hopefully come away with a clear idea of your rights and responsibilities. We can also put together an action plan on how we can achieve the best result for you which outlines the next steps involved in the process.

In relation to ongoing costs, after the Solicitor has had a chat with you and we understand the work involved in your matter, we can provide you with an estimate for future costs. Please bear in mind that this is an estimate and not a quote or fixed fee, it all depends on the amount of work involved. The more amicable that you and your ex-partner can be, the less costs are involved.

After that initial consultation, we should both be in a position to know whether we can work together, and what is needed to go on.

After our initial consultation, most communication will be directly with your partner or their legal representatives. It is our aim to assist you to reach a sensible resolution of your issues – whether a division of property, maintenance and child support, or parenting – quickly, efficiently and cost-effectively.

*By the way, if you are able to reach an agreement directly between yourself and your partner, it is essential that you come back and see us so that we can prepare the necessary documents to properly record the agreement. Not only may we be able to assist you in minimizing costs e.g. stamp duty or Capital Gains Tax payments, if the agreement isn’t properly recorded then it won’t be binding and you would be at risk of the whole arrangement being worthless.

Do we have to go to Court?

Our philosophy is that we do our best to negotiate a fair and reasonable settlement of any dispute without the need for Court proceedings, so that the substantial emotional and financial costs of those proceedings are avoided. However, if your matter remains unresolved, for whatever reason, then sometimes it’s necessary to start Court proceedings to protect your rights, and to bring matters to a head.

On other occasions, urgent Court proceedings have to be commenced immediately to get orders from the Court in a situation where either there is no time to negotiate because it is not practicable to do so, negotiations have failed or there is an urgent need involved. For example, if there is an immediate risk to a child or property, then urgent Court proceedings are the best way to proceed. An interim hearing can be held to provide short term solutions.

Court proceedings are commenced by filing of an Application setting out the Orders that you are asking the Court to make, together with an Affidavit setting out the relevant background facts and, in property matters, a Financial Statement. A filing fee is payable except in certain circumstances where that can be waived e.g. if you hold a Health Care Card, Health Benefit Card, Pensioner Concession Card, Commonwealth Seniors Health Card or any other card issued by Centrelink or the Department of Veterans’ Affairs that entitles you to Commonwealth health concessions.

Statistics indicate that only about 5% of Court proceedings ever actually get to a final trial before a judge. Remember, however, that the Courts are only involved where there is a dispute. The vast majority of matters are resolved by negotiation between the solicitors acting on their clients’ instructions. At all times, we will give you our advice as to what your options are, and your prospects of success. We can advise you when to compromise, and when to stand your ground. The Court encourages settlement rather than litigation. In the end, however, if the parties are unable to agree, then a binding decision will be made by the Court.

Property proceedings usually involve assessing the current incomes, assets, resources and liabilities of each party. We have a team of extremely capable and experienced valuers, accountants and various financial consultants who will also be available to assist you if required.

If you do go to Court, you can rest assured that we will do everything we can to ensure that the matter is resolved promptly and with minimum cost to you, both financially and emotionally. Our team will make sure you are completely prepared and will appear with you in court.

The entire process is not a walk in the park. The good news is that we've been there many times before and can explain the legal jargon to you in plain English so that you are fully informed as to what is happening.

How does the Family Court divide assets?

The general presumption that marital assets must be divided equally between the parties is incorrect. The Courts have broad powers to make Orders that are just and equitable.
In deciding how the marital assets should be distributed, the Court follows a 4 step process:

Step 1: to identify and value the net property of the parties (usually at the date of the trial);

Step 2: to consider the contributions of the parties. This includes assessing:

the financial and non-financial contribution made directly or indirectly by or on behalf of either party to the acquisition, conservation or improvement of any of the property of the parties.
The contribution made by a party to the marriage to the welfare of the family and any children of the marriage, including any contribution made in the capacity of homemaker or parent.
the effect of any proposed order upon the earning capacity of either party.

Step 3: to consider whether there should be an adjustment in favour of either of the parties to take into account each party’s age, health, earning capacity, responsibility to house and care for any child or other party and availability of financial resources.

Step 4: to consider whether the order proposed will be just and equitable for both parties.

Does the Court give the same weight to Financial Contributions as to Contributions made as a Parent and Homemaker?

The Court must consider contributions made as a homemaker and parent substantially. This could mean that where the marriage has been of average duration and one party has been the primary financial contributor and the other primarily responsible for the care of the child or children, those contributions may be seen as equal.
However, the Court has recognised that in some cases, a party may make contributions that should be seen as having a "special" or "exceptional" quality that deserve greater recognition. These special contributions are not restricted to financial cases. They can also be made by one party through exceptional efforts as a parent or homemaker.

How does the Court establish the value of Assets?

Parties can either agree on the value of assets, the parties can agree, or the Court can make an order, that an expert be engaged to assess their value.
As mentioned above, we have a team of extremely capable and experienced valuers, accountants and various financial consultants who will also be available to assist you if required.

How does the court make decisions about children?

The Family Law Act says that the paramount consideration in regard to any decisions involving a child is what is in the best interests of the child. We understand the emotional impact of disputes involving children and always encourage our clients to ensure that they also put the welfare of the child or children as the most important consideration. Years of experience in such matters has taught us the wisdom in talking and working through issues, and using counseling and mediation services as the first step. Indeed, the Court will require parents to have firstly attempted to resolve any parenting dispute with the assistance of an accredited Dispute Resolution Practitioner (a Mediator), except in certain circumstances including where there has been family violence or there is or has been a risk of abuse of a child.

In determining what is in the child’s best interests, the Court takes into consideration a range of factors including:

Whether there is a benefit to the child in having a meaningful relationship with both parents.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The willingness and ability of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
The likely effect on the child of any change in the child’s circumstances including separation from either parent, another child or relative with whom the child has been living.

There are a range of factors to be taken into consideration and these are only a few of them.

For those parents who are able to reach an agreement regarding the children, we can assist in preparing Consent Orders to formalise that agreement.