Frequently asked questions in family law
- How do I obtain a divorce from my partner?
- What about the children?
- Will it cause problems if I leave home without the children?
- What if I am afraid of my former partner?
- How much will it all cost?
- How is property divided by the Family Court?
- What procedure is required to obtain a Property Order from the Family Court?
- What about superannuation?
- Will I have to pay my share of the mortgage if I am not living in the house?
- Can I take funds from the joint account when I leave?

How do I obtain a divorce from my partner?
The only ground for divorce in Australia is if you have been separated from your partner for twelve (12) months. The separation can be under the one roof if you can prove, with independent evidence from some other person, that two distinct households existed under that roof. The Family Law Act does, however enable separated spouse to resume cohabitation for one (1) period of up to three (3) months without this affecting any prior period of separation.

What about the children?
Often, informal arrangements about where they will live and the contact with the other parent work very well. To avoid misunderstandings and problems, a formal agreement is usually appropriate. These arrangements can be incorporated in a formal Parenting Plan and set out details of responsibility for the child's/children's welfare, either in the long term or on a day to day basis and includes matters such as where the child/children will live, with whom, and with whom the child/children will have contact. It will only be when parents can't decide these matters themselves that either party can make an application to the court for a Parenting Order which can include:
o Residence Order
An Order to say with whom the child/children lives
o Contact
An Order to say with whom the child/children will have contact
o Child Maintenance
An Order that provides for the financial support of the child/children.
o Specific Issues
An Order about any other aspect of parental responsibility
These Orders relating to residence, contact and specific issues replace the old Orders previously known as custody and access. The law and procedures relating to children can be complex and it is important to remember that each case really is quite unique to itself.

Will it cause problems if I leave home without the children?
It could – and the problems may be serious. You may be conceding that the children are better off with your partner or at least that he or she is well able to look after them. If you are physically prevented from taking them with you, it will be important to act quickly after you leave by applying to the court for orders that the children reside with you – but that could take a few months. A better approach is to get advice and plan your move before you make it. It could make the world of difference and make a difficult time less harrowing.
Also, staying in the home can be effective in forcing a settlement a lot more quickly.

What if I am afraid of my former partner?
Queensland has strong anti-domestic violence laws and we can guide you with the appropriate procedures and refer you to very helpful support.

How much will it all cost?
Our fees are charged in accordance with the Family Law Scale of Fees and a copy of the scale together with a notice of your rights in relation to costs will be given to you and fully explained.

How is property divided by the Family Court?
In general terms, the court goes through a three stage procedure.
First. The court determines just what are the assets of the parties, irrespective of when they were acquired, whether before or during the marriage, or after separation. Everything owned by, or under the control of, either party goes into the pool of matrimonial assets. This includes land, shares, savings, interest in trusts, personal injury claims, long service leave, and superannuation. At this stage, the court may also make decisions as to the value of certain assets or whether, in fact, certain assets, such as lottery wins or other windfalls after separation can be excluded.
Second. Once assets are identified and values determined, the court examines the contributions each of the parties to the marriage made to their accumulation. These contributions can be:-
o Financial – including the assets owned at the start of the marriage, income bought into the marriage, gifts to either or both the parties, inheritances, assets acquired or created by either of one of the parties during the marriage or using matrimonial resources following separation;
o Non-financial – such as work done on property owned by one or either of the parties, renovating a home, or working to build up a business;
o As a home maker or parent – this contribution is every bit as important as the first two, and can be crucial in many cases in which one party has been out of the work force, creating a home environment for the entire family.
Third. The court considers the circumstances and needs of each of the parties – their respective ages, health, income earning capacity, or other relevant circumstances. A major consideration, at this stage, will be the capital needs of the party who is still looking after younger children of the marriage.
Making an assessment of the appropriate share for each spouse on a property division can be difficult. Each case depends very much on its particular circumstances and it is really unhelpful to generalise from hearing of a division reached by a relation, friend or acquaintance.

What procedure is required to obtain a Property Order
from the Family Court?
To get help from the Family Court, one party files an application at the court's registry requiring a response from the other party. The case is listed for a directions hearing before the court about six weeks after the initial filing date. Both parties are required to attend with their legal advisers. If settlement is not reached at the directions hearing, then a conciliation conference is convened and usually held about eight weeks after the directions hearing. It is conducted in the presence of a Deputy Registrar of the Court, with both parties and their legal representatives present. Most cases settle at that stage. If not, a trial will be necessary before a Judge, which mostly occur some six to twelve months later.
The law on dividing property has been developed by the court in hundreds of decided cases over the years since the Family Court was created and, reflecting society generally, can be quite complex at times.
In many cases, however, a fair property settlement can be negotiated, particularly if experienced family lawyers are engaged by the parties. Quality legal advice from an experienced family lawyer can actually hasten the process of settlement, leading to a result which is accordingly cheaper and a whole less stressful to the parties involved.
Our family lawyers have the necessary experience and human understanding to guide our clients to a fair and reasonable settlement.

What about superannuation?
Superannuation usually represents the most significant form of savings in a marriage and often is the biggest asset. It is also one that often causes many problems in dividing it. Whether defined as property or as a resource available to the parties doesn't really matter in practical terms.
Problems arise mostly because, in its present form, superannuation is an asset designed to fund an independent and comfortable retirement for a particular individual. It is not intended to be available before retirement - unless the superannuation beneficiary happens to be a retiring federal member of parliament. Nor does the law of superannuation at this stage recognise that in a family situation, the fund really represents family savings.
So when the marriage fails, the benefits really intended for the retirement of both parties from the superannuation fund becomes frustrated. Legally, the superannuation benefit will go only to the party who is entitled to it as beneficiary upon its maturity.
Although hampered by the limitation of present of laws, the Family Court has tried to adjust future superannuation benefits in several ways.
If sufficient other matrimonial assets exist, the court sometimes is able to give the whole of the superannuation to the party holding the legal benefit to the superannuation entitlement, while at the same time compensating the other spouse by transferring to him or her other assets of comparable value. There are significant advantages and disadvantages to both parties in this respect, including that the party receiving the superannuation benefit may not receive it for some years to come and in the meantime has few assets with which to move on with life.
Alternatively, if other funds are insufficient for a compensating property adjustment, the court may postpone the adjustment until the funds are actually received by the person entitled in law to that fund. Upon actual receipt of the funds, a division can be made of the portion of the superannuation which accumulated during the marriage. The percentage share of that portion is then divided according to the share decided by the court for a normal property adjustment.
Either approach may not be really satisfactory, but the court is hampered at the moment by the nature of superannuation itself. Various government bodies have been examining alternatives, including allowing superannuation companies to divide part of the superannuation fund itself between the parties, while preserving the fund intact in the names of both spouses until maturity or allowing for early payout of part of the superannuation fund on a marital breakdown.
Superannuation is becoming of increasing importance in our society, so this would be an important issue in the near future. Expect some developments during the term of this present government.

Will I have to pay my share of the mortgage if I am not living in the house?
The real problem is usually that if mortgaged loan instalments are not paid, the financier could sell the house thus putting a significant asset – and your credit rating – at risk. If you're not living there, an adjustment of entitlements may be appropriately made.

Can I take funds from the joint account when I leave?
Sure. Take whatever you think is fair to both parties and your reasonable needs. If you clean it out leaving your former partner with no money, it's only going to trigger an urgent application to the court and cost both of you unnecessary expense

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