Family Law General FAQ.

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What happens at an initial consultation? What should I bring?

Our initial consultation with you allows us the opportunity to discuss with you our services and what we can do to help you. We will discuss with you our fees and method of charging and provide you with some initial advice on what your options are and what the next step will be.

While it is not always necessary to bring anything with you to your initial consultation, it is often helpful if you can bring the following documents, if possible:

  • Your marriage certificate;
  • If you have children, their birth certificates;
  • Any court documents you have received or existing Court Orders (if any);
  • Any correspondence received in relation to the matter (eg from the other side or the Child Support Agency)
  • Documents evidencing your current financial position for example, your most recent mortgage statement, yours and your partner’s superannuation statement, bank balances and credit card statements.
  • We will advise you at your consultation what further documentation we will require from you as your matter progresses.

 

What is separation?

Parties are separated if they are no longer living together as husband and wife. This happens if one parties moves out of the matrimonial home or sometimes if the parties continue living under the same roof but leading separate lives.

In determining whether parties are separated under the same roof, the Court will consider things such as sleeping arrangements, shared activities, arrangements for domestic duties and whether the parties hold themselves out as being a couple.

 

When can I apply for a divorce? What is the process?

Either party to a marriage can apply for a divorce once they have been separated for 12 months. This 12 months separation is the only evidence that the Court needs to say that the marriage has irreconcilably broken down.

If the parties have been married for less than 2 years at the time of making the Application for Divorce, it is necessary for them to first attend compulsory counseling before filing for divorce, to show that they have considered reconciliation.

An Application for Divorce must be filed with either the Family Court of Australia or the Federal Magistrates Court of Australia. This Application may be made jointly or by just one of the parties.

If the Application is made by just one party, a copy of the Application must be served on the other party and the party making the Application must be able to provide the Court with evidence of this.

When the document is filed with the Court, a hearing date is allocated. This is generally 6 – 8 weeks after the date the document is filed. If there are no children under 18, neither party needs to attend the hearing.

If there are children under 18, the party making the Application needs to attend the hearing to satisfy the Court that there are appropriate arrangements in place for the welfare of the children.

Once the Court is satisfied that there has been a 12 month separation and there are appropriate arrangements for the children (if applicable), it will order a divorce. This divorce will become final one month and one day from the hearing date, at which time a Certificate of Divorce will issue.

It is possible to object to an Application for Divorce by filing and serving a Response to Divorce Application. The most common ground for objecting to a divorce is that you dispute the date of separation.

 

What is the difference between divorce and annulment?

An annulment is a finding that the marriage is void. The most common grounds for an annulment are if one party was already validly married to someone else, mental incapacity, duress, fraud or mistake as to the nature of the ceremony. It is rare for someone to seek an annulment.

A divorce is sought where the marriage was valid, however has since broken down.

 

When do we have to attend mediation?

Mediation is a dispute resolution process that can assist parties in resolving their disputes.

It is compulsory to attend mediation before applying to the Court for parenting Orders, subject to some exceptions. At the moment, it is not compulsory to attend mediation for matters involving property only. However, there may be benefits in considering mediation and in the future it may be a compulsory step.

There are several Family Dispute Resolution providers locally, including the Family Relationships Centre Townsville and Relationships Australia and a number of private mediators.

See our fact sheet on Mediation for more information.

 

What happens if we go to court?

Our lawyers and the Court make every effort to assist parties in settling their matter amicably and without the need for a trial. This is done through the use of conciliation conferences, counseling and Family Consultants.

Different Courts have different practices and procedures for how they progress matters. The Court website contains practical information which you may find useful when deciding how to proceed.

We have an informal agreement, do I need to see a lawyer?

Any agreement reached between the two of you is not binding and is not enforceable. It is also possible that the other side may come back and seek a formal property settlement down the track and be entitled to further payment.

Even if the two of you have reached an agreement which you are both happy with, it is advisable to have that agreement formalised by way of Consent Orders or a Binding Financial Agreement to sever the financial relationship between you. There may also be stamp duty or taxation benefits to be obtained when transferring joint property under an Agreement.

See our fact sheets on Consent Orders and Binding Financial Agreements for more information.

 

Do I have to leave the home when we separate?

This is a practical decision to be made by the parties. Unless a Court orders that you leave the premises (for example, if there is a Domestic Violence Order made which states that the Respondent must leave the home) neither party has to leave. However in many circumstances it is not possible for the parties to continue to reside together.

A decision to move out of the family home does not impact on a property or parenting application.

 

Do I have to change my will?

It is generally advisable to change your will when you separate to ensure that your will accurately sets out your intentions for your property should you pass away. If you get divorced, this does not invalidate your whole will, only gifts to your former spouse.

See our Estate and Succession Planning Department for more information.

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