How soon can I get a divorce?

Hello everyone,

My apologies for the lack of recent blogs I was on leave in February and March.

I have been asked by a number of clients recently "how soon can I get a divorce"?

The answer is actually very simple - under the Family Law Act there is only one ground for divorce, that is that your marriage has broken down beyond repair.

To prove the marriage is beyond repair you must prove a separation of no less than 12 months. For the purpose of calculating the period of separation, however, you can add together periods before and after a single reconciliation, provided that the reconciliation period was less than three months.

Your 12 month period of separation can incur even though you are both living under the one roof, provided you are living separate lives and to the outside world you are regard as separated.  The court will require an independent witness to give evidence that they were aware you were living apart under the one roof.  I usually suggest to clients if they are living as if they were in a share house, so not jointly socializing or cooking for each other etc then the court will be satisfied.

It does not matter which party files the application and pays the $800.00 filing fee and if things are agreed parties often file a joint application.  The court must be satisfied:-

• you or your spouse is an Australian citizen, ordinary resident or that one of you has been living in Australia for the last 12 months
• you were married (a photocopy of your Marriage Certificate is required and if you were married in a non-English speaking country you will need to get this formally translated); 
• you separated at least 12 months ago; and
• there is no likelihood of you and your spouse reconciling.

The last two conditions are met if you swear the divorce application itself.

In addition if there are children under the age of 18 then your application for divorce must include information about the arrangements for the care, welfare and development of these children. The Court must declare that it is satisfied that proper arrangements have been made for the children's welfare.

Applications are usually dealt with 6-8 weeks after they are filed.  Unless the application is a joint application, a copy of the application must be served on your former spouse no less than 28 clear days before the hearing date by any adult except the applicant, and an affidavit of service must be filed to prove service.

If there are children involved then the applicant for the divorce or their lawyer must attend at the hearing.

The divorce becomes final one month after the hearing and a divorce certificate issues.  Until you have the certificate you will not be able to remarry.

 As always please feel free to comment on this or any other of my blogs.  I would also be happy to respond to any questions you may have on this topic.

If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on (03) 9613 6555

How long will this take?

Hello everyone

Happy New Year

Many of my clients get frustrated by the length of time it takes to resolve their Family Law property matter.  I am often asked "how long will all of this take?" or "this is simple why can't we get it done by the end of the month?"  Unfortunately unless both parties are willing to be reasonable it may take months, if not years, to negotiate arrangements for a financial settlement.

There is lengthy Court delays to have matters determined, with matters taking on average between 18 months and 2 years to resolve if a trial is required, but in my practice many delays are not due to court lists, but instead are as a result of one party not responding to the reasonable requests of the other to negotiate.

There are many reasons for this, some people simply do not want to accept their relationship is over, others hope that if they ignore letters the other party will simply give up and some people simply want to annoy their ex-spouse.

I often tell my clients that I cannot force the other side to negotiate and that we either have to wait until the other side is ready to exchange documents or respond to our offers, or we have to go to court.

There is a positive obligation on both parties to exchange documents and attempt to resolve matters before going to court, but you cannot negotiate with someone who refuses to come to the bargaining table.

Many clients do not want to go to court, until they understand that for property only matters, the first two dates at court are conferences specifically designed to try and force negotiations.

If negotiations are not working or information is not being exchanged, then I recommend issuing an Application for property settlement as soon as possible.  At the very least, filing an Application will provide a timetable and will force people to file documents, exchange financial information and to be in the one place at the one time to attempt negotiations.

Fortunately, in my experience, most property settlement matters settle early in the court process, and for that reason parties should not be afraid of going to court, if the other side is delaying a resolution of the matter, because there is no other way to force negotiations.  Of course if the matter does not resolve in the conference phase of proceedings you are already in the court list and can continue to try and negotiate while waiting for a trial.

As always please feel free to comment on this or any other of my blogs.  I would also be happy to respond to any questions you may have on this topic.

If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on (03) 9613 6555

Money from the family

Hello everyone

At the end of a relationship the Family Law Act sets out the factors that the Family Court needs to  take into account when dividing property and financial resources, as well as providing for maintenance of the parties to a relationship after separation.

Broadly speaking, after the assets, liabilities and financial resources of the relationship have been identified the Court will then assess the respective contributions, financial and otherwise that each party has made to those assets, liabilities and financial resources. The Court will thereafter examine the parties' current and future needs in determining how the assets, liabilities and financial resources are to be apportioned.

In most cases one of the parties has received some "help" from their family either by way of inheritance, gift or loan.

An inheritance is usually easy to identify as it will be recorded in the estate records. How it is dealt with will usually depend on when it was received, how it was applied and its quantum.

A loan that has been documented is usually the easiest to deal with, thus if the parents have lent money to one or both of the parties and have made it clear in writing they expect to be paid back, with interest, that loan will usually be taken into account like all other liabilities to third parties and paid back in full.

Problems often arise when one or both sets of parents give their child and their child's partner some money by way of gift, but when the relationship is over they want the money back.  Gifts will be taken into account as a contribution but unless documented as repayable they are unlikely to be paid back in full if at all.

A gift is just that, and the fact that you now do not like the spouse of your child does not mean that you can recall the gift. 

If you want money from your family to be exempt from the assets and liabilities available for division the best way to ensure that this will happen is to enter into a loan agreement or if the money is a gift or inheritance sign a Binding Financial Agreement to exclude money from family from the matrimonial pool.

As always please feel free to comment on this or any other of my blogs.  I would also be happy to respond to any questions you may have on this topic.

If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on (03) 9613 6555

Private school fees after seperation

Hello everyone

I seem to have had a lot of matters recently where the biggest issue in dispute is the payment of private school fees.

Most parents choose to send their children to private schools if at all possible, but the financial pressure put on families if they do so is enormous. Unfortunately that financial strain can often lead to other arguments and sometimes to the breakdown of the relationship.

When parties separate they have to divide all they have between them.  Their combined income that had been used to fund one household and one mortgage now has to run two households and two mortgages.

Parents who had been struggling to pay private school fees when together generally find it almost impossible to pay those fees after they separate.

It is not that the parents don't want to pay and don't want the children to stay at the private school but sometimes it is simply impossible to sustain what could be regarded by some as a luxury.

It is important not to commit to paying ongoing school fees if you can’t afford to do so. It is equally important not to agree to divide property on the basis that each parent will pay half of the education costs when you suspect that it is likely that a year down the track the other party will renege and you will either have to pay everything or spend more money going back to argue about it.

Some people agree to put part of the money they are entitled to into a trust to cover school fees.  This can save arguments down the track and ensure a private education for the children, but a parent shouldn't agree to set up a trust fund if that means that they will not have enough money to rehouse themselves and the children.  In my experience it is unlikely a court would force a person to give up their property settlement entitlements to contribute to an education fund.

I have seen a few cases this year when the children have had to be pulled out of private school.  Although no doubt somewhat traumatic at the time, the child will be more likely to handle the change in schools if it is a joint decision of both of their parents based on financial reality and not as a result of one parent having unrealistic expectations about the payment of fees and losing the argument in an expensive court hearing.

As always please feel free to comment on this or any other of my blogs.  I would also be happy to respond to any questions you may have on this topic.

If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on (03) 9613 6555

Child Support Obligations

Hello everyone

I have had a number of clients lately who have been struggling to pay all the costs associated with their children, but who are not receiving any child support.

There is a lot of incorrect "information" about the obligations of both parents to pay child support.  Some people seem to think it is "unfair" to claim money from their former spouse, even though they are covering most of the children's costs. 

Often people mistakenly link the concept of who should "pay" for the children with who is "guilty" or who decided to leave and end the relationship.

There is also a false believe among many that if the children have the same amount of time with both parents then no child support is payable by either parent.

And finally another common misconception is that the person who was the primary income earner during the relationship should pay for everything, despite how often the children are in their care, or the income of the other party.

None of these scenarios are correct.

Child support is assessed by the Child Support Agency, based on the income of both parties, the number of nights the children spend in each parent's care and the age of the children.

Everyone should obtain a child support assessment so they know the obligation of each spouse even if they agree to pay more or less than what the assessment states.

Parents are able to agree with respect to the amount they receive, or if school fees for example are paid instead of cash. 

But whatever the situation that each family finds itself in, both parents must contribute to the costs of children after they separate.  The payments are for the benefit of the children not the  former spouse and a failure to pay child support can never be in the best interests of the children.

As always please feel free to comment on this or any other of my blogs.  I would also be happy to respond to any questions you may have on this topic.

If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on (03) 9613 6555

What is parental responsibility?

Hello everyone

When a marriage ends and parents are making arrangements for children everyone knows or thinks they know what "custody" is.

In Australia we have not used the word "custody" for many years when making orders or agreements about children.  These days we use "reside with" or "live with" but the effect is the same.  The parent with whom a child lives is the parent with whom they spend most of their time.

Children's orders usually have an order for "parental responsibility" and I am often asked what this means.

Section 61B of the Family Law Act defines "parental responsibility" as all the duties, powers, responsibilities and authority which by law parents have in relation to children.  I usually explain that "parental responsibility" means decisions about the big things in a child's life such as education, health and religion.

The parent with whom the child lives or spends time with has the right to make decisions about what the child does during that time for example what they eat, who they see, what they do etc etc.

Parental responsibility is bigger than those day to day decisions.  Both parents should be involved in deciding where their child goes to school and if and when non-emergency medical treatment is required. 

Often parents want "sole parental responsibility" that is they want an order which means they get to make all the decisions about the child without any input from the other parent.  In most cases this is not fair or in the child's best interests, and it is for this reason that the Family Law Act has a presumption of equal shared parental responsibility, a presumption that is only set aside if one party has engaged in family violence, has abused the child or is completely absent from the life of the child.

All too often parents agree to an order for "sole parental responsibility" because they do not know what it means or what they are giving up.  In my opinion it is important that the presumption of equal shared parental responsibility is maintained and that there is input from both parents in the major decisions affecting the lives of their children.

As always please feel free to comment on this or any other of my blogs.  I would also be happy to respond to any questions you may have on this topic.

If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on (03) 9613 6555

What's in a name?

Hello everyone

Often I am asked by people "do I have to change my name".  The question is asked both before couples get married and when they separate and divorce.

The answer is simple.  Women who marry have the choice.  They can use their maiden name.  They can use their married name.  They can use both names (for example one professionally and one socially) or they can combine/hyphen the two.

When women separate, they do not have to go back to their maiden name.  Once again they can choose.  If women remarry they can continue to use the name of their first husband rather than their second husband, and many women do this if they have children to their first marriage.

I have been asked by male clients if they can insist that their former wives change their names at the end of the marriage.  Unfortunately they cannot.  It remains the choice of the wife.

For a married woman to change her name she simply needs a copy of her marriage certificate.  She does not have to formally register her new name.

If you do not marry you cannot just assume the name of your de facto.  If you want to use your de facto's surname you will have to make an application to Births Deaths and Marriages to change your name.

It is far more difficult to change the surname of a child.  If both parents' names are on a child's birth certificate then both must agree to the name change. A child's name cannot be change unilaterally.  It can't be hyphenated after it is registered unless both parents agree.  If both parents do not agree, notwithstanding that one parent has no role in the life of the child in question, then to change the name you will need to obtain an order of the court.

As always please feel free to comment on this or any other of my blogs.  I would also be happy to respond to any questions you may have on this topic.

If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on (03) 9613 6555