Frequently Asked Questions
Where separating couples are amicable, they may be able to work out arrangements for parenting and property matters without too much assistance from a lawyer. Peace Talks recommends starting with a case assessment appointment soon after separation to obtain preliminary advice about entitlements and options to resolve matters in a fair and cost-effective manner. This gives clients the information they need to negotiate a settlement. Once agreement is reached, a solicitor will be required to turn the agreement into a legally binding document.
Getting advice early can help you to make informed decisions about how to progress your family law matter to resolution. While family and friends will be very willing to share their thoughts with you, professional and independent legal advice received soon after separation can put you on the right track for an amicable and cost-effective settlement.
Lawyers generally charge an hourly rate so the cost will depend on the time taken to resolve your matter. Peace Talks offers affordable fixed fees. Click button for more
A mediator is an impartial third person who helps people in dispute to have a calm discussion aimed at helping them to see each other’s perspective and, hopefully, to reach agreement. The mediator does not give advice or opinions. Their task is to control the process to ensure both parties have the opportunity to explore the problem and contribute to a mutually acceptable solution. In family law, mediation can be a very effective way of resolving parenting and property matters and thereby avoiding court proceedings. Mediation can be done with lawyers present, or with just the parties and the mediator. Before anyone can file Court proceedings in relation to parenting matters, it is a requirement that they attempt mediation (except in a narrow range of circumstances).
No! Court is the place of last resort as in most cases the financial and emotional costs far outweigh any potential gains. Peace Talks focuses on assisting separating couples to resolve their parenting and property matters quickly and fairly and at minimum cost. Where agreement is reached, Consent Orders can be filed in the Family Court but this does not involve having to attend Court.
A written agreement is advisable for both parenting and property matters. For parenting matters, an informal agreement (known as a Parenting Plan) is usually sufficient, but for property settlement, it is very important to record any agreement in a legally binding document - either Consent Orders or a Binding Financial Agreement. This allows for property to be transferred, superannuation to be split, and also protects against any future claims.
A divorce application cannot be filed until 12 months from the date of separation. Separation is the date on which one of the spouses communicated to the other that they consider the marriage is over. However, it is generally easier to wait until 12 months from the date of physical separation (ie: when you moved out of the house) before applying for divorce. If you are applying for divorce less than 12 months after physical separation, you will need to provide evidence to the Court about the same roof separation.
A property settlement is a final division of assets and liabilities following the end of a marriage or defacto relationship. All assets (including superannuation) and liabilities of both parties, whether held in joint names, sole names or in some other entity such as a company or trust, form the “property pool” to be divided. Where agreement is reached about the property division, the property settlement is finalised by either Consent Orders or a Binding Financial Agreement.
As soon as practical. You do not have to wait for a divorce before finalising a property settlement. It is recommended that a property settlement be negotiated soon after separation, because if an agreement is not reached and one of the parties files court proceedings, the court will divide all assets and liabilities which exist at the time of the court decision (not the assets and liabilities which existed at separation). Court applications for property settlement cannot be filed more than 12 months after the date of divorce, or two years after separation for defacto couples, without the leave of the Court.
The Family Law Act sets out the factors which are considered when determining a “just and equitable” outcome. These include matters such as the initial contributions of each person, the financial and non-financial contributions of each of them during the relationship, and issues which impact on future needs such as health conditions, age, care of children, income-earning capacity and the like. It is important to get legal advice about how these factors apply in your individual circumstances.
Superannuation is included in the property pool when dividing assets after the breakdown of a relationship. Superannuation can be “split”, meaning that a specified amount or percentage can be rolled from one spouse’s account to the other spouse’s account.
There is no legal requirement for parents to have a written agreement about the care arrangements for their children. However, it can help everyone (including the children) to feel more secure about the future and each parent’s ongoing relationship with the children if there is a written agreement. If the agreement is signed and dated by both parents, it is considered a Parenting Plan, which can be shown to schools, daycare centres, Centrelink and the Child Support Agency as evidence of the arrangements which have been agreed by the parents. Many parents find it is helpful to attend mediation as a forum to reach agreement about their children.
When former partners are able to reach agreement about how they should divide their property and/or share their parenting responsibilities, an application can be made to the Family Court to formalise the agreement.
There are several reasons why it is so important to formalise a property settlement. These include: If your settlement involves a property transfer, you will need either a court order or a Binding Financial Agreement to qualify for a stamp duty exemption.
On the average home, the stamp duty saving is greater than the cost of the Application for Consent Orders. If your settlement involves splitting of superannuation, a court order or a Binding Financial Agreement is required to effect the split. If your settlement is not formalised, your former partner can apply to the court at a later date for a property settlement. Generally this entitlement to apply to the court ends 12 months after a divorce for married couples or 2 years after separation for defacto couples. However, there are exceptions which potentially allow a former partner to apply years after separation.
Orders regarding parenting arrangements can also be included on your Application for Consent Orders, saving you the cost of formalising property and parenting in separate documents.
A Binding Financial Agreement is another option for formalising a property settlement.
Like Consent Orders, a Financial Agreement can be used to effect a split of superannuation or a transfer of property on the breakdown of a relationship and will also end both parties’ entitlement to apply to a court for a property settlement.
The key difference between an Application for Consent Orders and a Financial Agreement is that each party to the Agreement must receive independent legal advice from a solicitor. A Financial Agreement can only relate to property matters and cannot be used to formalise parenting arrangements.
Financial Agreements can also be entered into prior to or during a relationship and this type of Agreement is commonly referred to as a “Pre-Nup”. While there has recently been media coverage of high profile cases where such Agreements have been overturned by the Courts, a well-drafted Agreement which complies with the legislation offers peace of mind for couples entering into new relationships.
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As a member of the Queensland Law Society, Family Law Practitioner’s Association & Toowoomba Family Law Pathways Network, Sharyn is able to keep abreast of changes in the family law context.
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