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Your Family Law FAQs Answered

17th Feb 2022 Family Law
Family law is an incredibly sensitive and complex matter which is why it comes as no surprise that we are often inundated with numerous questions on the topic. In today’s summary, we look at the answers to some of our top family law FAQs. If you have a burning question in mind, keep on reading to find out more.

Q: What is the difference between separation and divorce?

This is one of the most common questions we get asked on a daily basis. Simply put, under Australian family law, separation is the act of ending a marriage or de facto relationship. Separation can be initiated by one or both spouses and occurs when both parties no longer live with one another. It is also possible to be separated under one roof, subject to certain criteria. Unlike divorce, there is no requirement to register a separation. Divorce is the formal legal ending of a marriage and often follows on from a separation. In order to obtain a divorce, a couple is required to have been separated for a minimum of 12 months prior to proceedings and will have to prove that the marriage has ‘irretrievably broken down. It is important to note that separated couples do not have to divorce, but it is imperative that you consult a family lawyer to understand the legal implications of remaining married.

Q: What is a de-facto relationship?

A de facto relationship is when you and your partner have a relationship and live together on a genuine domestic basis as a couple but are not married. This definition is the same across Queensland, New South Wales, Victoria, Northern Territory, South Australia, Western Australia, Tasmania, and the Australian Capital Territory.

Q: Do all family matters have to go to court?

According to statistics, up to 85% of family matters are resolved without having to go to court and with the help of mediation. Of the remaining 15%, only 2% of applications filed with the court proceed to a final determination by a Judge. The remaining 13% of cases are settled after the case has been filed in court but before the handing down of a final judgment.

Q: How is the custody of children determined?

If you and your ex-spouse do not have any disagreements about child custody, there is no need for a court to be involved and you can create a parenting plan that suits both parties. However, in cases where parents are unable to come to a mutual agreement regarding child custody, the court will determine what is in the child’s best interests by giving weight to certain considerations. As this is a highly sensitive matter, we always recommend getting in touch with one of our expert family lawyers for advice on how to proceed with your individual case.

Q: What is child support/maintenance?

Child support is financial support for children under the age of 18 whereas child maintenance is financial support for adult children over the age of 18. When a court orders child maintenance to be paid, it is usually because they have found that financial support is necessary for the adult child to complete their schooling, or due to a disability or illness which requires care.

Q: How is spousal maintenance calculated?

Many divorces require spousal maintenance to be paid from one partner to the other. The amount required to be paid is highly dependent on individual circumstances, but generally speaking, the Courts will consider several factors in determining what the spousal maintenance figure will be. These factors include:
  • Resources of and assets of both parties, including any property and their income;
  • Earning capacity or potential of each individual
  • Whether one party is the primary carer for a child
  • Duration of the relationship
  • If the relationship has affected either parties’ ability for earning
  • Other obligations of either party to support others
  • Any pre-existing financial agreements made between the parties

Q: What is property settlement in family law?

A property settlement is an arrangement made between parties to divide assets, liabilities and financial resources when a couple separates or divorces. A property settlement can be made with or without the court’s assistance. If the two parties cannot reach an agreement outside of court, they can apply to have a court make an order on their behalf.

Q: Do I really need a lawyer?

When you are faced with tough situations such as separation, divorce or child custody, one of the key decisions you need to make is whether you require the assistance of a family lawyer. Some families are able to find their way through their legal issues without legal advice, whilst others can’t. At the end of the day it depends on how difficult your situation is and what is at stake. If you answer ‘yes’ to a majority of the questions below, you are more or likely to benefit from legal advice:
  • Are there any children involved?
  • Has your partner hired a lawyer?
  • Is domestic violence an issue?
  • Do you feel overwhelmed to handle the negotiations yourself?
  • Is there likely to be a disagreement over the dividing of the property or assets?
  • Is your partner likely to want to move away with any children involved?
—--------------- If you decide that you require assistance from a family lawyer, do not hesitate to contact us at (03) 9670 7577.