Frequently Asked Questions
Below you will find some of the more commonly asked questions we receive from people. We’ve provided some insights and links to other resources we’ve put together over the years.
Frequently Asked Questions
Common Questions About Family Law Matters
These Q & A’s provide general information however they do not substitute legal advice or opinion. Always seek specialist family law advice, specific to your circumstances.
Finances and Property Settlements
Should we continue to live under the same roof?
If you opt to move out of a property, it may be difficult to get access to the property again. If you only take your personal belongings with you when you leave, then it can be very difficult to get furniture and other household items you need to set yourself up in other accommodation.
So while moving out does not affect your rights to the property in terms of the settlement, on a practical level it can be difficult to get back into the property.
Where there are issues with domestic and family violence, your personal safety should be a priority in which case leaving is likely to be the best course of action.
It is possible for a couple to be separated but to continue living in the same home during the twelve months, which is known as ‘separation under the one roof’. If a couple is separated under the one roof, they will need to prove to the Court that they were actually separated during this time.
Read more about moving out of the family home and common mistakes people make when separating.
Should we still have access to each other’s accounts?
As family lawyers, one of the first pieces of advice we provide to our clients, if they are considering separation from their spouse or partner, or have already taken the leap, is to change access and specific passwords.
It is common these days for couples to be sharing accounts and passwords, and, even if the separation is thought to be amicable, it is always advisable that passwords are changed in order to avoid potential reviewing of confidential data.
- Your computer access password or PIN
- Phone and tablet PINs
- Your online banking login details
- Email account passwords
- We have written an in-depth guide that covers all of the access and security considerations that anyone separating should read. You can find it here.
When you do this, ensure you don’t change the password to a simple or duplicate password or anything else you’ve used previously. Remember that even the most amicable of separations can and do turn sour, so doing this early on protects you for the longer term.
What will happen to any business and its assets when it is time to separate our finances?
Regardless of whether one or both of you have business interests and regardless of whether one or both of you are involved in the same business, you will need to disclose all financial information as part of the property division process.
A valuation of any business interests is required and business interests will be considered when calculating the overall asset pool.
This means that potentially a business may be up for division. There may be ways around it though.
Should we wait to finalise our property settlement?
While some people might wonder ‘Why would someone want to start this process so soon? Isn’t that ‘too quick’ or insensitive?’
It’s important to remember that the decisions that you and your former partner make and put in place informally now may be detrimental to you, those you care for, as well as the impact on businesses, in the short and longer term.
Even people with the very best of intentions for each other can have the whole experience evolve differently to what they intended, through no intentional fault of either party. What you don’t want to occur can become reality as we have seen for so many people who have waited too long to seek professional advice, or done so far too late in the piece.
Rather than looking at it as insensitive or ‘too quick’, look at seeking professional advice about information gathering to allow you to make better decisions. You may not immediately act on the advice or tell your former partner but it will assist you to make decisions.
Read more about financial risks when delaying a property settlement
How is a property settlement worked out?
Figuring out who gets what in a divorce settlement is rarely as black and white as splitting everything down the middle. Being informed about the process and objectives of a property settlement can help manage expectations from the start and minimise disputes and uncertainties.
Unlike a divorce application, property settlements can commence (and be finalised) at any point after separation. Delaying a settlement until after your Divorce Order application will not only cost you time, but may throw additional curveballs into negotiations (for example, one spouse may have received an inheritance during the separation period).
Read more about the property settlement process
What makes the property settlement process easier?
Typically there are a number of Do’s and Don’ts when financially separating. One ‘Do’ is, before making decisions about how your finances and assets will be managed, getting advice from an accountant. This is important, particularly if you or your former partner have interests in trusts and companies.
Often people make decisions that may trigger tax implications that are only realised later on. This may mean they have to go back to renegotiate which often creates tension and disputes. Seeking tax advice, financial planning and estate planning advice, in conjunction with the advice of a specialist family lawyer, is an incredibly beneficial place to start, before you commence any negotiations about who gets what.
Separating in retirement: Will I be financially secure?
A retirement plan is typically set up to provide sufficient income for two in the fashion in which they have become accustomed to – but it’s not enough to sustain them if they are separated and running two households. When separating or divorcing, suddenly both people often have to considerably cut their costs.
So many times people come to us having already made decisions that they are unaware are in fact, to their detriment. Often that includes leaving the family home because they feel it’s the right thing to do or, the thought of staying in the matrimonial home feels too distressing.
For some, they seek advice looking to determine if a separation is financially feasible for them. That is, to determine if they can both live the lifestyle they had before, but separately. For others, it’s about getting advice really early in the piece so they can get a picture of what their future life will look like.
How do I choose the right family lawyer for my separation?
Before you start the process, it is incredibly important that you understand yourself and what you need from your lawyer.
Consider whether you are a detail-oriented person. Are you going to want to know all the mechanics, the plan, and the steps involved in executing the plan? Or, are you a “big picture” person and engaging your lawyer to fix the problem for you, and don’t need to know all the steps involved in how your lawyer will go about executing it?
Ideally, the relationship between you and your lawyer should be a short-lived one, because your matter is resolved amicably, quickly, and cost-effectively. However, you should bear in mind that there is always a chance you could end up in a three-year relationship with your family lawyer. Which, in some cases, could be longer than the relationship with your ex-partner. It is important that you feel comfortable with your family lawyer and that they understand your goals and needs. This will set you up for success when navigating your separation together.
Children and Parenting Arrangements
How should we tell our children we are separating?
In general, there is no easy way to break the news to your children that you are separating but there are things you can do to try and make the children cope better with the news. It is very important to try and leave your feelings, whether they are guilt, anger or blame, out of any discussion that you have with your child. It is also important to ensure that whatever is communicated is suitable for the child’s age, maturity and individual personality.
Research suggests that it is helpful to reinforce that the separation is not the child’s fault and you should look to give them reassurance that their parents love them and will be involved in their lives.
Where appropriate, you may wish to give your children information if there is going to be a change to their living arrangements or their daily routine, if that has been agreed or determined. Older children may be more likely to have sensed that changes are afoot and the news may not come as a surprise, but positive reinforcement is still likely to be beneficial.
What are your recommendations for positive communications as co parents?
If you and your former spouse or partner are not communicating well, or there is a tendency for conversations to escalate, we recommend initially avoiding telephone or face-to-face contact if you can. When you are having challenges in your communications, face-to face-discussions and telephone calls can easily spiral and such forms of communication are unpredictable and often off-the-record. Then, often, the damage is almost always done. If you find yourself in situations where things can become heated or challenging, you may be unable to recover from anything you might say (that may harm your case) and there are often additional costs involved as lawyers need to be involved to help in recovering from these issues.
For parenting matters, it is obviously more complicated because you will need to communicate more urgently or frequently about matters relating to your children. Whilst direct contact is best and shows a commitment to positive co-parenting, where appropriate, as you co-parent your children, if you are facing toxic communication, it is best to primarily communicate by email and or text message – even if only for a short period of time to minimise potential risks to yourself and your children.
Read more about avoiding toxic communication during separation
Do mothers have more legal rights than fathers?
There is a notion that Courts have a preference for mothers and uphold a mother’s legal rights over a father’s legal rights to see their children. This simply isn’t true.
A child’s legal rights to see their father are equal to any child’s legal rights to see their mother. There is no part in the Family Law Act that says a mother has more rights than the father. The Act talks about the child’s best interests and that the child has a right to having a meaningful relationship with both parents.
Read more about parenting arrangements and the law
Read more about what the law says about the best interests of the child
Can I relocate with my child/ren after separation?
A desire to move may be triggered by an employment opportunity or perhaps in an effort to be closer to family members for support. However, if you are the parent who wants to relocate, you may need to get the other parent’s consent before you move if it will impact the time spent with each parent and the overall workability of existing parenting arrangements.
In Australia the law takes into account numerous factors where the relocation of children is considered, both domestically and internationally.
Can I travel overseas with my children without the other parent’s permission?
As family lawyers, it is common that we help parents draft the terms of their parenting arrangements, including specific arrangements regarding overseas travel with children. Typically, there are clear parameters in the agreement about the parent’s ability to travel with their children overseas, including what information the travelling parent will need to provide to the non-travelling parent prior to the date of departure.
Read more about international travel with children when separated
How does child support work?
When a separating couple is looking to determine who will contribute funds for what for their children now and into the future, there are four main ways in which that can happen. People either:
- Apply for a child support assessment
- Enter into a Binding Child Support Agreement;
- Enter into a Limited Child Support Agreement; or
- Apply to the Court for Child Support Departure Orders.
Read more about each of these child support options & how they work
Should we get a binding child support agreement?
More often than not, one parent will be required to pay the other parent child support. While this amount can be determined by a specific calculation, in some instances a separating couple may instead choose to opt for a binding child support agreement. That is, a detailed formal document that both parties agree to.
Read more about the advantages & disadvantages of binding child support agreements
Separation and Divorce
In our work as family lawyers, we see a number of common mistakes that people make when separating. If you are considering separation, the best way to avoid these mistakes is to get legal advice early so that you can plan your separation and make informed decisions along the way. Some common mistakes to be aware of include:
- Moving out of the family home without understanding the implications
- Losing access to funds
- Denying access to children
- Actions that escalate
For example, if you opt to move out of the property, it may be difficult to get access to the property again. If you only take your personal belongings with you when you leave, then it can be very difficult to get furniture and other household items you need to set yourself up in other accommodation.
So while moving out does not affect your rights to the property in terms of the settlement, on a practical level it can be difficult to get back into the property.
Where there are issues with domestic and family violence, your personal safety should be a priority in which case leaving is likely to be the best course of action.
Every situation is unique and it is important to get legal advice that is specific to you before you take steps in your separation.
Read more about common mistakes people make when separating
Read more about moving out of the family home and common mistakes people make when separating.
In our work as family lawyers, we find that people who plan their separation and talk about how they want to separate, are more likely to have an amicable separation. It is important to bear in mind that if one person has initiated the separation, it may take the other person a little longer to get their head around things. Being conscious that you might be at different stages of the process mentally can help avoid issues arising purely out of lack of communication.
The key element to effectively work together to plan your life apart is to always come back to the primary goal – to not lose sight of yourself or your children as you go through the separation and divorce process.
Read more about separating and divorcing well and planning your life apart together
While this might be the case for some relationships, it is not the case for everyone, Family Law is a discretionary area of law and the Court considers a number of factors to determine the percentage split.
These factors include:
- The contributions that each of you brought to the relationship from when you first got together;
- The financial and non-financial contributions that you have each made over the relationship; and
- Future factors. This includes income earning disparity, health issues, age differences, age of the children and parenting arrangements into the future.
These factors are taken into account when the Court considers what percentage of the property pool each party should receive. Each case is different and the outcome is not always going to be 50/50.
While some people hold the belief that the best way to avoid Court is to avoid involving lawyers, that is not the case. Early advice is often what helps people avoid ending up in Court, as well as get to an agreement that is beneficial for them in both the short and long-term.
If you delay in getting specialist family law advice, you miss out on learning what you should know about family law before negotiating any agreement.
When both you and your former spouse or partner seek your own independent legal advice you can both be clearer about why the terms of an agreement might need to be reconsidered and reevaluated. This enables you to make informed decisions when negotiating an agreement.
Before you start the process, it is incredibly important that you understand yourself and what you need from your lawyer.
Consider whether you are a detail-oriented person. Are you going to want to know all the mechanics, the plan, and the steps involved in executing the plan? Or, are you a “big picture” person and engaging your lawyer to fix the problem for you, and don’t need to know all the steps involved in how your lawyer will go about executing it?
Ideally, the relationship between you and your lawyer should be a short-lived one, because your matter is resolved amicably, quickly, and cost-effectively. However, you should bear in mind that there is always a chance you could end up in a three-year relationship with your family lawyer. Which, in some cases, could be longer than the relationship with your ex-partner. It is important that you feel comfortable with your family lawyer and that they understand your goals and needs. This will set you up for success when navigating your separation together.
International Family Law
Is it difficult to divorce in Australia if married overseas?
If you were married overseas, are now separated from your spouse and plan to apply for a divorce in Australia, you won’t want to find yourself like so many do, having to delay their divorce because their application hasn’t been prepared properly.
Having to pull together everything you need for the divorce application to be accepted, and fix it or reapply, can result in increased time and costs.
People often come to us seeking our advice and assistance after their application for divorce has been rejected by the Court. Typically it is because there was insufficient detail and documentation. Fixing a rejected application often takes more time and cost than it does to prepare one from scratch.
There are a number of other avoidable issues that anyone applying for a divorce in Australia should consider if married overseas.
Read more about what to know when applying for divorce in Australia
What if we have assets in Australia and other countries?
When people have assets in more than one country, a common risk is to end up having to go through the process of formally dividing their assets, often referred to as a property settlement, twice.
Typically this occurs when people seek legal advice in one country and an agreement is drawn up that is enforceable only in that country (or jurisdiction as it’s known). What can and does happen is that people find themselves having to go through the stress, time delays and costs a second time around in another jurisdiction.
Read more about what to know about international property settlements
If a parent lives outside of Australia, do they need to pay child support?
Receiving or paying for child support is a complicated area due to varying arrangements and policies of different countries. However, if you and your children live in Australia there are laws that will help the ‘receiving parent’ to access child support from the other parent living abroad.
Read more about child support for children living in Australia when a parent lives abroad
Can I relocate with my child/ren after separation?
A desire to move may be triggered by an employment opportunity or perhaps in an effort to be closer to family members for support. However, if you are the parent who wants to relocate, you may need to get the other parent’s consent before you move if it will impact the time spent with each parent and the overall workability of existing parenting arrangements.
In Australia the law takes into account numerous factors where the relocation of children is considered, both domestically and internationally.
Can I travel overseas with my children without the other parent’s permission?
As family lawyers, it is common that we help parents draft the terms of their parenting arrangements, including specific arrangements regarding overseas travel with children. Typically, there are clear parameters in the agreement about the parent’s ability to travel with their children overseas, including what information the travelling parent will need to provide to the non-travelling parent prior to the date of departure.
Read more about international travel with children when separated
Prenuptial Agreements & Financial Agreements
Do prenups / financial agreements stand up in Court?
One of the common challenges to a prenup / financial agreement relates to the requirement that both parties to the agreement receive independent legal advice and that the strict legal requirements required to enter into this type of agreement have been met. You and your partner should seek advice from different lawyers and make sure you have allowed enough time for the terms to be negotiated, reviewed and agreed upon. A specialist family lawyer will ensure that you understand exactly what you are signing and can make an informed decision about whether or not to enter into an agreement.
Read more about the effectiveness of prenups and financial agreements
What else can a prenuptial agreement / financial agreement offer?
An expertly drafted Financial Agreement can be drafted to allow for:
Protection mechanisms for any business interests (to minimise the risk, impact or disruption);
A split of the assets and liabilities than might not be permitted otherwise;
Confidentiality and privacy of the terms of the settlement (unlike matters in Court); and
Flexibility to accommodate a range of scenarios to ensure both people can be certain about what they will walk away from the relationship with.
A Financial Agreement helps people know what they will walk away with but it also can be a tool to protect investments such as businesses. When a Financial Agreement is comprehensive, assets or interests may be able to be quarantined from any future settlement.
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