Phone: +61 2 9267 7311
Interviews by arrangement at:
We are experts in divorce, property settlement and children's cases. Interviews can be arranged at our Sydney, Chatswood, Hornsby or Mosman offices.
Areas of expertise include:
Marriage and de-facto relationships (including same sex relationships)
Separation / divorce Intervention orders
Child support and maintenance
Termination of parental rights Paternity
Dependency and child neglect
Protection from abuse
Property settlements (division of assets and liabilities due to divorce/separation)
Financial agreements (pre-nuptial agreements)
Counselling can help couples and children come to terms with changes during the breakup of a relationship. The Court can order your and your spouse to see a family counsellor to attempt to resolve differences about the care, welfare and development of your children.
Grounds for Divorce
In Australia the Family Law Act operates on a "no fault" basis, meaning there is no need to show that either party is at fault before a divorce can be granted. The only thing that needs to be shown is irretrievable breakdown of the marriage (i.e. there is no hope of a reconciliation).
Before applying for divorce a husband and wife must have been separated and living apart for at least 12 months. In some circumstances it is possible to live separately and apart under one roof but it is best to talk this over with your solicitor to assess whether such circumstances apply.
How do I file for divorce?
Once an application for divorce is made it is served on your spouse. A hearing date is set by the Court and you must attend if there are any children of the marriage under 18 years of age. If the Court is satisfied that adequate arrangements have been made for the welfare of the children, including housing, education, contact and financial support, then a divorce will be granted. If satisfied the Court will grant a Decree Nisi of the marriage. This is a preliminary order which will automatically become final one month and one day later. Once this date has passed you are free to remarry.
Divorce and your Will
Divorce can have important ramifications on Wills. We can advise you about preparing a new Will that recognises the change in your circumstances.
You do not need to be divorced before drafting your Will.
It is important to provide for care of your children. You do not need to be divorced before finalising arrangements about either care of your children or the financial aspects of separation.
We can help you with the negotiation of a financial settlement or in commencing Court proceedings to protect your rights and those of your children. It is important to remember that there is a one (1) year time limit from the date your divorce becomes final in which to commence proceedings for property settlement or spouse maintenance.
Can I apply for Divorce if I live Overseas?
We regularly act for ex-patriate Australian or foreign nationals who were married in Australia, and advise them on how to apply for divorce in Australia. Most instructions can be taken by email or telephone and we can email documents to clients overseas to sign.
Under the Family Law Act, a person has a responsibility to financially assist their spouse, that is their husband or wife, if that person cannot meet their own reasonable expenses from their own income or assets. Where the need exists, both spouses have an equal duty to support and maintain each other as far as they can. This obligation can continue even after separation and divorce. The extent of the support depends on what the other spouse can afford to pay. Spousal maintenance is not automatic. In deciding a maintenance application, a Court considers the needs of an applicant and the respondent's capacity to pay. A Court considers the following about both of you:
your age and health
your income, property, and financial resources
your ability to work
what is a suitable standard of living,
if the marriage has affected your ability to earn an income.
A Court also takes into account with whom the children (under 18 years of age or adult children who are disabled) live.
What if you start a new relationship?
You are not entitled to spouse maintenance if you remarry and if you start a new de facto relationship the Court will have regard to the financial relationship between you and your de facto when considering whether you are able to support yourself adequately.
Is there a time limit for applications for spousal maintenance?
Applications for spousal maintenance must be made within 12 months of your divorce becoming final. If you do not apply within this time, you will need special permission of a Court. This is not always granted.
Living arrangements and decision making
The Court can make orders about living arrangements for children and the amount of time they spend with each parent. Parents usually share responsibility for issues such as:
The child's education;
Religious and cultural upbringing;
The child's name.
Once the Court makes an Order, breaking the Order is known as a 'contravention' of the Order. Certain penalties can apply in the event one party is held to have contravened a court order.
If one parent wishes to relocate with the child, an application can be made for permission to relocate, or to stop the relocation from taking place. Again, the best interest of the child is the paramount consideration.
Grandparents and Grandchildren
The Family Law Act recognises that children have the right to spend time with people who are significant to their care, welfare and development which includes grandparents and other relatives. This includes face to face contact, telephone contact and correspondence such as letters and emails.
Location and Recovery
If you do not know your child's whereabouts an application can be made to locate the child's whereabouts. When deciding whether to make this order the Court considers the child's best interests. The Court also has the power to make a recovery order which requires the return of the child.
Orders for a property settlement can be done at any time following separation. However once your divorce has become finalised, you have just 12 months in which to make an Application to a Court for a property settlement. We like to think of Court proceedings as a last resort. We endeavour to assist our clients to find ways that they can negotiate a settlement with their former partners. It is only in the event that settlement negotiations are not feasible or if such negotiations break down or are exhausted that we look to the Courts for a remedy. The assessment undertaken in dividing the assets of a relationship is basically a three step process:
Ascertain the net asset pool. All assets are taken into account at this stage, whether they are acquired before or during the marriage, or after the parties separate. This doesn't necessarily mean all of the assets of the relationship will be divided between the parties. It just means that all assets are given consideration. The definition of "property" is very wide. "Property" includes assets of either or both of the parties such as real estate, shares, cars, jewellery, savings, and furniture. Superannuation is treated differently although generally speaking orders can be obtained for superannuation entitlements to be divided.
Contributions to the net asset pool. The next step undertaken by the Court is to assess each party's contributions to the marriage whether financial or non financial. The assessment includes a determination of contributions made by each party as a home maker or parent. Initial contributions such as those you bring into a relationship can be relevant as are gifts and inheritances and other more unusual assets that might be received by one party to the marriage during the course of the relationship.
Future needs. The third step that the Court undertakes is to assess the future needs of each party. The Court takes into account a wide range of factors including:- age, health, income, earning capacity, the property of each party, whether one party has the care of children, and the financial circumstances arising out of any new relationships. If it is considered appropriate, a Court can make an adjustment to the outcome of Step 2 after having given considerations to these types of factors.
Goldrick Farrell Mullan is sensitive to relationship problems such as domestic violence in relation to divorce and child custody. The court can help by adjusting its standard procedures to ensure your safety throughout the course of your family law proceedings. Your solicitor at Goldrick Farrell Mullan can help ensure your domestic violence issues are handled with the greatest of care.
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