Frequently Asked Questions
While de facto couples have the same rights as married couples, the processes for ending a marriage and a de facto relationship are a little different. The rules are the same for same-sex and heterosexual relationships – whether they are marriages or de-facto.
To apply for a divorce you have to have been separated from your partner for at least 12 months. However, it is generally a good idea to seek legal advice – or to take legal action – prior to this period. It’s often a good idea to speak to someone who knows how the process works, what you or your spouse need to do, and what the likely outcome will be.
There are several legal processes that can occur separately to the divorce, and we can help you figure out what services you will need depending on your circumstances. Some of the processes that you might need to consider are:
- the division of property
- spousal maintenance – where one (former) partner provides ongoing financial support for the other
- parenting and child support arrangements if children are involved
While de facto couples don’t necessarily need to make any formal legal applications to declare their relationship finished, they are still entitled to the same rights as married couples as far as property, spousal maintenance, parenting arrangements and child support are concerned.
Assets considered in a property settlement include property (your home and any investment properties), businesses or business interests, superannuation, investments, shares, motor vehicles, jewellery and artworks. Financial resources (things that have a future financial benefit or the ability to generate income in the future) such as long service leave, a future pension entitlement, or an anticipated inheritance can also be included.
Obviously finding a fair way to allocate all these different things can be a complex process, and in some cases your spouse may even be trying to hide knowledge of assets from you. We have forensic accountants and valuers with experience calculating the total worth of assets and determining fair ways to divide them.
The legal process for determining the splitting of assets considers many factors, including:
- the financial contributions of both parties before, during and after the relationship
- the domestic contributions of both parties
- the future needs of both parties
- the needs of any children, and how that will affect each parent’s needs
- what is fair in the circumstances
When separating from a partner you have children with you do not necessarily have to go to court but it’s usually a good idea to make some sort of formal agreement, including getting advice from a lawyer.
A parenting agreement can include decisions about:
- where the children will live
- how often they will see each parent and how long they will spend with them
- how important or long-term decisions are made, such as where the children will go to school
- what will happen on special days like birthdays and holidays
- how much time children will spend with other people, for example their grandparents
There are several ways you can make parenting arrangements if you can reach some sort of agreement directly with your partner, or by each party’s solicitors negotiating on their behalf. These include:
- an informal verbal or written agreement with the other parent – this is not an agreement made in court, and it is not enforceable by a court if either party changes their mind, moves or breaks the agreement. This is usually only a short-term option.
- a parenting plan – an agreement reached by both parents, usually with the assistance of a third party (which could be a lawyer, mediator or family counsellor). A parenting plan is not enforceable by a court, but it will be used as a reference should a court case occur later on, so it’s important to get right.
- a consent order (or parenting order) – a formal document lodged in a court that outlines each party’s responsibilities. Consent orders can be made without physically appearing in court, but are legally binding.
If you and your partner can’t reach an agreement you may have to go to court, where court orders will be made that are legally enforceable. While it’s important for you and your partner to reach an agreement, the most important factor is what is best for the children – a court will always base its decision on what is best for the children. What children want is not necessarily the same as what is best for them, and while a court will take what they want into consideration how much weight they give a child’s opinion will depend on their age, and several other factors.
Spousal maintenance and child support are separate payments, and eligibility is worked out separately. Spousal maintenance is for a spouse; child support is for children. Both are separate and additional to your property rights.
Child support is usually calculated by the Department of Human Services using complex formulae that assess how much time children spend with each parent, and how much each parent earns. However parents can choose to opt out of the government system and establish their own child support agreement. You should generally seek legal advice before signing an agreement, and in some cases you are legally required to receive independent legal advice before signing one.
Child support may continue past the age of 18 in some circumstances, such as the child still being at school, being at university or if he/she has a disability. In some states this is referred to as child maintenance, but in NSW it is still known as child support.
Spousal maintenance is less definite, and there are many variables that can affect if it is awarded, how much is paid, and for how long it is paid. People from both de-facto and married relationships are eligible. Divorcees must apply within 12 months of divorce, and partners who separate from a de-facto relationship must apply within 2 years of separation. Factors that are considered for spousal maintenance include your age, income, ability to work and whether your ability to work has been affected by your relationship.
Binding Financial Agreements (BFAs, sometimes known as ‘prenups’ when arranged before a marriage) can actually be entered into before, during or after a relationship. They are a way of organising what both parties think should happen in the case of a relationship break down. If one or both parties have significant assets (see our brochure for clarification) a BFA is usually recommended, it can be a way to decide what will happen to those assets if a separation were to occur.
BFAs are certainly a useful tool. They can potentially save huge courts costs, as well as the emotional strain of negotiating during difficult times.
It depends on what is involved. No two families are the same and every family has different circumstances.
At CLW we will provide you with an estimate of our fees at your first consultation once we understand your particular circumstances. If necessary, we will provide regular updated estimates as we become aware of your facts, the other party’s allegations or demands, and the court’s specific rulings in your case.
In any family law matter there are many variables to consider, and no two cases are the same. As with the cost, we will be able to provide a more accurate estimate of how long your case might take once we have spoken to you and know your circumstances. It’s important to note that in instances of family violence or abuse, where your safety or your children’s safety might be in danger there are options available to make applications to the courts very quickly.