FAQs

Yes. After an initial consultation, I can advise you of the percentage of the matrimonial asset pool you would likely be entitled to. The Family Law Act 1975 sets out the general principles the court considers when deciding financial disputes after the breakdown of a marriage (Sections 79(4) and 75(2)) or a defacto relationship (Sections 90SM(4) and 90SF(3)). Whether there be a marriage or defacto relationship, the general principles are as follows:

• your assets and liabilities
• the direct financial contributions by each party to the relationship such as wage and salary earnings
• the indirect financial contributions by each party such as gifts and inheritances from families
• the non-financial contributions to the relationship such as caring for children and homemaking, and
• the future needs of each party such as age, health, financial resources, care of children and ability to earn.

If you are unable to agree on parenting arrangements you may commence court proceedings by filing an Initiating Application, however, before you can apply to the court for parenting orders, you will need to participate in Family Dispute Resolution (FDR).

Resolving issues through FDR is less formal than going to court and will be more cost-effective and save time as both parties are involved with shaping a solution. If there is a history of family violence or child abuse, it may not be appropriate to attend FDR.

Should FDR prove unfruitful, parenting orders can be filed. A parenting order may deal with one or more of the following:

• who the child/ren will live with
• how much time the child/ren will spend with each parent and with other people, such as grandparents
• the allocation of parental responsibility
• how the child/ren will communicate with a parent they do not live with, or other people, and
• any aspect of the care, welfare or development of the child/ren.

There are two options for settling property matters; Consent Orders or Binding Financial Agreements. Both documents formalise how assets are to be divided in the event of separation or divorce.

Consent Orders are required to be filed with the Federal Circuit and Family Court of Australia, however a Binding Financial Agreement is a contract between you and your partner and there is no third party required to make the agreement enforceable.

In order for a Binding Financial Agreement to be legally binding, both parties must have signed the agreement and received independent legal advice. In the case of Consent Orders however, neither party is required to obtain independent legal advice as the court will not give effect to the orders unless the agreement is just and equitable.

A Binding Financial Agreement is only as sound as the detail contained within the agreement. Courts have a number of grounds under section 90K for married couples and section 90UM for de facto couples under the Family Law Act in which agreements can be set aside. It is therefore important to gain professional legal advice prior to drafting an agreement to ensure that your agreement is reliable and appropriate in your circumstances.

Yes. If you are a party to a marriage or a defacto relationship you must have a formal agreement if you wish to transfer matrimonial property. This can be done through either a Binding Financial Agreement or Consent Orders. If you do not have either of these Revenue NSW will charge you stamp duty for acquiring your partner’s interest in the property.

No. The court has created pre-action procedures that restrain parties from prematurely filing proceedings. Resolving matters by way of negotiation is the most cost-effective way of resolving a dispute. However, if that is not possible, attending mediation or commencing proceedings through the court are also options to resolve matters.