When you are faced with family breakdown, divorce, or another family law problem, one of the decisions you need to make is whether you need a lawyer. Some families find their way through their legal issues without legal advice or representation. It really depends on how difficult your situation is and what is at stake.

If you answer ‘yes’ to any of the questions below, you are more or likely to benefit from legal advice:

• Are there children involved?
• Are you unsure of what you are entitled to?
• Has your partner hired a lawyer?
• Is violence an issue or a possible issue?
• Do you feel emotionally unprepared 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 interstate, overseas or far away with your children?
• Are you transferring assets between yourselves and require assistance in obtaining an exception from the payment of stamp duty or tax?

Statistics show that approximately 85% of family law disputes are resolved without the court being required to make a decision. In other words, parties have agreed on an outcome and have only used the court to formalise that agreement or have decided that they do not require the agreement to be formalised at all. Further, of the applications that are filed with the court for determination only approximately 2% actually proceed to a final determination by a Judge or Federal Magistrate. The remaining 13% of cases are settled after the case has been filed in court but before the handing down of a final judgment.

Divorce is the legal ending of a marriage.

The decision made by a party to a relationship to end the relations and then the communicating of that decision to the other party. For a Divorce to be granted, there must have been an irretrievable breakdown of the marriage and the parties must have been separated for at least 12 months immediately prior to the Divorce Application being made.

A de facto relationship is defined as a genuine domestic relationship with another partner for a period of at least two years. The Family Court Act gives legal rights to those in de facto relationships including disputes regarding children and property settlements.

A Divorce does not deal with issues relating to property and children’s matters, so it is necessary for Applications for property settlement and/or spousal maintenance to be made within 12 months of obtaining your Divorce. A lawyer can help you with this.

The amount of time children spends with each of their parents will depend upon a number of factors, including the age of the children, the living arrangements of each of the parents and the attitude of the parents to each other and to the children. If you and your partner or spouse have shared parental responsibility for the children, then the Court will consider whether there should be a shared care agreement. If that is not in the best interests of the children, or is not reasonably practicable for any reason, the Court will consider the children spending time with the other parent and the terms on which that should take place.

A lawyer can assist you and provide you with advice as to the factors to be taken into account in your individual circumstances.

Following a separation, Section 79 of the Family Law Act 1975 asks a few questions in order to determine the division of assets.

1. Determine the net assets, including liabilities and superannuation of the parties.
2. Look at the financial contributions of each party to the married or de-facto relationship.

   Financial contributions include wages and lotto winnings.

   Parental contributions are the duties performed by the parents including raising the children, dropping them off to school and helping with their homework.

   Homemaker contributions are the domestic duties performed in the relationship, for example, cooking dinner. The quality of the homemaker contribution is irrelevant to the court.

   Non-financial contributions are contributions that have resulted in the increased size of the net asset pool. An example would be renovations to a house.

3. The party’s future needs, including any health issues and the ability to earn money.
4. The overall outcome is just and equitable. The court will look to see if the proposed settlement is fair and takes into account the contributions made by both parties and their current and future needs.

A Divorce does not deal with issues relating to property and children’s matters, so it is necessary for Applications for property settlement and/or spousal maintenance to be made within 12 months of obtaining your Divorce. A lawyer can help you with this.

A property settlement after separation does come with some time limits. A married couple must apply for a property settlement within 12 months of a divorce finalisation, whereas a de-facto couple must apply within two years of separation.

Couples who fail to commence property settlement proceedings within these time limits may lose their ability to apply to the court. However, it is possible to seek the court’s permission to apply for a property settlement “out of time”. This is not guaranteed and can be quite costly.

If both parties have reached an agreement, the best way to finalise and formalise a property settlement after separation is through Consent Orders. A consent order is a written agreement that is approved by a court. In property matters, the Court must be satisfied that the settlement is just and equitable.

Another option to formalise a property settlement is through a binding financial agreement. This agreement does not require the court’s approval, however, it does require legal advice, preferably from an independent law firm, prior to execution.

The Family Law Act hasn’t (yet) distinguished pets from property, and will consider pets in the same way they might consider the family car:

• Who purchased the pet?
• Who cares for it?
• Who feeds it?
• Who pays for the insurance?
• Whose name is it registered in?

All of these factors help determine the overall ‘ownership’ of the item of property in question, and will ultimately help you decide if keeping the pet independently is something you can commit to either jointly, solo, or not at all.