Family Law

                                     Family law includes not just married couples but also,
                            those who live in de-facto relationships and same-sex relationships.


The reality of the traditional nuclear family is evolving into a range of relationships and blended families. The legal rights and responsibilities of couples is a dynamic environment with which the law sometimes struggles to keep pace.
 

Fortunately, a majority of separating couples can come to a consensus when deciding what is to happen to the property and financial matters when the relationship comes to an end. If there are children of the relationship, they can put aside their wants and needs and concentrate on what is in the children's best interests. However, unfortunately, this is not always the case.
 

Alternative Dispute Resolution is by far the best way to deal with family law disputes and litigation; however, given its associated high costs, it should always be considered the option of last resort in the most intractable of cases.
 

Divorce


Since the introduction of the Family Law Act in 1975, there has been only one ground for divorce – irretrievable breakdown of the marriage.
 

At the time, the restructured landmark legislation introduced the concept of "no-fault" divorce; adopted by many jurisdictions around the world. It is self-evident that it only takes one party to the marriage to decide that there is an irretrievable breakdown and therefore applications for a divorce can be filed by one party only.


A pre-requisite to making an application is that the parties must have been separated for at least twelve months, although, subject to strict guidelines, it is possible to have a 'separation under the same roof' so that the divorcing parties can still live in the same residence, but considered 'separated'.
 

If you have been married for under two years when you apply for a divorce, you must be able to show to the Court that there has been an attempt at mediation to avoid divorce.


Applications for divorce are in the jurisdiction of the Federal Circuit Court. When the Court considers an application for a divorce, it will look at three main issues:
 

(1) Has the marriage broken down irretrievably?


(2) Are the needs, care, welfare and development of any children of the marriage who are under the age of 18, adequately addressed?


(3) If the application is filed by one party only, has the other party been adequately served with the requisite documents and within the stipulated time-frame?

Our fixed professional fees for Divorce Applications cover for all work and correspondences; however, it does not include the cost of disbursements for items such as the Court filing fee and valuation fees. 

 

Prenuptial Agreements
 

It is becoming more common practice in Australia for couples to enter into a prenuptial agreement under the Family Law Act, particularly where they are bringing substantial assets into the relationship.
 

Sometimes this is a result of the parties entering a relationship after the failure of a previous marriage, but many people remarry later in life and have accrued substantial assets which they may not want to dissipate if the new relationship fails.


For many people, a prenuptial agreement is considered distasteful, but with more than one in three marriages, it makes sense to have a contingency plan.
 

Since December 2000 it has been possible to make Binding Financial Agreements under the Family Law Act in case of a marriage breakdown. Such agreements can cover the financial settlement, financial support and any incidental issues. ‘Incidental’ issues typically have a sufficient connection with the subject of property division or spousal maintenance during marriage and or after dissolution, for example, the payment of one spouses' credit card bills or the contribution to the education costs of a child or stepchild considered as matters incidental to spousal maintenance during the marriage.


For a binding financial agreement to be legally binding, one party must receive independent legal advice, before both parties sign the agreement. This process is to make a clear indication that the agreement is not biased in its preparation.


To ensure the agreement is valid, the Family Law Rules stipulate that both parties must make a complete disclosure of all assets, liabilities, income and resources. If this is not the case, then the Court can choose to set aside any agreement and make other orders.
 

There can be tax advantages to entering into a financial agreement; for example, if the property were transferred under a financial agreement, stamp duty is generally not payable in the transfer of the ownership.
 

Southern Legal also offers the preparation of Cohabitation Agreements, which can be used by couples not only before entering a marriage but also during the marriage itself.


If there is any dispute over the valuation of assets, we will hold a short Mediation to try and overcome the difference of opinion. If this is not possible, we will advise on the appointment of an agreed valuer whose decision is to be final as to the value of the assets. The cost of the valuer's services is a disbursement and is therefore not included in Southern Legal's professional fees.
 

Perusing any valuations and adjustments the Balance Sheet and Schedule


If relevant, we will make enquiries with any superannuation fund to determine the value of each party’s superannuation interests. If a formal valuation of those superannuation interests is required, the cost of Form 6 (the price of which varies from fund to fund) is a disbursement and is therefore not included in Southern Legal's professional fees.

We will confer with you and your partner, either in person or by teleconference, to finalise the settlement agreement once all valuations and superannuation information is received. We will prepare the draft Financial Agreement and give a copy to your partner and yourself for perusal. If necessary, we will make any final adjustments required upon request.

 

As mentioned previously, your partner will need to attend an independent lawyer with a copy of the Agreement to obtain a Certificate of Independent Legal Advice. We can assist with this process by way of a referral. Once we have the duly signed documents, we will then prepare the final copies and provide certified copies for each party and will enter the original documents into Safe Custody.

                     If you feel your situation requires more information regarding this area of law,
                         please feel free to contact us today for a free consultation and quote.

 

Family Law - Property & Financial Matters
 

Whether your relationship was a marriage or a de-facto relationship, property settlements are within the jurisdiction of the Family Law Act 1975 and the Family Law Courts, either: The Family Court or the Federal Circuit Court.


We have all heard 'horror' stories of separating couples battling it out over the division of their assets, to the extent that most of the assets deplete in the process. Some couples can make decisions about the apportionment of assets and liabilities, without the need of the Court's intervention.
 

With sound advice, mediation and negotiation as well as some practical guidance, property settlements can be achieved amicably and at a reasonable cost that can be shared by the parties.


Southern Legal’s Family Law Property Settlement is a two-part process which is suitable where the separating parties have agreed or substantially agreed, on how they wish to divide their joint assets and liabilities.
 

Part A covers all work in settling the agreement; preparing all necessary balance sheets and schedules and drafting the documents required to formalise the settlement. This work applies if the relationship was a marriage, through an Application for Consent Orders made by a court with jurisdiction or it can be in the form of a Financial Agreement prepared under the applicable section of the Family Law Act. For de facto relationships, a Financial Agreement made under Section 90UD of the Family Law Act is necessary.
 

Whether the relationship was deemed a marriage or a de-facto relationship, one party will need to attend an independent lawyer to obtain a Certificate of Independent Legal Advice.

What will be involved, but is not limited to:

Attending upon you, either in our office or by teleconference, to provide advice, accept instructions and to confirm that you and your former partner have agreed, or substantially agreed, on the division of the relationship assets and liabilities. The preparation of our Costs Agreement and Disclosure, as required under the Legal Profession Act, will also confirm in writing our instructions to act for you.
 

We will be sending Information Request Forms to both parties under the rules of full financial disclosure set down in the Family Law Rules 2004. These forms will have detailed information as to what you must both provide by way of financial information. Receiving your returned financial disclosure documentation, compiling a Balance Sheet and Schedule of Assets and Liabilities.

If there is any dispute over the valuation of assets, we agreed to hold a short Mediation to try and overcome the difference of opinion. If this is not possible, we will advise on the appointment of independent valuer whose decision is to be final as to the value of the assets. The cost of the valuer's services is a disbursement and is not included in Southern Legal's professional fees.

 

Perusing any valuations and adjustments to the Balance Sheet and Schedule
 

If relevant, we will make enquiries with any superannuation fund that may be affected by the property settlement. If a formal valuation of superannuation interests is required, the cost of Form 6 (which varies from fund to fund) is a disbursement and is therefore not included in Southern Legal's professional fees.
 

We will confer with you and your partner, either in person or by teleconference, to finalise the settlement agreement once all valuations and superannuation information is received.
 

Part B involves enacting the agreements reached in Part A. It may include such things as acting on the conveyance of the property from one former partner to another or a new buyer. It may also involve arranging for the division of superannuation interests. As the legal work is likely to be varied, we will discuss the requirements with you and provide an estimate of costs for your unique situation. 

 

If the settlement is to be in the form of an Application for Consent Orders, we will prepare the Application, Minutes of Orders and the Financial Statements for your respective signatures. Your former partner will need to attend with an independent lawyer with the draft Court papers to obtain a Certificate of Independent Legal Advice. As mentioned, we can assist with this process.
 

Once we have the duly signed documents, filing in the Court with the appropriate jurisdiction will be conducted. There will be a Court imposed filing fee, which is a disbursement and is therefore not included in Southern Legal's professional fees. When the Court has made the Orders, we will prepare and provide certified copies for each party and will enter the original documents into Safe Custody.

All communications, photocopying, faxes and emails are included in our professional fees, streamlining our billing and making the process more cost-effective in your favour.

 

                      If you feel your situation requires more information regarding this area of law,
                         please feel free to contact us today for a free consultation and quote.