Family Law

The family law system in Australia sets out the process to resolve conflicts about two main issues: property and parenting. If a dispute about one of these issues cannot be resolved outside the courtroom, the Federal Circuit and Family Court of Australia will hear from both parties and make orders based on the law.

The good news is that the family law system is designed to be fair and equitable. Parenting laws focus on the best interests of the children, and property law aims to help separating couples reach a fair property division.

Our goal as your family lawyers, is to help you reach fair and workable arrangements regarding your property and/or parenting matters while keeping you out of the courtroom, wherever possible. This minimises stress as you settle early, do not have to go through the lengthy court process, reach an agreement that you can live with, rather that have a court impose a judgement that neither of you may be satisfied with and of course reduces legal costs paid by you.

Formalising your property settlement

While it might seem like a good idea not to bother formalising a property settlement, an informal arrangement is not legally recognised as bringing your financial affairs to an end and may leave you at risk of future claims.

A property settlement involves the division of assets, liabilities, and financial resources between a couple whose relationship has broken down. Family law sets out the procedure for dividing property after a separation. All the couple’s assets are included in a property pool, including assets that are owned individually by each person. There is no automatic 50/50 divide of joint property under Australian family law. Instead, the law looks at what each person:

• brought to the relationship;
• contributed during the relationship; and
• will need in the future.

Paid work and domestic contributions, such as homemaker, are given similar value in this system.

Fortunately, most family law property settlements are finalised by negotiation between the parties and their legal advisors, without going to court. Any agreement reached can be formalised through consent orders or a financial agreement.

Consent orders, filed in court, are generally considered a more formal way of documenting a property settlement and may also include arrangements for parenting matters. The court will need to approve the orders proposed and the application for consent orders must include full financial disclosure by both parties. The parties do not usually need to attend court, and the orders will be approved if, on the information provided, the court considers they are just and equitable.

Financial agreements (also referred to as binding financial agreements, pre-nups and cohabitation agreements) can be made at different stages of a relationship, for example, before or during a relationship, or after a relationship ends. To be valid, a financial agreement must meet certain formal requirements and each party must be independently advised. Financial agreements operate like a contract between the parties and are not approved by the court. Accordingly, consent orders are usually considered a more formal way of finalising your family law property settlement after your relationship ends.

Financial agreements cannot cover children if there are children of the marriage/relationship.

If there are no children, say as in the beginning of a marriage/relationship, a Financial agreement may cover children that may be born later, however, the Financial agreement may be set aside if a court finds that the terms of the Financial agreement are not in the best interest of the children.

Children’s matters

When it comes to parenting matters, the best interests of the children will always be paramount, and parents are encouraged to make genuine efforts to resolve disputes about their children without court intervention. Family dispute resolution is a form of neutral mediation that is used to help separated parents reach agreements regarding arrangements for their children. Agreements may be documented in parenting plans or consent orders.

Parenting plans are written documents setting out the agreement reached between parents for the ongoing care, welfare, and living arrangements for their children. They are not approved by a court and, accordingly, are a less formal and potentially more flexible approach to parenting matters.

Consent parenting orders are formal orders, file in court, documenting agreed parenting arrangements and must be approved by the court. They are legally enforceable and must be complied with. If a parent fails to comply with the provisions of a consent order, the other party may request the court to enforce it.

If you need assistance, contact [email protected] or call 02 9386 5888 for expert legal advice.