Estate Planning

When Can I Get a Divorce in Australia?

In Australia, a couple can apply for a divorce if they have been separated for a period of at least 12 months. This means that the couple must have been living separately and apart for at least 12 months, with no reasonable likelihood of resuming their relationship. The couple must also demonstrate that their marriage has broken down irretrievably. In order to apply for a divorce in Australia, at least one of the parties must be an Australian citizen or a permanent resident of Australia.

What is a Property Settlement in Australia?

A property settlement is a process of dividing the assets and liabilities of a married or de facto couple who are separating or divorcing. In Australia, the Family Court has the power to make orders for the division of property between married couples and de facto couples, including same-sex couples. The court considers a range of factors when determining how to divide the couple’s property, including the financial contributions made by each party, the future needs of each party, and the care and support of any children. The court’s ultimate aim is to reach a fair and just division of the couple’s property.

What is Mediation?

Mediation is a form of alternative dispute resolution that is commonly used in Australia to resolve disputes between parties without going to court. In mediation, a neutral third party called a mediator facilitates communication and negotiation between the parties to help them reach an agreement on the disputed issues. Mediation is voluntary, and the parties have control over the outcome of the mediation. The aim of mediation is to help the parties reach a mutually acceptable resolution of their dispute in a confidential, informal, and cost-effective manner. Mediation can be used to resolve a wide range of disputes, including disputes related to family law, commercial law, and workplace issues.

What is a Parenting Plan in Australia?

A parenting plan is a written agreement that sets out the arrangements for the care of children after their parents have separated or divorced. In Australia, parenting plans are encouraged by the Family Court as a way for parents to reach an agreement on important issues relating to their children’s care, such as where the children will live, how much time they will spend with each parent, and how major decisions about their welfare will be made. Parenting plans are not legally enforceable, but they can help to reduce conflict and provide a framework for parents to communicate and make decisions about their children’s care. The court may take a parenting plan into account when making orders about the children’s care.

What is a Binding Financial Agreement?

A binding financial agreement, also known as a prenuptial or postnuptial agreement, is a legal contract between two individuals who are planning to marry or are already married. The agreement outlines how their assets will be divided in the event of a divorce or separation. These agreements can be useful for protecting the financial interests of both parties, especially if one or both individuals have significant assets or debts. It is important to note that the terms of a binding financial agreement must be fair and reasonable, and the agreement must be properly executed in order for it to be enforceable in court.

What are Consent Orders?

Consent orders are court orders that are made with the agreement of all parties involved in a legal dispute. In Australia, consent orders are commonly used in family law cases to formalise agreements reached between separating or divorcing couples about issues such as property settlement, parenting arrangements, and spousal maintenance. Consent orders are made by the court and are legally binding, so they can be enforced if one party fails to comply with the terms of the agreement. Consent orders can be made in relation to both contested and uncontested matters, and can be applied for at any time during court proceedings. Consent orders can save time, money, and stress by avoiding the need for a contested hearing.

What is a De Facto Relationship in Australia?

In Australia, a de facto relationship is a relationship between two adults who live together on a genuine domestic basis, but are not married or related by family. De facto relationships are recognized under Australian Family law, and de facto couples have many of the same rights and obligations as married couples. In order to be considered a de facto relationship, the couple must have lived together for at least two years, or they must have a child together and be in a genuine domestic relationship. The couple must also not be married to each other, or in another de facto relationship. De facto couples can apply to the Family Court for orders relating to property settlement, spousal maintenance, and parenting arrangements if their relationship breaks down.

How does a Court determine who the child shall live with/spend time with?

In Australia, when parents are unable to agree on arrangements for the care of their children after separation or divorce, the Family Court can make orders to determine who the children will live with and how much time they will spend with each parent. The court’s primary concern when making these decisions is the best interests of the children. The court considers a range of factors when determining the children’s best interests, including the children’s views and preferences, the nature of the children’s relationships with each parent, and any potential risks to the children’s physical, emotional, and psychological well-being. The court may also consider any family violence that has occurred, and the ability of each parent to provide for the children’s needs.

How does a Court determine a property settlement?

In Australia, the Family Court has the power to make orders for the division of property between married and de facto couples who are separating or divorcing. The court uses a four-step process to determine how to divide the couple’s property, which includes:

1. Identifying and valuing the couple’s property and financial resources, including any real estate, personal property, financial assets, and debts.
2. Considering the contributions made by each party to the acquisition, conservation, and improvement of the property, including financial and non-financial contributions.
3. Considering the future needs of each party, including their age, health, financial resources, and the care and support of any children.
4. Considering any other relevant factors, such as the parties’ conduct, any hardship that may result from the proposed division, and the parties’ ability to support themselves after the property settlement.

The court’s aim is to reach a just and equitable division of the couple’s property, taking into account the factors above and the individual circumstances of the case.

What is spousal maintenance?

n Australia, spousal maintenance is a payment made by one spouse to the other to provide financial support after separation or divorce. Spousal maintenance can be ordered by the Family Court, or it can be agreed upon by the parties and formalized through a binding financial agreement or consent orders. The court can order spousal maintenance on a temporary or permanent basis, and the amount and duration of the payments will depend on the parties’ individual circumstances. The court considers factors such as the parties’ income and financial resources, the standard of living enjoyed during the marriage, and the parties’ capacity to earn an income when determining the amount of spousal maintenance. Spousal maintenance can be paid as a lump sum or as regular payments.

Do I need to formalise my property settlement?

In Australia, it is not necessary to formalize a property settlement through the Family Court in order for it to be legally binding. Couples can reach an agreement on the division of their property through negotiation, mediation, or collaboration, and can then formalize their agreement through a binding financial agreement or consent orders. Formalizing a property settlement through the court can provide certainty and enforceability, and can be helpful if the parties are unable to reach an agreement on their own or if there are significant assets or complex financial issues involved. It is important to note that the court has the power to make orders for the division of property even if the parties have reached their own agreement, so it is always advisable to seek legal advice before making any decisions about property settlement.

Do I need to change my estate planning documents upon separation?

In Australia Family Law, it is advisable to review and update your Will, powers of attorney, and enduring powers of attorney after separating from your spouse. This is because separation can have significant legal and financial consequences, and it is important to ensure that your wishes and instructions are accurately reflected in these documents. For example, if your Will names your spouse as the beneficiary of your estate, you may want to update your Will to reflect your current circumstances. Similarly, if you have granted your spouse power of attorney, you may want to revoke that power and appoint a new attorney. It is also important to review your superannuation and other financial assets to ensure that your spouse is not named as a beneficiary or nominated person. It is recommended to seek legal advice before making any changes to these documents.

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Separation from a partner or spouse can be a very stressful time for everyone involved. A plethora of issues must be considered, ranging from property settlement to child support and all in between. One aspect of this process that should never be overlooked is the evaluation and update of your estate plan. It is possible that your former partner or spouse will inherit your estate and assets if you haven’t amended your will after a divorce or legal separation.

If you have a Will, it is important to review it.

The practice of spouses making Wills that state that everything they own passes to the other in the case of their death is fairly popular in Australia. When people are in a relationship or married, it is common for them to have this goal in mind. Even if you divorce or separate from your married spouse, it is important to remember that your Will, as it pertains to your spouse or partner, will continue to be in effect until such time as you are divorced and the Court issues a Divorce Order or until such time as you change or revoke your Will, whichever comes first. After a divorce, many people continue to be legally married for a period of time, often years. If your Will is not modified before you die, your estate may not be distributed to the people you intended.

If, on the other hand, you are in a de facto relationship, any provision made in your Will for your de facto spouse will be null and void as soon as the relationship comes to an end. In a similar vein, if your ex has been named as the executor of your Will, this appointment will be terminated as soon as the relationship ends. The evidence available to prove whether or not the connection has ended and the proof indicating the relationship has ended may, however, differ from one another in this respect, and there may be some ambiguity in this regard.

If you do not make a Will and you are still married or in a de facto relationship, your husband or partner will still be entitled to a portion of your inheritance under the intestacy provisions of the Succession Act 1981, even if you do not have children. If you have children, the part of your inheritance that they receive will be proportional to the amount of your estate that they receive. Again, if you are married, this entitlement will continue until such time as you have secured a Divorce Order or have executed a new Will that specifically excludes your spouse from inheriting from your Estate (whichever comes first).

What happens if I am separated from my spouse but not yet legally divorced?

Separation alone will not invalidate a will in the case of married couples. Australian law requires that married couples have been separated for a minimum of twelve (12) months before submitting an application for a divorce. If you have an old, out-of-date will in place that bequeaths everything to your former spouse during the period of separation (which can be many years), he or she will receive exactly what you have bequeathed to them.

For example, if we slightly alter the circumstances so that Jill unexpectedly passed away in December 2012 (while she was separated from Jack but not yet divorced), her existing 2000 will (in its entirety) will remain valid, and Jack will be the sole executor and beneficiary of her estate, as in the previous example.

Joint Tenancy and Ownership of Real Estate

Parties should examine whether it is in their best interests to sever any joint tenancies they may have in real estate with their estranged spouse while the property settlement is being finalised before proceeding. A severance can be completed without the approval of the other party and will result in a change in the manner the property is held by tenants in common. An estate that is held in joint tenancy automatically goes to the surviving owner, while an estate that is held in tenacy in common allows each individual owner to leave their portion of the estate to whoever they wish under their Will. This protects a party who may pass away before a property settlement is completed from having the entirety of their rights in the property automatically transferred to the surviving joint tenant spouse upon their death.

The fact that one spouse believes their spouse is more likely to die before the property settlement is finalised may lead them to believe it is in their best interests to leave the property as joint tenants, which would give them the opportunity to receive the entire property upon the death of their estranged spouse, regardless of what is written in the estranged spouse’s Will.

Various State Legislation Distinctions

In several Australian jurisdictions, in the event of a divorce, the Wills of both couples are declared invalid by the court. However, in some cases, a divorce results in the ex-spouse being removed from the position of executor of the will, and any gift or portion of the estate to which they were originally entitled is disregarded as well.

It is necessary for you to take the proper activities based on which state’s legislation is applicable in your situation. Also, for more legal help you can contact the will dispute lawyers Gold Cost.

Nominations for Death Benefits in Superannuation are legally binding.

In relation to your superannuation, it is crucial to be aware that Death Benefits from superannuation funds do not, under Australian law, become part of your estate and are instead dispersed in accordance with your Will.

It is instead up to the discretion of the Trustee of your superannuation fund to select who should receive the benefit from among a class of prospective financial dependants of the deceased member to determine who should receive a benefit from the fund.

Any designation of preferred beneficiaries will not be binding on the Trustee unless the Fund authorises the making of a Binding Death Benefit Nomination and you have completed such a document in line with applicable legal requirements, in which case it will be binding.

When you separate from your spouse, it is critical that you revoke any binding death benefit nominations made in his or her name and replace them with a new document that names your intended beneficiary or beneficiaries.

If you have not yet completed a Binding Death Benefit Nomination with your superannuation fund, you should consider doing so because, in most cases, death benefits will be paid from a superannuation fund in the way set by the Fund Trustee. Because otherwise, the Trustee will most likely distribute your Death Benefit to your spouse, child or children, and/or your estate in the proportions determined by the Trustee, this is a requirement if the Fund offers binding nominations, but it is also a requirement for non-binding nominations, as described above.

What Should You Do Now?

At Mediations Australia, we have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne and all other locations in Australia. We also do international family law matters. Call us today.