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What am I Entitled to in a Divorce or Separation in Australia?

What am I Entitled to in a Divorce or Separation in Australia?

Despite the fact that the notion of sharing things 50/50 has been ingrained in most of us since childhood, it is not necessarily the most equal approach, particularly in the context of family law. Numerous separating or divorcing couples make the mistake of assuming that all that is required of them is to keep everything in their own names and share all they own jointly, upon which, after separation, they walk away with their own individual assets.  Completely wrong of course!

When it comes to dividing assets after a separation or divorce, needs and contributions are more important factors to consider than who owns the property in the first place. One common myth is that if one spouse contributes to the relationship by caring for children and does not provide any financial resources to the family somehow their non-financial contribution is not factored into a property settlement. This of course couldn’t be further from the truth.

It may be a tough and emotional process to come to an agreement on how to divide property, and even the most amicable of couples are unlikely to see things from the same perspective. Let’s have a look at the regulations set forth in the Family Law Act and then go over some practical steps you can take to ensure that you receive a fair financial agreement (also known as a property settlement) for your separation or divorce.

The best advice though is to seek legal advice early. At Mediations Australia, we’re early-resolution focused. We have a team of mediators and family lawyers who offer a free, initial consultation.

If you want to find out how long it takes to get a divorce, this article is useful.

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The common property pool is made up of the following:

Contributions

You do not need to be financially successful in order to add to the wealth of the relationship; you may do so even if you are not. It is possible to make contributions through providing care for children, becoming a housewife, or restoring a property, among other activities. Some of these may come from your families, such as a gift or loan to assist you in purchasing your first home or providing childcare for your children.

Contributions have less impact on a connection the longer it has been in existence, as a general rule. After more than 15 years of being together, a couple is typically considered to be in a long-term relationship, with the contributions of both sides being considered equal. As with anything else, it always depends on the specific circumstances of each unique situation.

Needs

Afterwards, you’ll have to consider both your current and future requirements. When it comes to dividing your property, the most common factors to consider are your respective ages, your health, your ability to work now and in the future, and your obligations for child-rearing responsibilities, among other things. In most circumstances, if one of you is in a worse financial position than the other after all of these criteria are taken into account, an additional proportion of the pool is allotted to you in order to help balance things out more evenly. If you have access to additional resources such as family support or a prospective inheritance, your access to those resources may also be taken into consideration when evaluating how the way you split things should be influenced by a specific criterion.

What should be done and how should it be done

In spite of the fact that these concerns sound basic in principle, separating couples typically struggle to come to terms with them in practise. That’s because our family law system in Australia is discretionary, which means that instead of having hard and fast rules on who gets what, it is up to the judges’ discretion as to how they apply the principles in the way they feel is most appropriate in the circumstances.

This may be a difficult scenario to find oneself in, especially for amicable couples who really want to do what is right by each other but are unsure of how to go about it. Our experience has shown us that many couples become stuck in limbo, where they lack a clear strategy for going forwards yet are unwilling to resort to family lawyers for assistance in resolving their concerns. Keep reading as we cover the practical actions you may take to get a mutually agreeable arrangement that is fair to both sides and that both of you can live with.

Here are some practical tips moving forward.

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Establish clear goals at the outset.

For you and your relationship to avoid wasting time and money on unproductive disagreements, it’s crucial that you and your partner be both clear on what’s genuinely important to you and why. As a general rule, there are just a few significant aspects that are crucial, and an overwhelming number of minor ones that are simply not relevant. Take some time ahead of time to reflect on the present and the future attentively and honestly. This time spent preparing will put you in the greatest possible frame of mind to engage in the unpleasant conversations you’ll be required to conduct in the future. If difficult decisions must be taken, it will also provide you with a strong sense of what sort of agreement you would be able to live with if the situation arises.

Couples who are separating or divorcing quickly become so obsessed with their differences that they fail to recognise how much they genuinely do agree on to begin with. In mediation, these areas of agreement are referred to as ‘common ground.’

At the end of the day, taking a step back and looking at the big picture will provide you with a firm perspective anchor that will benefit you both. In any relationship, no matter how cordial the atmosphere is, there will be subjects on which you will not be in agreement. There are certain of them that you will be aware of before you begin attempting to reach an agreement on the terms of the arrangement, but others that will only become apparent after you begin trying to achieve an agreement on the terms of the arrangement Things will start to go wrong very quickly if you lose your sense of perspective, as you will realise whenever this occurs.

Recognize the contents of your common property pool and what they are used for.

The need of fully comprehending the contents of your common property pool before deciding on the most effective method of splitting it has already been covered earlier. What you should be asking yourself are the two questions listed below:

  • What precisely do we have on our hands?
  • What is its monetary worth, and how does it compare to other things?

Before you can proceed, you’ll need to come to an agreement on a monetary value for everything in your property pool. In the event that you and another person disagree on the value of something, or if you are unsure, you may choose to have it evaluated.

Please keep in mind that a property pool isn’t just about assets; you’ll also need to decide how you’ll split obligations, such as bills and credit cards, among the pool’s members. In actuality, some couples are unable to divorce because of their financial obligations to one another.

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Don’t be too fixed on your position

In a property dispute, the easiest way to establish a stalemate is for each of you to begin with a position that you then support, hoping that the other would see the light and agree to a reasonable compromise. Once you reach this point, there isn’t much else you can do, which is one of the reasons that 56 percent of Australians take more than a year to sort out their property, and 30 percent take more than two years to sort out their property (according to research from the Institute of Family Studies).

An all-too-common trap that people fall into is the inclination to start with a proportion of something. This quickly and firmly defines your position and reduces the discourse from a rich argument about goals, ambitions, and prospects into a one-dimensional tug-of-war in which you can only provide or accept a concession.

If you have an open mind and look for third options that satisfy both of your desires while also meeting both of your objectives, you can keep a healthy argument moving forwards instead of being entrenched in your positions and becoming stuck.

Getting stuck in a family law dispute is sometimes unavoidable. It may be the case that your former spouse is not willing to give an inch. At these junctures, you need to promptly seek legal help to push him/her to a willingness to resolve the dispute, preferably through mediation. You can book a free consultation with one of our Canberra family lawyers or mediators who can assist you in this regard.

Make a firm commitment to your own self-determination and independence

When you choose self-determination, rather than having someone else’s decisions forced on you (for example, by a court), it implies that you and your partner retain control of the process and jointly decide how you’re going to continue. It is more probable that agreements reached by all parties will be successful and will allow you to go on in a positive manner, even if it takes some time to arrive to that point. Also, you will save potentially tens of thousands of dollars if you can get to a resolution as early as possible.

Plan ahead of time for the potential of finding a resolution between you and your partner, and pay attention to the sentiments of the other person involved. When a disagreement continues over an extended period of time, it is not unusual for one party to come to assume that the other is not putting forth the required effort or isn’t earnest about addressing the issue at hand. The possibility that one of you may be obliged to choose the legal route out of sheer frustration will rise as time progresses on your journey. The only way to keep this from happening is for you to stay steadfast and strong in pushing towards early resolution.

Seek the advice of a family lawyer or mediator.

It may sound self-serving, but people can make catastrophic decisions soon after separation that can impact significantly on the chances of early resolution. Getting legal advice as early as possible will give you a framework and a better idea of the road ahead.

Unfortunately, many couples opt to avoid engaging lawyers altogether because they associate them with litigation and financial burden. This does not need to be the case.

If at all feasible, you would like to achieve self-determination with the support of competent legal advice if at all possible. Having a single lawyer represent both of you may seem like the most obvious option for a peaceful divorce, but our adversarial legal system requires that you obtain separate legal advice before proceeding with your separation and divorce. Making it clear to your family lawyer that you both want to handle things amicably is the first step towards having a good outcome to your family law dispute.

Take care of yourself and your children

Family law disputes can become all-encompassing. Ensuring that you’re able to separate or demarcate times in your day when your family law matter doesn’t rent your head is very important. Also, very importantly do not burden family and friends with a blow-by-blow account of your dispute. In our experience, the worst thing you can do is to burden relationships that you and your children ultimately depend upon to stay sane.

This is another reason why you need to have independent support during this period. A counselor will prove to be of immeasurable value.

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What if we reach an agreement, what is our next step?

If you and your former partner reach an agreement, then the next step is to have this agreement documented in what we call “consent orders.”

What are Consent Orders?

Generally, a Consent Order is a court order made by the Family Court that contains provisions that have been mutually agreed upon by both parties.

In some cases, a Consent Order can be obtained without the need for either party to appear in court. Debating and reaching an agreement on problems such as the ones listed below are all part of the process.

  • Property settlement matters;
  • Who a child will live with;
  • how much time the child or children will spend with the other party;
  • who the child will spend time with on special occasions and during holidays; and many other details.
  • the distribution of parental duty for a child or children;
  • if two or more persons share parental responsibility for a child — the kind of discussions necessary while making decisions for the child communicating with another person, the procedure to be utilised for settling conflicts, and other areas of the child’s care, welfare, or development are all covered in this section.

Upon reaching agreement on all of the issues in dispute, the parties submit an Application for Consent Orders in the Family Court, seeking that the Court make an Order reflecting their agreement as expeditiously and completely as feasible. Consent Orders are particularly popular among separated parents because they provide the security and structure of a court order while also giving parents the opportunity to have input into how their children’s future will be established. In comparison to submitting an application in either the Family Court or the Federal Circuit Court, which are both viable choices, obtaining a court order through this approach is far less expensive.

If one party has previously filed an Application for Parenting Orders in either the Family Court or the Federal Circuit Court and both parties are able to agree on the care of the children, it is feasible to jointly petition the Court for the issuance of a Consent Order. This can be done at any point over the course of the litigation.

The failure to comply with your obligations and responsibilities under a Consent Order, as well as interfering with another person’s ability to comply with the Order, will result in legal consequences. If you are concerned about non-compliance with a Consent Order, it is suggested that you contact us before filing an Application for a Contravention Order in the Family Court or the Federal Circuit Court.

What you should 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

Getting legal advice early is the most important thing to do.

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