Relationship Breakdowns: What You Need to Know
When you entered into a marriage or a de facto relationship with your partner, it is very unlikely that you were contemplating what would happen if you broke up. Financial Agreements (or “pre-nups”) are not very common in Australia. Further, their effectiveness has been called into question following an important High Court decision last year which invalidated a Financial Agreement because it was signed under “undue influence and duress.” Contemplating the end of your relationship can seem particularly morbid. As a result, it’s very common for people’s knowledge about divorce to be limited to the dramatised plot points of Hollywood films.
Unfortunately, about a third of all marriages in Australia result in divorce. If you are staring down the barrel of a relationship breakdown, you are not alone.
One of your first questions is likely to be: What does the divorce process look like in Australia?
The first thing to understand is that family law in Australia is made up of three relatively distinct areas:
- Parenting Procedures
- Property Settlement
You do not need to be separated or divorced from your partner to undertake parenting or property procedures.
Divorce in Australia is “no fault,” which means that you can apply for a divorce on the basis that your relationship has broken down “irretrievably.” This is demonstrated by a 12 month separation between the parties. For more information on divorce, see our article entitled “I Want a Divorce!!” <link>.
Preliminary Steps in a Parenting Procedure
A breakdown in a relationship can often necessitate a re-negotiation of who takes responsibility for what, when it comes to the children. The first step is to try to come to an agreement with your ex-partner through negotiation. Legal representation can assist with this, especially if your situation is acrimonious. If you are unable to come to an agreement in this way, the next step is likely to be mediation. The Court requires parties to attend Family Dispute Resolution (“FDR”) before an application can be made to the Court in parenting matters. Mediation is a commonly used form of FDR. If you come to an agreement during mediation or negotiations, this can be formalised as a Parenting Plan or Consent Orders, which are enforceable by the Court.
Preliminary Steps in a Property Settlement
A property settlement is the process of dividing the assets and liabilities between the parties in family law disputes. Again, the first step is to try to negotiate a settlement with your ex-partner. The parties have a duty of full and continual financial disclosure. This means you will need to exchange documents which evidence your assets and liabilities with your ex-partner. This allows the parties (and their lawyers, if they are legally represented) to calculate the total assets in the relationship. From this basis, negotiations can commence. Mediation can be an effective tool in property settlements, but is not required to apply to the Court for orders. If you cannot reach an agreement, you or your legal representation can make an application to the Court for Court made orders.
Going to Court
Occasionally parties will not reach an agreement in parenting or property matters through negotiations or mediation. If this is the case, you (or your legal representation on your behalf) may file an application for a Court determined order. It is at this point of the process that family law proceedings can become particularly expensive and time-consuming. Fortunately, only a very small percentage of family law matters result in a Court made order. Having legal representation aid your negotiations can help reduce the likelihood that your matter will need to be decided by a Judge.
This article has provided a breakdown of the basic elements of family law disputes. Everyone’s situation is different, and you should get legal advice that is specific to you.
If you have any queries in relation to family law matters, please contact us at Koffels Solicitors and Barristers, and we will be very happy to assist you through this difficult time.