Divorce: Your Questions Answered

TGB’s Jane Miller answers common family law questions about issues including divorce, child custody and property settlements.

The pain of a divorce can be difficult to get over, but the pain can be magnified when partners do not understand their legal rights, particularly when it comes to children.

What are the laws relating to custody? Who should pay for what? What happens to property? Do I have to agree to a divorce? Tindall Gask Bentley lawyer Jane Miller explains the laws.

 What are the laws relating to custody?

The Family Law Act tells us that a Court should always consider the best interests of the children, as the paramount consideration.

The law emphasises that parents should always try to reach an agreement before resorting to the Court system, so many separating couples become involved in Family Dispute Resolution, involving a mediator. If they still cannot reach an agreement, only then do the parties end up going to Court.

The Court will then consider whether the children should live equally between both parents, if there’s no family violence. However, that might not be practical, meaning the children might live with one parent and be ordered to spend substantial and significant time with the other, such as weekends, some week days, school holidays and special occasions.

Is my partner responsible for 50 percent of my expenses?

There are two concepts where an individual would make regular payments to a former partner.

Firstly, there’s child support. This is dictated by child support legislation and assessed by the Child Support Agency. It is based on the understanding that the parent living away from their children still has an obligation to support the family to some extent. It’s not necessarily 50 percent of expenses but is assessed according to what the incomes are of both parents, how old the children are and how much time they spend with each parent. The Child Support Agency has a useful payment estimator on their website, at www.csa.gov.au.

Secondly, there’s spousal maintenance. This depends on whether the claimant has a need for the extra income and whether the other person has a capacity to pay. This is more common when there is a large income disparity between the parties, otherwise it doesn’t happen often.

Are property and assets split 50/50?

There’s no presumption of a 50/50 division of assets. The Family Law Act sets out a process with a series of steps that the Court considers in determining a fair split. The process includes:

– Assessing the assets and debts, and their values;

– Evaluation of the contributions made;

– Addressing the future needs of both parties; and

– Assessing whether the overall settlement is fair.

Other considerations include how much each person had at the start of the relationship or any lump sum amounts they had received, as well as whether an individual needs more due to income disparity or primary care of the children.

It is also often forgotten that superannuation is considered to be an asset. The Court will divide the super in a way that is fair.

Sometimes people agree to a 50/50 split, only for one of the parties to later discover they had been short changed. Each case involves different circumstances and everyone needs specific legal advice to determine a fair result.

My partner and I have separated, do I have to leave the house?

If the house is under joint names, you cannot be forced from the home unless there is a restraining order made in the Magistrates Court or by the Family Law Courts, making an order for sole use and occupation. This is quite rare.

Sometimes couples are left in limbo, separated but still living under the same roof until the property settlement. This is often because they do not have enough money to go around, or an individual is stubborn and refuses to move.

If the house is in the name of one person only, then the other party can be excluded until there is a property settlement.

Do I have to agree to a divorce?

No, but the divorce will still go ahead anyway regardless of consent. Once a couple has separated for at least 12 months, and the relationship is irretrievably broken down, then either one of the people involved can apply for a divorce. ‘Divorce’ is the act of becoming un-married, it doesn’t resolve property or parenting matters. There doesn’t need to be a mutual agreement from the separating couple, an individual can make the application for divorce at the Court and it is served on the other side. As long as the couple has been separated for at least a year, there are unlikely to be grounds for objection.

I have come to an agreement with my former partner, do I still need a lawyer?

It is still highly recommended to get legal advice, even if an informal agreement has been reached. Firstly, the purpose of that advice is to check that it is a fair deal, and that people aren’t unknowingly accepting less than the law would give them.

Secondly, they should also get legal advice to ensure that their agreement is final and binding, which ensures that the matter is resolved once and for all. Otherwise, informal agreements have no effect, and former partners can later claim more money through a property settlement.

How long do I have to live with my partner before our relationship is classed as “de facto”?

Since amendments were made to the Law in July 2010, couples must now live together for either two years or have a child from the relationship. After qualifying, de facto partnerships have the same rights and entitlements as married couples. They have access to the Family Law Act to sort out property settlement entitlements, spousal maintenance and superannuation.

Tindall Gask Bentley’s Jane Miller, Wendy Barry and Peter Heuzenroeder are three of a small number of accredited family law specialists practising in South Australia. Our family lawyers also operate in Western Australia.

For further information or assistance with your legal matter contact us.