How does a divorce work with a child and property?

By 22 October, 2018Divorce
what am i entitled to in a separation australia

What is a divorce

A divorce is an application for the legal ending of a marriage which is an application to the Federal Circuit Court made after 12 months or more of separation between spouses who were married in Australia or overseas.

There are however a number of other legal matters that revolve around the ending of a marital relationship which need to be considered and potentially dealt with. These are:

Property Settlement

Sometimes the term ‘divorce’ is intermixed with the need for the parties to resolve the division of property assets held between them. This is commonly called ‘property settlement’. In simple terms dividing up of the party’s property between them on a fair and reasonable basis is one of the first steps that occurs after the ending of a marital relationship.

There is a wide spectrum of what can occur to resolve property matters between spouses. For example, if there are limited assets such as motor vehicles and household chattels only then it may be reasonable for the parties to simply agree informally to divide those assets in moving forward with their lives.

However, if the assets are more complex such as a house or other investments such as shares then there may be a need to formally document division of property so that firstly the parties are certain as to the what the arrangements are going forward and also to prepare the necessary documents such as the property transfer if one party is keeping the former matrimonial home or other investment.

Aside from the certainty of preparing a formal agreement for the division of property assets there can be a number of stamp duty advantages in preparing the formal agreement as transfers of property will be exempt from stamp duty where a formal order or agreement is made.

It is important to understand what your legal rights and obligations are in relation to the division of property and early legal advice is encouraged to help you understand your rights and obligations taking into account critical issues such as initial contributions of assets by the parties, contributions during the relationship including lump sums such as inheritances and then looking at the future needs of the parties in terms of their health and earning capacity to finally work out what is a fair and reasonable division of assets.

Children’s Arrangements

Making adequate care arrangements for the children after separation is one of the most critical steps that needs to be taken. In deciding with your former partner how the care arrangements going forward need to be agreed on an informal basis or through a parenting plan or ultimately a consent order or order of the Court is an important phase of the post-separation discussions. Again this phase is really unrelated to the formal ending of the marriage by the divorce application, in practical terms ultimately how the parties can communicate and co-operate will determine what level of agreement or formality is required.

There is a saying that if ain’t broke then don’t fix it – which when applied to children’s care arrangements means if the parties can work out informally what they want to do with the care of the children then there is no need for formal agreed or intervention of a Court.

When there is some level of formality or agreement needed then a parenting plan may be the best option. Ultimately however, if there is a high degree of distrust or there are risk issues with the child spending time with either parent going forward then a Court Order reached either by agreement (commonly called Consent Orders) or a final Order of the Court potentially upon Court hearing may be required. It is of some comfort to know that only in very rare cases is a final hearing by a Judge needed to determine the children’s care arrangements but ultimately through the parties discussions and potentially with legal advice arrangements for the children can be made going forward.

Child Support (Financially)

As with working out the children’s arrangements there are a number of ways in which child support between parties can be arranged or worked out. As with children’s arrangements an informal arrangement as to contributions to the children’s living costs can be undertaken. Commonly the party who has the predominate care of the children can seek an assessment through the Child Support Agency (CSA) which takes into account the earnings of both parties and how much time they are spending with each party in determining a formula for the provision of child support from one party to the other. In addition to this, if there is agreement for payment of private school fees or extra expenses then this may need to be considered in addition to the child support formula. If the parties wish to they can enter into a formal child support agreement (there are two forms of these agreements) which can set out what arrangements for child support are locked in for a future period of time. Commonly child support agreements are used where either one party is receiving a larger share of the property division but receiving a reduced amount of child support that otherwise would be assessed or alternatively one party is paying more than what would be an assessment by the CSA and agreeing to pay for certain things such as school fees, private health insurance, extracurricular activities such as sport or cultural activities but want some certainty as to where that money is going. Once again it is advisable to get at least initial advice from a solicitor as to where you sit in relation to child support obligations and what is in the best interests of the children.

Where does divorce fit in with the above matters?

A divorce is the legal ending of the marriage. It has an inter-relationship of property settlement only to the extent that if you have not resolved the division of your property matters but finalise your divorce then you have 1 year from that time to commence property settlement proceedings or have resolved the division of your property as otherwise the Court needs to give you “Leave” (or permission) to have a property settlement as the Court works on the basis that you ought to have sorted out your property affairs by this time. When you think about it, it is logical as you will have need to have been separated for at least 12 months prior to applying for your divorce, the divorce process again takes another 3 to 4 months and another year would have passed after your divorce goes through. This is some 2 ½ years after separation and the Court believes that you ought to have addressed your property division by this time.

If you have divorced but yet to resolve your property then you should seek early legal advice to ensure that your time limits are protected and that you are not disadvantaged in any way in receiving a reasonable division of the property.

Next Step

Your Divorce is your specialist in making the divorce application on your behalf. Make us your first choice in this regard for a smooth and seamless application but don’t forget to seek other legal advice as needed in relation to the division of property or child related matters.