Family law FAQ
1.How does the division of property and money work?
When a marital relationship fails, division of family assets is a potentially complex and problematic process that can be highly stressful.
After separation, when you have been in a relationship recognised in family law, the division of pooled property and money and the payment of debts is a process subject to the provisions and requirements of the Family Law Act.
2. How is it done?
There are three different pathways:
- you and your former spouse or de facto partner reach an agreement on dividing pooled property and assets without any court involvement; or
- you and your former spouse or de facto partner apply for consent orders in the relevant court to formalise the agreement you have reached together, or
- where there is no agreement and you are in dispute with your former spouse or de facto partner, you apply to a court for financial orders, including orders relating to the division of property and payment of spouse or de facto spouse maintenance.
It is not uncommon to start along one of these pathways and finish on another.
The reach of the courts in property matters
The Family Court and the Federal Circuit Court are the courts you will be dealing with.
Under the Family Law Act, the family courts have a wide reach and wide powers to make orders regarding property and financial matters after the breakdown of marriages and eligible de facto relationships. But not all de facto relationships are eligible to be dealt with by these courts.
If you are or have been in a de facto relationship and want to apply for financial orders, you should read De facto property regime. This will give you information about whether or not you are eligible to apply for financial orders to the courts.
3. How do the courts decide?
The Family Law Act sets out the general approach the courts will take when deciding financial disputes after the breakdown of a marriage or a de facto relationship. The general principles the courts follow are the same, regardless of whether the parties were in a marriage or a de facto relationship, and are based on:
- working out what you've got and what you owe, that is your assets and debts and what they are worth;
- looking at the direct financial contributions by each party to the marriage or de facto relationship, including earnings and money or property brought into the marriage or relationship
- looking at indirect financial contributions by each party, such as gifts and inheritances from families;
- looking at the non-financial contributions to the marriage or de facto relationship, such as caring for children and homemaking, and
- taking into account each party's future needs including his or her age, health, financial resources, care of children responsibilities and ability to earn a living.
There is no strict formula used to divide money and property and it is not possible to calculate with great precision what orders a court will make where the parties are in dispute and an application for financial orders has been made.
Using a financial agreement to protect family wealth
There is no certain way to protect your property and money against the breakdown of your marriage or de facto relationship because the courts' powers are broad.
But the Family Law Act does provide for married or de facto couples to formally commit to an agreement setting out how they want to deal with the division of their financial assets if their marriage or relationship were to end, or has already broken down.
These written legal agreements, called binding financial agreements, provide a way for to limit the circumstances in which the courts will interfere with your property settlement after the breakdown of your marriage or de facto relationship.
A binding financial agreement in cases where there is there is significant family wealth or a family business is a valuable and often essential legal tool where you and/or your partner are bringing assets, or wealth, or a business to a new marriage or de facto relationship. The case for making a binding financial agreement is strengthened where you or your partner have children from a prior marriage or relationship and wish to ensure that they are properly provided for.
3. WHAT IS THE FAMILY LAWWATCHLIST?
The Family Law Watchlist (also known as the "Airport Watchlist") is a system where a child's name can be placed onto a list maintained by the Australian Federal Police for the purpose of preventing the unauthorised removal of that child from Australia. The child's name will be registered on the Family Law Watchlist operating at all international departure points; both sea and air. In the event that a person attempts to remove the child from Australia then the child's name will flag on the watchlist and the Australian Federal
4.HOW DO YOU APPLY FOR FAMILY LAW WATCHLIST ORDERS?
A parent or other interested party may apply to the Family Court of Australia or the Federal Circuit Court for an injunction pursuant to section 68B of the Family Law Act 1975preventing the removal of a child from the Commonwealth. Typically these orders are made in circumstances or urgency and it may be possible to make an urgent application without first attending Family Dispute Resolution (ie. mediation). Orders may also be made ex parte (ie. in the absence of the other party) in certain circumstances.
5. WHAT IS THE ROLE OF THE AUSTRALIAN FEDERAL POLICE?
The Australian Federal Police enforce the family law watchlist order made by either the Family Court or Federal Circuit Court. In practical terms this may mean preventing a child from boarding or removing them from an aircraft or sea going vessel.
6. CAN A CHILD BE TAKEN OUT OF AUSTRALIA WHERE A MATTER IS PENDING?
Where there is an application for a parenting order before the court, it is prohibited to remove the child from Australia unless the Court has granted a separate order permitting travel of the child or the travel is with the written consent of the other parent. For further information, refer to section 65Z(2) of the Family Law Act 1975.
7. HOW DO I KNOW IF MY CHILD IS ON THE FAMILY LAW WATCHLIST?
The Australian Federal Police will confirm whether or not your child is on the family law watchlist. A Family Law Watchlist Enquiry Form(available online) will need to be completed and submitted electronically. When submitting the form you will also need to establish your identity by providing a certified copy of a Government issued identification, such as Drivers Licence or Passport. Where possible it is also advisable to provide a copy of the application or order that placed the child on the Family Law Watchlist.
8. HOW CAN A CHILD BE REMOVED FROM THE FAMILY LAW WATCHLIST?
If a child is placed upon the Family LawWatchlist by injunction, a further Court order will be necessary for the removal of a child from the watchlist. That is, the interested party must apply to the Court for an order to be made which discharges the previous Court order or discharges a specific part of the previous Court order that restrains the taking or removal or sending on the child from Australia. Further, the order must direct the Australian Federal Police to remove that child's name from the Family Law Watchlist.
9. DO FAMILY LAW WATCHLIST ORDERS EVER EXPIRE?
Orders placing a child on the Family Law Watchlist will often contain a "sunset clause" which provides for the order to expire after a certain time, which is commonly a period of two years. Where the Court has not specifically specified a date, the child's name will remain on the Family Law Watchlist until the child attains adulthood (ie. the age of eighteen years).
PROBATE AND ESTATE ADMINISTRATION
When a person passes away, sombody has to deal with the deceased's estate the executor or executrix will have a responsibility for administering, various assets and liabilities that are left behind by the deceased. .
Chi tiết
Real Estate business is one of the most exciting and rewarding, although possibly one of the most stressful issues you will face. It is vital that you get legal advice from someone experienced in property law.
Chi tiết
Family Law is a very complex area of law because the breakdown of a marriage or relationships can be a very DIFFICULT TIME FOR ADULTS AS WELL AS THE CHILDREN, IF ANY, to provide an affordable quality professional service at reasonable costs in this area of law we are very understanding and sympathetic to your special needs and the particular needs of any children who may be involved.
Chi tiết