I want a divorce

Family law can be a confusing and confronting space for anyone when separating.

A majority of queries we receive from clients are in relation to getting “divorced”. We find that usually, most people do not understand the difference between getting divorced, property settlements, child support, and parenting arrangements.

So what is the difference?

Divorce

A divorce is a simple procedural step for parties after being separated for twelve (12) months or more. Once parties are divorced, there is a time limit of twelve (12) months for parties to finalise their property settlement matters. After twelve (12) months from the date of the divorce, parties will need to consent to proceed out of time or a party will need to seek the leave of the Federal Circuit and Family Court of Australia (“the Court”) to bring an Application in relation to property matters.

Property Settlements

A property settlement can be effected directly after separation (of married or de facto couples) in one of the following ways:-

1. An Application for Consent Orders, which is filed in the Court, sets out the parties’ assets and liabilities and how such assets and liabilities are to be divided between the parties post-separation. Such an Application needs to show the final division of assets and liabilities to be “just and equitable”. Both parties are not required to be legally represented, however, it is recommended that the Application is drafted by a solicitor and reviewed to ensure the Application will be successful.
   
2. A Binding Financial Agreement (“BFA”) (again) sets out the parties’ assets and liabilities and how such assets and liabilities are to be divided between the parties. A BFA is not filed with the Court. There is no requirement for the final division of assets and liabilities to be “just and equitable”. Both parties to the BFA must be legally represented.
   
3. An Initiating Application to the Court. An Initiating Application seeks a “just and equitable” division of the parties’ assets and liabilities. Usually, Initiating Applications are filed in circumstances where parties are unable to negotiate privately or one party is not providing financial disclosure. Both parties are not required to be legally represented. Once an Initiating Application is filed, the matter is the subject of Court proceedings and parties must comply with directions of the Court.

For more information call us at (07) 4847 0198 or visit us at https://familylawyersmackay.com.au/.