We deliver to you the Top 10 Family Law Questions asked to us by our clients in Mackay.
1. What is a Legal Separation and Divorce?
A Legal Separation or Divorce is a legal recognition for the conclusion of your marriage.
You gain a Divorce if your marriage has broken down irretrievably and you’ve been officially separated for a minimum of 12 months.
Importantly, you don’t have to prove who was “at fault” and you don’t have to wait for the full 12 months after separation to conclude a property settlement.
2. What is the definition of a de facto relationship?
Contrary to public belief, there is no single “legal definition” of a de facto relationship because there are different requirements for various legal purposes.
Generally-speaking though, a de facto relationship exists between 2 persons (whom aren’t legally married) of the same or opposite sex (who aren’t related by family) and, to all intents and purposes of the partnership, have a relationship the same as that of an officially married couple living together on a genuine domestic basis.
3. What is child support or child maintenance?
As soon as you are separated, you can lodge an Application with the Department of Human Services (Child Support) to have child maintenance or child support assessed for your child in the event you are unable to come to an agreement with the child’s other parent.
4. What is a Parenting Order and is it important?
A Parenting Order made by the Court will often deal with the following issues:
- Determination of parental responsibility (i.e. who will carry the duties, powers, and authority, which by law parents have) regarding the children (whether solely or jointly cared for);
- Who the children are to reside with; and further
- How the children are to spend time with each parent;
- All other aspects of the care, welfare, and development of the children, as well as any other aspect of parental care for the children.
When a Parenting Order is made is made by a Judge, it is a legal requirement that all parties follow the Order specifications.
If a parent refuses to follow a Parenting Order (and is unable to show a reasonable excuse), it is called “contravening a Parenting Order”.
There are serious ramifications which flow from a contravention of a Parenting Order such that it is possible for the Court to order parents to attend programs, facilitate “makeup” time, enter a bond, pay a fine or even 12 months imprisonment.
It is therefore important that you read and understand the terms of a Parenting Order made by a Court.
5. How does a Court determine who the child will live with and spend time with?
Contrary to popular perception, there is no “fixed rule” about whom a child shall stay with (previously referred to as “child custody”) and whom a child shall spend time with (previously referred to as “child access”).
The Court’s top priority in determining which parent the child shall live with and how much time the child will spend with the other parent is what is in the “best interests of the child.”
6. How does a Judge determine a property settlement amount?
Contrary to belief, the process that the QLD Courts use to calculate a family law property settlement, is not a “mathematical” one.
Unlike in other countries and regions, there is no “starting rebuttable presumption” that the parties’ net property pool is equally divided “50/50.”
Each relationship is considered unique and is determined based on a number of discretionary factors.
The Court has a wide scope to consider in making the property settlement orders and as a result, the outcome can vary significantly.
For example, you could potentially get 10 unique outcomes before 10 unique Judges on any given day at Trial and each outcome would be legal and acceptable, as long as it falls within a range of plausible outcomes.
In general practice, the Judge generally adheres to a well-established process that involves a number of steps to determine the entitlement of each party in the relationship.
These steps are as follows:
- The Court must decide if it would be just and equitable to adjust or change the parties’ current legal ownership of assets.
- To list all of the current assets, liabilities, and superannuation of each of the parties and arriving at a net figure, or what becomes known as the “total net property pool”.
- To ascertain the contributions of each of the parties throughout the relationship, to the net property pool and to the welfare of the family. Contributions can be direct (eg. made by one of the parties’ to the relationship) or indirect (eg. one of the parties’ family members contributions), financial (eg. earning money) or non-financial (eg. improvements to a property performed by one party) or made as homemaker or stay at home parent. Each of these contributions is determined as a single percentage or a range of percentages.
- To assess the current and future circumstances of each of the parties and make adjustments to the percentage arrived at in step 3 above. The list of factors can be found in Section 75(2) of the Family Law Act 1975 including:
- the age and state of health of both of the parties;
- the income earning capacity or a financial discrepancy between both of the parties;
- the total length of the relationship and its overall effect on both of the parties earning capacities; and
- who has primary care of the children into the future
- For the Court to “step back” and assess whether the percentage or division achieved by application of the above 4 steps is suitable or “just and equitable” in the overall sense.
7. What is a spousal maintenance payment?
Spousal maintenance is sums of money paid from one spouse (i.e. the paying party) to the other (i.e. the receiving party) in situations where the receiving spouse is unable to support themselves “appropriately”, after separation.
When determining if spousal maintenance is suitable, the Judge will consider:
- Whether a “threshold” is met (i.e. if there is a “requirement” for one of the parties to be financially supported by the other);
- The capacity of the paying party to support the receiving party for a period of time; and
- The outline covered in Section 75(2) of the Family Law Act 1975; and
- The overall extent of financial support needed (i.e. what is ‘suitable’ under the circumstances) and the amount of time support is needed to be paid for.
Most importantly the Court is not required to ensure that either party has the “same standard of living” that they had during the relationship. It only has to be reasonable under all the circumstances.
8. Must I formalise my property settlement in a Court?
After separation, it is critical to formally resolve the issue of a property settlement and have any agreement formally recorded in “Consent Orders” (which is lodged at and approved by a Judge at the Family Law Courts) or enter into a Binding Financial Agreement as per the Family Law Act 1975 (known as a “BFA”).
Unless a property settlement is ruled on by a Court Order or is properly recorded in a Consent Order or BFA, the issue of property settlement is always potentially “alive” (albeit subject to time constraints) and either one of the parties can commence proceedings in the future to make a claim against the other party.
Costs savings and tax advantages in transferring property and signing documents pursuant to a Consent Order or a BFA may also be possible. This will include implications such as capital gains tax and stamp duty exemptions.
9. Are there any relevant time limits to be aware of in Family Law property settlements?
Be aware that parties must resolve or commence proceedings for a property settlement and/or spousal maintenance within 12 months after you have obtained your Divorce officially.
Alternatively, you must seek leave of the Court to do so (which is generally only allowed under exceptional circumstances). This is normally a difficult, costly and lengthy process.
Note that a financial claim at the end of a de facto relationship must be filed within 2 years after the date that the de facto relationship ended.
Parties can (and should) commence negotiations or file an Initiating Application for property settlement and/or spousal maintenance immediately upon formally separating from their spouse based on the irretrievable and permanent breakdown of the relationship.
10. Do I need to update my Will, Superannuation, and Powers of Attorney or Enduring Powers of Attorney upon separation?
After formal separation, it is critical to examine the terms of your Will (if you have one) or create a new Will to properly reflect the change in your circumstances.
It is also very important to consider who is the named as a beneficiary in your Superannuation policy and if you wish to change the beneficiary (as in most cases, this will be your spouse).
Also, examine any Powers of Attorney and/or Enduring Powers of Attorney you put in place during your relationship. In most situations, it may be advisable to revoke those Powers of Attorney as soon as possible after formal separation.
If you have a different question regarding Family Law, we’d love to hear from you.
If you wish to know more, please contact one of our experienced Mackay Family Lawyers on (07) 4847 0198 to arrange your free 20-minute initial appointment today.