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Family Law
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Whether you are seeking legal advice about your marriage or relationship, children or financial issues, our lawyers will be able to provide you with practical advice and strategies.
Legal factors to consider during separation & divorce
Getting divorced can be very confronting. The finality of ending your relationship with your spouse in many cases can be upsetting and difficult for both parties. When children are involved, family law matters can also become emotionally sensitive. But you don’t have to do it alone.
Our lawyers will support you throughout the divorce process.
What is the difference between a divorce and a property settlement?
A divorce is the legal termination of a marriage, granted by the court after at least 12 months of separation. It does not resolve financial matters.
A property settlement is the legal division of assets, liabilities, and financial resources between separating spouses. This can occur before, during, or after divorce and involves negotiating or applying to the court for a fair division based on contributions and future needs.
While a divorce formally ends the marriage, a property settlement ensures financial separation. Without settling property matters, financial ties may remain even after divorce.
How long will it take for me to reach a settlement?
The time to reach a property settlement in Australia varies depending on the complexity of the assets, whether both parties agree, and if court involvement is required.
- Mutual agreement: If both parties agree, a settlement can be finalised in a few weeks to a few months through a Binding Financial Agreement or Consent Orders.
- Mediation/negotiation: If negotiations are needed, it may take several months.
- Court proceedings: If disputes arise and the court is involved, it can take 12–24 months or longer, depending on court delays and complexity.
Time limits apply—married couples must apply within 12 months of divorce, and de facto couples within 2 years of separation.
What is a Property settlement?
A property settlement is the legal division of assets, liabilities, and financial resources between separating spouses or de facto partners. It ensures a fair distribution based on contributions and future needs, either through agreement or court order, allowing both parties to achieve financial independence after separation.
What does the legal process involve?
The property settlement legal process in Australia typically involves these steps:
- Identify assets and liabilities – Both parties disclose financial information.
- Assess contributions – Courts consider financial and non-financial contributions.
- Consider future needs – Factors like income, health, and care of children are reviewed.
- Negotiate a settlement – Through mediation, private agreement, or legal representatives.
- Formalise the agreement – Via Consent Orders (court-approved) or a Binding Financial Agreement.
- Court proceedings (if disputed) – If no agreement is reached, a court determines a fair division.
Settlements must be just and equitable under the Family Law Act 1975.
How much does it cost to get divorced?
The cost varies. Legal Fees range from $1,100 to $5,000+ if you are using a lawyer. Process servers can cost anywhere from $100-$250 if your ex needs to be formally served. You also need to pay the Court fee which as at 2024 was $1,060 and a reduced fee of $350 for concession card holders.
Will I need to go to court?
Whether you need to go to court for a divorce or property settlement depends on your situation:
Divorce
- No court appearance is needed if the application is joint and there are no children under 18.
- A court hearing is required if it’s a sole application and there are children under 18—only the applicant needs to attend.
Property Settlement
- No court needed if both parties reach an agreement and formalise it through Consent Orders or a Binding Financial Agreement.
- Court proceedings are necessary if disputes arise and mediation fails, with the court making a legally binding decision.
Settling matters outside of court is generally faster, cheaper, and less stressful.
I don't know what assets or liabilities my partner has. Can you help me?
Yes! If you’re unsure about your partner’s assets or liabilities, you have the right to request full financial disclosure during the property settlement process. Here’s how you can get this information:
Steps to Identify Assets & Liabilities
- Request Voluntary Disclosure – Both parties are legally required to provide full and frank financial disclosure, including bank statements, tax returns, property values, superannuation, and debts.
- Search Public Records – You can check property titles, ASIC records (for business interests), and credit reports to identify assets.
- Issue a Formal Request – If your partner refuses to disclose, your lawyer can send a legal request.
- Seek Court Orders – If necessary, you can apply to the Family Court to compel disclosure.
A lawyer can assist in uncovering hidden assets and ensuring a fair settlement.
I want to protect my assets from a future relationship breakdown. How can I do that?
To protect your assets from a future relationship breakdown, consider these legal strategies:
1. Binding Financial Agreement (BFA) – “Prenup” or “Postnup”
- A BFA (before, during, or after a relationship) outlines how assets will be divided if separation occurs.
- It must be fair and signed with independent legal advice for both parties to be legally binding.
2. Keep Assets Separate
- Avoid mixing personal and joint finances (e.g., keep pre-owned property or inheritance in your name).
- Maintain clear financial records.
3. Use Trusts or Company Structures
- Holding assets in a family trust or company can offer protection, but courts may still consider them if control is evident.
4. Consider Property Ownership Structure
- If buying property, ownership as tenants in common (not joint tenants) can help protect your share.
5. Superannuation & Estate Planning
- Ensure binding nominations for super and review your Will to control who inherits your assets.
A lawyer can help tailor a strategy suited to your circumstances.
In such situations, it is up to the Family Court to decide who should become the legal guardian of your minor children without your guidance. This situation is not ideal as the Family Court may appoint a person as guardian who is not the person you would want to raise your children, or may lead to disputes between family members as to who should have been appointed.
We explain how it all works
Guiding You Through Family Law with Clarity and Confidence
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