Family Law : Property Settlement
The Family Court takes a staged approach to determining the division of matrimonial property. Those stages are generally:
- Ascertain the pool of assets
- Place a value in terms of percentages on the contributions of the parties to the acquisitions, preservation and maintenance of the matrimonial assets.
- Adjust those percentages where appropriate to obtain a percentage distribution of the matrimonial assets to each of the parties.
In the large majority of cases the Court considers that two parties to the marriage make equal contributions to property. Short marriages or cases where a large contribution was made in the latter stages of the marriage may be dealt with differently. Contributions at home as primary parent and home maker usually equal contributions of the main breadwinner.
The Court will adjust the division of the property away from a 50:50 split to allow for the different needs of the parties. If one parent has sacrificed work skills and experience to remain home looking after the children or performing the majority of the domestic chores, that person often could not get a job in the future earning a similar income to the parent who has remained in the workforce. The needs of the parent who has fewer skills is therefore greater especially if there remain children under 18 to be cared for by that parent.
Many other factors must be considered by the Court when dividing property. It is also the case that only about 5% of matters are decided by the Judge leaving the large majority of cases to be resolved by agreement between the parties. Lawyers form an important part of the process leading to an agreement by advising their clients of their entitlements and negotiating on that client's behalf.
Family Law : Parenting Issues
When two parents separate often an immediate result is the child/ren remain initially with one of the parents for the majority of the time. The other parent will spend time with the child/ren regularly such as alternate weekends, a period of the school holidays and perhaps some time through the week. When it is not practical to spend time together the child/ren may still be in contact with the other parent by telephone, email, video transmission through the internet, letters or some other means.
The child/ren who spend the majority of time with one parent is/are said to live with that parent and spend time with the other parent as set out above. However, "Parenting Orders" are not confined to parents and may relate to grandparents or other significant people in a child's life.
There are no set rules which state which parent the child/ren should be with the majority of the time or what amount of contact the other parent should have. Usually it is in the child/ren's best interest as they grow to spend time with both parents and the parents are encouraged throughout the Family Law process to come to an arrangement themselves if possible, which promotes the best interest of the child/ren.
Family Law : Divorce
There is only one ground for Divorce and that is that the marriage has irretrievably broken down. The Family Law Act provides that the test to be applied in determining the irretrievable breakdown of the marriage is whether the parties have been separated for at least twelve months prior to the application being lodged.
Separation occurs sometimes with the parties both remaining in the home. This is called "separation under the same roof".
It is rare for a Divorce to be contested. The Divorce hearings are conducted in an informal manner and only take about 5 minutes if the Application is in order.
A Divorce is granted in two stages. They are Decree Nisi at the date of the divorce hearing and a Decree Absolute one month later.
We would strongly advise you to obtain legal advice relating to your specific circumstances to ensure that you have all the information you need on your rights and obligations together with the options available to you to assist you in resolving any family law matter.