Let us answer your most frequently asked questions
What is a Consent Order? And when do I need one?
In many cases, former partners can resolve their property or parenting settlement by mutual agreement outside of court, but still in accordance with the Family Law Act with a consent order or Financial Agreement. In some cases, however, one or other may not be recommended. If both parties cannot agree on the division of assets, if there is unequal bargaining power, or one party is being unjust and inequitable, it’s recommended that a consent order is filed in court. A consent order is where both parties come to an agreement of the terms, and it is put before a registrar to seal, making it a court order.
Even if you are able to reach an agreement with your former partner, it is important that a qualified family lawyer has read over it, firstly to ensure it is accurate and will be accepted by the court to make it legal, and secondly to ensure you are receiving what you are entitled to. Both consent orders and Financial Agreements are legally binding on both parties, however, it is easier to enforce consent orders than financial agreements, as breaching court orders can have serious consequences.
We offer fixed fee drafting and filing of consent orders so you know exactly how much you will need to pay, and have confidence that the orders will be drafted and approved quickly. Contact us for a no-obligation, no-fee initial consultation to discuss your circumstances and how we can help resolve your asset division and let you move on as quickly as possible.
Can I get full custody of my child?
The law presumes parental responsibility should be shared equally unless it is found this is not in the best interests of the child, and there are some rare cases where full custody is granted to one parent or guardian, usually under extraordinarily abnormal circumstances.
If a case is heard by the court, the court will consider each parent’s behaviour, so unless there is violence, abuse or similar present, in most cases both parents would be granted shared custody. However this does not equate to shared time with the child. It is common to have shared custody of a child who lives with one parent.
We have joint custody of our child.
Can I move away?
There is no specific limit written in to the law as to how far a parent can relocate. However, there are laws about moving with children that apply even with no court orders in place.
If you and the other parent share equal responsibility for your children, then you will need to talk to each other and try to agree on major long-term decisions that will affect them.
If you want to move with children, you must make a genuine effort to try and sort out an arrangement you and the other parent agree with and this may require family dispute resolution or permission from the court.
Do I really need a lawyer to sort out custody?
It is important to have an experienced family lawyer represent you in this process to ensure you achieve a fair outcome. So what are the benefits of having a family lawyer by your side?
An expedited resolution process - Engaging a professional child custody lawyer will ensure an efficient resolution. Having extensive experience in understanding the complexity of family law and expertise fulfilling all the legal formalities required by the court.
Expertise and experience - You may be concerned that engaging a lawyer may hurt an amicable relationship, and result in going to court. In fact, all child custody cases go through a process called family dispute resolution, which helps reduce legal and court costs.
Objective and honest advice - A family lawyer can provide an impartial advocate, weighing the facts and helping you make decisions and understand your rights while minimising the emotional stress and heartache.
For more information on how our child custody lawyers can help you with your parenting dispute resolution and arrangements, book a complimentary consultation today.
What do we need to do to get divorced?
Divorce is the official ending of a marriage. It’s a common misconception that divorce includes all aspects of separating when it just the process of terminating the marital relationship of a couple. Below are the key steps to applying for a divorce in Australia:
Step 1 - Separation. The only legal requirement for getting a divorce is the ‘irretrievable breakdown’ of the marriage—proven by the husband and wife being separated for 12 months with no likelihood of getting back together. When applying for a divorce, your partner doesn’t have to agree, and the law doesn’t decide who is at ‘fault’ for the marriage breakdown.
Step 2 - You will need proof of Marriage. This is normally done with a marriage certificate. If it is in a langurage other than English it will need to be transcribed. However, if you don’t have a marriage certificate then our divorce law experts can assist you in securing one.
Step 3 - You will need to apply to the Federal Circuit Court for a divorce. You can apply together in a ‘joint application’, or one person may apply with a ‘sole application. Our separation and divorce experts will ensure you file a quick and accurate application.
Step 4 - If making a sole application, you must ‘serve’ the other person with the application—this means giving the other person the divorce paperwork so they know about the court proceedings. You must complete certain forms proving the other person has been ‘served’. You can't serve your former partner personally, but you can by mail. We can also arrange a third party server to serve documents on your behalf.
Step 5 - Wait to hear if you will be required to attend court, this will depend on if the application is joint or sole, and whether you have children under the age of 18.
Will I automatically get 50% of all our assets when we separate?
At the end of most relationships it will be necessary to formalise the rights and entitlements of each party to sever all financial relationships between you and safeguard future property. Contrary to popular belief, you are not automatically entitled to a 50/50 split of assets. We take you through the process to determine legally who is entitled to what, how to get what you are entitled to and the likely legal costs involved to settle your matter quickly and correctly. Time limits do apply to property settlements, so starting this process as soon as possible can avoid unnecessary stress.
The length of this process varies depending on the circumstances, and if possible we try to keep the property settlement out of court. Litigation is expensive, time-consuming and can put unnecessary pressure on already strained relationships. We are experienced in moving this process along for you as quickly and smoothly as possible.