Frequently Asked Questions
Do we have to attend counselling?
When granting a divorce, the Court must be satisfied that the relationship is irretrievably broken down and that there is little or no chance of reconciliation. Whilst you will not be forced to attend counselling, if you have been married for less than two years then a certificate from a counsellor should be lodged with the divorce application showing that you and your spouse have considered reconciliation with the help of a counsellor. In some cases the need for a counsellors’ involvement may be waived by the Court.
If you and your spouse elect to use the collaborative law approach to divorce, the services of a counsellor will be available to you during the process to help you reach an agreement on the issues concerning your separation if required.
From 1 July 2007, it is compulsory for anyone filing a new application relating to children to file a certificate with the application stating they have attempted family dispute resolution to try to resolve the issues. There are only limited circumstances where an application can be filed without a certificate.
It is important to remember that counselling can play a valuable role in helping couples, and families, through the marriage or relationship breakdown. At Karen L Haga & Associates we can provide details of counsellors and other support services that may be of assistance if you wish.
Do we have to go to Court?
It is important to note that most divorce and separation issues are resolved without the intervention of the Court.
When agreements have been made between parties, a Court can formalise the arrangements by making Court Orders to ensure that the decisions are binding on both parties. You do not have to be in attendance at the Court during this process.
How do I apply for a divorce?
In Australia the Family Law act operates on a “no-fault” basis which means that you do not have to prove that one party is at fault in the breakdown of a marriage – you just need to show that the marriage has broken down irretrievably and that you have been living apart for 12 months or more.
Once the 12 months has expired you can lodge an Application for divorce with the Federal Circuit Court and the hearing usually takes place 6-8 weeks after the Application is lodged. Before granting the divorce, the Court must be satisfied that proper arrangements have been made regarding the welfare of any children from the marriage, including living arrangements, access, education and financial support.
The Court does not automatically divide any property or financial assets. This is undertaken during a property settlement.
How do you get spousal maintenance?
In general, ex-spouses are expected to support themselves following separation. In some cases, such as when one partner is a high income earner and the other is unable to work due to a physical disability or they are caring for young children, an amount may be payable which would be determined by the Court.
Applications for spousal maintenance must be made to the Court within 12 months of obtaining a divorce.
How does the Court make decisions about children?
Generally speaking it is much better for the parents to make decisions regarding children’s issues rather than the Courts. Recent legislative changes recognise this fact and have made it compulsory for separating parents to attend Family Dispute Resolution services in an effort to reach agreement regarding the children before referring matters to the Court.
As parents, you know your children better than anyone. As your legal representatives, we will ensure that your rights and the rights of your children are protected and we will work with you to resolve any children’s issues in the best interests of your family.
Family breakdown is a very difficult time for children and we can refer you and your children to a number of support services that may make the process a little easier.
In extreme cases, when agreements cannot be reached between the parties concerned, the Court will review the matter and attempt to resolve the issues in the best interests of the children. An independent children’s lawyer may also be appointed to represent the child/children in Court.
How is child support calculated?
One of the most important issues following a family breakdown is to ensure that the children of the marriage are adequately cared for and receive enough on-going financial support. As parents you are legally responsible for your children until they turn 18. Child support is generally paid by the non-custodial parent and can either be an amount that is mutually agreed upon by the parents, or it can be referred to the Child Support Agency for calculation and collection. The Child Support Agency uses a formula under the Child Support Assessment Act to calculate the amount payable. You can visit the CSA website for more information and obtain an estimate of how much would be payable in your circumstances.
How is the property usually divided in a settlement?
Spouses who are getting divorced can finalise a property settlement at any time after separation and before either spouse has applied for a divorce. Once a divorce has been obtained however, you only have 12 months in which to apply for a property settlement. If more than a year has passed since obtaining your divorce, you have to seek the court’s permission to make an application. In most cases, couples can reach an agreement on how their property will be divided.
The traditional approach is for the lawyers to handle the negotiations, usually by written correspondence, and then when an agreement is reached it is formalised by the Court.
If an agreement cannot be reached and the matter is referred to the court for a decision, all of the property and financial resources of the parties including things like real estate, investments, interests in companies, family trusts, life insurance and superannuation will be taken into account. The court will consider each spouse’s contribution to the family, and contribution to the acquisition, conservation and improvement of the property, as well as the present and future income of each spouse, their needs and responsibilities. A decision will then be made on the division of the property.
If you and your ex-spouse/partner would rather work out the division of your property and the arrangements regarding your children for yourselves, then a new approach to family law in Australia may be the best option for you. Collaborative Family Law involves you and your partner negotiating the division of property and parenting arrangements in face-to-face meetings with specially trained lawyers.
Is my ex-spouse entitled to my superannuation?
In December 2002 new laws were introduced that enable the Family Court to divide superannuation between separating spouses. These laws mean that if a property settlement goes to court, the Court considers superannuation as part of the total asset pool and can make Orders to split it according to the recommended division between husband and wife.
What should I expect at my first consultation and what information will I need to bring with me?
Your first consultation with Karen L Haga & Associates is very important. At the meeting we will discuss your personal situation in detail to better understand how we can help you moving forward. It is at this meeting that we decide which approach to take (i.e negotiating directly with your ex-partner or spouse, collaborative law or court-based divorce proceedings) and how things should proceed.
It would be beneficial for you to bring along any relevant correspondence you have had with your ex-partner, details regarding your financial situation including assets and liabilities, and details of your relationship such as when you were married or started living together, the birth dates of any children, and when you separated.
It often helps to prepare a list of any questions you may have so that you don’t forget them on the day.