Family Law – Frequently Asked Questions

When can I get divorced?

Once you have been separated for 12 months, you can apply for a divorce order.

Can I sort out my property settlement before I am divorced?

Yes you can. You do not need to wait for your divorce, and you do not need to have sorted out your property settlement before you get divorce. However, once you are divorced, you only have 12 months to apply to the Court for property settlement orders.

At what age can a child decide which parent they want to live with?

There is no age in the Family Law Act that specifies when a child can decide. The Family Law Act requires that the wishes of children are taken into account in accordance with their level of maturity. This means that the older the child or young person, the more their views will be taken into account.

My partner has been the income earner and I haven’t worked for a long time. Is there any support for me before we sort out our property settlement?

There is an expectation that a higher income earning spouse will continue to provide some assistance to a lower income earning spouse. This begins as a practical assessment of the bills, and see how they can continue to get paid. If a spouse is unwilling to contribute, then you can consider an application for spousal maintenance.

Do I have to tell my former partner all the details of my new financial position?

Yes you do. Family law is underpinned by obligations of what is called ”full and frank disclosure”. This means that you must disclose all of your financial position, even new things, to your former partner as part of your resolution process.

Do we need to put our property settlement in writing?

It is only property settlements put in writing properly as a Binding Financial Agreement, Consent Orders or Court Orders that are legally binding. So, putting it in writing is not really enough. And, the formal documents are essential if there is a superannuation splitting arrangement, a property to be transferred, or to simply confirm that the issues are legally at an end and so prevent future claims.

I have a company and a trust. That means they’re not really mine and protects my assets doesn’t it?

No, that’s not the case. In family law you must disclose and include in any property settlement arrangement not only things in your own name, but also things in the name of any company or trust that you control or own.

Am I responsible for my ex’s loans?

You are not directly responsible to the bank or lender for the loans of your former partner, unless you have signed documents with the bank or lender that perhaps provide a guarantee or similar. However, all debts are included in your property settlement, whether they are in your name, your former partner’s name, or a company or trust that you or your former partner control.

Do we have to include superannuation in our property settlement?

Yes you do. Following the full and frank disclosure rules, you must inform each other of your current superannuation balances and take those figures into account for your overall calculations.

Will we have to go to Court to deal with our property settlement?

Hopefully you won’t have to go to Court. If you can reach an agreement either between yourselves, at mediation or with the help of lawyers, then you can make that legally binding by entering into a Binding Financial Agreement or Consent Orders. You will only have to go to Court if you can’t reach an agreement with your former partner.

If I am bankrupt, can the Court still make orders about our finances?

Yes, the Court can still make a decision and Orders about what is then called “the bankrupt estate”. However the bankrupt person is not able to make the decisions as a litigant. Instead it is their trustee in bankruptcy who becomes joined as a party.

Isn’t it just a 50 / 50 split in a divorce?

It can sometimes be a 50 / 50 division, but not often. A property settlement weighs up a range of factors including initial contributions, contributions during the relationship and future needs. It’s not often that leads to a 50 / 50 outcome.

What are normal custody arrangements?

In Australia we don’t use formal words like custody or access anymore. The Family Law Act now has plain English words about children living with and spending time with their caregivers. There really isn’t any “normal”, as each family is different. Some families will find that week about works for them. Others will have the children have one more permanent home base and they spend regular time, perhaps on alternate weekends and one time during the school/ working week with their other parent. Some children will only be able to spend school holiday time with their other parent, because of the distance between their homes.

How long does supervised visitation usually last?

Supervision of visits is only put in place to protect a child from a risk of harm. That harm could be about getting to know a parent again that they haven’t seen in some time, or could be to ensure that a child is able to see a parent who has made unsafe choices in the past. Supervised visits is not usually a long term strategy.

Do I lose my rights if I move out before we’ve done our property settlement?

No you don’t. It is only important that you continue to contribute to mortgage and other ownership responsibilities if you have the capacity to do so. However, your rights overall, do not change because you move out.

What happens if I caused the end of our relationship?

Australia has a no fault separation and divorce system. This means that there is no advantage or disadvantage by being the person who decides the relationship is over.

What is a domestic violence order?

A domestic violence order is an order that prohibits certain behaviour. It is has a number of names around the country, including Protection Order, Domestic Violence Order and an Apprehended Violence Order.

If there’s been no hitting, has there still been domestic violence?

There may have been. Domestic violence is so much more than physical violence. The Qld definition of domestic violence includes physical abuse, sexual abuse, emotional or psychological abuse, economic abuse, coercive behaviour or making threats to do any of those abusive acts. Importantly it is domestic violence upon children for them to see domestic violence happening to a parent.

If there is a domestic violence order, does that prevent me from seeing my kids?

The answer depends on the precise terms of your domestic violence orders. Many orders will prohibit contact EXCEPT to allow contact with children, but only in ways that have been agreed to in writing or to follow a family law order. This is something you definitely should get specific advice about, as a breach of a DVO is a criminal offence.

Can I be made to leave my house?

Yes, you can. There are 2 types of Court Orders that can be used to have someone removed from their own house (even as a homeowner). One is an ouster order, which is an order made as part of domestic violence order. The other option is a family law order for sole use and occupancy of a home, which can be made by the Federal Circuit Court or the Family Court as part of a family law property application.

Do I have to keep paying the mortgage now that we have separated?

If you have enough money to pay, then you should continue to meet your financial obligations to the bank. If you don’t have enough money to pay, then talk to your former partner about what they can pay, and approach your bank to see if they have any hardship provisions that can give you a break while you are sorting out your property settlement arrangements.