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Family and De Facto Law

Do you need a Family Law expert to assist you through your separation, your divorce, your property settlement or issues in relation to your children?

At a time of crisis you need someone sympathetic and confident. You need to be sure that your lawyer will fight for your rights.

It is naturally preferable for all parties to settle out of court. Our family lawyers have extensive experience in negotiating with ex-partners to attempt to reach an amicable agreement without the pain and expense that can arise from a lengthy court battle. If you are unable to reach an agreement outside the courtroom, we will firstly give you an honest appraisal of what we believe will be the likely outcome of a court case and the expected legal costs. Should your case go to court, we will fight on your behalf to ensure you receive the most favourable outcome.

Our Family Law lawyers are experienced in all areas of Family Law including:

  • Divorce
  • De facto relationships
  • Property Settlement
  • Children & Parenting issues
  • Binding Financial Agreements
  • Spousal Maintenance
  • Family and Domestic Violence

Please do not hesitate to call our office to speak with a member of our Family Law team or to arrange for an initial consultation with one of our experienced Family Law lawyers.

Frequently Asked Questions

Divorce

You or your spouse may apply for divorce without each other’s consent. This is known as a sole application. Both parties can also jointly apply for divorce.

You may file a divorce application provided that either you or your spouse:

  • regard Australia as home;
  • intend to live in Australia indefinitely;
  • have lived your or their whole life in Australia;
  • is an Australian citizen; or
  • ordinarily lives in Australia and has lived in Australia for the 12 months prior to the making of the application for divorce.

To legally obtain a divorce, it will be necessary to prove at the Court hearing the following matters:

  • that your marriage has irretrievable breakdown, meaning that you and your spouse are beyond the grounds of reconciliation;
  • that you and your partner have been separated for a continuous period of more than 12 months and there is no reasonable likelihood whatsoever of reconciliation; and
  • if there are children of the marriage who are under 18, the current arrangements for their care and the proposed future arrangements.

In certain cases, parties may continue living under the same roof after separation. If this is your case, you can still apply for divorce. However corroboration is required when applying for divorce when the parties are separated under the one roof. This corroborative evidence must be given by an affidavit by you and an affidavit by a third party, each deposing to the circumstances of separation of the parties

Parties may reunite for a period of up to three months without it affecting the prior separation period.

Where the parties have been married for less than two years, they can only obtain a divorce after they have sought marriage counselling or where there are special circumstances by reason of which an application for divorce should proceed, despite the parties not having attended counselling.

Where there are children of the marriage who are under 18 years, the applicant must be present at the court hearing to give evidence as to the arrangements for the children of the marriage, unless it is a joint application.

Once the Court is satisfied that all matters in relation to the divorce application has been proven, a divorce order will be made at the hearing. The divorce will become what is known as Absolute in exactly one (1) month and one (1) day after the hearing date. In other words, you will be able to marry in one (1) month and one (1) day after your divorce hearing.

De Facto Relationships

The following factors set out in s 13A of the Interpretation Act 1984 are used to determine whether a de-facto relationship exists between two people (including same sex couples), but not all factors are essential:

  • The length of the relationship between them
  • Whether they lived in the same residence
  • The nature and extent of their common residence
  • Whether there is, or has been, a sexual relationship between them
  • The degree of financial dependence or interdependence, and any arrangements for financial support, between them
  • The ownership, use and purchase of their property (including property they own individually)
  • The degree of mutual commitment by them to a shared life
  • Whether they care for and support children, and How their relationship as a couple is perceived by others

Recent legislative changes in Western Australia enable parties in certain de-facto relationships (including same sex couples) to access an equivalent range of remedies in the Family Court with regard to financial matters to those presently available to married couples.

The law regarding parenting arrangements and child support is generally applicable to all children in the same manner, irrespective of whether the parents are in a marriage or de-facto relationship.

Our Family Law Team can advise you on your rights concerning property matters if your de-facto relationship has broken down. The advice you can expect from us is both personal and practical, being suited to your needs. We will inform you of your rights and obligations in a way that you can understand and at all times put you in a position to make informed decisions about the conduct of your case.

We are able to assist you with the formalisation of agreements where an agreement is reached or in Family Court proceedings where the parties are unable to come to an agreement.

If you are about to enter into a de-facto relationship and wish to protect your assets, we can assist you in preparing an agreement known as a Binding Financial Agreement. See our section on Binding Financial Agreements for further information.

Property Settlement

After the breakdown of a marriage or de-facto relationship, the division of property is crucial to the financial future of both parties. While some property settlements can be reasonably straightforward, others can be extremely complex. In either case, accurate and prompt legal advice is vital. Our team of Family lawyers are highly experienced in property matters and can provide valuable advice in relation to your entitlement and how assets, financial resources and debts can be divided between you and your former spouse.

It is common practice at our firm to assist you in negotiating a settlement between you and your partner in the hope of avoiding costly and lengthy Family Court proceedings. However, in certain cases, especially where parties cannot reach agreement after negotiation, commencing property proceedings in the Family Court can assist in achieving property settlement.

In deciding how property should be divided, the Family Court will apply the following four-step process:

  • Step 1: Identify and value the assets and liabilities of the parties.
  • Step 2: Assess the financial contributions and non-financial contributions made by each party and decide what percentage of the property each party should receive based on the contributions of both of the parties.
  • Step 3: Assess the future needs of each party and make any further adjustment to ensure the settlement will be fair and to make a clean break in the parties’ financial relationship (when practicable).
  • Step 4: Determine whether the resulting division is just and equitable.
  • "If I leave the marital home, I’ll lose my rights"
  • "I owned the property before marriage, so it is mine"
  • "The property is in my name, so it is mine"
  • "I can keep inheritances and gifts"
  • "I worked hard for this business and therefore it is mine"

Where you and your partner have agreed on a property settlement, we can advise on the most appropriate and cost efficient means of formalising property matters to ensure security for the future. In some cases, this will involve obtaining consent orders through the Family Court of Western Australia whilst in others it will be more appropriate to enter into a Binding Financial Agreement.

If no agreement can be reached, we can make an application for property orders on your behalf at the Family Court. The decision is then made at trial. Both parties are expected to fully disclose their respective financial circumstances. A failure to make proper disclosure of a relevant matter is taken very seriously.

If you and your partner are divorced, then you only have twelve (12) months from the date that your Divorce Order is finalised to institute an Application for property settlement in the Family Court or file Consent Orders in the Family Court.

Children & Parenting Matters

When a marriage or de facto relationship breaks down, the welfare of the children should be the primary concern for the parents. The Family Law Act states that the rights and well-being of a child of a marriage or a relationship is paramount.

Our Family Lawyers understand that your children mean more than anything to you. Therefore, we aim to provide you with sound advice that will ensure you reach a speedy resolution that is beneficial for you and your children, whilst ensuring that you will continue to be a part of your child's or children's lives.

Under family law, each parent is presumed to have parental responsibility for a child. But the details of care, contact and child support are your decision – or the Court’s. We can assist you and your former partner to develop a formal parenting plan, an agreement covering your child’s residence, contact, and other child-related issues.

A major reform in Family Law was the introduction of the Family Law Amendment (Shared Responsibility) Act 2006. The Act established 65 Family Relationship Centres for the benefit of families in dispute. Due to the amendments, the Family Court now requires families to attempt to resolve their conflict before their application is heard in the Court, in hope that Court proceedings will be avoided. The Act has also changed the way the Family Court deals with issues with respect to children. The Family Law Act now provides that both parents have equal shared parental responsibility for the care and welfare of their children. As such, there is no automatic rule that the children should live with either their mother or their father after separation. However, the Family Law Act does not provide for how parents are to exercise their parental responsibility. As such,parents are to decide between themselves about all matters concerning the children's welfare and upbringing. Where parents are unable to agree on the arrangements for their children, proceedings in the Family Court can become necessary.

More importantly, the Court will consider initially whether it is appropriate that the children spend equal time with both parents. Although the primary consideration is the best interests of the child, the court will make its decision based on a wide variety of factors, such as the child’s relationship with each parent, parental attitudes, and capacity of each parent to provide. The law provides that parental responsibility ends once the child turns 18 years old or the child is adopted.

Parenting orders are legally binding arrangements which cover the following:

  • with whom a child is to live;
  • the time a child is to spend with each parent;
  • the allocation of parental responsibility for the child;
  • how parents will consult with each other about decisions to be made in relation to their children;
  • the communication a child is to have with another person, for example by telephone, email, video link up, or other electronic means;
  • how disputes in relation to interpretation of a Parenting Order can be resolved; and
  • any other issues relevant to the welfare of the children including for example medical treatment, choice of school, religious upbringing etc.

Parenting Orders can be agreed upon by a child's parents, or can be orders made by the Family Court.

If an out of court agreement can be reached as to parenting arrangements, our family lawyers will assist you in having the agreement formalised into Parenting Orders. If you and your ex-partner cannot agree on parenting arrangements, then either party may apply to the Family Court for Parenting Orders to be made by the Court.

Binding Financial Agreements

Binding Financial Agreements (also known as a Pre-Nuptial Agreements and Post Nuptial Agreements) became part of the Family Law Act in 2000 and were introduced to allow people to be able to control their financial & property affairs without the expense of litigation.

A Binding Financial Agreement can now be entered into by couples who are contemplating entering into a marriage or a de-facto relationship with each other. The Agreement can deal with how, in the event of a breakdown of the marriage, all or any of the property or financial resources of either or both of them at the time when the Agreement is made or at a later time and before the dissolution of marriage is to be dealt with. The Agreement can also deal with the maintenance of either party during the marriage or after dissolution of marriage or both during and after dissolution of marriage.

A similar Binding Financial Agreement can also be entered into by couples during a marriage but prior to divorce. Once again, this Agreement can deal with how, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of them at the time the Agreement was made or a later time during the marriage is to be dealt with and it can also deal with the maintenance of either party.

Finally, Binding Financial Agreements can be entered into by couples after separation or after the dissolution of their marriage dealing with how all or any of the property or financial resources of either or both of them that they had or acquired during the former marriage is to be dealt with and once again can also deal with the maintenance of either party.

The advantages for couples entering into such Agreements are:

  • To provide piece of mind to you and your partner in relation to financial matters in the event your relationship ends;
  • To protect ownership of assets brought into a marriage/relationship;
  • To protect ownership of special assets acquired during a relationship (for example, an inheritance);
  • To protect ownership and retention of business interests;
  • To prevent costly, lengthy litigation if the relationship does end;
  • because such Agreements will be binding on the estate in the event of the death of either party.

A Binding Financial Agreement can only be terminated (during its operation) by the parties entering into another written Agreement known as a Termination Agreement. The parties can then enter into a new Binding Financial Agreement which reflects the changes required by the parties.

It is generally very difficult to set aside a Binding Financial Agreement once entered into. However, the Family Court may set aside a Binding Financial Agreement if the Court is satisfied that:

  • the Agreement was obtained by fraud (including non-disclosure of a material matter); or the Agreement is void, voidable or unenforceable; or
  • if circumstances that have arisen since the Agreement has made it impracticable for the Agreement or part of the Agreement to be carried out; or
  • since the making of the Agreement, a material change in circumstance has occurred (being circumstances relating to the care, welfare and development of a child of the marriage) and as a result of the change, the child where the Applicant has the care and responsibility for a child or a party to the agreement will suffer hardship if the Court does not set the agreement aside; or
  • in respect of the making of a Binding Financial Agreement, a party to the Agreement engaged in conduct that was in all the circumstances unconscionable.

Spousal Maintenance

Spousal maintenance is when one person provides ongoing financial support for their former husband or wife.

Under the Family Law Act, both spouses have a duty to support and maintain each other, even after you have separated or divorced. Essentially, the extent of the support depends on the following:

  • One spouse (the applicant) is unable to adequately meet his or her own reasonable needs; and
  • The other spouse (the respondent) has the capacity to pay.

When deciding on a maintenance application, a court will consider the needs of the applicant and the respondent's capacity to pay. A court considers the following about both parties:

  • age and health;
  • income, property, and financial resources;
  • ability to work ;
  • the need to support children of the relationship;
  • what is a suitable standard of living; and/or
  • if the marriage/relationship has affected your ability to earn an income.

The court will also takes into consideration, the living arrangements of any children of the marriage.

You may not be entitled to spousal maintenance if you remarry or if you start a new de-facto relationship. In those circumstances, the Family Court will take into consideration the financial relationship between you and your new partner when considering whether you are able to support yourself adequately.

Applications for spousal maintenance must be made within 12 months of a divorce becoming final. If you do not apply within this time, you will need special permission of a court. This is not always granted.

Family and Domestic Violence

Family violence in family law is defined as:

  • A family member doing something or threatening to do something to another member of their family OR
  • A family member doing or threatening to do something to the other family member's property that makes the other family member (or someone else in the family) worried or fearful for their safety.

Family violence can include physical and sexual violence, threats of violence, stalking, emotional abuse and damage to property.

If you or your child is a victim of family violence, you may seek a Violence Restraining Order (VRO) against the perpetrator to protect yourself and/or the child. You can apply for a VRO at the Magistrates Court.

The Family Court is concerned about family violence and wants to make sure it protects children from psychological or physical harm and from abuse, neglect and family violence. It is one of the most important things the court looks at when working out whether parenting orders are in the best interests of your children. The court will also look at whether there is a violence restraining order (domestic and family violence), which is final or has been disputed in court by the person it has been brought against.

The Family Court aims to protect children from family violence or abuse that is directed at the children, as well as family violence or abuse they are exposed to or see when it is directed at another family member, such as a sister, brother or parent.

Domestic Violence is without a doubt, a traumatic and potentially terrifying experience. The laws relating to Domestic Violence and Violence Restraining Orders are designed to protect you but unfortunately, they are still quite complex. To ensure you receive the best legal protection, contact the Family Law Team at iLaw Barristers and Solicitors on (08) 9444 3300. You can also send through your enquiry online now and we will contact you shortly.

Unable find the answer to your question? Don't worry, contact us and we will be happy to assist you.