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I have just separated from my partner with whom I have been living – What steps should I take?

If your former partner chooses to dispute the date you separated, you may be required to prove when the separation happened. You may be in a position where you live with your former partner temporarily while you make other arrangements. In this event, you will want proof of the date on which separation occurred. One way to prove you have separated from your partner is to have it confirmed in dated written format, ideally signed by both you and your former partner. If a written and dated document will be difficult to acquire, then a text message to your former partner can often suffice.

Proof of Separation

If a precise date of separation isn’t known because it was a gradual process that happened over some time, it may be required for the Family Court to determine when the separation occurred. In this circumstance, the Family Court will look at factors such as:

• When did you and your former partner start sleeping in separate rooms?
• Did either you or your former partner inform family and friends that you had separated?
• When were you and your former partner’s financial affairs formally separated?
• When were you and your former partner last intimate with each other?
• When did you and your former partner stop carrying out domestic duties such as washing and cooking for each other?
• When did you or your former partner lodge formal documents, such as ATO or Centrelink documents, on the basis that you were separated?

What are some of the first steps you can take following separation?

• Setting up a bank account in your name may be a good first step to gaining financial independence. The date on which the new back account was created may also provide supporting evidence of when separation occurred.
• Formalizing your separation may include agreeing with your former partner to close any joint bank accounts you have together. Arrange for any scheduled transfers to now be facilitated via a personal bank account that only you can access.
• Carry out a financial audit to identify and value all the assets, liabilities and superannuation – in your name, your former partner’s name or an entity controlled by you and / or your former partner.
• Obtain a copy of your current superannuation member statement.
• Consider if it is necessary to protect yourself against the risk of your former partner drawing down from your bank accounts or incurring credit card debt without your prior consent and instruct your bank as to any protective action you wish to have taken.

Take the next step, contact Mathews Family Law

The next step is to book a free 15-minute telephone consultation with an accredited family law specialist at Mathews Family Law and receive specific advice about your situation.

Book a free consultation online today.

Child Support – The Details

As you and your spouse separate and divorce, child support will be one of the issues you will need to address. The primary purpose of child support is to guarantee that children’s day-to-day needs will be met through regular periodic support payments. Additionally, child support allows children to enjoy the same or similar standard of living as their parents. Child support lawyers can be arranged by agreement between the parents, or through an administrative assessment conducted by the Child Support Agency (CSA).

Child Support Agreements

Often the best way to arrange for child support is through an agreement between the parents in the form of a child support agreement. This method allows parties to deviate from the formula used in the administrative assessment used by the CSA to determine support. There are two types of agreements that may address child support: a binding child support agreement and a limited child support applications agreement.
Child support agreements are considered binding if both parties to the agreement were given independent legal advice (from separate counsel), and the agreement must state that this is in fact the case. Additionally, the counselor who administered the legal advice must also execute and sign a certificate, which is included in the agreement. A binding child support agreement can be for any amount – including an amount less than prescribed under the CSA formula.
Unlike a binding child support agreement, a limited child support agreement does not require that the parties obtain independent legal counsel. The only requirements for this type of arrangement are that the agreement is in writing, signed by both parties and that the amount agreed to is at least equal to the amount payable under the child support agency formula.
It is not possible to modify or alter a child support agreement; rather you must terminate the agreement and enter into a new one. The Child Support Assessment Act provides for several ways to terminate a child support agreement:

• by entering into a fresh agreement
• by agreement in writing
• a court order
• a new national assessment, and
• simply if the agreement is three or more years old.

Child Support Agency and Administrative Assessments

Should you and your former spouse be unable to reach an agreement and execute either a binding or limited child support agreement, you may arrange for child support through the CSA. In order to obtain this, you must first make a child support application for an administrative assessment. The assessment will be made using the appropriate formula and can be subject to private enforcement or registered for collection through the CSA.
Administrative assessments are calculated by using a formula that requires parents to share in the support of their children and is based upon the level of care provided as well as their respective incomes. The various applicable formulas take into consideration a child support income amount, adjusted taxable income, self-support amount, and relevant dependent child allowance, among other figures. There are six formulas available, although the most common is “formula 1.”

The steps to determine formula 1 are as follows:

• Calculate each parent’s daily child support income for the child
• Calculate the parents’ daily combined child support income for the child
• Calculate each parent’s daily income percentage for the child
• Calculate each parent’s daily percentage of care for the child
• Calculate each parent’s daily cost percentage for the child
• Calculate each parent’s daily child support percentage for the child
• Calculate the daily cost of the child
• If a parent has a positive child support percentage under step 6, the annual rate of daily child support payable by the parent for the child is calculated by using this formula:

Parent’s daily child support percentage for the day

X (multiplied by)
Costs of the child for the day
Formulas 2, 3, 4, 5, and 6 are less common. They are variations provided to consider non-parent careers, non-resident parents, multiple cases, and special circumstances or deceased parents.
Should any of the elements used in the formula change, the CSA should be notified so that the child support amount may be recalculated.
It is possible to be awarded an amount that is inconsistent with the administrative assessment of child support. If you are seeking a departure from the assessment you simply need to fill out a form and submit it to the CSA who will then schedule a conference to hear the parties. A written decision is ultimately provided to both parties. In determining whether a departure is proper, grounds for such must be established, it must be just and equitable, and it must be deemed otherwise proper, and there must be a special circumstance. The Child Support (Assessment) Act 1989 has enumerated ten types of special circumstances:

• Costs of caring for a child. It costs you more than 5% of your child support income amount to spend time with the children.
• Special needs of a child. It costs you extra to cover the children’s special needs.
• Manner expected by the parents. It costs you extra to care for, educate or train the children in the way that you and the other parent intended.
• Income and earning capacity of the child. The child support assessment does not take into account the income, earning capacity, property or financial resources of the children.
• Money, goods, or property from the payer for the benefit of the children. The children, the payee or someone else has received or will receive money, goods, or property from the payer for the benefit o the children.
• High costs of child care. You are the payee, you have sole care of the children, and it costs you more than 5% of your child support income amount for the child care for children younger than 12 years of age at the start of the child support period.
• Necessary expenses in self-support. You have necessary expenses in supporting yourself that affect your ability to support the children.
• Income, earning capacity, property or financial resources of one or both parents. The child support assessment does not take into account the income, earning capacity, property or financial resources of one or both parents.
• Legal duty to maintain another person or other children. You have a legal duty to maintain another person or other children not included in the child support assessment, and it costs you: more than 5% of your child support income to have contact with that person or those children, extra to cover the special needs of that person or those children, extra to cover the necessary expenses of that person or those children.
•  Additional income. You have earned additional income for the benefit of resident children.

A child support assessment ends upon child support terminating event. Such an event can occur when the child turns 18, when the child is adopted, or when the child, career or liable parent dies among other events.

Alternative Payment Methods

While it is most common to receive child support in periodic payments, it is also permissible to receive it in a lump sum payment. The most common situations where lump sum orders are considered are where there are difficulties in the enforcement or where the liable parent is asset rich and income poor, although there are many other situations in which a lump sum could be awarded.
Another payment method that has been gaining in popularity is a combination of the periodic payment and lump sum concepts. This results when the liable parent deposits the sum to be held in trust and distributed as child support liabilities accrue.
Finally, a party does have a right to make objections regarding decisions made by the CSA. The objecting party must lodge the objection 28 days from the service of the decision, and a decision regarding the objection will be made within 60 days. Additionally, there is a formal process available to allow parties to appeal an objection decision. 

Property Division – The Details

The Family Law Act provides for property division for both formerly married couples, as well as de facto couples. There are two main goals when it comes to property division. First, this should be a step towards finalizing the economic relationship between the parties. This “clean break” principal is supported by the requirement that courts make orders that will end the financial relationship of the parties as far as practicable. Second, this process recognizes contributions to property, both financial and non-financial.

An action for property division must be brought timely. For instance, if you were formerly married you must bring any property proceedings within 12 months of when your divorce order became absolute. Alternatively, if you were in a de facto relationship, you must seek property division prior to two years after the end of the relationship

Broad Discretion

The court maintains broad discretion when it comes to making property orders. For instance, should the parties disagree as to the ownership of property, the court has the discretion to make a declaration regarding the property in question.

Even the language in the Family Law Act speaks to this notion that the court has an abundance of discretion; the exact language expresses that the court may make “such order as it considers appropriate.” This broad discretion is subject to seven restrictions/considerations the court must contemplate. These considerations listed below are enumerated in the

Family Law Act.

• the direct and indirect financial contributions of the parties
• the non-financial contributions of the parties
• contributions to the welfare of the family, including contributions as homemaker or parent
• the effect of any order on the parties’ income earning capacity
• the list of considerations in s 75(2) and 90SF(3) of the Family Law Act
• any other order made under the Family Law Act affecting a party or child of the marriage or de facto relationship
• any child support payable, or likely to be paid in the future

Finally, the last bit of guidance that the Family Law Act offers to the court, is that the court shall not make an order unless the circumstances indicate that it is both just and equitable to make the order.

Because the Family Law Act fails to provide strict guidelines with regard to property division, and the courts are given such broad discretion, the courts have adopted a four-step process to apply to property orders. First, the court must identify and value the property, then consider contributions of the parties, then consider the factors listed above, and finally consider whether the order is just and equitable.

Step One: Identify and Value Property

The court must identify and value a rather encompassing pool of property, which includes real property, assets, liabilities, financial resources, property presently possessed and property expected, as well as property disposed of. The court must also identify and value business interests, licenses, permits and professional qualifications, inheritances, insurance policies, among many other types of property. As you can see, the type of property is pretty much anything – the list is rather extensive.

Both the nature of the property as well as the value must be determined as of the date of the decision, rather than the date of separation or divorce. When determining the value of the property, the court will begin by considering the fair market value of the property. Fair market value generally refers to the amount that a willing (not anxious) purchaser who is adequately informed would pay a willing (not anxious) seller of the property. In some instances where there is a dispute as to the value of property, and the court cannot make a determination of the value, the court may order the property be sold.

Once the property has been identified and value, a simple formula is used to determine the net asset pool of the parties. The total assets minus the total liabilities will result in the net asset pool used by the court.

Step Two: Contributions

The court will consider financial contributions, non-financial contributions, contributions to the care and welfare of the family, and contributions in the capacity of homemaker or parent. Financial contributions are any monetary contribution related to acquisition, conservation, and improvement of the property and refers to contributions made before the marriage, during the marriage, and after separation. On the other hand, an example of a non-financial contribution would be where one party performs maintenance or renovations of any family asset.

Often, especially when considering long relationships, the court will make a determination that the parties contributed equally. However, each situation is unique, and may not call for a determination of equal contribution. The court can make necessary adjustments to account for your unique circumstances.

One situation that is given special attention with regard to contribution is violence. If violence during the marriage or relationship had an adverse impact on a party’s contributions to the marriage, the judge will consider this when assessing the respective contributions of the parties.

Step Three: Additional Factors

This step helps the courts in addressing the future needs of the parties. The court will consider all relevant factors, including but not limited to:

• the age and state of health of each party,
• the income, property and financial resources of each party and their physical and mental capacity for achieving gainful employment,
• responsibility for a child of the marriage who is less than18 years old,
• commitments necessary for a party to support themselves or to support any other person that the party has a duty towards,
• eligibility for a pension, allowance or benefit,
• the standard of living which is reasonable in the circumstances,
• whether the relationship has affected the earning capacity of a party and to what extent,
• if either party is living with someone else, the financial circumstances arising from cohabitating with another person,
• the terms of any Orders made in relation to the property of the parties and the terms of any binding financial agreement.

Step Four: “Just and Equitable” 

The last step in the property division scheme requires to court to ensure that the proposed order is both just and equitable. This step is intended to allow the court to take a step back from the proceedings, and a whole, determine if the order is appropriate. The order should only be finalised if it is fair for each party. What is fair for one couple may not be fair for another couple, and thus determining fairness is wholly dependent on the circumstances of each individual case.

Variations of Property Orders

Despite the objective of ending the economic ties between the parties, property orders may in fact be varied after they have been issued. Variations are only permissible under certain circumstances. The Family Law Act only allows for reconsideration of a property order where both parties have consented, or where one party makes an application and the court is satisfied that at least one of the following is applicable:

• there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, etc.
• circumstances have arisen since the order was made that has rendered it impracticable for all or part of the order to be carried out
• a person has defaulted in carrying out an obligation imposed by the order, and as a result it is just and equitable to vary or set aside the order
• circumstances have arisen since the order relating to a child or the marriage or relationship, and hardship will occur if the order is not set aside or varied
• a proceeds of crime order concerning property of the marriage or relationship, or such an order has been made against a party to the marriage or relationship.

Should you be in a situation where you anticipate property division, the best thing for you and your former partner to do is to work through steps one through four before bringing property proceedings. This will often help you avoid having to go through litigation to arrange for your property division.

Divorce – The Details

Divorce – The Details

Australia does not recognize “fault” based divorces; rather one must show that the marriage has broken down irretrievably. One may only show such a break down by establishing that the parties in fact separated, and have lived apart for at least 12 continuous months prior to filing an application for divorce. Bear in mind that the day the parties separate is not counted in the 12 month calculation. Thus, the application for divorce may not be filed until twelve months and one day have passed since separation.

While the above requirements seem fairly straightforward, a lot of questions can arise with regard to divorce. This article is designed to give you an in depth look into all of the issues surrounding divorce and answer any questions you may have.

What constitutes separation?

First, showing a physical separation between the parties for the specified time period is not enough to establish legal separation. Legal separation is more than mere physical separation, and must also evidence a breakdown of the marital relationship.

Whether parties are actually separated is going to differ from case to case, and is largely a question of fact. The law requires a substantial breakdown of the marital relationship be shown, but there is no further clarification as to what exactly that means. Australian courts have carved out three elements that are required in order to establish a valid legal separation.

• Intent. Both parties must intend to either sever or not resume the marital relationship.
• Action. The parties must act on their intent, or act as though the relationship has ended.
• Unilateral Action. If only one party considers the relationship has ended, that party must communicate such to the other party.

You may have noticed that physical separation is missing from the above elements. Does that mean that you can have a valid legal separation while still living in the same home? Surprisingly, the answer is yet. The Family Law Act of 1975 addresses this issue head on and specifically states that a separation can exist even where the parties have continued to reside in the same residence.

Bear in mind however, that courts are cognizant of false claims of separation so it is advised that the parties have evidence to corroborate that they are separated despite living under the same roof. The aforementioned elements of intent and action must still exist, so if you chose to remain roommates while separated, make sure you can still prove both. Also, you will have to submit an affidavit which details the arrangements you have made with regard to where each party sleeps, the extent of household services rendered, if there are separate bank accounts, etc. You are also required to have a witness, such as a family member, friend, or neighbor submit an independent affidavit to corroborate your separation.

Remaining in the same house during your separation may have some benefits, for instance, it is less expensive, and if you have children it will be less disruptive on their lives. However, if you chose such an arrangement you must be prepared to disclose personal information such as sleeping arrangements to the court in your affidavit.

What about the resumption of cohabitation?

Say you separate, and then a few months into your separation you and your ex decide to try and make things work. You move back in with your ex and give it a shot. What effect does this have on your otherwise valid separation?

First, resuming cohabitation is not as easy as simply moving back in together – as we discussed previously, you can still be legally separated and living under the same roof. In order for cohabitation to affect your separation, your new relationship needs to look similar to the way it did when you were married. For instance, simply moving back in together will not be enough to establish the status of resumption of cohabitation, this only exists when the relationship mirrors, or is substantially similar to your previous relationship. Additionally the occasional slip up, or casual acts of intercourse will not be enough to establish a resumption of cohabitation.

The major thing to keep in mind regarding resumption of cohabitation is how long the cohabitation lasts. Should your reconciliation last less than three months, you are permitted to count the time you were separated prior to getting back together in calculating the twelve months of separation required before being eligible to apply for a divorce. On the other hand, if your reconciliation lasts for three months or longer, you must begin a new twelve-month period of separation before you may file an application for divorce.

If you resume cohabitation after you have already filed for divorce, it may be grounds for the court to refuse your application. The court will look at your relationship as of the date of the hearing (not the date you filed your application), to determine if the application should be denied based on reconciliation. The party wishing to show the reconciliation must bring evidence in support of her argument. However, a reconciliation after filing for divorce does not mean your application will automatically be denied. The court will look at your unique circumstances and make a decision based on such.

How do I apply for divorce?

After you have been legally separated for twelve months, you, your partner or both of you jointly may file for divorce. However, the court will only entertain an application filed by a party who is a citizen of Australia, has been an ordinary resident in Australia for at least twelve months prior to filing, or is domiciled in Australia.

The actual application form can be downloaded at www.fmc.gov, and may be filed in the Federal Circuit Court in all states and territories. However, in Western Australia your application must be filed in the Family Court of Wester Australia. Should you prefer to have a lawyer apply for a divorce on your behalf, go to www.divorce-online.com.au.

If you and your ex are not filing jointly for divorce, but rather you are unilaterally filing the application, you will need to serve your ex spouse with the following documents.

• A sealed copy of the application for divorce
• A copy of the brochure Marriage, Families and Separation
• The form of acknowledgment of service
• Copies of any additional documents filed with the court
• If served by post, a stamped self addressed envelope

There are two ways in which you can effectuate service; you can do so by post, or personally by a person other than yourself who is over the age of 18. If you are serving someone in Australia, you must do so 28 days prior to the hearing date. If service is taking place outside of Australia then it must take place at least 42 days before the hearing. Additionally, if you know your ex spouse is represented by a lawyer, you should check with their lawyer as they may have been instructed to accept service on their client’s behalf.

If you are unable to locate the person you wish to serve, the court can either permit substituted service or dispensation of service. In either case you will need to apply this type of service, and submit an affidavit explaining why the respondent cannot be located. The court will only grant your application if it is satisfied that you have taken the appropriate steps to locate the respondent prior to filing an application for substituted service or dispensation of service.

What happens at the divorce hearing?

Once you have successfully submitted your application for divorce, and served your ex spouse, there will be a hearing. If you filed your application for divorce jointly the hearing will take place within 28 days of filing, otherwise the hearing will take place within 42 days after the filing (56 days if the respondent is not in Australia).

If your application for divorce is successful, the court will issue an order for divorce. This order will automatically take effect one month after the order is granted. Should reconciliation take place after the order is issued but prior to the order taking effect, the court has the discretion to rescind the divorce order.

It is important to bear in mind that your application and hearing for divorce is limited to just that. This is not the venue for you to raise issues regarding support, maintenance, and child support. The court has an interest in making sure that arrangements have been made with regard to any children affected by the divorce, but no matters beyond such arrangements will be raised at the divorce hearing.

The four step process to family law property settlements