Q1. I cannot afford to see a lawyer. They’re the only real “winners”.
A. You can’t afford not to see a lawyer. Any good family lawyer will tell stories of how time and time again they see people get themselves into all sorts of trouble by failing to obtain proper legal advice and representation. Some people will settle their property for a small fraction of what they are really worth. Some will settle and find their ex back on their heels down the track because to their shock horror their agreement was not legally binding. The scenarios are many and none too pretty, so it’s a bit like the old phrase – Penny Wise, Pound Foolish!
Q2. What will it cost me to have a lawyer?
A. Family Lawyers will charge at an hourly rate for all work expended on your case. You are entitled to receive a written costs agreement that will set out the hourly rate, estimates of costs at various stages, and likely expenses to be incurred.
Property in Family Law
Q3. We’re about to tie the knot. Is there anything a family lawyer can help me with at this point in time?
A. You might consider a Financial Agreement to protect the property which you worked so hard to acquire before the marriage. You should also bear in mind that the act of marriage will automatically revoke any former wills you might have made unless expressly made in anticipation of your marriage. You should speak to a lawyer about making a new will before or as soon as practicable after the marriage.
Q4. We own a house in our joint names. Can my ex sell it from underneath me?
A. Not legally. Both of you would be required to sign any selling agreement and contract for sale and associated documents.
Q5. Do I have to move out of our jointly owned property?
A. No. Not unless you are ordered by the Court to do so. Otherwise, you each equally have the right to remain in the property.
Q6. Do I have to worry about any joint accounts and joint liabilities?
A. It is important to ensure the safety of available joint funds and liabilities such as joint lines of credit. If this is an issue in your case, you should get urgent legal advice on your most appropriate course of action.
Q7. We have been living together for a number of years now, but the home is the partner ’s name? Do I have any interest in it?
A. You may well do. Just because the home is owned in the ex’s name does not necessarily mean that you would have no interest in it. Various contributions are recognised under the Family Law Act and you should seek legal advice for an assessment of your particular case.
Q8. I was not employed during the marriage. I was left at home to raise the kids. My ex went out and earned all the money, so what interest would I possibly have in the property?
A. Under the Family Law Act, the Court is to consider various contributions of parties including those of a financial and non-financial nature. You owe it to yourself to get some legal advice.
Q9. We have reached an agreement to settle our property. Should we get legal advice or can we simply carry it out ourselves
A. You should get legal advice. To be binding a family law property agreement must be in a particular form and expressed in a particular way. It could also provide you with exemption from stamp duty if one party’s interests are to be transferred to the other.
Q10. Are there time limits for making a property application to the Court?
A. Yes. For an adjustment of property interests between married couples, the time limited for making application is 12 months from the date when a divorce becomes final.
Q11. How long does it take to finalise a matter if we go to Court?
A. It will generally take between 12 to 18 months for a matter to reach final hearing stage subject to some variations.
Q12. Is Court to be avoided at all cost?
A. It is preferable if parties can reach agreement without Court intervention except to simply approve any terms of agreement. However, sometimes parties cannot agree and commencing Court action will become necessary. The Court process provides opportunity and support for parties to reach settlement. Some cases will benefit from a timetable set by the Court and of the available processes.
Children and Family Law
Q13. My children live with the ex and she won’t let me see them. What should I do?
A. It may be that you will need to make application to the Court to enforce any existing Orders, or if none, to get some urgent Interim Orders in place.
Q14. Do I need Parenting Orders?
A. There is no legal requirement for Parenting Orders. However they usually provide some structure (arrangements in writing) and security (enforceability of Orders) to post separation parenting. Sometimes Parenting Orders are absolutely necessary particularly where parties are in conflict in respect to parenting matters.
Q15. How are Parenting Orders made?
A. Parenting Orders can be made by agreement between parties. This is preferable but not always possible. If an agreement cannot be reached, then the Court may make Orders that will be binding on the parties.
Q16. What does a Court consider in making Parenting Orders?
A. The paramount consideration is the “best interests” of the child/ren. There are various factors which the Court considers in determining what is in a child’s best interests.
Q17. The children are living with me. Am I entitled to receive financial support for the children?
A. Yes. You should contact your nearest Centrelink Office and Child Support Agency for further information and if in need of any additional information, consult your lawyer.
Q18. Is mediation available to help work out arrangements?
A. Yes. There are centres throughout Australia that provide family mediation services.
Q19. Can parties be legally represented at mediation?
A. Yes, if the parties agree to this arrangement.
Q20. Is mediation mandatory?
A. No. However, in respect to children’s matters it will be mandatory for any party making an application to the Court to have first made attempts to attend family relationship centre in an effort to resolve a dispute from 1 July 2007.