Mathews Family Law & Mediation Specialists has created many detailed articles answering the most common questions people have in relation to their rights and Australian Family Law.
Oftentimes, particularly in circumstances where parties to a separation are amicable and consider that they “get along well”, spouses divide their assets according to a personal agreement – that is, an agreement negotiated personally between the parties without the use of lawyers or the Australian courts.
Such an arrangement is not legally binging, and until an agreement is documented in one of the approved manners, the agreement is considered to be an informal agreement.
One of the most significant consequences of not formalising your property settlement is the possibility that your former spouse is able to make an application for a property settlement in the future – one, two or even several years later. Being required to undertake a settlement years after your separation can have detrimental impacts on your financial and mental wellbeing and makes it difficult to plan your personal affairs. This is particularly so when as far as you knew, the matter was dealt with and is in the past.
It is important, and a principal consideration of the Australian courts, that parties finalise the financial aspects of their relationship so that they can get on with their lives.
HOW DO I FORMALISE A PROPERTY SETTLEMENT?
Australian family law affords former spouses (or parties to a de facto relationship) two ways in which they can formally finalise a property settlement. These are:
1. Making an application to the court for consent orders; or
2. Entering into a binding financial agreement (‘BFA’) (also colloquially known as a ‘pre-nup’).
To reiterate, an agreement is not legally binding unless and until it is is documented in one of these manners.
1. CONSENT ORDERS
Parties to a separation that have reached agreement about their property settlement are able to apply to the Family Court of Australia for orders to formalise the agreement so that it is legally binding. This application documents and details:
When considering an application for consent orders in respect of a property settlement, the Family Court must be satisfied that the orders proposed are just and equitable.
Although the parties are not required to obtain legal advice in relation to an application for orders, it is highly advisable that you do so, as the documents required are technical in nature, and the consequences of an agreement not being documented correctly can be costly and time consuming.
2. BINDING FINANCIAL AGREEMENTS
Parties to a marriage or de facto relationship can enter into a binding legal agreement (essentially a contract) that details the financial arrangements should their marriage or de facto relationship break down.
A binding financial agreement can be entered into:
A binding financial agreement is capable of covering:
Unlike an application for consent orders, in order for a financial agreement to be binding, both parties must seek independent legal advice as to the effect of the agreement on the rights of either party and the advantages and disadvantages thereof. Additionally, and as distinct from an application for consent orders, a binding financial agreement is not required to be deemed as just and equitable by the Australian courts.
OTHER IMPORTANT CONSIDERATIONS
You are not required to be divorced to formalise your property arrangements – in Australia, divorce is a largely administrative process and is distinct from property settlement matters.
You should also consider that when you are divorced, you have twelve months from the date that the divorce is granted to bring an application for a property settlement to the court. After this time, ‘leave’ (i.e. permission) from the courts to apply for property orders may not be granted, or may nevertheless be costly and time consuming to pursue. De facto couples have two years from the date of separation in which to apply to the court for property orders.
WHERE TO FROM HERE?
Our accredited family law specialists are available to assist in all matters pertaining to your property settlement and can advise as to the method that is most suited to your particular circumstances. If you would like to speak to one of our family law specialists about any of your family law matters, please contact us on (03) 9804 7991 or email email@example.com to arrange a free telephone consultation.
Divorce is painful for everyone concerned, especially children. During this challenging period, children need love, support and contact with both parents.
Creating certainty about the future is crucial for children when their parents separate. Parents coming to a mutual agreement about parenting arrangements can help to provide clarity and certainty.
When parents agree
Following separation, parents may agree on a parenting arrangement that works for them and the children. The agreement should focus on providing for the needs of the children and may include financial arrangements.
A parenting arrangement can be agreed orally, in writing or put into a formal court order known as ‘consent orders’ (which requires an application to the court but does not require a court appearance).
When parents don’t agree
If parents can’t agree on parenting arrangements, they can apply to the court for a parenting order. Usually (except in the case of family violence and other specific circumstances), parents are not permitted to apply for a parenting court order until they have first attempted family dispute resolution (mediation).
The court’s primary concern will be to protect the children from psychological or physical harm. The court will address this before deciding about parenting arrangements.
The Australian Government has published a book to help develop parenting plans. This resource can help prepare clear, practical parenting arrangements that are focused on what’s best for the children.
What to consider when creating a parenting agreement?
When making parenting arrangements, parents may consider a range of issues including:
While a routine may be best for your children overall, flexibility is likely to be an essential ingredient of a parenting agreement.
Relocating with children
If you are thinking of relocating with your children at a distance that would dramatically affect the time they spend with the other parent, you will need to come to an agreement with the other parent. If agreement is not reached, an application to the family law courts seeking permission to relocate the children will be required.
The proposed relocation destination may involve moving intrastate, interstate or overseas. Consider how the relocation will affect the children’s relationship with the other parent and ask yourself the question ‘Would the move be in the children’s best interests?’ – the court will ask the same question.
Consider what is best for your children’s short-term and long-term wellbeing.
Work out what concerns need to be addressed in your parenting arrangement.
Decide whether you want the parenting agreement to be an informal oral or written agreement, a parenting plan signed and dated by both parents or a court order obtained by consent or by order of the court (judge made order).
Contact an accredited family law specialist or family dispute resolution practitioner to obtain the advice that you need to resolve your post-separation parenting issues.
Vanessa Mathews is a Fellow of the International Academy of Family Lawyers (IAFL).
Vanessa joins with the IAFL in welcoming the following four major developments in recognition of
LGBT rights in the Asia Pacific region, as summarised by the IAFL:
‘In September 2018, the Supreme Court of India unanimously ruled to decriminalise
homosexual sex in a landmark judgment for gay rights in that country, the world’s most
populous democracy. The Indian Supreme Court declared unconstitutional a 160-yearold law banning homosexual activity, stating that the provision of the criminal code amounted to discrimination on the basis of sexual orientation and was illegal.
In December 2018, in a landmark decision, the Singapore High Court allowed the
adoption of a child of a gay male couple born with a surrogate by the child’s own
biological gay parent on the basis of the need to promote the welfare of the child and
regard it as paramount despite other public policy.
On 17 May 2019 Taiwan’s parliament became the first in Asia to legalise same-sex
marriage, after the Taiwanese Constitutional Court in 2017 ruled that the constitutional
right to equality and freedom of marriage guaranteed same-sex couples the right to
marry under the Taiwanese constitution.
Most recently on 6 June 2019, the Hong Kong Court of Final Appeal unanimously
granted a same sex-couple who had validly married in New Zealand, the same right to
employment and tax benefits that an opposite-sex married couple has under Hong
Kong law. The Court held that it is circular logic to justify the restriction of these
benefits to opposite-sex married couples simply because heterosexual marriage is the
only form of marriage recognised in Hong Kong law. It uses the fact that the couple has
a different sexual orientation from others as the very justification to deny them equality,
despite their analogous position.
The IAFL is an international organisation of over 820 practising lawyers from 58
countries who are recognised by their peers as the most experienced and skilled family
law specialists in their respective countries. The IAFL reaffirms our support of efforts
towards ensuring human dignity within all relationships, full equality of the LGBTI
community and in issues concerning marriage, families, parenting and ending domestic
violence throughout the world.
While these legal changes are all different in their reach, they will improve the rights of
LGBTI people in each of these jurisdictions. The IAFL especially welcomes these
measures in the Asia Pacific region, where issues of criminalisation of and discrimination
against LGBTI people continue to be of concern in some jurisdictions. We call on all
governments in our region to review their laws in relation to LGBTI people and their
The International Academy of Family Lawyers, of which Vanessa Mathews is a Fellow, has published a global survey of Lesbian Gay Bisexual Transgender laws (LGBT laws), the results of which can be found here https://www.iafl.com/media/5336/2019-iafl-lgbt-survey.pdf.
The IAFL LGBT Committee stated ‘Laws affecting LGBT people vary greatly by country or jurisdiction. There are now 28 jurisdictions that accept same sex marriage, however gay sex remains illegal in many jurisdictions with the death penalty still applying in 14.
The International Academy of Family Lawyers (“IAFL”) supports all efforts towards full equality of the LGBT
community throughout the world and the end to rules that unfairly discriminate against such individuals and, in
many countries, criminalize countless couples because of the ones they love. There remains a lot of work to be done.
The work done by some fellows of the IAFL is having a real impact and changing for the better the lives of LGBT
people. The LGBT Committee of the IAFL commissioned this survey to capitalize on the knowledge and expertise of
some members for the benefit of the IAFL as a whole and the LGBT community.
The individual submissions in this survey are the work of fellows of the IAFL who have kindly donated their time and
expertise to answer the same questions as set out below. Each of the contributor’s names and contact details are
The LGBT Committee intends that this should be a living resource. We are asking those who have already kindly
donated their time to keep us informed as laws change in their jurisdictions. We have detailed submissions from 46
jurisdictions, however, there remains a good number of jurisdictions not covered where the IAFL has fellows. If your
jurisdiction is not covered and you feel able to complete a survey, please get in touch with the IAFL.’
Congratulations to the IAFL LGBT committee members for preparing such a comprehensive review of comparative laws.
Separation and divorce hurts. There’s no getting around that fact.
Without special care and attention, children can be the unintended victims of separation and divorce. For them, their parent’s separation can open a floodgate of emotions, which, for children of any age can be difficult to process and express.
Many of the parents we speak with of course to want to minimise the impact of their divorce on their children, but do not always know what signs to look for. So how can you identify the signs that your child may be being adversely affected by your separation and divorce?
Although every child is unique, there are some clear signs to look out for:
Your child could be sad and cry a lot. It might be more difficult than usual to comfort them. They might cry for no reason or react disproportionately to that which to you seem to be minor issues.
The things they cry over may have nothing to do with the separation and divorce however due to difficulty in understanding and accepting the changes to their family, their ability to deal with other issues may be diminished and they can become easily upset.
You or your former partner might find that your children don’t want to leave your side, or that they want to stay with the other parent and resist going with the other parent.
Separation anxiety for children is common when parents separate. Their anxiety is a result of the significant changes they are experiencing and staying close to one or both parents is their way of managing.
When parents separate, it may cause the children to feel uncertain, insecure, worried or anxious. The complex emotions they feel and their inability to express their feelings may be ‘acted out’, such as angry verbal or physical outbursts or uncooperative behaviour. Helping your children to express those complex emotions can help to release the anger and improve their wellbeing and anxiety.
The stress of parents separating can result in children withdrawing into themselves and refusing to engage in activities they have enjoyed in the past. Some children stop hanging out with their friends, preferring to spend all their time in their room, keeping a distance from their family and doing things by themselves.
When children are tackling a stressful situation at home, it can directly impact on their performance at school. The stress at home takes so much of their attention and energy and they may have difficulty focusing in class.
At home, they may be anxious and distracted, unable to focus on homework, negatively affecting their academic performance.
The dip in academic performance can result in further anxiety for the child; they feel terrible about falling behind, compounding the situation with another stressful situation. If your child is struggling at school after separation, it is a good idea to inform the school about the situation at home.
Separated parents feel responsible for their child’s suffering. Parents must remain united in their commitment to ensuring that any adverse impact on their children is kept to a minimum, and, if any are identified they are immediately met with an appropriate united response. Conflict between parents will certainly exacerbate the impact on the children, potentially dramatically.
If you detect a dramatic change in your children’s behaviour and emotions, and your efforts to support them aren’t helping, please seek urgent help. Early intervention can help both you and your children to get the support required to see you through this difficult time.
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