10 Quick FAQs in Family Law
Family Law: 01 February 2024
Author: Phoebe Smillie - Our People
We know that navigating separation, divorce and property settlements can be complex and confusing, so we’ve put together a quick FAQ on some of the basics for you!
1. When can I get a divorce?
You must be separated for a period of 12 months before filing an Application for Divorce.
2. What is a property settlement?
A property settlement is the process of dividing assets, financial resources and liabilities of a relationship. The Court will consider a wide range of factors including financial contributions made by each party and the future needs of each party. The Court’s ultimate aim in determining property settlements is to reach a just and equitable division.
3. How much does a divorce cost?
The court filing fees for an Application for Divorce are currently $1,060. This fee can be reduced to $350 if you meet certain criteria.
You can read more about the Court filing fees and the reduced fee criteria at www.fcfcoa.gov.au/fl/fees/fl-fees.
4. Do I need to be divorced before I have a property settlement?
No. You can finalise your property settlement at any time after your separation, you do not have to wait until you are divorced.
If you are already divorced, you have a time limit of 12 months to finalise your property settlement or otherwise issue proceedings in the Federal Circuit and Family Court of Australia.
5. Is there a time limit for de facto couples when finalising a property settlement?
Yes, you must apply for a property settlement within two years of separating.
6. My former partner and I agree on how we should divide our assets. Do we need to see a lawyer?
It’s always beneficial to reach an amicable resolution, and one that avoids the necessity of prolonged negotiations and/or going to Court. However, before entering into any agreement, it is always best to obtain legal advice about whether or not the agreement is just and equitable. Together with advice, a lawyer can also assist you with properly formalising the agreement reached.
If you and your former partner are finalising your property settlement by way of a Binding Financial Agreement, both you and your former partner must both obtain independent legal advice.
7. Is superannuation included in property settlements?
Yes, superannuation is treated as property under the Family Law Act and is an asset which can be divided or ‘split’. Splitting orders apply to all types of superannuation funds (including SMSFs).
8. How do I protect myself from this happening again?
A Binding Financial Agreement (colloquially known as a pre-nup) is a great way to protect your property interests and limits the chances of having to go through another difficult and/or costly family law dispute. A Binding Financial Agreement can be entered into before, during or after a marriage or de facto relationship.
9. Do children have to spend equal time with each parent?
The short answer is, no. Parents can agree on any living arrangements which are in the best interests of their children.
10. How long will the process take?
Unfortunately, each family law matter is unique and a one sized answer does not fit all when it comes to family law. What is important to be aware of is that your family law matter will likely take some time to resolve. Some matters may resolve within a couple of weeks or months and some matters can take a few years.
Divorce can be a complex area to navigate. Our family lawyers are highly experienced in all aspects of family law and would be happy to assist you with your divorce queries. Phoebe Smillie is a Senior Associate in our family law team, please do not hesitate to contact us on 03 8600 6000.