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Berwick Legal provides cost effective representation in Family Law and De Facto property disputes. This area of law is ever changing and is further complicated by the emotional and economic impact of these disputes between family members. Our team is well aware of these issues and has developed a strong reputation for expert advice in a sensitive and professional manner.

In case of a matrimonial or defacto property dispute, we strongly advise you to talk to a counsellor, someone who is experienced and educated in these fields. You should when it is safe to do so attempt to work through your marital issues through counseling and try to save the marriage or relationship. This often can be done free of charge through church organisations and family services.

If you are unable to resolve the problems through personal communication and counselling, you should contact Berwicklegal for an initial consultation.

When you come to us for the first time, be prepared to provide basic information. It is helpful to gather copies of financial documents. For instance, the deed to your home, deed to other real property, copies of tax returns and financial statements etc.

We will be open with you about your rights, and anything you discuss with us as your family law lawyer is covered under the attorney-client privilege. This means that anything you tell us is confidential and protected from disclosure later, even if you choose not to retain Berwick Legal as your family law lawyers.

After the initial consultation we will present you with initial advice to enable you to make an informed decision whether to pursue the matter further.

What are Pre-Action Procedures?

It is necessary that both parties attempt to reach an agreement outside of court, before filing an application for property orders. When applications for property orders are filed with either the Family Court or the Federal Circuit Court of Australia, both parties are ordered to undergo "pre-action procedures" including participation in a dispute resolution.

In rare cases, such as situations involving urgency, family violence, refusal to negotiate or fraud, the Court may accept that it is not possible or appropriate for the pre-action procedures to be carried out.

If no agreement can be reached then an application for property orders must be put into either the Family Court or the Federal Circuit Court of Australia. An application must usually be made within 12 months of your divorce becoming final. Alternatively you can apply for property orders before you divorce, which is very common to do in the interim period between the separation and the divorce. berwicklegal do not only represent you in Court. We are committed to assisting you in the process of dispute resolution outside of court as well as the formalisation of agreements.

How do you formalise a property settlement out of court?

Reaching a settlement out of court saves you and your family considerable time, stress and money.

There are two ways that your agreement can be formalised: Binding Financial Agreements or Consent Orders.

What is a Binding Financial Agreement?

A Binding Financial Agreement is an agreement made in accordance with Part VIIIA or Part VIIIAB of the Family Law Act 1975 (Cth) (the "Act"). Recent amendments to the Act made on 1 March 2009 now allow for all couples (whether they are married, de facto or same sex couples) to make a Binding Financial Agreement, sometimes referred to as a “BFA”. Whilst Berwick Legal can assist you in all your family law our speciality or preferred option is to have parties act in good faith and come to an amicable arrangement as to finances and enter into a Binding Financial Agreement (BFA) as an alternative to litigation and/or consent orders. Binding Financial Agreements are quick efficient and effective method of completing financial matters between the parties and can often be completed via email with only one visit to our office to sign the completed Agreement.

Who can make a Binding Financial Agreement?

A Financial Agreement can be made either a married or defacto couple or by a couple intending to be married or entering into a defacto relationship:

De facto couples

  • Before entering into a de facto relationship (s90UB);
  • During a de facto relationship (s90UC); and
  • After the breakdown of a de facto relationship (s90UD).

Married couples

  • Before entering into a marriage (s90B);
  • During a marriage (s90C);
  • After a divorce order has been made in relation to a marriage (s90D).

What is the effect of a Binding Financial Agreement?

A Binding Financial Agreement will prevent either party to the relationship from making an Application to the Family Court for the division of property. It also allows the parties of the relationship to determine how to divide their property and financial resources in the event of separation.

What are the benefits of making a Binding Financial Agreement?

Binding Financial Agreements allow the parties to determine how the property and financial resources of either or both parties will be dealt with in the event of separation and can also set out maintenance rights of either party in the event of separation. Financial Agreements are useful in protecting assets (estate planning) especially if either or both parties have children from a previous relationship and they want to protect their assets for their children in the event of incapacity or death.

By entering a Binding Financial Agreement, each party to the relationship can decide who will receive their assets in the event of incapacity or death and pursuant to section 90H and 90UK of the Act, a Financial Agreement or Part VIIIAB Financial Agreement will continue to operate in the event of incapacity or death of a party to the agreement and will be binding on the legal personal representatives of that party's estate (executors, administrators and attorneys).

Some of the benefits of making a Financial Agreement are as follows:

  • Fast and effective as Binding Financial Agreements can be completed within seven (7) days;
  • Instructions can be taken via email and only one (1) attendance at our office is required;
  • A Financial Agreement can avoid conflict and costly litigation in the event of separation;
  • Your wishes will be carried out in the event of incapacity or death;
  • No requirement to attend Court when making a Financial Agreement;
  • A Binding Financial Agreement does not need to be lodged with the Court for approval; and
  • Your wishes will be carried out in the event of incapacity or death.

When or how does a Binding Financial Agreement become binding?

A Financial Agreement will be binding upon the parties if it complies with certain requirements as set out in sections 90G and 90UJ of the Act. These requirements include:

  • The agreement must be signed by all the parties;
  • The agreement must contain a statement of each party that he or she has been provided independent legal advice from a legal practitioner, before the agreement was signed by him or her, as to the nature and effect of the agreement and the advantages and disadvantages (at the time the advice was provided) to the parties making the agreement;
  • An Independent Certificate of Legal Advice must be annexed to the agreement stating that independent legal advice has been provided in accordance with the Act;
  • The agreement must not have been terminated and have been set aside by the Court; and
  • Pursuant to section 90DA and 90UF of the Act, a separation declaration is also required for certain provisions of the Agreement to take effect. Unless the separation declaration is completed, the Agreement will be of no force or effect and therefore invalid.

Can a Financial Agreement be set aside by the Court?

A Financial Agreement may be set aside by the Court if the Court is satisfied that:

  • The agreement was obtained by fraud (includes non-disclosure of financial or other resources);
  • If a party to the agreement entered into the agreement for the purpose of defrauding or defeating a creditor or creditors or with reckless disregard of the interests of a creditor or creditors of the party;
  • If a party to the Agreement entered the agreement for the purpose of defrauding another person who is a party to a de facto relationship with the other party to the agreement; or for the purpose of defeating the interests of that other person in relation to any possible or pending application under s90SM or declaration under s90SL in relation to the other de facto relationship; or with reckless disregard of those interests of that other person.

The agreement is void, voidable or unenforceable;

  • If a party to the agreement has acted unconscionable at the time of making the agreement.
  • Its circumstances have changed and it is impracticable for the agreement or part of the agreement to be carried out in light of the changed circumstances that have arisen since the agreement was made;
  • There has been a material change in circumstances and a party to the agreement will suffer hardship if the Court does not set aside the agreement. Accordingly Binding Financial Agreements have their limitations however as a general rule if each party acts in good faith and discloses all assets and the agreement is drafted correctly then they are a fast effective and non-litigious alternative to a costly and long drawn out legal battle that only serves to dissipate limited financial resources of both parties.

What are Consent Orders?

Consent orders are a written agreement that are formalised and approved by the Court and thus are legally binding. There is generally no need to attend Court when you file orders by consent or consent orders.

Consent orders can deal with the following:

  • The transfer or sale of property
  • The splitting of superannuation
  • Spousal maintenance.

Please note: consent orders cannot be made about property matters for de facto couples or for child support departure applications.

Consent orders are filed with the nearest Family Law Registry, and there is no filing fee involved. Importantly the court must be satisfied that the orders are properly drafted and that the terms of the agreement are "just and equitable", before it will approve them.

What is a Property Settlement in court?

If no agreement can be reached then an application for property orders must be submitted to either the Family Court (FCA) or the Federal Circuit Court of Australia.

An application must usually be made within 12 months of your divorce becoming final.

The decision is then made through a court hearing. 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 and can lead to severe penalties.

How do you split your Superannuation?

As set out in part VIIIB of the Family Law Act, superannuation is dealt with separately to property orders. There are two elements to splitting superannuation: These are:

  • How to value superannuation interests (accumulated and potential).
  • How to split payments.

Even though superannuation comes under a separate part of the Family Law Act, it is still taken into account in the overall property settlement, and is subject to the same principles, such that:

  • All superannuation is taken into account, regardless of when it was acquired (before or during marriage / after separation)
  • It is not automatically subject to a 50/50 split. The Court will decide based on what is "just and equitable",
  • It is important to note that splitting superannuation does not enable you to access it any earlier.

It is still subject to superannuation laws (accessible after retirement age).

What are the Options for splitting superannuation?

  • Financial Agreement
  • Consent Orders
  • Court Orders (in Court).

How do you determine the value of your superannuation?

Before you enter an agreement, file for consent orders or apply for a court hearing, you will need to obtain the valuation information for your superannuation. This information can be obtained through communication with your superannuation fund trustee. To do this, you will need to provide the trustee with the following forms:

  • Form 6 Declaration (to show you are entitled to this information for this purpose)
  • Superannuation Information Request Form
  • Superannuation Information Form.

These forms are available in a Superannuation Information Kit at your nearest family law registry, or from the publications section of the Family Law Courts website. The valuation of superannuation is highly complex, and depends on many factors, including the type of fund. Some funds are still waiting approval from the Attorney-General's Department regarding the methods and factors used for valuing superannuation. This may affect the proceedings of your case.

How and why do I need a Valuation?

Where you are able to agree as to the value of any assets and liabilities, you should do so, even if this means exchanging market appraisals or using online valuation services to assist you in doing so.

If you are unable to reach an agreement as to the value of any asset or assets, the Court may appoint a valuer to do so and you may be required to share the costs of obtaining that valuation report. Often such valuation reports fall outside of the range that is considered to be reasonable by the parties. This is particularly the case with household furniture which is valued at its second-hand value, such as that may be obtained in a garage sale or on eBay. All assets are valued at their second-hand value obtainable in the market, not their current replacement costs.

Divorce and the breakdown of relationships

In Australia, a divorce may be obtained in either the Family Court of Australia or the Federal Circuit Court of Australia. Further Australian divorce advice is also available online from the Family Court website. The court must be satisfied that the relationship has broken down irretrievably. A period of separation of 12 months immediately before filing the application satisfies the court of this fact. A couple may be separated and still live together provided they satisfy the court that they are not living as husband and wife. That is to say, their relationship has reduced to sharing accommodation. If a couple reconcile during the period of separation, the separation does not have to recommence provided any reconciliation or reconciliations do not total more than a total of three months and those three months do not count as part of the period of 12 months of separation. The Court is normally satisfied that separation has taken place by the applicant swearing as to the separation on the application for divorce.

Divorce

The requirements for obtaining a divorce in Australia are as follows:

Marriage - You must first satisfy the court that you have a valid marriage. A marriage certificate, with a sworn translation into English, if necessary, will suffice. If you do not have a copy of a marriage certificate or require translation, our divorce lawyers can usually arrange that for you. If no marriage certificate is available, the court may require you to give some alternate evidence of the marriage prior to granting divorce.

Jurisdiction - The court only has power to grant a divorce if either party has one of the following attributes:

  • Regards Australia as home;
  • Intends to live in Australia indefinitely;
  • Has lived his or her 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.

Satisfactory arrangements for the children in divorce law

The court will not grant a divorce in Australia unless it is satisfied that appropriate arrangements for any children are in place. That does not mean those arrangements are formal, nor does it mean that there is no dispute, but rather that at the time of the divorce hearing, the children are being appropriately cared and provided for. We have provided further information and advice on Australian child custody and divorce information here.

Divorce: Can I do it myself?

Divorce is a relatively simple legal process, provided that all the statutory requirements can be met. The Federal Circuit Court is the appropriate Court in which to bring an application for divorce and on divorce list days the Court usually grants approximately ten divorces per hour. You can glean from this that the Court spends approximately five to six minutes in hearing each uncontested divorce application. In order to qualify for a divorce, the Court must be satisfied as to the following matters:

  • That you have been validly married – This is usually done by providing the Court with an original or a certified copy of your marriage certificate. Where the certificate is in another language, a certified translation of that document can be used;
  • That it has jurisdiction to grant the application – jurisdiction is usually established by citizenship or what the Court refers to as “domicile”. That means in cases where the applicant or the other party is not an Australian citizen, they are either a resident of Australia, have lived in Australia for at least 12 months or consider Australia to be their home. This is usually established by the information sworn on the application for divorce, however, occasionally supporting documents such as a copy of your passport may be required;
  • That the marriage has irretrievably broken down – This is shown by a period of 12 months of separation. Where you and your spouse tried to reconcile for three months or less and then separate again finally, you must extend that period from the initial date of separation by the amount of time which you were reconciled. If your reconciliation lasted for more than three months, you must start the 12 month period of separation all over again when you finally separate. If you were separated under the one roof, an affidavit from you and/or someone else verifying that you are separated, while still living together, may be required;
  • Service of Documents– The Court must be satisfied that the other party to the divorce has been served with a copy of the application at least 28 days prior to the divorce hearing or, if they live oversea,s 42 days prior to the date of the divorce hearing; and
  • That appropriate arrangements have been made for any children of the relationship – This is usually established on the information contained in the sworn application for divorce.

You are not required to attend Court in cases where there have been no children of the relationship or if it is a joint application; however, you are of course welcome to attend if you would like to do so. Given that the divorce process is quite straight-forward you can do it yourself if you like using the divorce kit, unless you would prefer us to do it on your behalf ( “Do It Yourself Divorce Kit” is available from the Federal Magistrates Court website www.fmc.gov.au or www.divorce.og.au).

We point this out, not because we would not like to assist you with your Divorce, but because we feel it is only ethical to make you aware of the opportunity to save money.

Service and notice of Divorce

Upon filing the application form, in triplicate, a hearing date will usually be allocated approximately eight weeks from filing. On filing of the divorce application, a sealed copy is returned by the court. That copy must be personally given to the respondent, by someone who is over the ager of 16 years other than the applicant, at least 28 days before the divorce hearing. That person must then swear an affidavit to the effect that the application was given to the defendant, when and what was said. The reason for this is so that the court can be satisfied that the respondent is aware of the application and the hearing date.

After being satisfied of the above matters, the court will generally grant a decree nisi which is stage 1 of a divorce. Stage 2 is the decree becoming absolute. A decree will generally become absolute 1 month and 1 day after the decree nisi was granted. Service can be affected by other methods, however, personal service as described above, is the most common.

At Berwicklegal we can assist you through the difficulties associated with the breakdown of relationships and issues in relation to marriage breakdown and divorce.

What are the time frames for a Divorce?

The timeframe for the granting of a divorce is usually approximately 12-13 weeks from the date of filing the application. Upon filing the application for divorce, the court will provide a hearing date approximately eight to nine weeks after the date of filing. This is to ensure that you have adequate time to serve the application and still give the other party the required 28 or 42 days notice of the hearing date. From the date of granting of the divorce, a further 1 month and 1 day must elapse before the divorce becomes final. After the divorce becomes final, the court will issue by post a sealed certificate of divorce. It is a good idea to wait until after you receive the divorce application before planning to re-marry (if applicable).

What if you are unable to locate your spouse?

Every effort should be made to locate your spouse to serve the application for divorce. If the application cannot be served, an application to dispense with service or an application for substituted service can be made. The court will then order that either your spouse is aware of the divorce hearing by virtue of your efforts to serve the application or that your spouse will be deemed to be aware of the application if you have carried out certain steps to serve it. The requirements may change from case to case and we can advise further, if required.

What is the legal definition of a “de facto” relationship?

According to the Family Law Act you are in a de facto relationship with another person if you are not legally married to each other, you are not related by family and you have a relationship as a couple living together on a genuine domestic basis to that end the Court may look at:

  • the duration of the relationship;
  • the nature and extent of common residence;
  • whether a sexual relationship exists;
  • the decree of financial dependence or interdependence and arrangements for financial support;
  • the ownership, use and acquisition of their property;
  • the decree of mutual commitment to a shared life;
  • whether the relationship is or was registered under a prescribed law of a State/Territory;
  • the care and support of children; and
  • the reputation and public aspects of the relationship.

The Family Law Act recognises that a party could be in multiple de facto relationships, or that a person who is married could be a party to de facto property proceedings (refer to s4AA(5)(b)).

Usually, you will need to demonstrate that you have lived together for at least six months or two years depending of what legislation applies to your circumstances or location. This is overlooked if there is a child of the relationship, or in other exceptional circumstances.

De facto status is not achieved through any formal ceremony, but automatically applies when two people meet the criteria. Unlike marriage, de facto status is not entirely portable. Whilst it is recognised in most states of Australia (except South Australia), Canada and New Zealand, it is not recognised the USA and many other countries.

What are the jurisdictional requirements for de factos?

In addition to meeting the definition of a de facto relationship, a party who makes an application to the Court must also satisfy one of the jurisdictional requirements specified at Section 90SB of the Family Law Act:

  • that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
  • that there is a child of the de facto relationship; or that:
    • the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
    • failure to make the order or declaration would result in serious injustice to the applicant; or
  • that the relationship is or was registered under a prescribed law of a State or Territory.

What are the rights and responsibilities of de facto partners?

If you are in a de facto relationship, your legal rights and responsibilities are similar to those of married couples. For example, if your partner died, you may be entitled to the following (if applicable):

  • a share of the intestate estate under the Wills, Probate and Administration Act
  • receive compensation under workers compensation law (if your partner dies during the course of employment)
  • claim financial assistance under the Succession Act
  • claim social security under the Commonwealth Social Security Act.

What are the Property settlement Options?

There are a number of property settlement options for de facto couples. Filing for property orders with the courts can be expensive, time consuming and stressful. For this reason it is preferable to try to reach an agreement outside of court.

1. Financial Agreements

Some de facto couples choose to draw up domestic relationship agreements before or during their relationship, which are similar to the well-known “prenuptial” agreement. In a similar way, separation agreements can be drawn up in anticipation of, or immediately following a relationship breakdown. For these agreements to be legally binding, both parties must have signed the agreement and have received independent legal and financial advice before signing (refer to Binding Financial Agreements paragraph)

2. Consent Orders

In the case that there is a dispute, it is always advisable to enter into mediation. If an agreement can be made, it is then possible to apply for Consent Orders through the Court, which formalises the agreement. This is dependent on whether the court is satisfied that the agreement is “just and equitable” to both parties, and that both parties have sought independent legal advice.

If an agreement cannot be reached, you can apply for property orders.

3. Property Orders

For situations where there has been no prior financial agreement, parties of a de facto relationship or a close domestic relationship can apply for property orders. The decision is then made through a court hearing. 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.

The Court considers four key factors in assessing property settlements.

1. The Court will ascertain the net asset pool of both parties.

The net asset pool is the total value of all the assets owned by either or both parties. The net asset pool includes anything acquired before or during the relationship, as well as after separation.

In ascertaining the net asset pool, the Court will also consider other financial resources over which a party has influence, control or prospective entitlements. Ascertaining the net asset pool can be highly complicated. Accurate valuation of assets requires that many factors are taken into consideration, such as issues regarding taxation, stamp duties, and the appreciation or depreciation of asset values.

2. The Court will assess the contributions from both parties (both financial and non-financial).

There are many types of contributions that may have been made by either spouse. The Court considers all of the following:

  • financial contributions
  • non-financial contributions (as a homemaker or primary carer of children)
  • gifts, bonuses and inheritance
  • initial contributions (assets attained before marriage).

3. The Court will assess the future needs of both parties: The Court takes into account many factors when deciding on the future needs of both parties. These include:

  • Age and health
  • Capacity to earn money
  • The property and assets of each party
  • New relationships (and new financial circumstances)
  • Future parenting responsibilities (care and support).

4. The Court will consider the practical effect of the proposed property settlement, and whether it is “just and equitable” to both parties. The decision is made taking into account all of these factors.

Generally, superannuation is not included in a property settlement between de facto couples. However, a Court is likely to take it into account when assessing the financial resources of each party.

Property Settlements and Family Violence

Several studies suggest that domestic violence in Australia is more wide-spread than is commonly perceived. Historically, statistics on domestic violence in Australia were calculated based on report of the incidents. It is now thought that only a small proportion of Domestic Violence in Australia is actually reported.

It is a further misconception that there is little the Court or the Law can do to protect victims of Domestic Violence. Certainly, here in Victoria, that is simply not the case with the Crimes Family Violence Act designed to protect people who fear domestic violence and abuse. These people do not have to have been victims of actual violence, only victims of acts causing them to fear for their personal safety. The Act provides that protection by providing powers to the Courts, enabling them to make Intervention Orders (sometimes incorrectly referred to as Apprehended Violence Orders, or AVOs as they are commonly known), to protect people in need. Property settlements are determined by the Court by considering the contributions and needs of each of the parties to the relationship (for a full explanation of the process please refer above “the four steps process”). In cases involving domestic violence there is authority for the Court finding that contributions made by a party while suffering domestic violence, particularly ongoing and severe domestic violence, are to be considered more valuable because of the arduous circumstances in which they were made. Accordingly, additional weight given to those contributions if a factor taken into account by the Court in the overall property settlement (refer of Kennon v Kennon (1997) 22 FamLR1).

The requirements to mediate in a Family Law dispute where there is violence

There is a requirement on parties to a family law dispute to engage in what is described as pre-action procedures in an attempt to limit the issues in dispute. In parenting cases this extends to a requirement to attempt to mediate the dispute using the services of a qualified family dispute resolution practitioner. In circumstances where there has been family violence the requirement to obtain a certificate from a family dispute resolution practitioner before going to Court is waived. In other words there is no requirement to mediate where you are able to satisfy the Court that has been family violence.

The effects of domestic violence on the presumption of shared parental responsibility

Under the Family Law Act 1975 there is a presumption that both parents will be involved in making decisions about major long-term issues concerning their children. Major long-term issues include things such as health, education and religion. In circumstances where there has been domestic violence, or family violence, as it is often referred to, no such presumption applies. It is far more likely that a parent who is seeking sole decision making power about major long-term issues is more likely to be awarded that power by the Court in circumstances where there has been family violence because the presumption of equal shared parental responsibility no longer applies. Ultimately the Court must take a decision in relation parental responsibility, which it considers to be consistent with the child's best interests.

Unintentional consequences of Reporting Domestic Violence

We often see clients who have wanted to report domestic violence "for the record" and who have made a report to the police without being aware of the consequences of making such a report.

We are not suggesting that domestic violence should not be reported, domestic violence is abhorrent and should not be tolerated under any circumstances. However there are consequences which flow beyond your control once you make “a report just for the record” when you don’t want “anything done”.

Once the police receive a report of domestic violence they are obliged, as a matter of law, to take action on behalf of the person making the complaint unless they do not believe the complaint is genuine. The action they are required to take is to file an application with the Magistrates Court for an Intervention Order protecting the person (and/or the children) making the complaint from the alleged offender of the violence. Police usually err on the side of caution in bringing this application. That means the application will usually be made even if police doubt the veracity of the allegation.

Police can also bring an assault charge against the alleged offender. The person making the complaint is not the person who decides whether or not an assault charge is to be brought. It is a matter for police to determine whether or not an assault charge is to be brought. It is a matter for police to determine whether or not such a charge should be laid as it their role to prosecute breaches of the law when they come to their attention. Police may ask, as a courtesy, whether or not you would like an assault charge to be brought, however they are not bound by your answer and may proceed with bringing a charge even if you do not want them to do so or refuse to assist after making the complaint.


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