Services

We Can Assist You Through The Divorce Process And Provide Information On Associated Issues Such As Child Support And Property Settlement.

divorce lawyers adelaide

Many clients think that they cannot apply for property settlement until they obtain a divorce. This is incorrect: you can apply for property settlement at any time after separation and indeed if you decide to separate under the same roof. The difference with obtaining a divorce first is that once you are divorced you are on a time limit to complete property settlement within 12 months.

Divorce requirements

The divorce application requires that you have made appropriate arrangements for the children, for example:

  • for their schooling
  • medical issues
  • parenting arrangements
  • and child support arrangements.

We can provide you with information and advice on these issues and assist you in streamlining the divorce process and making it as pain-free as possible.

The court does not need a reason for the breakdown of your marriage or your reasons for requesting a divorce. It only requires that the marriage has broken down irretrievably and that you have been separated for 12 months.

However, if you have been married for less than two years you will be required to attend counselling and obtain a certificate from the counsellor before applying for a divorce.

To apply for a divorce you will need to obtain the following documents and/or information:

  • A marriage certificate to prove you were married,
  • Proof that you have been separated for at least 12 months
  • No reasonable prospect that you will reunite with your spouse
  • You and your spouse are Australian residents or citizens or regard Australia as your permanent home

If you can satisfy all of the above and you make a joint application with your spouse and there are no children under the age of 18 you do not have to attend court to obtain your divorce.

De facto relationship

If you have been in a de facto relationship you can seek financial orders for property settlement up to 24 months from the date of your separation. There is separate legislation covering de facto relationships and we can provide you with advice and assistance in that regard.

We can offer further advice on how a divorce may affect the operation of your current Will and other issues such as renting and your legal rights and child support issues.

australian divorce laws

Property Settlement Is Separate From Children’s Issues And Refers To The Division Of Assets Accumulated Throughout The Relationship

best family lawyers adelaide

Property includes all assets and financial resources, either jointly or individually held such as:

  • real estate
  • motor vehicles
  • furniture
  • bank accounts
  • businesses
  • shares
  • collections such as artwork or coins
  • other investments
  • antiques
  • superannuation
  • pension entitlements
  • Anything else with a monetary value

 

You can apply for property settlement at any time after separation and do not have to wait until you obtain a divorce. In the case of de facto couples, you have 24 months from the date of separation to obtain a property settlement.

The first step in the process is to identify and value the asset pool. This includes all assets and debts of both parties –  including those which were brought to the relationship initially and those accumulated during the course of the relationship.

Contributions and future needs

There are two main elements in determining entitlements and they are contributions and future need.Contributions include financial and non-financial as well as separate or special contributions made by either party. Future needs can include factors such as responsibility for children after separation, income and employment capacity, age, current health issues and availability of other financial resources.

What you must not do in financial proceedings:
  • Not tell the truth about assets or not provide full and frank disclosure of assets and debts
  • Not dispose of assets to deliberately avoid having them included
  • Not conceal assets or attempt to destroy property
There are many misconceptions about property settlement. Here are a few:
  • That property settlement is not necessary unless you own real estate or are paying off a mortgage
  • Your name is not on the Certificate of Title of the former matrimonial home therefore I have no claim to it
  • This is my business and the other party has played no part in running it so they have no entitlement
  • If I leave the former matrimonial home then I will lose my entitlement to claim anything
  • I have the right to keep all and any inheritances and gifts received during the relationship
  • Being a stay at home parent has no value in property settlements

Any order for property settlement also needs to be clearly just and equitable in the eyes of the court. This means that it must be fair to both parties taking into consideration all the factors noted above. We will advise you in clear terms about the court process and what you can expect to receive as a percentage of the net asset pool.

best family lawyers adelaide

We no longer talk about parental rights in Australia or use the terms ‘custody’ and ‘access’.

child custody laws australia

Separation is a difficult time for couples and more so where children are involved. Adelaide Family Lawyers can advise you about reaching agreement on living arrangements and can refer you to community-based organisations in the first instance if you feel you are able to make arrangements with the other parent or alternatively can assist you to formalise such arrangements to make them enforceable.

The Family Court of Australia and the Federal Circuit Court of Australia are the courts that deal with family law issues including children, property and divorce. The current terminology is who the child ‘lives with’ and who the child ‘spends time with’.

The Family Law Act 1975 (as amended) refers to the best interests of the child. What this means is that the child or children’s needs and interests are paramount to anything else. When relationships break down it is often the case that one parent considers themselves more integral to the child/ren’s care but there are always other considerations. These include:

  • The notion that the child has a right to have a meaningful and ongoing relationship with both parents
  • And each parent is expected to encourage such a relationship between the child and the other parent.

Then these factors also need to be taken into account when applying for parenting orders. Essentially the children should have a meaningful relationship with both parents to help them to achieve their full potential but they should also be protected from physical and psychological harm.

Many parents believe they are entitled to a shared care of any children of the relationship. For a shared care arrangement to work there has been substantial research which shows that the parents must have good communication, share notions of what is best for the child and be available to help each other out with the care of the child as need be. If there are ongoing conflict or personality issues which are never going to be sorted out then a shared care arrangement is highly unlikely to succeed.

In practice, all parents are required to attend mediation prior to applying to the court for a parenting order. This process can be by-passed if there are issues such as domestic violence which make it impractical for the parties to reach an agreement. Alternatively, you will be provided with a certificate which states that mediation has been unsuccessful and you may then apply to the court for parenting orders.

child custody laws australia
child custody laws australia

There are differing types of parenting orders:

  • Those that identify the parent with whom a child lives
  • Those that identify the parent with whom the child will spend time and when this will occur
  • Any orders that are required in the special circumstances of the case relating to any special needs of the child such as health issues.

 

Adelaide Family Lawyers can assist you and guide you through the court process with the paramount consideration being the best interests of the child. The following people can apply for parenting orders include:

  • Parents
  • Grandparents
  • Step-parents
  • And other concerned persons

 

Many clients ask us about the children’s wishes. Children are often included in interviews throughout the court process (if they are of a suitable age to have their opinions included). This depends on a variety of factors:

  • Whether the child is sufficiently mature enough
  • Whether there are special circumstances that indicate the child should be included.

 

The court orders are applicable until the children turn 18 years of age. However, many children in their mid to late teens will tend to make their own decisions about who they wish to live with.

Parenting orders require consideration from the parents on:

  • The child’s residence,
  • Whether the ‘live with’ arrangements will be shared or otherwise,
  • The type of education and schools they will attend,
  • Attendance at sporting and extra-curricular activities and what is appropriate in the circumstances,
  • How the ‘time spending’ arrangements fit in with each parent’s working hours,
  • Location and time spending arrangements with significant other adults in the children’s lives such as grandparents and other relatives,
  • Arrangements for school holiday periods and special events such as birthdays of the children and other family celebrations,
  • special needs of the children including medical requirements, flexibility for special occasions such as Easter, Father’s Day, Mother’s Day, travel within Australia or overseas.

 

When experts interview your child to prepare a report for the court this may involve the following:

  • Interviewing the child separately with each parent;
  • Interviewing the parents separately without the child present;
  • Interviewing the parents separately with the child & observing the interactions between each parent, child;
child custody laws australia

If You Choose To Consider A Binding Financial Agreement As Opposed To A Court Order There Are Strict Requirements Attached To This

property settlement lawyers adelaide

If you choose to consider a Binding Financial Agreement as opposed to a court order there are strict requirements attached to this. For example each party is required to obtain independent legal advice about the effects of the Binding Financial Agreement including their rights and the pros and cons of entering into the agreement.

One party’s lawyer will draw up a draft of the agreement and the other party’s lawyer will review this. When both parties agree on the contents of the document the lawyers must sign a statement that their advice has been provided and the parties sign the agreement.

Are there any risks with this type of agreement?

Yes, if any of the requirements are not complied with by either party it will not prevent a party from making application to the court for property settlement, so it will not necessarily finalise the matter. It is easier to set aside a Binding Financial Agreement than a Court Order. Our preference is to seek Court Orders which will finalise the matter once and for all. Binding Financial Agreements may be set aside for reasons such as:

  • One party defrauding the other or acting unconscionably in entering into the agreement.
  • If a material change has occurred with respect to the care, welfare or development of a child of the relationship since the agreement was made.
When are Binding Financial Agreements entered into?

Binding Financial Agreements are often referred to as pre-nuptial agreements and can be entered into at the following times:

  • Prior to marriage.
  • Prior to a relationship.
  • During a marriage.
  • During a de facto relationship.
  • After a breakdown in a marriage or relationship.

These agreements are not appropriate in every situation and we will assist you to make a decision as to whether it will be appropriate for your particular situation. This type of agreement will set out how your property will be divided should you separate. This will include all assets as detailed for property settlement.

Such agreements may be more appropriate than the usual property settlement through the Courts in the following circumstances:

  • One person has more property than the other at the beginning of the relationship including residential, farms, businesses
  • One person may receive or soon be entitled to a large inheritance or gift/lottery winnings
  • Children from former relationships may require financial protection
  • Both parties do not wish to have court involvement and ensure the terms of property division are agreed up front
  • May exclude certain assets from being included

You may also be entitled to seek orders for Spousal Maintenance to support your living expenses following separation but generally, this only extends for a period of, at most two years.

If You Do Not Have A Valid Will Your Assets Will Be Divided Up Upon Your Death According To The Law And Not Necessarily According To Your Wishes

property settlement lawyers adelaide

You should always have a valid Will which will support your wishes and limit any stress or anxiety your relatives may go through after your death, including any disputes about inheritances. If you do not leave a valid Will your estate will be distributed according to a fixed formula which is determined by the state government regardless of your situation.

Divorce and your Will

You should be aware that if you divorce your current Will is revoked and will no longer be valid. Conflict may also arise if a family member decides to challenge the terms of a valid Will. If you do not have a valid Will you may cause severe financial and emotional hardship to your family and loved ones if you do not have a professionally prepared Will.

The legal requirements for a valid Will vary from one state to another but the basic requirements are:

  • You must be over 18 years of old and understand the decisions and statements you are making;
  • Your specific wishes must be in writing;
  • Your Will must be signed in the presence of two witnesses

Only assets owned by you will pass to your Estate after death and be controlled by the terms of your Will. Jointly owned assets will pass automatically to the other joint owner after your death and this commonly includes homes, contents of the home(s), bank accounts, personal effects and other jointly owned assets.

There is one exception in relation to real estate and that is if you own real estate as tenants in common with one or more other parties. A tenants in common ownership means that each party owns a specific portion of that real estate and this portion must be controlled by each individual party’s Will.

Professional Advice

Do it yourself will kits are becoming popular but have inherent dangers. You need to seek professional expertise on your particular circumstances to protect your assets and ensure that your beneficiaries receive assets according to your wishes. Unless you obtain accurate legal advice on this issue you may be subject to family inheritance claims, for example, from an estranged child or former partner, and you may risk action from creditors and/or bankruptcy.

In short, you need a valid Will to ensure that your assets are distributed in accordance with your wishes and that your estate cannot be contested.

adelaide family lawyers

A Power of Attorney is a document in which you appoint and authorize one or more people to manage your financial and legal affairs if you become unable or unwilling to do so. You can state when the appointment of that power is to commence operation, provide for limited or unrestricted powers and whether the appointment of multiple attorneys are to act jointly or independently when exercising the power.

 

An Enduring Power of Attorney simply means that an attorney nominated by you will act for you in the event that you suffer from a mental illness or incapacity to the extent you are no longer able to manage your own affairs.

 

Advanced Care Directive

There are now arrangements in place in South Australia and in some other states of Australia for a power of attorney to extend to medical issues. This is called an Advanced Care Directive and sometimes is referred to as a Living Will and this will direct parties on your wishes as to how medical treatment is to be administered in the event that you are not able to provide your advice. You can complete this document yourself by going to the government web address advancedcaredirectives.sa.gov.au or we can assist you and provide advice and support in completing this process.

Such agreements may be more appropriate than the usual property settlement through the Courts in the following circumstances:

  • One person has more property than the other at the beginning of the relationship including residential, farms, businesses
  • One person may receive or soon be entitled to a large inheritance or gift/lottery winnings
  • Children from former relationships may require financial protection
  • Both parties do not wish to have court involvement and ensure the terms of property division are agreed up front
  • May exclude certain assets from being included

 

You may also be entitled to seek orders for Spousal Maintenance to support your living expenses following separation but generally this only extends for a period of, at most two years.

When Parents Separate Either Of Them Can Make An Application For Administrative Assessment Of Child Support.

child custody laws australia

The Child Support Agency has its own legislation and a formula which staff use to determine how much a parent should be paying towards the support of their children. Each assessment is:

  • For a 15 month period
  • Is assessed on gross earnings from your most recent tax return information.
  • Conducted by the Child Support Agency and they include all forms of income in this assessment

All forms of income are included for the purposes of a child support assessment and if you become bankrupt the debt remains.

Centrelink

Parties should seek assistance from Centrelink as far as payments for children as Centrelink staff need to know the level of care being provided by each parent so they can make a determination as to the level of family benefits paid.

Parent as the main carer

Additionally, most parents in the role of the main carer for the children will be required by Centrelink to make an application for Child Support Assessment. In some circumstances, you will be granted an exemption from Centrelink and not required to apply for Child Support Assessment.

Non-parent carer

If you are a non-parent carer for a child you may be able to apply for Child Support Assessment against both biological parents. To do so, you will need to prove that you are the main carer for the child.

There are a few ways to change or reduce the amount of child support you are assessed to pay.

  • If you have had a decrease in earnings and this is at least 15% less than the last taxable income used in the assessment you can apply to have the amount reduced.
  • If the other party has requested the Child Support Agency to collect payments on their behalf and you have agreed to make cash payments, the parties need to contact the Child Support Agency to advise of those cash payments so that the total amount payable is credited with those amounts.

Your child support assessment can be reviewed internally through a process which provides 10 different reasons for requesting a review.

We have extensive experience in all aspects of child support and can draft an agreement for you. There are two types of agreement: limited and binding. The limited agreements last for 3 years only and need to be renegotiated after that time. We can help you to navigate the sometimes complex Child Support legislation and procedures and explain these in Plain English.

child custody laws australia

IF You Have Children And Are Having Difficulties With Trying To Resolve Issues With Your Ex-Partner You May Qualify For Legal Aid.

best family lawyers adelaide

Come in and see Adelaide Family Lawyers for a 30 minute $50 first interview. We will take a detailed history about your personal circumstances and assist you to complete the legal aid application form. You can download and print this form from the Legal Services Commission website and pre-fill as much as you can before coming in to see us. Otherwise, we will assist you in completing this form at your first interview.

If you are unable to attend our office we offer a telephone interview or Skype interview service. We also offer this service after hours to suit your personal circumstances but we do ask that if we conduct this service after hours that any children are not within hearing of the interview. Children should not be involved or included in any family law proceedings or conversations to do with such proceedings.

You can enter our firm name and our principal’s name, Jennifer Hirst, at question 46 on the Legal Aid form if you would like us to act for you in your Family Law matter. If you complete as much detail as possible before coming into the office we can help you to complete the form and finalise the interview quickly.

The Legal Aid Application,

You need to provide sufficient documentation to show that you have insufficient income by providing:

  • the last two months’ of bank statements for all accounts held in your name or in a joint account
  • A Centrelink Income Statement
  • If working, the last four weeks’ payslips, last tax return and any business related documentation showing your recent income.

Additional information is required if there is any person who may be able to pay for your legal fees such as a spouse, de facto, company, trust, partnership or any other ‘financially associated’ person.

Your Legal Aid application will be assessed on this information and you will also be asked to make a financial contribution towards your Legal Aid funding which may be as little as $20 or could be as much as $1,000. You may not be able to afford to pay the entire contribution at once and we will organise an affordable repayment plan to assist you. However, in most cases, the amount is relatively small.

best family lawyers adelaide
child custody laws australia

So come in and see us for your $50 first interview. During that interview we will further explain the process of applying for legal aid, what sort of legal aid might be approved and where we go from there. We always provide a full explanation of the court processes and a realistic assessment of what you can expect to achieve.

 

If you do not qualify for legal aid we will arrange to represent you for a reasonable fee and are quite open to discussing set fees and alternative payment options.

 

Adelaide Family Lawyers can assist you and guide you through the court process with the paramount consideration being the best interests of the child. Parents can apply for these orders but as is often the case, many grandparents , step-parents and other concerned persons are now applying for such orders where the parents are unable to care for the children for a variety of reasons.

 

Of course many separated couples do agree on arrangements for children after separation and may not require the assistance of a lawyer other than to document that agreement and register it with the court.

+ Divorce

We Can Assist You Through The Divorce Process And Provide Information On Associated Issues Such As Child Support And Property Settlement.

divorce lawyers adelaide

Many clients think that they cannot apply for property settlement until they obtain a divorce. This is incorrect: you can apply for property settlement at any time after separation and indeed if you decide to separate under the same roof. The difference with obtaining a divorce first is that once you are divorced you are on a time limit to complete property settlement within 12 months.

Divorce requirements

The divorce application requires that you have made appropriate arrangements for the children, for example:

  • for their schooling
  • medical issues
  • parenting arrangements
  • and child support arrangements.

We can provide you with information and advice on these issues and assist you in streamlining the divorce process and making it as pain-free as possible.

The court does not need a reason for the breakdown of your marriage or your reasons for requesting a divorce. It only requires that the marriage has broken down irretrievably and that you have been separated for 12 months.

However, if you have been married for less than two years you will be required to attend counselling and obtain a certificate from the counsellor before applying for a divorce.

To apply for a divorce you will need to obtain the following documents and/or information:

  • A marriage certificate to prove you were married,
  • Proof that you have been separated for at least 12 months
  • No reasonable prospect that you will reunite with your spouse
  • You and your spouse are Australian residents or citizens or regard Australia as your permanent home

If you can satisfy all of the above and you make a joint application with your spouse and there are no children under the age of 18 you do not have to attend court to obtain your divorce.

De facto relationship

If you have been in a de facto relationship you can seek financial orders for property settlement up to 24 months from the date of your separation. There is separate legislation covering de facto relationships and we can provide you with advice and assistance in that regard.

We can offer further advice on how a divorce may affect the operation of your current Will and other issues such as renting and your legal rights and child support issues.

australian divorce laws
+ Property Settlements

Property Settlement Is Separate From Children’s Issues And Refers To The Division Of Assets Accumulated Throughout The Relationship

best family lawyers adelaide

Property includes all assets and financial resources, either jointly or individually held such as:

  • real estate
  • motor vehicles
  • furniture
  • bank accounts
  • businesses
  • shares
  • collections such as artwork or coins
  • other investments
  • antiques
  • superannuation
  • pension entitlements
  • Anything else with a monetary value

 

You can apply for property settlement at any time after separation and do not have to wait until you obtain a divorce. In the case of de facto couples, you have 24 months from the date of separation to obtain a property settlement.

The first step in the process is to identify and value the asset pool. This includes all assets and debts of both parties –  including those which were brought to the relationship initially and those accumulated during the course of the relationship.

Contributions and future needs

There are two main elements in determining entitlements and they are contributions and future need.Contributions include financial and non-financial as well as separate or special contributions made by either party. Future needs can include factors such as responsibility for children after separation, income and employment capacity, age, current health issues and availability of other financial resources.

What you must not do in financial proceedings:
  • Not tell the truth about assets or not provide full and frank disclosure of assets and debts
  • Not dispose of assets to deliberately avoid having them included
  • Not conceal assets or attempt to destroy property
There are many misconceptions about property settlement. Here are a few:
  • That property settlement is not necessary unless you own real estate or are paying off a mortgage
  • Your name is not on the Certificate of Title of the former matrimonial home therefore I have no claim to it
  • This is my business and the other party has played no part in running it so they have no entitlement
  • If I leave the former matrimonial home then I will lose my entitlement to claim anything
  • I have the right to keep all and any inheritances and gifts received during the relationship
  • Being a stay at home parent has no value in property settlements

Any order for property settlement also needs to be clearly just and equitable in the eyes of the court. This means that it must be fair to both parties taking into consideration all the factors noted above. We will advise you in clear terms about the court process and what you can expect to receive as a percentage of the net asset pool.

best family lawyers adelaide
+ Childrens' Issues

We no longer talk about parental rights in Australia or use the terms ‘custody’ and ‘access’.

child custody laws australia

Separation is a difficult time for couples and more so where children are involved. Adelaide Family Lawyers can advise you about reaching agreement on living arrangements and can refer you to community-based organisations in the first instance if you feel you are able to make arrangements with the other parent or alternatively can assist you to formalise such arrangements to make them enforceable.

The Family Court of Australia and the Federal Circuit Court of Australia are the courts that deal with family law issues including children, property and divorce. The current terminology is who the child ‘lives with’ and who the child ‘spends time with’.

The Family Law Act 1975 (as amended) refers to the best interests of the child. What this means is that the child or children’s needs and interests are paramount to anything else. When relationships break down it is often the case that one parent considers themselves more integral to the child/ren’s care but there are always other considerations. These include:

  • The notion that the child has a right to have a meaningful and ongoing relationship with both parents
  • And each parent is expected to encourage such a relationship between the child and the other parent.

Then these factors also need to be taken into account when applying for parenting orders. Essentially the children should have a meaningful relationship with both parents to help them to achieve their full potential but they should also be protected from physical and psychological harm.

Many parents believe they are entitled to a shared care of any children of the relationship. For a shared care arrangement to work there has been substantial research which shows that the parents must have good communication, share notions of what is best for the child and be available to help each other out with the care of the child as need be. If there are ongoing conflict or personality issues which are never going to be sorted out then a shared care arrangement is highly unlikely to succeed.

In practice, all parents are required to attend mediation prior to applying to the court for a parenting order. This process can be by-passed if there are issues such as domestic violence which make it impractical for the parties to reach an agreement. Alternatively, you will be provided with a certificate which states that mediation has been unsuccessful and you may then apply to the court for parenting orders.

child custody laws australia
child custody laws australia

There are differing types of parenting orders:

  • Those that identify the parent with whom a child lives
  • Those that identify the parent with whom the child will spend time and when this will occur
  • Any orders that are required in the special circumstances of the case relating to any special needs of the child such as health issues.

 

Adelaide Family Lawyers can assist you and guide you through the court process with the paramount consideration being the best interests of the child. The following people can apply for parenting orders include:

  • Parents
  • Grandparents
  • Step-parents
  • And other concerned persons

 

Many clients ask us about the children’s wishes. Children are often included in interviews throughout the court process (if they are of a suitable age to have their opinions included). This depends on a variety of factors:

  • Whether the child is sufficiently mature enough
  • Whether there are special circumstances that indicate the child should be included.

 

The court orders are applicable until the children turn 18 years of age. However, many children in their mid to late teens will tend to make their own decisions about who they wish to live with.

Parenting orders require consideration from the parents on:

  • The child’s residence,
  • Whether the ‘live with’ arrangements will be shared or otherwise,
  • The type of education and schools they will attend,
  • Attendance at sporting and extra-curricular activities and what is appropriate in the circumstances,
  • How the ‘time spending’ arrangements fit in with each parent’s working hours,
  • Location and time spending arrangements with significant other adults in the children’s lives such as grandparents and other relatives,
  • Arrangements for school holiday periods and special events such as birthdays of the children and other family celebrations,
  • special needs of the children including medical requirements, flexibility for special occasions such as Easter, Father’s Day, Mother’s Day, travel within Australia or overseas.

 

When experts interview your child to prepare a report for the court this may involve the following:

  • Interviewing the child separately with each parent;
  • Interviewing the parents separately without the child present;
  • Interviewing the parents separately with the child & observing the interactions between each parent, child;
child custody laws australia
+ Binding Financial Agreements

If You Choose To Consider A Binding Financial Agreement As Opposed To A Court Order There Are Strict Requirements Attached To This

property settlement lawyers adelaide

If you choose to consider a Binding Financial Agreement as opposed to a court order there are strict requirements attached to this. For example each party is required to obtain independent legal advice about the effects of the Binding Financial Agreement including their rights and the pros and cons of entering into the agreement.

One party’s lawyer will draw up a draft of the agreement and the other party’s lawyer will review this. When both parties agree on the contents of the document the lawyers must sign a statement that their advice has been provided and the parties sign the agreement.

Are there any risks with this type of agreement?

Yes, if any of the requirements are not complied with by either party it will not prevent a party from making application to the court for property settlement, so it will not necessarily finalise the matter. It is easier to set aside a Binding Financial Agreement than a Court Order. Our preference is to seek Court Orders which will finalise the matter once and for all. Binding Financial Agreements may be set aside for reasons such as:

  • One party defrauding the other or acting unconscionably in entering into the agreement.
  • If a material change has occurred with respect to the care, welfare or development of a child of the relationship since the agreement was made.
When are Binding Financial Agreements entered into?

Binding Financial Agreements are often referred to as pre-nuptial agreements and can be entered into at the following times:

  • Prior to marriage.
  • Prior to a relationship.
  • During a marriage.
  • During a de facto relationship.
  • After a breakdown in a marriage or relationship.

These agreements are not appropriate in every situation and we will assist you to make a decision as to whether it will be appropriate for your particular situation. This type of agreement will set out how your property will be divided should you separate. This will include all assets as detailed for property settlement.

Such agreements may be more appropriate than the usual property settlement through the Courts in the following circumstances:

  • One person has more property than the other at the beginning of the relationship including residential, farms, businesses
  • One person may receive or soon be entitled to a large inheritance or gift/lottery winnings
  • Children from former relationships may require financial protection
  • Both parties do not wish to have court involvement and ensure the terms of property division are agreed up front
  • May exclude certain assets from being included

You may also be entitled to seek orders for Spousal Maintenance to support your living expenses following separation but generally, this only extends for a period of, at most two years.

+ Wills & Powers of Attorney

If You Do Not Have A Valid Will Your Assets Will Be Divided Up Upon Your Death According To The Law And Not Necessarily According To Your Wishes

property settlement lawyers adelaide

You should always have a valid Will which will support your wishes and limit any stress or anxiety your relatives may go through after your death, including any disputes about inheritances. If you do not leave a valid Will your estate will be distributed according to a fixed formula which is determined by the state government regardless of your situation.

Divorce and your Will

You should be aware that if you divorce your current Will is revoked and will no longer be valid. Conflict may also arise if a family member decides to challenge the terms of a valid Will. If you do not have a valid Will you may cause severe financial and emotional hardship to your family and loved ones if you do not have a professionally prepared Will.

The legal requirements for a valid Will vary from one state to another but the basic requirements are:

  • You must be over 18 years of old and understand the decisions and statements you are making;
  • Your specific wishes must be in writing;
  • Your Will must be signed in the presence of two witnesses

Only assets owned by you will pass to your Estate after death and be controlled by the terms of your Will. Jointly owned assets will pass automatically to the other joint owner after your death and this commonly includes homes, contents of the home(s), bank accounts, personal effects and other jointly owned assets.

There is one exception in relation to real estate and that is if you own real estate as tenants in common with one or more other parties. A tenants in common ownership means that each party owns a specific portion of that real estate and this portion must be controlled by each individual party’s Will.

Professional Advice

Do it yourself will kits are becoming popular but have inherent dangers. You need to seek professional expertise on your particular circumstances to protect your assets and ensure that your beneficiaries receive assets according to your wishes. Unless you obtain accurate legal advice on this issue you may be subject to family inheritance claims, for example, from an estranged child or former partner, and you may risk action from creditors and/or bankruptcy.

In short, you need a valid Will to ensure that your assets are distributed in accordance with your wishes and that your estate cannot be contested.

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A Power of Attorney is a document in which you appoint and authorize one or more people to manage your financial and legal affairs if you become unable or unwilling to do so. You can state when the appointment of that power is to commence operation, provide for limited or unrestricted powers and whether the appointment of multiple attorneys are to act jointly or independently when exercising the power.

 

An Enduring Power of Attorney simply means that an attorney nominated by you will act for you in the event that you suffer from a mental illness or incapacity to the extent you are no longer able to manage your own affairs.

 

Advanced Care Directive

There are now arrangements in place in South Australia and in some other states of Australia for a power of attorney to extend to medical issues. This is called an Advanced Care Directive and sometimes is referred to as a Living Will and this will direct parties on your wishes as to how medical treatment is to be administered in the event that you are not able to provide your advice. You can complete this document yourself by going to the government web address advancedcaredirectives.sa.gov.au or we can assist you and provide advice and support in completing this process.

Such agreements may be more appropriate than the usual property settlement through the Courts in the following circumstances:

  • One person has more property than the other at the beginning of the relationship including residential, farms, businesses
  • One person may receive or soon be entitled to a large inheritance or gift/lottery winnings
  • Children from former relationships may require financial protection
  • Both parties do not wish to have court involvement and ensure the terms of property division are agreed up front
  • May exclude certain assets from being included

 

You may also be entitled to seek orders for Spousal Maintenance to support your living expenses following separation but generally this only extends for a period of, at most two years.

+ Child Support

When Parents Separate Either Of Them Can Make An Application For Administrative Assessment Of Child Support.

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The Child Support Agency has its own legislation and a formula which staff use to determine how much a parent should be paying towards the support of their children. Each assessment is:

  • For a 15 month period
  • Is assessed on gross earnings from your most recent tax return information.
  • Conducted by the Child Support Agency and they include all forms of income in this assessment

All forms of income are included for the purposes of a child support assessment and if you become bankrupt the debt remains.

Centrelink

Parties should seek assistance from Centrelink as far as payments for children as Centrelink staff need to know the level of care being provided by each parent so they can make a determination as to the level of family benefits paid.

Parent as the main carer

Additionally, most parents in the role of the main carer for the children will be required by Centrelink to make an application for Child Support Assessment. In some circumstances, you will be granted an exemption from Centrelink and not required to apply for Child Support Assessment.

Non-parent carer

If you are a non-parent carer for a child you may be able to apply for Child Support Assessment against both biological parents. To do so, you will need to prove that you are the main carer for the child.

There are a few ways to change or reduce the amount of child support you are assessed to pay.

  • If you have had a decrease in earnings and this is at least 15% less than the last taxable income used in the assessment you can apply to have the amount reduced.
  • If the other party has requested the Child Support Agency to collect payments on their behalf and you have agreed to make cash payments, the parties need to contact the Child Support Agency to advise of those cash payments so that the total amount payable is credited with those amounts.

Your child support assessment can be reviewed internally through a process which provides 10 different reasons for requesting a review.

We have extensive experience in all aspects of child support and can draft an agreement for you. There are two types of agreement: limited and binding. The limited agreements last for 3 years only and need to be renegotiated after that time. We can help you to navigate the sometimes complex Child Support legislation and procedures and explain these in Plain English.

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+ Legal Aid

IF You Have Children And Are Having Difficulties With Trying To Resolve Issues With Your Ex-Partner You May Qualify For Legal Aid.

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Come in and see Adelaide Family Lawyers for a 30 minute $50 first interview. We will take a detailed history about your personal circumstances and assist you to complete the legal aid application form. You can download and print this form from the Legal Services Commission website and pre-fill as much as you can before coming in to see us. Otherwise, we will assist you in completing this form at your first interview.

If you are unable to attend our office we offer a telephone interview or Skype interview service. We also offer this service after hours to suit your personal circumstances but we do ask that if we conduct this service after hours that any children are not within hearing of the interview. Children should not be involved or included in any family law proceedings or conversations to do with such proceedings.

You can enter our firm name and our principal’s name, Jennifer Hirst, at question 46 on the Legal Aid form if you would like us to act for you in your Family Law matter. If you complete as much detail as possible before coming into the office we can help you to complete the form and finalise the interview quickly.

The Legal Aid Application,

You need to provide sufficient documentation to show that you have insufficient income by providing:

  • the last two months’ of bank statements for all accounts held in your name or in a joint account
  • A Centrelink Income Statement
  • If working, the last four weeks’ payslips, last tax return and any business related documentation showing your recent income.

Additional information is required if there is any person who may be able to pay for your legal fees such as a spouse, de facto, company, trust, partnership or any other ‘financially associated’ person.

Your Legal Aid application will be assessed on this information and you will also be asked to make a financial contribution towards your Legal Aid funding which may be as little as $20 or could be as much as $1,000. You may not be able to afford to pay the entire contribution at once and we will organise an affordable repayment plan to assist you. However, in most cases, the amount is relatively small.

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So come in and see us for your $50 first interview. During that interview we will further explain the process of applying for legal aid, what sort of legal aid might be approved and where we go from there. We always provide a full explanation of the court processes and a realistic assessment of what you can expect to achieve.

 

If you do not qualify for legal aid we will arrange to represent you for a reasonable fee and are quite open to discussing set fees and alternative payment options.

 

Adelaide Family Lawyers can assist you and guide you through the court process with the paramount consideration being the best interests of the child. Parents can apply for these orders but as is often the case, many grandparents , step-parents and other concerned persons are now applying for such orders where the parents are unable to care for the children for a variety of reasons.

 

Of course many separated couples do agree on arrangements for children after separation and may not require the assistance of a lawyer other than to document that agreement and register it with the court.

Contact Us To Get Your Advice Today

Phone: (08) 8227 0519