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Frequently Asked Questions In Family Law
1. Since I was married I have always been a housewife. My husband says that if I leave, I will leave with nothing. Is that true?
No that is not true. The law entitles you to a share in all assets that are owned either by you or husband. Even if you do not have any assets in your name and you never worked during the marriage. The law recognises that you have made a contribution by looking after the children and doing the housework.
2. I am getting married soon, this is my second marriage. I had a very bad experience when my first marriage broke up. I spent a lot of money going to Court and arguing with my first spouse. I want to avoid this if my second marriage breaks down. What can I do?
You should enter into pre-nuptial agreement. This is a written agreement between you and your spouse. It can be entered into before a marriage or during a marriage. It normally sets out what should happen in the event of your marriage breaking down and how assets are to be divided between you. Before the agreement is binding, it must comply with the law and for this you will need the assistance of a lawyer.
3. My husband and I are fighting all the time. We are very unhappy. He has always looked after our financial affairs. I don’t know anything about our assets. I can’t bear to live in the house any longer, but I don’t have any money of my own. What should I do?
Under the Family Law each party to a marriage has an obligation to make a full and frank disclosure of their financial position. Your husband is obliged to put before the Court the nature and value of the assets. If you move out of the house you are able to make an application to the Court for an urgent spousal maintenance order. You should consider moving out and filing proceedings in a Court.
4. I have been in a relationship now for 10 years. We have never married. Are my rights any different to that of a married couple?
If you are living in a de facto relationship there are differences between your rights and the rights of a married couple in the division of property between you upon separation. In both cases, each of your contributions are taken into account. These contributions are financial and non-financial, as well as contributions as homemaker and parent. If you are married, your future needs are taken into account but not if you are de facto partners. The calculation of your entitlements in the division of assets is not straight forward and you would be wise seeking advice.
In relation to children, the position is the same whether you are married or not.
5. My marriage of 25 years has broken down altogether. We are still on very good terms. We managed to sit down and agree about our finances, the sharing of assets and the care of the children. Do we have to go to Court?
No you do not have to go to Court. However, it is strongly advisable. It is possible for you to come to an informal arrangement but there is risks and disadvantages in doing so.
To begin with, if you formalise your agreement it will be binding upon both of you. If you do not, then it is possible for either of you to ask the Court to make different orders in the future. In addition, there are often other financial advantages in having your agreement formalised. These include the saving of stamp duty and other taxes.
6. My wife wants a divorce. I don’t. Can I stop her getting one?
There is only one ground for divorce in Australia where there are no children. That you have lived apart for a period of 12 months. If there are children, the Court would also have to be satisfied that proper arrangements have been made for them. If your wife can show that you have lived apart for 12 months and proper arrangements have been made for the children, a divorce will be granted. If you can prove otherwise, you can stop her. Getting a divorce in Australia is a very simple process. In most cases it is difficult preventing the Court granting a divorce.
7. I have just found out that my husband has been cheating on me for years. Will the law punish him for that? What are my rights?
Generally no. The Family Law Act is “no fault legislation”. The law does not take a moral view as to what each party should or should not do. If, however, your husband’s actions have diminished your assets then the law may take that into account in dividing the assets between you.
8. My husband from whom I am separated has a drinking problem. I am worried that when he has the children he will not be able to look after them. Can I stop him from seeing the children?
The Court encourages a relationship between children and their parents. If, however, it is not in the children’s best interest to see a parent, it is possible for a Court to make an order to that effect. It is however more usual in these circumstances for an order to be made by the Court that when your husband has contact with children, that he not drink or alternatively, that he see your children in the presence of some independent third party. The last order will be made if there is a real concern that he may harm the children.
If there is an existing order that your husband has contact with the children and you have this concern, it will be necessary for you to go back to Court to obtain an appropriate order to protect your children.
9. My husband threatens me that if I leave him, I will never see the children again. Is this so?
The Court at all times encourages a relationship between parents and their children. The Court would take a very dim view of one parent preventing the children seeing another.
10. My husband and I cannot agree on anything! He tells me that I will have to go to Court unless we can agree. What does this mean? How long will this take?
From the time proceedings are commenced until they are finally determined, there is a delay of anywhere between 6 months and 2 years, depending upon in which Court the proceedings are brought.
One advantage of commencing proceedings is that it forces parties to consider settling. This is especially the case when they have separate legal representation.
The majority of cases that are commenced in the Family Court settle prior to final hearing and it is only a small minority that proceed all the way, where a decision needs to be made by a Judge.
11. I am thinking of moving in with my boyfriend. We are madly in love and I know it will work out. My friends are warning me that if we break up he will take everything I have worked for. Is there anything I can do to protect my contributions?
If you move in with your boyfriend, he may acquire a right to your property. To protect yourself you should enter into a Co-habitation Agreement under the Property (Relationships) Act. This is a written agreement that has to be in a form prescribed by legislation. You should seek legal advice in relation to the drafting of that document.
12. My husband has been working for the same company for the past 30 years. He has got a very large superannuation policy. He says it is all his and I am not entitled to any of it. Is this right?
No. Superannuation entitlements are treated the same as property by the Family Court. It is possible for the Court to order that part of his superannuation entitlements are transferred to you, or that you receive additional property in place of a share of his superannuation entitlements.
13. My mother died two years ago and she left me $300,000 which I used to pay off the mortgage on the house I own jointly with my partner. If I get a divorce, will I be able to get my mother’s money back?
In most cases you will be able to recover your mother’s inheritance. However, it does depend on the circumstances of your case and other factors such as when you received the inheritance, whether there was an expectation that both you and your husband had or whether it could be said that your husband made a contribution to it in some way.
14. I came home the other day to discover my wife and child had left. I found out that she is living with her mother in another state. She refuses to speak with to me. What can I do?
You can commence proceedings in a Court asking that orders be made, that the children be brought back to you or close to you so that you can continue to have a relationship with them.
15. It seems our marriage is over. I want to move on. I can’t get my partner to talk to me to settle things between us. Can I force him/her to talk to me?
You cannot force your partner to speak to you if he or she refuses to. However, under the present rules of the Family Law Act there is an obligation on each of the parties to proceedings before the Court to attempt to mediate or settle the differences between you.
16. I divorced my husband two years ago. My two children aged 9 and 7 live with me. I met a new man and I want to get married. He is from the USA. I want to move there because it will be a better life for my children. Can I just leave?
No you cannot just leave. You will need your husband’s permission. If you do not receive it, it will be necessary for you to ask the Court to make an order allowing you to leave.
If you left without your husband’s permission, he could seek an order that the children be brought back, in which case, there is a risk that your husband would get the children.
17. What is meant by “in the best interests of a child”?
A Judge in deciding what is in the best interests of a child takes into account a number of circumstances. These are:
(a) expressed wishes of the child;
(b) the child’s relationship with each parent and any other person;
(c) the current arrangements for the child and the effect of any change;
(d) the effect on the child that separation from either parent, other children or any other person;
(e) the capacity of each parent to provide for the child’s needs including emotional and intellectual;
(f) the child’s maturity, sex and background, including contact with culture or traditions of indigenous people;
(g) the need to protect the child from physical or psychological harm;
(h) each parents attitude to the child and the responsibilities of parenthood;
(i) any family violent.
This is an indicative list that a Judge would consider. There may be other matters that may be important or even more important than this.
18. Is it true that the starting point is “joint residency”?
No it is not true. A Court in making an order where a child should live has regard to the parent’s circumstances and what is best for the child. Joint residency is rarely ordered, and only in circumstances where the parents live very close to each other and although separated have a good ongoing relationship.
19. I haven’t worked since my first child was born 15 years ago. If I leave my partner will I have to go back to work to support myself and my child?
If you choose to look after your child instead of working, then provided your husband has the ability to meet the costs of your reasonable needs, a Court would order that he do so. If, however, your husband does not have the means to make those payments, then it will be necessary for you either to rely on social welfare payments or return to work in order to support yourself.
20. I remarried three years ago. My son, who is 10, wants to change his surname to my new married name. Can I do it?
It will be necessary for you to obtain your former husband's permission for the name change. If that is refused, then it will be necessary for you to ask the Court for an order that notwithstanding your former husband’s lack of consent, it can be changed.
21. How do I formalise my separation from my partner?
Separation is a fact and does not require formalising. It is important to identify when separation occurs as it is an important factor in a divorce and the assessment of contributions. There is sometimes a dispute when separation occurred. It is important to keep a record of that date if there is such a dispute.
22. My Family Law Court case with my husband finished 5 years ago. I have just found out that he owns another property in Vaucluse. He has had it for 10 years. Can I do anything about it?
Yes you can. There is an obligation on each party in Family Court proceedings to make a full and frank disclosure of their assets and liabilities. If you husband did not disclose his Vaucluse property when the matter was before the Court, it gives you grounds for approaching the Court to set aside whatever orders were made 5 years ago. In that case, the Court would then re-decide the case based on the assets that your husband and you own today.
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