At Camatta Lempens we understand that the breakdown of a relationship is often one of the most stressful events in a person’s life. A strong support network at this time, including a lawyer whom you trust, can make a world of difference. Camatta Lempens endeavours to assist you in negotiating a settlement with your former partner in the most efficient and amicable way possible.
My Marriage Is Over, What Do I Do?
Unfortunately for many people the breakdown of a marriage is not a simple or straightforward process. Beyond the granting of a divorce there are other factors to consider such as the distribution of property and the care arrangements of any children, not to mention those other, often ignored areas such as your estate planning documents, insurance and superannuation nominations. There are also financial considerations to be assessed in relation to how you actually effect your property settlement. Will there be taxation issues? How will you handle business interests? These are all questions our family law team will be able to assist you in considering. Contact our family law team today.
My Relationship Has Ended, What Do I Do?
If your marriage has broken down beyond repair you may wish to apply for a divorce. A divorce cannot be granted unless the parties have been separated for 12 months and one day or more. Check out our detailed article on the divorce process here.
You do not have to be divorced to begin property and child proceedings. However an application for a property settlement must be made within 12 months of your divorce being granted otherwise you will need to apply to the Court for an extension of time.
Dependent on several factors, if you were in a de facto relationship of two years or more that broke down after 1 July 2010 (in South Australia) you may be entitled to the Jurisdiction of the family courts. This applies to people in a same or different sex relationship. It is important to know that property orders must be applied for within two years of the end of the de-facto relationship, otherwise an additional application to the court for an extension of time is necessary, and it may or may not be granted.
Determining property and children’s matters may be done in two ways. Firstly, you and your former partner may attempt to come to a non-formal arrangement between yourselves. If this occurs you should still consider seeking legal advice about whether you are best served by making your agreement arrangements legally binding through a either consent orders in the Family Court of Australia or a Financial Agreement.
If however your relationship with your former partner has deteriorated so much that you are unable to come to an agreement regarding property and or children’s care arrangements you may wish to begin formal negotiations with the assistance of a lawyer. They can help you apply to the Court to determine the distribution of property as well as your parenting arrangements for any children of the affected relationship.
When determining the distribution of property between former partners the Court takes a five step approach.
Step One: Consider Justice and Equity of making any Orders
Is it appropriate to consider making adjustive orders at all? Usually this step will be automatically satisfied by the fact that the relationship has broken down.
Step Two: Determining the Asset Pool
This will involve determining the value of all current assets, liabilities and financial resources of both parties to the relationship.
Step Three: Determining the Contribution of the Parties
The Court then assesses the contributions made by the parties to the relationship. This involves both financial contributions, such as property and wages and non-financial contributions such as home-making and child care duties.
Step Four: Assessing ”Future Needs”
The next step is establishing whether there are any other factors involved that should be considered in a property distribution. This may include the health of the parties, their earning capacity and their ability to support any children in their care.
Step Five: Is The Distribution Just and Equitable
Finally, once the court has assessed all of the above they will come to a conclusion regarding the split in the distribution. They will then ask the question of whether this decision they have come to is just and equitable in all of the specific circumstances of the matter before them.
Coming to an agreement with your former partner as to the living arrangements of your children can be a stressful, emotional and often a lengthy process. We recommend that you attempt to make an agreement with your former souse that will work for both of you and the children. As with any property settlement, you will need to consider whether you desire to make your agreement with respect to children’s care arrangements legally binding through consent Orders. We recommend that you speak to one of our family law team about any intention to make legally binding children’s arrangements. If you and your former partner are unable to reach an agreement with respect to the children’s care arrangements you may need to think about issuing legal proceedings in the Court. When determining the living arrangements of a child the ultimate consideration by the Court is what is in the best interests of the child. When assessing this, the Court will take into account the benefit of the parent’s relationship with the child and whether either party poses a threat to the welfare of the child. Other considerations include the history of the parent/child relationship and the views of the child. We will happily discuss your particular circumstances with you, and determine what approach you will take if it becomes necessary to seek parenting orders.
Parental Rights of Grandparents
The breakdown of a marriage or relationship affects more than just the partners involved, it affects children, grandparents and even extended family. If the breakdown of your adult child’s relationship has affected your ability to see your grandchildren, or if you are worried about their welfare, there are legal steps that you can take in order to maintain your relationship with grandchildren.
Under Family Law Act it is possible for grandparents to make an application to seek orders with respect to their grandchildren’s care arrangements. Once an application is made to the Court it shall then asses a range of factors to determine an arrangement that would be in the best interests of the child. The determination of the child’s best interest can include an access arrangement to maintain the grandparent/grandchild relationship.
Sadly there are some circumstances where it is necessary for the grandparent to step in and become the primary carer of their grandchild. In cases such as this you would have to make an application to the Court to be granted parental responsibility and care of your grandchild. As this process is often complex we recommend that you to seek legal advice before pursuing your legal options.
We offer no-obligation first appointments with our family law team at discounted rates where you can discuss any and all of the matters that affect your family law property and children’s issues. Please contact one of the friendly family law team members to make an appointment.