Family Law

Family Law

This incorporates the legal processes of separation, divorce, property settlements, applications for spousal maintenance and parenting matters. At Shanahans Butlers Solicitors, we aim to solve Family Law matters as cost effectively as possible outside of the courtroom. This is done through alternative dispute resolution methods and mediation, with Court as a last resort.

Separation

Separation refers to the end of an intimate partner relationship, whether it be a marriage or a de facto relationship. A de facto relationship is defined under section 4AA of the Family Law Act as “a couple living together on a genuine domestic basis”.

Divorce

This is the legal ending of a marriage. Since 1975, Australia has had a system of ‘no fault divorce’, which means the Court does not consider the reasons why a marriage broke down, only the fact that it has irretrievably broken down and that there is no chance for reconciliation.

You are able to apply for a divorce after you have been separated for a continuous period of twelve (12) months or more. This is with the exception of marriages which have lasted less than two (2) years. In order to obtain a divorce, an application must be made to the Court. The Court grants a Decree Nisi and after one month and one day, the divorce becomes absolute. This application does not deal with property and parenting matters.

Property Settlements

A Property or Financial Settlement is the process of separating your property and finances (including debts) between you and your former spouse. This can be done by agreement between you and your former spouse and then formalised with Consent Orders, by alternative dispute resolution or mediation or by application to the Court. It is advisable that agreement is reached outside of Court to save you and your former spouse money and time.

An application must be made to the Court within twelve (12) months of your divorce being finalised, or within two (2) years from the date of separation if you were in a de facto relationship.

In determining the separation of the assets and liabilities of the relationship, we will consider the parties financial and non-financial contributions, assets and liabilities before the relationship and the future needs of both parties. Financial contributions can include money contributed for the purchase of a property, inheritances or gifts. Non-financial contributions can include renovations to a home or contributions to the welfare of children and family. These are treated fairly equally, in particular for a long-term relationship.

It is our job to advise you what we expect your best outcome to be in terms of a percentage split of the assets and liabilities. You should consider whether it is in your best interests to proceed to Court, as you may not get the desired outcome from a judge.

Spousal Maintenance/Child Support

Spousal Maintenance is a separate application to the Court where money is paid to a party who is unable to adequately support themselves. The amount to be paid is assessed on what the other party can afford to pay based on their income and assets and it will generally not exceed what the needs are of the other party.

Child Support is generally dealt with by Services Australia in accordance with the Child Support (Assessment) Act and is not generally dealt with by the Court except in some very specific circumstances including appeals.

Parenting Matters

This process has to do with where the children of the relationship reside and when the parents spend time with each of the parents. The Court will consider what is in the best interests of the child in accordance with section 60CC of the Family Law Act when making a determination about residency and access. It will at a first instance determine whether equal shared parental responsibility is appropriate and in circumstances where it is not, it will look at substantial and significant time to be spent with both parents where appropriate.

There are circumstances where it is not practical or appropriate for the child to spend time with both parents. It is our job at Shanahans Butlers Solicitors to advise you of what the Court will likely order if the matter proceeds to Court. It is advisable to try and come to a resolution between the parties in order to save costs and a lengthy Court process.