How to guides

How To Get The House In A Divorce

When you are separating one of your burning questions might be how to get the house in a divorce. While we can't provide a fool-proof guide of 'how to get the house', we are experienced in asset division and can give you some tips about how you might go about keeping your house when getting divorced.

Step One Check whether you can

The most common sense answer to how you can get the house in the divorce, is speak with your former partner about their position in relation to the house. If they are convinced they want to retain the premises, the question is whether they can afford to and the same to you. Both of you need to speak with a mortgage broker and ensure that you are able to refinance (if required) to maintain the house and sometimes just checking this matter will resolve the dispute to start with.

The next question is whether you would be entitled to the house. Have a look at our How To Guide, how to split assets after separation, for more information on that.

Step Two Beware of unsolicited advice

You may receive advice from a friend of friend that the house is not in your name so you are not entitled to it. This is incorrect. If you were in a relationship, all property is considered joint property (regardless of whose name it is in or who paid for it) until the court decides otherwise. You may also receive advice to make sure that you do not leave the house as you then won't get it in the settlement. This is incorrect as well. It does not matter who remains in the house after separation, both parties still have joint ownership of property until it is ordered otherwise. And you may receive advice that he/she cheated on you (or whatever the reason is) so you are entitled to the house. This is not correct. Australia has a no-fault separation system where it is not taken into account what the other party has done.

Step Three Negotiate

If you are set on keeping the house, but can't get an agreement, you might need to do some negotiating. Think about what is important to the other party, is there something that you concede in order to retain the premises? Do you have primary care of the children? In the circumstance where there are children, and the party is able to take over a mortgage, then the court is more likely to transfer the property to that person to maintain stability for the children.

Step Four Make an application to the court

If you are unable to get an agreement and believe that you would be entitled to retain the property, you can make an application to the court for an order to transfer the house to you. Even if the other person does not agree, the court is able to make an order that the house be transferred to your name. If they refuse to sign the paperwork, the court is able to assist with this as well and sign on their behalf.

Check out our FAQs for more information on court proceedings.

We are Family Court lawyers who are experienced in providing divorce and separation legal advice in parenting and financial disputes. We have many years experience in court advocacy and dealing with matters involving complex property pools or modest property pools. We aim to resolve your matter as quickly and inexpensively as possible.

Contact us for more information or to book a free legal advice session to find out your options.

This information does not constitute legal advice. You should consult with a lawyer to obtain independent legal advice relevant to your situation.

How To Calculate Spousal Maintenance
Spousal maintenance is a tricky area of law and many people are confused about who, how, what and why someone would be entitled to spousal maintenance. There are many intricate parts of these calculations, and of course each case is different, but our family lawyers can explain how you might go about doing these calculations to know what you might be entitled to, or required to pay.

 

Step One Know whether you are eligible to apply

The area of spousal maintenance can be quite complicated and whether an amount is awarded depends on many different things. There is no 'calculator' to give you an exact amount that you would be required to pay however you might be able to get an idea by understanding what law says. A person might be able to apply for spousal maintenance if they have a care of a child under 18, if they are unable to be employed due to their age or physical/mental ability and for any other appropriate reason.

Check out the Family Law Act 1975 s90SB about spousal maintenance for de facto relationships and whether a de facto can apply for spousal maintenance.

Step Two Understand what the law says

There are a long list of matters that the court can take into account when considering an application for spousal maintenance however they are restricted only to this list. These considerations include:

the income, finances and property of the parties
the commitments of each party that are necessary to support themselves
whether the person has care of a child not yet turned 18 years old
whether a maintenance payment would increase that person's earning capacity
Have a look at the Family Law Act s75(2) for the whole list. A main consideration that the court takes into account is whether the person seeking spousal maintenance cannot support themselves without that maintenance and whether the person paying spousal maintenance can support themselves while paying that maintenance.

Step Three Understand your finances

To know whether you are entitled to spousal maintenance, or whether you need to pay it, you need to understand your financial position. Sort out your tax returns, arrange for child support payments, work your budget (income and expenses) and also do this for the other person. You might then be able to answer the question of whether a person can support themselves without payment and whether the other is able to continue their life while making payments.

Step Four Make/respond to the application

You do not have to go to court to make an application for spousal maintenance if you are able to get an agreement. Have a look at our How To Guide, How to get a separation agreement, for more information on that. If you can't get an agreement, you may end up in court. You are able to make an application for spousal maintenance, along with property settlement, by initiating court proceedings. All of the information we have discussed above, you will need to provide to the court so that they are able to assess the application. The court can make various orders such as lump sum payments, on-going payments (life time and limited), transfer of property or make any order they think is appropriate.

We are Family Court lawyers who are experienced in providing divorce and separation legal advice in parenting and financial disputes. We have many years experience in dealing with financial settlement like those including spousal maintenance agreements or applications.

Contact us for more information or to book a free legal advice session to find out your options.

This information does not constitute legal advice. You should consult with a lawyer to obtain independent legal advice relevant to your situation.

How To Split Assets After Separation
While it is often the last thing on your mind, knowing how to split assets after separation is an important part of the separation process. The way the court deals with assets can be a little complicated but there are a few tips to help you understand how to divide your finances after you break up.

 

Step One Establishing Your Property Pool

Before you can think about how to split your assets after separating, you need to understand the basics of how the court looks at property division. The first step is to figure out what your total 'property pool' is this will be the value of all of your assets minus all of your liabilities. The law considered all assets and all liabilities as joint when you are in a relationship regardless of who 'paid' for them or whose name they are in.

You need to type/write a list of all assets and liabilities and their corresponding values. You do not need to get valuations of your property if you both agree on the value of the assets. If you cannot come to an agreement on a value of an item, you will need to obtain a joint valuation. If you do not have access to some assets or liabilities, you can request disclosure from your former partner to ascertain what property they have in their possession.

Step Two Learn What Your Entitlements Are

The Family Law Act 1975 outlines how the court determines what your entitlements are after separation through a four step process:

What is the property pool? As above, figure out what the current property pool is.
What are each person's contributions? This takes into account initial contributions, financial and non-financial contributions (like caring for a child) and post-separation contributions. *this also includes negative contributions, like accumulating debt or 'wasting' money
What are each person's future needs? This looks at how easily each party can rebuilt their life after separation and makes an adjustment for the settlement depending on that.
Is it just and equitable to make an order? The final step is making sure the proposed division is fair for both parties.
What your entitlements are depends on the individual circumstances of your case so it is a good idea to at least get some advice from a good family lawyer to understand your rights. Click here to arrange a free no obligation telephone consultation to find out what you are entitled to. Also check out our article, How much does a Family Lawyer cost? to understand how legal fees work.

Step Three Get An Agreement

The best way to resolve your property split is to sort it out without going to court. Sometimes court is a necessity, but it is always a good idea to attempt to reach an agreement before starting proceedings. You can negotiate with your former partner through a lawyer or yourself and proposals as to what you believe the asset split should be. When you are trying reach an agreement, you should think about what is important to you. For example, if you wish to retain the family home, then think about what other assets you would be prepared to part with and make sure that you are able to refinance before making that proposal. Outlining your contributions, and acknowledging the other person's contribution, is a good way to start negotiations so you both understand what you have each contributed to the property pool.

Step Four Draft Your Agreement

You can finalise your financial settlement through Consent Orders or a Binding Financial Agreement. For a Binding Financial Agreement, you must have independent legal advice from an experienced family lawyer. It is best to get legal assistance, but some people can do Consent Orders themselves. Download the DIY Consent Order kit and follow the instructions. There are several requirements that you must address in your orders. You need to specifically deal with every asset and liability and how they will be divided amoung the parties. When drafting financial orders, you need to make sure that the division that you have agreed to is just and equitable or the court will not make the order.

It is important that you finalise your agreement legally as both parties are able to apply to the court for property proceedings within 2 years from separation for de facto relationships and within 1 year after divorce for married couples.

If you can't reach an agreement, then you can attempt mediation or arbitration or make an application to the court to have them decide your dispute.

Step Five Finalise The Split

Once you have a Consent Order or Binding Financial Agreement, you need to give effect to that agreement. If you have arranged for the transfer of a house, speak with a conveyancer and/or the bank to arrange the transfer. If you are splitting superannuation, check with the superannuation as to the process and fill out the appropriate forms. Receiving your Court Order will not automatically transfer property, you will need to use the Family Law document to organise the actual separation of assets yourself.

As a side note, make sure that you update your will, power of attorneys and life insurance beneficiaries after separation. If you are thinking about sorting out your divorce, check out our article, How do I start the divorce process?

We are separation solicitors with years of experience in modest and complex property law disputes including those involving trusts, businesses and overseas assets. We have expertise in negotiation, mediation, arbitration as well as court advocacy.

Contact us for more information or to book a free legal advice session to find out your options. If you want to read more, check out our FAQs for more common questions relating to separation.

This information does not constitute legal advice. You should consult with a lawyer to obtain independent legal advice relevant to your situation.

How To Get A Divorce
Once you are separated, the next step is finalising it through a divorce. The process can seem a bit tricky as there are a few intricacies in the process and certain aspects that need to be addressed before the court will allow you to divorce. Our How-To Guide will run you through the process to help you finalise your divorce and move on with your life.

 

Step One Tick Off The Checklist

Before you can get divorced, you need to be separated for one year. Even if you have been living under the same roof, you can still be separated so the time limit will start as soon as both parties agree that separation has occurred. In order to prepare your application, you need to have a copy of your marriage certificate if you do not have this, you will need to order a new one from the Births, Deaths and Marriage office. If you have children under 18, you will need to have made some sort of arrangement for their care, even if it is only casual or temporary.

Step Two Speak With Your Former Spouse

If your former spouse agrees to a divorce, the process is much easier and you are able to lodge a joint application for divorce. If they do not agree, that is fine, you will just need to lodge a sole application. If you are lodging a sole application, you will need to serve the other party with the application after you have filed it. If you do not know where they live, you need to make attempts to find them. If you cannot find them, you can make an Application for Substituted Service and request that the court dispenses with or accepts substituted service.

Step Three Prepare The Paperwork

Prepare the application form from the Commonwealth Courts website here (you need to sign up for an account to do this). Follow the steps and fill out the paperwork. You then need to file it with the court and serve the documents on your former spouse (if you are not filing a joint application). You will be given a court date for when your divorce hearing is. There are some circumstances when you do not need to appear in court (such as with a joint application and if there are no children under 18) so the court will just process your divorce without you needing to attend. Sometimes you do need to be there though, so make sure you check beforehand.

Step Four Sort Out Everything Else

Once the court finalises the divorce, you will received the divorce decree and you are considered divorced from that date.

After you are divorced, there is a strict 1 year time limit to make any applications for property settlement through the court. You need to make sure that you have finalised your property settlement either before you get divorce or within 1 year after your divorce. Make sure that you update you will, power of attorneys and beneficiaries to any life insurances policies. If there are children under 18, you should consider making arrangements for their care.

Check out our FAQs for more information about the separation process and what you need to know during this time.

We are Family Court solicitors who are experienced in providing divorce and separation legal advice in parenting and financial disputes. We have many years experience in court advocacy and dealing with matters involving complicated parenting and property disputes.

Contact us for more information or to book a free legal advice session to find out your options.

This information does not constitute legal advice. You should consult with a lawyer to obtain independent legal advice relevant to your situation.

How To Get A Separation Agreement
If you do not want to get a good family lawyer and battle your former partner in court then you probably want to know how to get a separation agreement. Whether it is in relation to children or finances, you should get a separation agreement and make it official so you are protected going into the future.

 

Step One Think About Your Proposal

To get an agreement with someone, you need to negotiate, and to negotiate successfully, you need to know what you want and what you are prepared to give up. Before starting your negotiations, you should think about what is important to you, whether that is keeping the family home for property settlements or spending weekends with your children for parenting disputes. You need to think about what is the least you are prepare to settle for and what is absolute best case scenario for you start at the top with your proposal, and work your way down.

You should get some information about what you would likely be entitled to for financial settlement, before you start negotiating (have a look at our article, How to split assets after separation for some ideas).

Step Two Negotiate

You need to make a proposal to the other party about how you would like to settle your dispute. You can use a lawyer to do this, or attempt to negotiate yourself. You should outline what your contributions were to the relationship, or to parenting, and what you believe the other party's contributions were. This helps both sides to understand why the other party is making this proposal. It is helpful to keep things amicable if you want to reach a separation agreement outside of court when things start to get personal, it can make it difficult to focus on the end goal of reaching a resolution to the dispute.

Step Three Get Legal Advice

It is important that you speak with a good family solicitor at least once to ensure that the agreement you have reached is fair for you. Even if you do not wish to engage a lawyer to draft your agreement, you should have one consultation with a separation solicitor so you can be sure that you and your family's best interests are looked after. Once you have a binding order, there are only limited reasons it can be varied such as fraud or by consent.

Get your free, no-obligation legal consultation here with a family lawyer.

Step Four Draft Your Agreement

Download the DIY Consent Order kit and follow the instructions. There are several requirements that you must address in your orders. For parenting orders, you need to outline parental responsbility, live with arrangements and contact arrangements for each parent. For property orders, you need to specifically deal with every asset and liability and how they will be divided amoung the parties. When drafting financial orders, you need to make sure that the division that you have agreed to is just and equitable or the court will not make the order.

If you wish to finalise your financial settlement by way of a Binding Financial Agreement, you will both need to obtain independent legal advice in relation to the agreement. BFAs can be a tricky area of law so you need to make sure you find a lawyer who has experience with these types of agreements. Have a look at our article, What is a binding financial agreement? for more information on BFAs.

Step Five File Your Documents

You will need to execute the documents and lodge them with your local Family Court registry along with the filing fee (unless you have a BFA as a separation agreement). The court will then take the time to read through what you have submitted and consider whether they are appropriate. They will then seal the orders and send them back to you. You will then need to action any actions that are contained in those orders.

We are Family Court solicitors who are experienced in providing divorce and separation legal advice in parenting and financial disputes. We have many years experience in court advocacy and dealing with matters involving complicated parenting disputes including matters that require several Family Reports.

Contact us for more information or to book a free legal advice session to find out your options.

This information does not constitute legal advice. You should consult with a lawyer to obtain independent legal advice relevant to your situation.

How To Get Custody Of My Children
The most important question that separating couples want to know is how to get custody of my children. This can depend on your individual case but there are several options to get started on fighting for custody either outside of court or in court. We can also provide you with some tips from the best family law solicitors to help you to get custody of your children.

 

Step One Try To Reach An Agreement

For some, this will be impossible but the first step is to negotiate with your former partner to see if there is any mutual ground and ascertain what their intentions are for the care of the children. You can do this yourself, through a lawyer or through mediation. Prior to applying to court, parties are required to attempt Family Dispute Resolution and make a genuine effort to reach an agreement, except in certain circumstances like when there is domestic violence, child abuse or urgent circumstances. If get an agreement, you should finalise that into a binding document have a look at our How-To Guide, How To Get A Consent Order.

For more information on this process, check out our FAQs, How Can I Get Custody Of My Child Without Going To Court?

If you are unable to reach an agreement after mediation, your next option is to apply to the Federal Circuit Court or Family Court. You will receive a 60I Certificate from your mediator which you can then use to make application to the court.

Step Two Gather Your Evidence

When you are applying to the court, you need to remember that the Judge hearing your case will know nothing about you or your relationship with your children so you need to explain everything to them. Keep a diary of everything that is, and has been, happening relating to your children, including any times you or the other party has had or attempted contact with the children. If relevant you will need to supply the court with school reports, counsellor reports, witness statements, text messages, emails, recordings and photographs.

When preparing your material for the court, you will need to explain the history of your relationship and everything that has happened since the children's birth. You can prepare this material yourself through the Initiating Application for Parenting Orders here. You will need to prepare an Initiating Application, an Affidavit, and a Notice of Risk. When writing your affidavit, you should also consider what you think the other party will say and address that in your material so you can present your best case to the court.

Step Three Get Legal Advice

It is important that you speak with a good family solicitor at least once to make sure that you doing the right things and on the right track. It is a good idea to have a lawyer look over your documents before applying to the court, if you draft them yourself, to ensure that you have covered everything and are putting yourself in the best position possible. One of the most common questions we are asked is how domestic violence effects parenting proceedings and you can have a read of our article, How does the Family Court deal with domestic violence? to answer that question.

Arrange a free telephone consultation for some legal advice on your case here obligation free.

Step Four Appear In Court

On your first court appearance, there are two things that can happen the court will be prepared to hear an interim application or they will adjourn your matter to another day. If the court hears an interim application, this means that they will consider the material that both parties have filed, hear your arguments and make a decision about where the child lives and how the child spends time with the other parent on a temporary basis.

Once you have this temporary parenting order, the matter will then proceed through the court proceedings. The court can appoint an Independent Children's Lawyer (a lawyer to represent the best interests of the child) and they often provide guidance about what should happen. The court also sometimes arrange independent consultants to provide reports to the court on what the child's care arrangements should look like. Have a look at our FAQs, What is a Family Report? for more information on that.

Step Five The Final Hearing

If you proceed through the court system and the other party still will not agree to the custody arrangements that you think are best for your children, your matter will go to a final hearing. This is when you present all your evidence to the Judge, as does the other side, and the Judge will give you both the opportunity to cross-examine the other party except when there is domestic violence. From the end of 2019, unrepresented parties will be unable to cross-examine each other in certain circumstances of domestic violence. Have a look at this information sheet to see if this applies to you.

After your final hearing, the Judge will deliver their decision which will then become a court order. If you do not agree with the decision, you have 28 days to lodge an appeal and have the matter re-heard. You can only do this in certain circumstances so you should obtain legal advice if you wish to appeal a decision of the court.

We are Family Court solicitors who are experienced in providing divorce and separation legal advice in complicated and high risk parenting disputes. We have many years experience in court advocacy and dealing with matters involving complicated parenting disputes including matters that require several Family Reports and involve Independent Children's Lawyers.

Contact us for more information or to book a free legal advice session to find out your options.

This information does not constitute legal advice. You should consult with a lawyer to obtain independent legal advice relevant to your situation.

How To Run A Domestic Violence Trial
It can be very difficult to know how to run a domestic violence trial as the court process can be very complicated and confusing if you are not familiar with it. Good family lawyers and the best domestic violence lawyer will usually get you a great result but you need to understand the basics yourself to make sure you are in the best position possible.

 

Step One Make Sure You Have A Good Case

Domestic violence proceedings are very serious and, if convicted of domestic violence or an order is made against you, it can seriously impact on your future. If you are planning on contesting a domestic violence order application, you need to make sure that you have a good chance at success. Check out our FAQs, What happens when you are charged with domestic violence? for more information on how these proceedings can effect you and the initial process. If you are worried about how this would effect a parenting dispute, read our article, How does the Family Court deal with domestic violence?.

Step Two Prepare Your Evidence

When your matter is listed for a final hearing, the court will give you directions on when to file your material that you wish to rely on. You can get a copy of these directions from the court registry if you are not sure. The first date you receive will be the date that the aggrieved must file, the second date will be the date that the respondent must file. The court will then give dates that subpoenas are due to be filed. It is important that you file any subpoenas on this date and have them served so the documents can be produced to the court for the trial.

All evidence must be filed by way of affidavit. If you wish to use any witnesses, you will need to get them to file an affidavit too. Make sure you include all information that you want the court to consider because if it is not in your affidavit, then you cannot rely on it. This includes recordings, text messages, photographs and emails.

Step Three Prepare For The Trial

Once your material, and the other person's material, is filed, you can start preparing your arguments. Read carefully through the evidence for the other person and figure out the important points that you will need to raise with the court at the hearing. The judge will read all the material beforehand but when you are in court, this is your opportunity to present your case to the judge so they understand what happened from your perspective.

Step Four Appear At The Trial

You and your witnesses must appear on the day of the trial. Only the aggrieved and the respondent are allowed in the courtroom the whole day and the witnesses are only allowed inside the court when they are giving evidence. The aggrieved will give their evidence first and then the respondent will have the opportunity to cross-examine. In domestic violence proceedings, there are protections awarded to aggrieveds during cross-examination so make sure you check whether any of these exceptions apply to your cross-examination. The respondent will then present their case after the applicant and will also have the opportunity to be cross-examined. Both sides will then have the chance to providing closing arguments which summarise their case and how the evidence presented itself at the trial.

Step Five Receive Your Decision

At the end of the proceedings, the judge will either give you their decision straight away, or if it is a complicated matter, they might adjourn the matter over to another day to think about their decision. Once you have the judge's decision, this is final. You cannot argue with them and ask them to change their mind. You can, however, make an application for appeal in certain circumstances within 28 days of the decision. You should obtain legal advice if you wish to make an appeal to see if your matter is appropriate for appeal.

We have many years experience in domestic violence matters for both applications and breaches of domestic violence orders. With our background in criminal law, our domestic violence solicitors are experienced in court advocacy and have negotiated and appeared in court on thousands of DVOs and contraventions of DVOs. To get the best result, you need to have the best domestic violence lawyer who understands how this area of law operates.

Contact us for more information or to book a free legal advice session to find out your options.

This information does not constitute legal advice. You should consult with a lawyer to obtain independent legal advice relevant to your situation.

How To Get A Consent Order
The Family Court process can be lengthy and expensive so a good family lawyer should try to help you get an agreement outside of court. To make an agreement official, you need to get a court order, known as a consent order. It is best to use a family lawyer but you can do it yourself if you know how to get a consent order without a lawyer.

 

Step One Get An Agreement

Before you can get a consent order, you will need to have a complete agreement with your former spouse. A court cannot make an order by consent unless all parties agree with the order in it's entirety. If there are matters that are not agreed, you cannot expect the court to resolve this for you. If you cannot reach an agreement, you will need to continue negotiating or lodge an application to the court to have a Judge decide your dispute.

Step Two Put It In Writing

It is important that you ensure that all aspects of your parenting or financial dispute are dealt with and that you both agree on all parts. For financial matters, you will need to draw up a table of the value of assets and liabilities that are agreed on by both parties. For parenting matters, you will need to list every aspect of parenting, such as how day-to-day decisions are made and who has the children on special occasions.

Step Three Get Legal Advice

It is important that you speak with a good family solicitor at least once to ensure that the agreement you have reached is fair for you. Even if you do not wish to engage a lawyer to draft your agreement, you should have one consultation with a separation solicitor so you can be sure that you and your family's best interests are looked after. Once you have a binding order, there are only limited reasons it can be varied such as fraud or by consent.

Get a free legal advice session with an experienced family lawyer here.

Step Four Draft Your Agreement

Download the DIY Consent Order kit and follow the instructions. There are several requirements that you must address in your orders. For parenting orders, you need to outline parental responsbility, live with arrangements and contact arrangements for each parent. For property orders, you need to specifically deal with every asset and liability and how they will be divided amoung the parties. When drafting financial orders, you need to make sure that the division that you have agreed to is just and equitable or the court will not make the order.

Check out our FAQs, What is Parental Responsibility? for more information on what this means.

Step Five File Your Documents

You will need to execute the documents and lodge them with your local Family Court registry along with the filing fee. The court will then take the time to read through what you have submitted and consider whether they are appropriate. They will then seal the orders and send them back to you. You will then need to action any actions that are contained in those orders.

We are Family Court solicitors who are experienced in providing divorce and separation legal advice in parenting and financial disputes. We have many years experience in court advocacy and dealing with matters involving complicated parenting disputes including matters that require several Family Reports.

Contact us for more information or to book a free legal advice session to find out your options.

This information does not constitute legal advice. You should consult with a lawyer to obtain independent legal advice relevant to your situation.

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