If you are considering separating from your spouse or have separated, you should seek legal advice. The process of separation can be an upsetting experience for everyone involved. It is important that you have proper support during this difficult time. A lawyer will help you reach an agreement with your former spouse without going to court and ensure that your interests protected as best as possible.
Upon separation there are important decisions that must be made about how to divide property, money and belongings, and the future care of children. Settling these issues can be difficult and emotionally challenging. Your lawyer will offer vital support in reaching an agreement.
Reaching an agreement
Where you and your former spouse are able to reach an agreement, your lawyer can prepare documents detailing how you and your former spouse wish to settle any issues on the division of property and/or the future care of children.
This can be achieved through a consent order, which is a written agreement between you and your former spouse regarding parenting and financial arrangements that is approved by the Court. The orders can be applied for without a court hearing and can be prepared for you by your lawyer. Consent orders are also legally enforceable, as if they had been made by a judge after a court hearing.
These documents are an effective way of formally setting out the agreement you have reached with your former spouse, whether this is how you wish to divide any joint assets, child support or spousal maintenance.
Going to court
Going to court is generally only done as a last resort because it is stressful, time consuming and costly. However, if you cannot reach an agreement with your former spouse, going to court may be the only way to deal with the dispute and you may have to consider applying to the Court for orders.
The Family Court has very wide discretion to alter your interests in most forms of property as it deems appropriate in order to reach a fair and equitable outcome.
In relation to property, the Court will pool together all of your property, liabilities and financial resources as well as the property, liability and financial resources of your former spouse. It then assesses both of your financial, non-financial and welfare contributions to the value of the property. These include any circumstances that may affect the fairness of an order such as disparity in income or earning capacity, who cared for the children the most throughout the relationship, and other factors, to see whether any adjustments should be made as to the ownership of the property. The Court then finally considers all of the circumstances of the case and what order should be made for a fair and reasonable outcome.
The Court also has the discretion to make a parenting order which may decide the person with whom a child is to live, the time a child is to spend with another person, the allocation of parental responsibility for a child, and other aspects of parenting.
Our Family Law team here at O’Brien Connors & Kennett is available to you if you have any further questions or require relevant legal services, feel free to contact us or visit our Northern Beaches office.
