The ending of a relationship can be stressful, but it can also be the start of a new journey. Olsen Lawyers can assist you with:
- Divorce and Separation;
- Property Settlements; and
- Pre-nuptial and Financial Agreements.
Divorce and Separation
The Court is able to grant a divorce if there has been an irretrievable breakdown of marriage. This is established by a couple living apart for at least twelve months. A couple can be living apart but still under the one roof. A person cannot apply for divorce until the parties have been separated for twelve months.
Divorce proceedings are conducted entirely separately from other proceedings between the husband and wife and there is no obligation on a party to commence divorce proceedings before taking action in relation to any other aspect of the marriage breakdown. However you need to apply for a divorce if you wish to re-marry.
It is important to be aware that proceedings for property settlement and spousal maintenance must be commenced within one year of the divorce. Applications can only be made after this period with the approval of the Court, and this is difficult to obtain.
Property comprises all assets such as houses, land, shares, money in the bank, furniture, motor vehicles, insurance policies and the like. A superannuation entitlement is not technically property but can be treated like property and can be split between the parties. Both parties are obliged to be totally frank in making disclosure of their assets.
An application for property settlement can be made immediately following separation and it is not necessary to wait until divorce. However, once a divorce has been obtained the application for property must be made within twelve months of the date of the decree absolute (a month after the divorce hearing). If the application is not lodged within that time a person must prove to a Court that there are special circumstances which allow the application to be made late.
Olsen Lawyers always attempts to have the parties reach an agreement on the settlement without the need to issue proceedings through the Court. If that can be done there is a considerable saving in both time and cost not to mention a significantly lower level of stress for all concerned. If agreement is reached it can be evidenced by Consent Orders or a Binding Financial Agreement.
Pre-nuptial and Financial Agreements
A Binding Financial Agreement precludes the Family Court from determining a dispute between the couple about a division of their property. Such agreements set out how the parties’ property, liabilities and financial resources will be divided if they separate. These agreements are often used where one party has significant property and wishes to keep some of it separate from the other party for example for future estate planning for children.
If a couple does not have a Binding Financial Agreement and they separate, their property will be divided in accordance with the principles in the Family Law Act, and this usually means that all of the property of the parties at that time is included. Having an agreement will mean that the Family Law Act will not apply; the provisions of the agreement will. Therefore having such an agreement can save a significant sum of money including the costs associated with property settlement negotiations or litigation. It can be compared to income protection insurance or life insurance.