Divorce – Andrews Family Law

3 Ways to Resolve Financial Settlements During Divorce (What’s the Best Method for You?)

Peter Andrews — Sat, 06 Jul 2024 19:00:40 +0000

Separation or divorce can be a confusing and scary time in people’s lives. Especially when you have important financial settlements to resolve. You can experience emotions from anger, frustration, and anxiety to even euphoria when you’re finally closing a chapter. Imagine having to resolve a financial settlement while dealing with such complex emotions. Making the process as easy as possible means selecting the right settlement method.

The right approach depends on various factors. How complex is your financial situation? Do you have an amicable relationship with your former partner? What are your preferences?

We’ll explore how to handle a property settlement. We will discuss the advantages and disadvantages of each method to help you make an informed decision. You can then determine the right approach. This will protect your finances during divorce or separation.

Key takeaways

The three best ways to resolve a property settlement are mediation, negotiation and litigation.
Mediation involves a suitable third party facilitating a discussion between separated partners over how they will divide their property.
In negotiation, parties can discuss financial arrangements directly with legal representation.
As a last resort, parties can ask the Court to make a determination over property matters.
Binding financial agreements and consent orders are two ways separating partners can use to divide their property.
Consent orders are property settlements organised by the Family Court through a four-step process.
Binding financial agreements allow parties to form a legally enforceable agreement without the Court.
There are various factors to consider when deciding how to divide your property. These include the potential for compromise, your asset pool’s complexity and how any children will be affected.

The 3 Best Ways for Resolving a Property Settlement in Family Law

If you want to divide your financial resources after a divorce or separation, here are the three most common options.

Mediation

A voluntary process wherein a neutral third party (the mediator) assists separating couples in reaching mutually acceptable agreements on issues such as property division and spousal support.

Negotiation

This is an informal process where the parties, often with the support of independent legal advice, communicate directly to address their disputes and work towards a mutually beneficial settlement.

Litigation

Parties don’t always agree on a property division. In litigation, the Family Court makes a final decision on disputes. This is typically a last resort when other resolution methods have failed or are unsuitable. Understanding the critical aspects of mediation, negotiation, and litigation will enable you to make a well-informed choice when determining the most appropriate action for resolving property settlements.

As we go through these choices, we must remember that each family’s circumstances are unique. No single solution fits everyone. What may be effective for one family may not be appropriate for another. Seek advice from experienced professionals.

What is a financial settlement?

Before we delve into the three primary methods to divide property, let’s define what a financial settlement is. Whether you’re married or in a de facto relationship, your finances will get mingled with your partner as you make a life together. In the event of a relationship breakdown, you’ll need to make financial arrangements to separate your property.

A property settlement provides a legally enforceable way to divide an asset pool. This can be achieved through a financial agreement or the Court’s intervention. Property settlements take different forms.

Consent orders

When you apply for consent orders, you’re appealing to the Court to sign off on a settlement you’ve agreed to with your ex-partner. The Court applies a four-step process set down in the Family Law Act.

Step one

The Court will account for all the assets and liabilities under consideration and determine the proper value of the entire marital pool.

Step two

In the second step, the Court assesses the relative contributions of each party. Direct and indirect financial contributions are considered, but so are non-financial contributions. The Court will value factors like home maintenance and child-rearing.

Step three

After accounting for each party’s various contributions, the Court will consider each party’s future needs. This step recognises that many married couples have an imbalanced access to financial resources.

Step four

At this stage, the Court determines whether the division is just and equitable. If the Court doesn’t believe the settlement satisfies this requirement, it may make adjustments to the agreement or reject the application.

Binding financial agreement

Binding financial agreements (BFA) don’t include the Court. A BFA is a private agreement between parties. BFAs can be more flexible than a consent order as you can enter into them at any point. Consent orders can only be sought once a couple has separated. You can draft a BFA before a relationship begins, during the relationship or after separation.

BFAs also don’t need to cover an entire marital asset pool. You can seek a financial agreement to preserve particular assets like precious artwork and other unique items.

A valid BFA must meet certain criteria to be legally enforceable. Both parties need to receive independent legal advice. This advice should provide information on how the agreement affects the parties. The lawyers then provide an independent solicitor’s certificate. This certificate confirms that the parties received the necessary legal advice and makes the BFA enforceable.

A BFA’s flexibility can be useful. However, they can lead to imbalanced divisions. There’s no process to ensure fairness. Financial agreements can lead to one party losing out on their proper entitlement. A BFA can also be a particularly expensive option. The complexities involved in drafting them means that the process can be extensive.

A Collaborative Approach to dividing financial resources

Separated couples tend to find mediation very helpful. A neutral mediator facilitates discussions between parties. Mediation has many advantages, including:

Cost-effective

Mediation is generally more affordable than litigation. The price of a session depends on its length. A two-hour session will cost about $1000. A full day may be around $3000. You can keep these costs down by being prepared and forming an agreement quickly. It’s also easier to share the expense. Litigation can cost significantly more through hearing fees, filing fees and legal costs, and you’ll likely shoulder that expense by yourself.

Time-efficient

Mediation can be scheduled around everyone’s availability. It’s typically quicker than court proceedings. Well-prepared parties that want to find a resolution can settle the matter within a day. Litigation often goes for several days.

Confidential

Discussions during mediation remain confidential. Mediators are required by law to not divulge what’s said during a session. This means that your discussion isn’t admissible in court. You are free to be open and honest.

Mediation promotes collaboration. Separated couples can then maintain a more amicable relationship. This is particularly important when children are involved.

While it offers several benefits, it’s not always suitable. Some couples have a power imbalance that leaves one participant vulnerable to being coerced. A history of family violence also makes mediation inappropriate.

Direct Communication

Negotiation is also popular. Both parties engage in direct discussions to find a mutually beneficial agreement.

Legal representation provides support and advice throughout the negotiations. Benefits of negotiation include:

Flexibility

Negotiation allows both parties to express their preferences and priorities. This allows the participants to find arrangements that suit their circumstances. Without the need to satisfy the Court, you can explore creative solutions. This might include sharing assets like real estate or a vehicle on an agreed-upon schedule.

Informality

Negotiation doesn’t have to include a rigid structure like a court process. You can organise a more relaxed environment so you can discuss your concerns openly. This facilitates cooperation and makes it easier for you to reach an agreement.

Control

Both parties participate in the negotiations. This maintains control over the outcome. Most people find this preferable to allowing the Court to settle the matter.

Privacy

Negotiations are private. This maintains everyone’s confidentiality throughout the process.

However, not everyone would benefit. It’s inappropriate with a history of domestic violence or coercion or if one party won’t engage in constructive discussions.

Discover: What Is a Binding Financial Agreement?

Turning to the Court

Sometimes, other methods prove unsuccessful. Some parties also have particularly complex cases. Going to court is the final option once all attempts to negotiate fail. An experienced family lawyer is critical to getting the most out of the experience. Court proceedings can be tricky to navigate. A lawyer will use their expertise to ensure the best outcome.

In litigation, a judge decides on the allocation of assets. Some advantages of litigation include:

Enforceable outcomes

Litigation is binding. Both parties must comply with the Court’s decision. Breaches incur sanctions like fines and adjustments to the settlement that penalise the offending party.

Impartiality

A judge decides based on evidence and legal principles. The outcome won’t be biased or emotional.

Clear procedures

A defined structure and procedural rules make litigation predictable and transparent.

Legal representation

Both parties can seek legal advice and representation from experienced family lawyers.

Litigation drains parties emotionally, resulting in strained relationships. The confrontation of court proceedings can create bitterness and resentment. This is why we always recommend you take all opportunities to cooperate with your ex-spouse.

We have a blog that explains how to divide assets fairly in family law. You can check it out.

Factors to Consider When Choosing a Resolution Method

When deciding on a dispute resolution method, consider the following:

Nature of the relationship

People going through a divorce experience complicated emotions. In the best case, the split is amicable and you can communicate on good terms. However, it isn’t unusual for couples to develop ill-will. This limits your ability to find solutions outside of court. Serious scenarios like family violence will also be a large factor.

Complexity of financial matters

Complex financial arrangements are often not easy to settle. Finding an acceptable division through mediation or negotiation can take a long time. Appealing to the Court for an order may be the best option. We sometimes hear from people that going the litigation route makes them a failure. This isn’t true. If you’ve made genuine attempts to cooperate, the Court can be a big help. The Family Law Act ensures both people are treated fairly. There’s no ambiguity around what the Court expects of the parties.

Willingness to compromise

Can you and your former partner find common ground? Finding compromises is important in mediation or negotiation.

Potential impacts on children

The resolution method can influence the future relationship between separated parents. This is crucial to consider for the well-being of their children. The Court wants co-parents to cooperate in caring for the children.

Conclusion

Resolving financial settlements is a critical component of separation or divorce. Finding the right resolution method is essential.

These three methods offer unique benefits and potential drawbacks. Understand your situation and needs to find the right choice.

Do you need assistance with family law matters? Contact Andrews Family Lawyers today.

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How to Split Assets in Divorce in Australia? (Legal Guide in 2024)

Peter Andrews — Mon, 03 Jun 2024 19:07:20 +0000

It’s a common misconception in Australia that a divorce includes all aspects of separating, including the division of financial assets. Divorce is the process of terminating a couple’s marital relationship.

Who gets what in a divorce is determined by a separate financial settlement.

If you’re wondering how to split assets in divorce, it’s important to understand that the laws concerning divorce in Australia are covered under the Family Law Act 1975, which encompasses marriage, divorce, de facto relationships, guardianship, adoption and the care of children.

How do you split assets during a divorce?

There are four options couples have when splitting their assets after divorce:

A non-legal arrangement
A binding financial agreement
Consent orders; or
Litigation

1. Non-legal arrangement

Non-legal arrangements are made when a couple splits amicably and can agree on dividing their assets without legal documentation. This kind of agreement does not prevent one of the parties from going to Court later to ask for financial orders under the Family Law Act.

These more informal agreements have advantages and disadvantages.

Advantages

Informal agreements offer a high degree of flexibility. Parties can negotiate terms that suit their unique circumstances. The Court applies no strict rules.
Avoiding the legal process can save significant amounts of money in legal fees. This is particularly beneficial if the parties are on amicable terms and can agree without legal intervention.
Reaching an informal agreement can be much quicker than going through the legal process.

Disadvantages

The biggest drawback of an informal agreement is that it’s not legally binding. If one party fails to adhere to the agreement, the other has limited legal recourse.
Without legal guidance, there’s a risk that one party may agree to terms that are not in their best interest. This is especially true if there is a power imbalance or lack of financial knowledge.
Informal agreements may not adequately address complex issues like property division or debt responsibility. This can lead to future legal complications.

How to make an effective non-legal arrangement?

Step 1: Communication

Begin with an open and honest discussion about what each party wants and needs from the financial settlement.

Step 2: Compile Financial Documents

Collect all relevant financial documents such as bank statements, property valuations, superannuation statements, and debt statements.

Step 3: Consider future needs

Think about the future needs of one or both parties. Does one party have a reduced earning capacity or limited access to financial resources? Also, think about retirement, education for children, health issues, and potential changes in living arrangements.

Step 4: Seek legal advice

Legal advice can help ensure fairness and understanding of legal rights and obligations.

Step 5: Draft the agreement

Write down the agreed terms. Include how you will divide assets, property, debt responsibilities, and any ongoing financial support.

Step 6: Review and revise

Ensure both parties agree with all terms. Be open to revising the agreement to address any concerns.

Step 7: Sign the agreement

While the agreement is informal, the parties should sign it. This creates a sense of commitment to the terms.

Who gets what?

Informal agreements can divide property in any way the parties choose. This can make informal agreements risky as one party may not get their proper entitlement. Some considerations you might make include:

Agreements Made During the Marriage
The couple may have had any agreements or understandings during the marriage regarding their finances and property division.
Legal and Professional Advice
Even for informal agreements, obtaining legal and financial advice is crucial to understanding the agreement’s rights, obligations, and implications.
Future Needs
The agreement may consider the future needs of both parties. This includes factors like age, health, financial resources, care of children, and the ability to earn income.

Discover: 3 Ways for Resolving Financial and Property Matters

2. Binding financial agreements (BFA)

A binding financial agreement is a legal document that can be entered into before, during or after the relationship. When entered into before marriage, they are referred to as a prenuptial agreement. Binding financial agreements are final and enforceable. They essentially exclude the Court from overruling them unless there are exceptional circumstances.

How to form a binding financial agreement?

Step 1: Communication

Both parties should openly discuss their financial situations, objectives, and concerns regarding the agreement.

Step 2: Disclose finances

Both parties must make a full and frank financial disclosure. This may include bank accounts, stock portfolios and real estate. You must also factor in debts to understand the net asset pool.

Step 3: Seek independent legal advice

Each party must seek independent legal advice. This is a legal requirement for the BFA to be binding. The lawyers will explain the party’s rights and obligations under the agreement. The party should understand the advantages and disadvantages of entering into the BFA.

Step 4: Draft the agreement

One party’s lawyer usually drafts the agreement. The document outlines terms for asset division and any spousal maintenance arrangements.

Step 5: Review the agreement

The other party and their lawyer review the draft. Negotiations may take place to reach mutually agreeable terms.

Step 6: Sign the agreement

Once both parties are satisfied, the BFA is signed. The signatures must be witnessed by the lawyers who provided the legal advice.

Step 7: Independent legal advice certificate

Each lawyer must provide a certificate confirming that independent legal advice was given.

Who gets what?

When getting independent advice, your lawyer will advise you on whether the division is reasonable. Here are some considerations:

Practicality of the Division.
The division should be practical. Consider the ease of transfer of assets, the ability of each party to manage certain assets, and the desirability of achieving a clean break to avoid ongoing financial ties. This might affect who receives the family home or gets responsibility for a share portfolio.
Superannuation Interests
Superannuation is treated as property. Consider how superannuation interests should be split. Often, one party has less superannuation than the other. It may be appropriate for that party to get a share of their former partner’s super interest.
Effect on Children
The impact of the property division on the welfare of any children is critical. Ensuring children have a stable environment and their financial needs are met is paramount. This means that the primary caregiver should receive a more significant share.

Learn more: What Is a Binding Financial Agreement?

3. Consent orders

A financial consent order is a legal document formalising the division of assets and financial obligations after a relationship ends. It’s approved by the Court, making it legally binding and enforceable, ensuring compliance with the agreed terms. This order can cover property, finances, and spousal maintenance but not child support.

How to apply for consent orders?

You must fill out an Application for Consent Orders. It is strongly advised to seek legal counsel before applying. Even the most amicable couples find the division of assets emotionally challenging. Having an experienced divorce lawyer will help you to understand the needs and rights of both you and your ex-spouse.

Before the Court will accept financial consent orders, it must be satisfied that the proposed property division is “just and equitable”.

How assets are divided in Family Court?

Most people assume they are entitled to a 50/50 split of assets. However, several contributing factors are considered during property settlements, including physical and financial assets and liabilities. More often than not, a 50/50 split isn’t the fairest outcome.

You may have been led to believe that anything you own in your name only is yours, and anything you own jointly with your ex-spouse will be split between you. However, this isn’t always the case.

How assets are divided in a divorce has more to do with the contributions and needs of each person than whose name is attached to what item. This ensures one person isn’t disadvantaged.

For example, if one person were the children’s primary caregiver, they would likely have less financial stability or fewer retirement savings.

A four-step process calculates a just and equitable asset split under the Family Law Act.

Valuation of assets
Assessing the contributions of both parties
Determining future needs
Evaluating the impact

Step 1: Valuation of Assets

The first step of the process is to assess the assets and liabilities you and your ex-spouse have. This includes both those you have jointly and assets and liabilities you each have on your own. This step requires each party to fully disclose individual bank balances, the value of owned property or shares, outstanding loans and any interest in a business or company.

Assets and liabilities that must be considered in the pool include those acquired before, during, and sometimes after the relationship.

For example, if one of you already owned a property before entering the relationship, its value and associated debt will usually be included in the asset pool.

Similarly, any assets or debts acquired after the relationship ended will also be considered.

For example, this will be relevant if one person accumulates a large debt or spends a large sum of the couple’s money after the relationship ends.

It’s essential to undergo this process with an experienced lawyer to ensure all assets and liabilities are accounted for, including any hidden assets or instances of one party hiding assets.

There may be some that you or your ex-partner have not considered, such as superannuation or a debt one of you owes to a friend. Sometimes, a partner may even attempt to hide assets from the process for an unfair advantage. You can prevent this by using a forensic accountant to examine the finances.

You may also feel entitled to 100% rights over an asset you acquired before the relationship. This may be the case, particularly if your ex-spouse made no contributions to the asset. However, all assets and liabilities must be thrown into the asset pool together at this first stage.

A fair and thorough assessment of all assets is essential, particularly when one party may uncover hidden assets.

Step 2: Assessing the non-financial and financial contributions of both parties

This step is about understanding what each of you brought to the relationship. While the income of each party is included, not all contributions to a relationship are financial.

Financial contributions can include wages, government allowances, inheritance, dividends from shares or any other financial income you receive.

The most apparent non-financial contributions that need to be considered are being a caregiver of children and a homemaker. Others may also apply to your situation, such as renovating a property or even indirect contributions from family members.

These can include providing childcare, a deposit to purchase a property, or being a guarantor on a home loan.

Each of these contributions is assessed as a percentage or a range of percentages and compared against the asset pool to determine the first split of assets between the parties.

Step 3: Determining Future Needs

Now that all the assets, liabilities and contributions to the relationship have been assessed, your current and future needs must also be considered.

Several things need to be considered here for each person. These include their age, health, future earning capacity, employment prospects, and financial resources. Also, the Court will consider who will be responsible for looking after the children of the relationship, individual living requirements, and the impact the relationship may have had on each person’s earning capacity.

Access to support from family members, such as for childcare, living arrangements or financial support, may also be considered when dividing the asset pool.

Step 4: Evaluating the Impact

The final step in the process is for the Court to consider whether their split of the assets and debts is just and equitable to you and your ex-partner.

Some men believe they will be worse off in a financial settlement even if they have been the primary income earner in the relationship. This is usually untrue, as men are more likely to rebound quicker financially post-divorce than women.

This is often because women are the primary caregivers of children. Single older women are often most disadvantaged regarding their financial circumstances, particularly to their earning potential.

The Court may determine one person is given a higher portion of the assets if they have significantly less earning capacity.

This may seem complicated, so it’s important to seek the advice of an experienced property and family lawyer. They can simplify the process and ensure you receive what you’re entitled to.

What to consider when dividing assets?

Remember that not only are assets split in a financial settlement, but debts are also. So, if one partner is given a more significant portion of the asset pool, they may also be given more debt obligations.

Counting assets and liabilities and considering contributions and future needs sounds straightforward. However, for most couples, this is a difficult process. It can be even more challenging for amicable couples who want to do right by one another and are unsure how to proceed without rocking the boat.

A common challenge couples face is when they get fixated on a percentage they believe they deserve. While assets are rarely divided 50/50, there is no set percentage set down in Australia’s Family Law Act.

The split will be different for each couple. It’s better to focus on the goals and needs of each person to reach the fairest and most equitable settlement. Use percentage as a sense check rather than the end goal.

Litigation

Litigation is where the Family Court determines how the couple’s assets and liabilities will be split. This is the most lengthy and costly process. It usually requires attendance in Court.

This is generally a last resort option due to its emotional and financial impact on families.

What am I entitled to in a Divorce Settlement?

When getting divorced, you will want to know how much you are entitled to. There is no set percentage under Australian law when dividing assets. Determining how you should split your assets and liabilities can be challenging.

It will be different in each circumstance. While a 50/50 split is rare, you are more likely to end up with a 60/40 or even 70/30 divorce settlement.

The most common percentage split in the division of assets in Australia is 60/40. For many couples, one partner will contribute more financially, while the other may contribute more in caring for children and looking after the home.

In these situations, it is common for the financial contributor (often a male) to end up with 40% of the assets. The partner who contributed mainly non-financially (usually female) will get 60%. While this may seem unfair at face value, the Court makes adjustments based on the future needs of the individuals.

The male likely has more earning capacity and income and is therefore deemed able to recover from the divorce more quickly than their ex-spouse. The partner (usually female) who contributed mainly non-financially to the relationship would be given 60% of the assets if they are likely to be the children’s primary caregiver post-divorce and their earning capacity is lower than their ex-spouse.

In this case, they would be awarded a higher percentage to address their future financial needs.

A 70/30 split in the division of assets is rarer. However, it can still be done. This usually occurs when the asset pool is large (over $10 million), and one partner contributed most of it.

You may also see a 70/30 split when one partner is in a hurry to finalise the settlement and may want to settle for less than they are entitled to. This is when it is essential to seek advice from an experienced divorce lawyer. They can negotiate for you and ensure you walk away promptly with what you’re entitled to.

Although financial settlement can be stressful, you must consider your current and future needs. Opportunities to reopen a financial settlement case are limited, and this may not always be an option available to you.

It should be noted that the longer a relationship lasts, the less critical contributions are valued by the Court. It’s understood in most cases that over a long period, the contributions to the relationship would be more or less equal (whether financial or not).

This means that, in some cases, a 50/50 split is the most appropriate. An example could be a couple who have been together for a long time and are both retired. Or perhaps a couple where one partner was the sole financial contributor, but the other was the sole caregiver for children.

In short-term relationships, where assets were acquired only jointly, there are no children, and the couple earns similar incomes, a 50/50 split may also be the fairest division.

Are assets split 50/50 in divorce in Australia?

Most people think a 50/50 split of assets is the fairest outcome when they separate. However, this isn’t always the case.

Couples rarely settle on a 50/50 split. Under the Family Law Act 1975, there is no set percentage split, and every case will differ. That said, the most common division is a 60/40 split.

This usually occurs when one partner earns more while the other has more responsibility in looking after children post-divorce, has limited financial earning capacity, or has less superannuation.

Each party’s future needs and ability to support themselves are the main factors that sway the percentage split once all the assets and liabilities have been assessed.

Do you need help with a divorce matter? We can assist you.

Which assets are considered in a divorce?

It might surprise some couples what assets and liabilities are considered in a divorce. You often need to consider assets brought into the relationship, acquired both separately and jointly during the duration of the relationship, and even assets and liabilities gained after the relationship ended.

There are no set rules under Australian Law, and what is and isn’t considered can be decided on by the couple, the courts, or a combination of both.

Usually considered in the asset pool are:

Properties owned both individually and jointly
The respective income of each party
The superannuation of each party
Debts owing both jointly and individually

How long does a divorce settlement take?

The better you and your ex-spouse understand each other’s needs, the easier and quicker an agreement can be reached. If you agree on the division of assets, the settlement can take as little as two weeks to be finalised.

If there are disputes, the process can take a matter of months when settled outside of Court. If it needs to go to Court, a case may take up to three years to be resolved.

How can I protect my assets from divorce?

There are several ways you can protect your assets. One of the four options couples have when splitting their assets is a binding financial agreement, which can be entered at any time before, during or after your marriage.

When entered into before you get married, this is referred to as a prenuptial agreement. While some people think a ‘prenup is only used when the marriage is expected to fail, you can compare it to health insurance.

Most people don’t expect to fall ill. However, they still have health insurance. A binding financial agreement is a legal document outlining how assets and liabilities would be divided in divorce. It is final, meaning it can only be overruled by the Court in exceptional circumstances.

Prenuptial agreements can be particularly useful because they allow you to include clauses that protect things with future financial benefit. Those with significant estates will often wish to prevent any changes to the asset pool, both positive and negative, from being considered in a settlement.

For example, you may purchase a property or receive an inheritance post-separation, which you do not want to be considered in the asset pool. With the help of a divorce lawyer, you may organise a financial agreement that accounts for such eventualities.

Important: 3 Reasons Why You Should Hire a Family Lawyer

Can I get divorced without a financial settlement?

It’s a common misconception that divorce includes a financial settlement. Under Australian law, divorce and financial settlements are handled separately.

You can file for a divorce without a financial settlement. However, you may find you are entitled to more than you think. It’s also advisable not to wait until you have divorced to start dividing assets.

The reason for this is that post-separation, your asset pool may have changed. You may also have acquired more assets or received an inheritance, which may be divided between you and your ex-partner. Likewise, one of you may accumulate debt post-separation, which can negatively impact significantly.

If your divorce is finalised before your financial settlement, you will have 12 months from the date of your divorce to commence a property settlement application or have your agreement completed. If you wish to apply outside of this timeframe, you will need to seek permission from the Court to do so.

Compared to a financial settlement, filing for divorce is a straightforward process. As financial settlements are more complex, each party should seek independent legal advice to ensure you get what you are entitled to.

The division of assets may seem daunting. If you have an amicable relationship with your ex-spouse, you may want to opt for an informal agreement to prevent conflict or speed up the process to limit contact.

Can I get divorced before the property settlement?

Under Australian law, divorce and the division of assets are separate processes. You can finalise a divorce before reaching a financial or property settlement agreement. Conversely, you can get a property settlement before finalising your divorce.

Filing for a divorce is the process of two people separating from marriage and is done by completing divorce application forms and submitting them to the Commonwealth Courts Portal.

Read our blog here for detailed instructions on who can apply for a divorce and how to apply.

If you’re unsure if you can apply for a divorce or how to proceed, our experienced divorce lawyers can assist you.

Can a divorce settlement be reopened?

If you have reached a financial agreement but are unhappy with the outcome once it has been finalised, you can apply for a property adjustment. After divorce, your application for the adjustment must be made within 12 months of your divorce being completed.

If you do not apply within this time limit, you must obtain special permission from the Court.

Divorce Property Settlement Example

It’s human nature to seek out similar situations to understand what we should do and imagine what outcome we might expect. The Australian Government has supplied this case study in the Property and Financial Agreement and Consent Orders Guide issued by the Attorney-General’s Department.

Case Study

Drago and Constance are separating. They have been together for 15 years and married for eight years. Drago works full-time and earns $87,000 a year. Constance works part-time and makes $68,000 a year.

They have two children, aged 6 and 4. Using the negotiation guide, they arrived at the following negotiated property settlement proceedings and will seek a property consent order from the Court:

Joint Assets and liabilities

A family home valued at $670,000 with a $250,000 mortgage. Net value: $420,000.
Family car #1 Subaru Forester valued at $24,000 with a $12,000 loan. Net value: $12,000.
Family car #2 Holden Commodore. Net value: $8,000.
Furniture. Net value: $25,000.
Joint savings account. Net value: $15,000.
Westfarmers shares. Net value: $10,000.
Joint transaction account. $1,200, with a $500 overdraft. Net value: $700.
Joint credit card. $8,000 in debt.

Individual Assets and liabilities

Drago Superannuation. Net value: $300,000.
Constance Superannuation. Net value: $120,000.
Drago savings account. Net value: $20,000.
Drago boat. Net value: $5,000.

Identifying their contributions

Both Drago and Constance have worked throughout their relationship. Since having children, Constance has worked part-time to care for the children two days a week. She also takes the children to and from daycare and school.

While Drago and Constance try to share caring responsibilities for the children after work, Drago travels to work often. Therefore, Constance is often solely responsible for caring for the children.

They also both acknowledge that Constance’s ability to earn superannuation was limited by extended maternity leave and the fact that she has been working part-time.

Based on Constance having the majority of childcare responsibilities, she and Drago have agreed that the property should be split with an adjustment in Constance’s favour.

Considering the section 75(2) factors

Section 75(2) of the Family Law Act guides how the Family Court considers the division of property and spousal maintenance in a divorce. This section lists factors the Court must consider when determining what is just and equitable in property settlement and maintenance matters.

Drago and Constance are both in their late 30s and are likely to be able to work until retirement. They agree that the children should live at each of their houses and acknowledge that Constance will likely have significantly more caring responsibilities than Drago.

This will impact Constance’s ongoing ability to work full-time. They agree that the property split should be readjusted to reflect Constance’s lost potential earnings.

Conclusion

If you are going through a divorce and struggling on how to split assets, seeking expert guidance is important to ensure your rights are protected and you receive a fair settlement.

Andrews Family Lawyers can provide you with professional advice that is tailored to your specific needs.

If you need assistance with family law matters, Andrews Family Lawyers can help.

How to File a Divorce in Australia in 2024? (5 Simple Steps)

Peter Andrews — Mon, 03 Jun 2024 08:32:20 +0000

Dealing with divorce in Australia can be overwhelming. Our guide simplifies this challenging journey, offering clear, step-by-step advice on how to file a divorce in Australia.

This article provides essential insights to help you through the divorce process.

What is a divorce?

In Australian law, a divorce is the legal termination of a marriage. It is a formal process that legally ends a marriage and allows the former spouses to remarry. You can pursue a divorce through a sole or joint application.

It’s important to note that divorce only ends the marriage. It doesn’t include a property settlement or cover parenting arrangements. These issues are dealt with separately and can be resolved through mutual agreement or court orders.

5 Simple Steps on How to File a Divorce in Australia

Step 1: Check Your Eligibility

Before you apply for a divorce, you should ensure that you are eligible. This is especially crucial if you are married overseas. Here are some considerations.

Marriage validity

Most marriages legally recognised by an official foreign authority will be valid in Australia. But it’s worth looking at what makes a valid marriage. A marriage must meet all of the following criteria:

Both parties must freely consent to the marriage without coercion or duress.
Both individuals must be at least 18 years old. If one party is aged 16 or 17, a court order and parental or guardian consent are required.
The parties must not be closely related by blood. Close relatives include parents, siblings, and direct ancestors or descendants.
Any previous marriages must be legally dissolved (i.e., through divorce or annulment) before entering a new marriage.
Both parties must understand the nature of the marriage ceremony.

Separation period

Before getting a divorce, couples must demonstrate that they have been separated for at least 12 months before their application. This requirement reflects Australia’s no-fault divorce policy. The only reason needed for a divorce is the understanding of at least one party that the marriage has irretrievably broken down.

Residency requirements

Couples married overseas may need to consider the residency requirements of an Australian divorce. They are as follows:

Australian Citizenship
Either party must be an Australian citizen by birth, descent (having an Australian parent), or by grant of Australian citizenship.
Ordinary Residence
Alternatively, either party must ordinarily reside in Australia. This means living in Australia on a regular and consistent basis.
Residency Duration
The person meeting the residency requirement must have been living in Australia for at least 12 months immediately before filing the divorce application.
Intention to Reside Indefinitely
If the residency is based on ordinary residence, there must be clear evidence of an indefinite intention to reside in Australia. This can be demonstrated through various means, such as employment, owning property, or having family ties in Australia.

Marriages of less than two years

There is a unique requirement for ending a marriage lasting less than two years. Before filing for a divorce, the couple must:

Attend Counselling
The couple is required to attend a counselling session to discuss the possibility of reconciliation. This counselling explores whether the marriage can be salvaged or the decision to divorce is final.
Provide a Counseling Certificate
The couple must provide a certificate from a qualified counsellor when filing for divorce. This certificate confirms that the couple has considered reconciliation with the help of a counsellor. The couple must explain why counselling was impossible if it was not attended.

Step 2: Demonstrate Separation

Typically, you demonstrate separation through the cumulative weight of evidence. The simplest way to show you have separated is to begin living at different addresses. You might also point to other factors, such as:

Separating your finances;
Maintaining different social circles;
Informing family and friends of the separation;
Notifying government agencies like Centrelink.

Separation under one roof

The Federal Circuit and Family Court understands that not everyone has the means to maintain separate residences. To account for this, the law permits couples to remain at the same address, provided they can demonstrate that they are leading separate lives.

The parties must each provide an affidavit explaining their circumstances. Details the Court generally expects couples to provide include:

How domestic duties are separated;
Sleeping arrangements;
How the parties communicate;
How bills are handled;
Details of their social life.

The parties may also need to provide an affidavit from a third party. This will usually be a friend, family member or colleague. This affidavit may include details such as:

How they were told about the separation;
Whether the parties have mentioned that aspects of their domestic circumstances have changed;
Any other details indicating the apparent separateness of their living situation.

Discover: The True Meaning of Separation

Step 3: Prepare your important documents

Depending on your circumstances, several documents may be necessary for your application.

Marriage certificate

You must include your marriage certificate in your divorce application. If you can’t find your marriage certificate, you can request a replacement from the Registry of Births, Deaths and Marriages. The current fee for a replacement is $54.40, which includes standard postage.

Marriage certificate translation

If your marriage certificate is in a language other than English, you must get the marriage certificate translated. The translation must be provided by a translator accredited by the National Accreditation Authority for Translators and Interpreters (NAATI).

When the translator provides the translated certificate, they must include an Affidavit Translation of Marriage Certificate. This affidavit sets out their qualifications to make the translation.

Counselling certificate

If you were married for less than two years, you must include a counselling certificate with your application. This certificate acknowledges that you underwent the mandatory marriage counselling before applying for divorce.

Documenting your separation

Various documentation can contribute to proving a separation, including:

Affidavit from the parties
An affidavit from the parties stating the date of separation and detailing the circumstances of living separately.
Affidavits from Friends or Family
Statements from friends, family, or neighbours detailing their observations of your living arrangements and social activities.
Evidence of Separate Lives
This can include proof of separate bank accounts, grocery and household bills, sleeping arrangements, and evidence of separate social lives (for example, social media posts, invitations, memberships in clubs or groups).
Correspondence
Copies of any written communication between you and your spouse that discusses the separation, such as emails or text messages.
Legal Documents
Any legal agreements or documents drawn up during the separation period, such as financial agreements or parenting plans.
Counselling or Mediation Records
If you attended counselling or mediation, records of these sessions can help demonstrate that you were working through separation issues.

Proof of residency

If you were married overseas, you may need to provide evidence of your citizenship or residency. This may include:

An Australian passport;
A Visa Entitlement Verification Online check;
Australian Citizenship Certificate.

The Court may also require you to provide evidence that you have made Australia your primary place of residence for the foreseeable future, including:

Details of employment;
Rental agreements or mortgage documents;
School/University enrolment documents;
Tax returns;
Government correspondence sent to your Australian address.

Step 4: File Your Divorce Application

Once you have verified your eligibility, satisfied the separation requirement and gathered the necessary documents, you can now file your application. It is recommended to file for divorce online. The basic process is as follows:

Register an account on the Commonwealth Courts Portal;
Select The ‘Application for Divorce’ option;
Complete the application form;
Upload all necessary supporting documentation;
Print out the application;
If you’re filing a joint application, both parties must sign the Affidavit of eFiling before a justice of the peace;
Download the brochure Marriage, Families and Separation;
Submit the application and pay the filing fee ($1060 as of 1 July 2023);
Select a date for a court hearing. Joint applicants aren’t required to attend the hearing.

What if you’re filing a sole application?

After submitting the application, sole applicants must serve the divorce papers on their former spouse. The documents you must serve are the following:

A sealed copy of the Application for divorce with an attached notice of application for divorce;
A sealed copy of the Affidavit for eFiling;
A copy of the Marriage, families and Separation brochure;
An Acknowledgment of Service (Divorce);
A letter requesting your spouse sign Part C of the Acknowledgment of service and send it back to you. The letter should advise your spouse to keep a copy of the divorce application;
A stamped and self-addressed envelope your spouse can use to return the Acknowledgment of Service (Divorce).

For more information, read our blog Important Things You Should Know About Divorce Applications in 2024

Service methods

Service by a third party

There are several ways you may serve the documents. The most common is service by a third party who is over 18. This may be:

A family member, friend or colleague;
A professional process server.

Once they affect service, the server should complete the Affidavit of Service by hand and attach the Acknowledgment of Service. If the server is unfamiliar with the spouse being served, the applicant must complete an Affidavit proving signature.

Service by post

You may also be able to mail the documents to your spouse. You should only use this method if you’re confident your spouse will sign and return the Acknowledgment of service. Once you receive the signed Acknowledgment of service, you must complete the Affidavit of Service – by post. You must sign part C of the Affidavit of Service – by post before a Justice of the Peace or solicitor.

Serving spouse’s lawyer

You may serve your spouse’s lawyer if they agree to accept service. In this case, you won’t need to complete an Affidavit of Service by hand.

Substituted service

You may have trouble locating your spouse and cannot serve the documents. In such circumstances, you may apply to the Court for substituted service. This allows you to serve a third party you’re confident will bring the divorce application to your spouse’s attention. A third party may be your spouse’s family members, friends or colleagues. The Court must be satisfied that you made all reasonable attempts to serve your spouse.

To apply for substituted service, you must complete an Application in a Proceeding and an accompanying affidavit. The affidavit should detail what attempts you made to complete the service, such as:

What attempts did you make to contact your spouse or enquire about their whereabouts;
When and under what circumstances did you last communicate with your spouse;
Your spouse’s last known address;
Details of any child support or maintenance arrangements;
Any reasons why your spouse may be uncontactable;
Any costs associated with your service attempts and if the expense is causing financial hardship.

Dispensation of service

If you can prove to the Court that you have made all reasonable attempts to serve your spouse, you may be granted dispensation of service. This waives the service requirement and allows you to proceed with your application.

Do I need to attend court?

There are circumstances when a sole applicant may be required to attend a court hearing. Attendance is necessary in the following situations:

The sole applicant has a child of the marriage who is under 18 at the time of the application;
The applicant indicated they wished to attend;
The respondent opposed the divorce application with a Response to divorce.

You may also need to attend if you have applied for substituted service or dispensation of service unless advised otherwise by the Court.

While not required, it’s advisable to attend the divorce hearing if you have to provide additional information on circumstances, such as:

Separation under one roof;
Ending a marriage of less than two years.

Step 5: Finalising the Divorce

Once you’ve completed an application for divorce, the divorce order will come into effect one month and one day after the Court accepts the application. If necessary, the Court may request additional information before granting the order.

How can you deal with court fees?

Some people have trouble affording the filing fees associated with divorce. The cost of a divorce application cannot be waived, but you may be able to get a reduced fee. You must pass a three-part financial hardship test to get a fee reduction.

Conclusion

Navigating a divorce in Australia, particularly when married overseas, involves understanding and fulfilling specific legal requirements.

Our guide covers the essential steps on how to file a divorce in Australia. With this knowledge, you can approach divorce more clearly and confidently.

Remember, while this guide provides valuable insights, seeking personalised legal advice from a divorce lawyer is always recommended for your unique situation.

If you need assistance with family law matters, Andrews Family Lawyers can help.

What Is Prenup? (The Importance of Prenuptial Agreement in Australia)

Peter Andrews — Mon, 03 Jun 2024 05:12:41 +0000

No one enters into a marriage or partnership expecting it to fail. However, no one buys health or home insurance expecting to fall ill or experience a break, yet most people do the latter without question.

This article will explain what a prenup is, and how creating a prenup or binding financial agreement in Australian law can help you outline clear expectations with your partner about the division of assets.

Key takeaways

Prenuptial agreements, commonly known as prenups, are legally binding documents that establish a framework for asset division in case of separation or divorce.
It is important to clarify that prenuptial agreements are not exclusive to the financially affluent. Rather, they can serve as practical tools that benefit couples from a variety of financial backgrounds.
For a prenup to be legally binding, it must meet certain conditions, including full disclosure of each party’s financial situation.
By specifying asset division in advance, prenups help avoid lengthy and expensive legal disputes during divorce proceedings, making the separation process smoother and more amicable.
Prenuptial agreements encourage open communication about financial matters between partners, fostering a healthier, more transparent relationship foundation.

What Is Prenup (Prenup Agreement)?

A prenup or prenuptial agreement is a legally binding document under the Family Law Act 1975 that protects each party’s pre-marital or pre-relationship assets.

A prenup agreement is a legal log of each party’s assets and liabilities before entering the relationship. It then outlines how these assets may be divided in separation or divorce. To make the agreement legally binding, it must satisfy the following criteria;

Each party is to disclose their financial position, including assets and debts, fully;
The agreement must be put in writing;
Each party must have independent legal counsel before signing the agreement;
Each party must sign the agreement willingly.

Do Prenups Exist in Australia?

Yes, prenups exist under Australian law and are called binding financial agreements. They can apply to both married and de facto relationships and essentially exclude the Family Law Act from having any say in deciding how to divide assets and liabilities in case of a relationship breakdown.

Learn more: What Is a Binding Financial Agreement?

Common Misconceptions About Prenuptial Agreements

Prenuptial agreements are often misunderstood. Many believe it is only necessary for the wealthy to signal a lack of trust or anticipate marriage failure.

However, prenups are practical tools that can benefit all couples, regardless of their financial status. It is like insurance, protecting the interests of both parties and creating a solid foundation for the relationship by fostering open communication about finances.

Prenups provide clarity and security for the future, and they are not about anticipating negative outcomes but about preparing responsibly for any eventuality. It can ensure peace of mind and strengthen the bond between partners.

Who Can Get a Prenup?

While prenups are usually associated with marriage, they can also be created for de facto relationships and apply to both heterosexual and same-sex couples. In other words, anyone can enter a binding financial agreement, provided both parties willingly agree to and sign the deal.

It’s also important to know that a couple can enter into a binding financial agreement at any stage of their relationship, including before getting married or entering a de facto relationship, during the relationship, and even after the relationship has ended, which is called a financial separation agreement.

Prenuptial Agreements Requirements

To make a prenuptial agreement legally binding, several requirements must be satisfied.

These include;

Both you and your partner must receive independent legal advice from separate lawyers before signing the agreement. This advice must outline your specific rights as well as the advantages and disadvantages of signing the contract;
The agreement must be signed by both you and your partner in the presence of each of your lawyers;
The legal advice given to each party must come from a solicitor who is currently admitted to legal practice in Australia and
Each respective lawyer must provide a signed statement to their client (each party, i.e. you and your partner) confirming that you each received independent legal advice.

It’s important to know that if these criteria are not met, your prenuptial agreement may not be binding and may be open to being void or challenged.

What Do Prenups Cover?

A prenuptial agreement can cover all financial aspects of each individual in the relationship, as well as shared assets and liabilities.

It can outline the separate assets, liabilities, and financial resources of each party obtained or accrued before you entered the relationship. This could include property owned, debts owed, and superannuation accrued.

It can also cover financial assets and debts acquired during the relationship, such as the family business, home or investment property, mortgages, car or personal loans. Finally, it can also govern if and what a

Benefits of Signing a Prenup

Creating and agreeing to a prenuptial agreement before entering into marriage, or at the start of a de facto relationship, allows both parties to amicably concur on how they might divide any assets should the relationship fail.

While these agreements are not always binding, they provide a legal basis for resolving property and financial disputes.

A binding financial agreement takes the guesswork out of divorce and separation proceedings by clearly stating who is entitled to what. It can also save you a lot of time and money, as if both parties disagree on who is entitled to what, the legal process can be drawn out and incur more significant fees or even court proceedings.

Some reasons you should consider entering a binding financial agreement:

A prenup allows you to protect your valuable assets, which is especially important when there is a significant difference in income or ownership of personal assets;
The agreement is not set in stone. You and your partner can agree to change or cancel a contract at any time;
The agreement can save significant time and money, with the division of assets finalised quickly in the event of separation or divorce;

To know more about the benefits of prenuptial agreements, check out our blog here.

Disadvantages of Signing a Prenup

In a relationship where one party earns significantly more than the other or does not work (a stay-at-home parent, for example), it’s essential to ensure that the prenuptial agreement outlines the value of what the non-working partner brings to the relationship or family.

The time spent caring for children, for example, is a significant contribution that needs to be included when considering the division of assets or the payment of spousal maintenance in a prenuptial agreement.

If a contract does not consider this, you may be disadvantaged if you do not receive what you believe you may be entitled to.

This is why it is imperative to seek the advice of an experienced family lawyer to help you understand what you may need to have included in the agreement.

What Do I Need to Consider Before Entering a Prenuptial Agreement?

There are several things to consider before committing to a prenup.

Firstly, you need to consider how you are planning for the future. It’s important to remember that if a relationship never breaks down, a prenup never gets enforced.

By entering into a binding financial agreement, you and your partner prepare for the worst-case scenario without the emotion or stress of doing it during a breakup.

It’s essential to seek legal advice to discuss your situation because, if completed correctly, these agreements prevent the court from stepping in to divide your assets.

How To Arrange a Prenuptial Agreement

To make a prenuptial agreement legally binding, it must adhere to strict technical requirements and, therefore, be prepared by an experienced family lawyer.

How Much Does a Prenuptial Agreement Cost?

There is no fixed price for filing a binding financial agreement in Australia, as it is prepared and reviewed by a second independent lawyer.

Discover: 3 Reasons Why You Should Hire a Family Lawyer in Brisbane

Are Prenuptial Agreements Always Binding?

It’s important to understand that prenuptial agreements are not set in stone. There are several reasons a prenuptial agreement may be voided, so it’s essential to seek the advice of an experienced family lawyer to understand the risk of this in your situation and how this may be avoided.

Some reasons an agreement may be immediately voided include;

The agreement is found to be fraudulent (which could happen if you or your partner intentionally fail to disclose financial information);
Legal or technical requirements are not met, such as independent legal advice not received by one or both parties;
You or your partner were pressured into signing the agreement;
The agreement cannot be practically fulfilled.

How are Prenups Enforced?

Due to the nature of a prenuptial agreement being a legally binding document, it essentially removes the Family Court from having a say in the division of your assets.

If you wish to dispute the agreement, you must seek legal counsel, and the matter will be taken to court. However, this does not guarantee it will be heard, let alone thriving.

Conclusion

A prenuptial agreement is a legal contract that defines how shared assets and debts will be divided in the event of a couple’s separation. It is not solely intended for affluent individuals but is recommended for all couples.

To ensure enforceability, strict legal requirements must be met. By predefining asset allocation, prenuptial agreements help avoid legal disputes and foster transparency and mutual comprehension between partners.

It is a practical measure to secure one’s financial future and strengthen the relationship.

If you need assistance with family law matters, Andrews Family Lawyers can help.

How Much Is the Cost of Binding Financial Agreement? (Understand the Fees)

Peter Andrews — Thu, 16 May 2024 06:51:26 +0000

After a divorce, spouses must come together to determine how to split their assets. Binding financial agreements are one way to help you do that. But are they right for you? An important factor influencing that decision is the cost of the process.

In this article, we’ll examine the cost of binding financial agreement. This will help you decide whether it’s right for your circumstances.

What is a binding financial agreement?

A binding financial agreement (BFA) is a legally binding contract that sets out how a marital asset pool will be divided after a divorce. BFAs can be entered into at any time. Parties can create a BFA before, during or after a relationship ends. The agreement can cover an entire asset pool or only include specific property.

Requirements for a BFA

BFAs must meet certain criteria in the Family Law Act to be considered legally binding.

Voluntariness

Both parties must enter the agreement voluntarily. There cannot be any duress, undue influence or coercion. Each spouse must also get independent legal advice from a family lawyer before entering the agreement.

Full Financial Disclosure

Both parties must disclose their full financial position. This means providing information on assets, liabilities and other financial resources you can access. This is important because it allows each party and lawyer to accurately understand the asset pool.

Certification of Independent Legal Advice

Both spouses must also receive advice independently from a qualified binding financial agreement lawyer before entering the agreement. Once the lawyer has advised them of the agreement’s merits, they will issue a certificate confirming their client received the advice.

Discover: 3 Easy Steps Process to Create a Binding Financial Agreement

The cost of binding financial agreement

The cost of binding financial agreements depends on many variables. Legal fees can amount to anywhere from $3000 to $10,000 on average. That’s a broad range which reflects the many factors at play. So, what determines the cost of a BFA?

Agreement complexity

Some asset pools are extremely complex and require specialised knowledge to divide properly.

Valuation Challenges

Business interests are often part of property settlements. These interests can be difficult to value. Hiring a professional with specialist knowledge, such as a forensic accountant, is generally necessary.

They’ll examine the business’s cash flow, market conditions and financial statements. Think about a business’s goodwill. While abstract, goodwill can carry a lot of value. This will all add considerable cost to the BFA.

Unique and Rare Assets

Settlements can also face challenges from unique items like art pieces, collectibles, vintage cars, etc. Valuing these items can be difficult for various reasons.

Their market value can often be subjective. Two experts may give a different value for the same asset. If these items form part of the property pool, lawyers will work with specialist appraisers to determine their market value. This process is often complex and expensive.

Cryptocurrencies

Cryptocurrencies have exploded in popularity. As a result, they’re popping up more and more in financial agreements.

However, they can be complicated and expensive. The value of cryptocurrencies changes quickly. It’s important to consider what point in time you value the cryptocurrency. However, assigning a fair dollar value to you and the other party is tricky.

Tracking down cryptocurrencies is also a problem. Cryptocurrencies are decentralised. There’s no authority the Court can subpoena to get information about them.

Complex Ownership Structures

Some assets may be held within complex ownership structures. This includes family trusts, partnerships, or corporate entities. Understanding each party’s ownership interests and entitlement involves different areas of law. These include corporate, tax, and trust law.

Disclosure requirements

Satisfying disclosure requirements incur varying legal costs depending on what’s involved.

Gathering Financial Information

Each party must accurately disclose their finances. Gathering this information can be time-consuming. The parties may have complex financial portfolios or assets across various accounts or jurisdictions.

Negotiations and Revisions

Full financial disclosure often leads to negotiations about the treatment of assets. Disagreements may need multiple rounds of negotiation. This increases legal fees and administrative costs.

Verification and valuation

A family lawyer may need to verify financial information. That can include obtaining tax returns, bank statements and other documentation. This can be time-consuming, which may lead to additional costs.

You may also need specialist valuers for unique or complex financial instruments.

Find out: Consent Orders Vs Binding Financial Agreements: What is the Best for You?

Managing expenses

A BFA’s expenses can get out of hand quickly. But parties can manage the cost.

Clear Communication

Communicating properly helps you avoid unnecessary disputes. Discussing your goals and your finances upfront can help streamline the drafting process. Doing so can reduce the need for extensive negotiations later on.

Define Objectives and Priorities

Define and prioritise the objectives the BFA should cover. Identify critical assets and liabilities you want in the agreement. You can focus negotiations on vital issues. This will make the process simpler.

Choose the Right Lawyer

Hire a family lawyer who has experience drafting BFAs. Their practical approach to the agreement will keep costs down. Look for a lawyer who offers transparent fee structures. Many lawyers offer fixed fees for BFAs.

Consider Alternative Dispute Resolution

Disputes can arise during negotiations. Consider alternative methods for dispute resolution. Mediation is generally the better way to work through conflicts. It’s more efficient and cost-effective than litigation. It’s also less stressful than attending court.

Conclusion

BFAs are flexible. Parties can enter into one at any time. However, they can be costly. Complex asset pools may require valuation experts and drawn-out negotiations.

Good communication and an experienced family lawyer can keep binding financial agreement costs down. You can then draft an effective agreement.

If you want advice on dividing your property, our team can help.

What Is a Consent Order? (Why It’s Useful for Family Law Matters)

Peter Andrews — Wed, 15 May 2024 15:42:30 +0000

Dealing with family law disputes can be challenging, and consent orders can be a helpful solution. But what is a consent order?

This guide will give you the basics to move forward and address your legal matters effectively and confidently.

What is a Consent Order?

A consent order is a legally binding agreement the court approves to formalise matters related to property settlements, parenting arrangements, or spousal maintenance following separation or divorce.

By agreeing to the terms and conditions of the order outside of litigation, parties can avoid lengthy court battles, reduce costs, and maintain greater control over the outcomes of their disputes.

A clear understanding of a consent order and how it fits into the process of resolving family law disputes can help reduce the stress and uncertainties associated with such proceedings.

The Legal Framework for Consent Orders

Understanding the legislative foundations governing consent orders and their role in family law dispute resolution processes:

1. Family Law Act 1975

Consent orders are governed by the Family Law Act 1975, granting courts the authority to make orders with the parties’ agreement regarding children, property, or spousal maintenance matters.

2. Court approval

Although the terms of a consent order are agreed upon by the parties involved, the order must be submitted to and approved by the court to become legally binding.

3. Legally binding

Once the court approves, consent orders have the same legal effect as court-imposed orders, meaning both parties must adhere to the agreed-upon terms or face potential legal consequences.

The Benefits of Consent Orders

Exploring the advantages of pursuing a consent order as opposed to engaging in potentially protracted litigation:

1. Cost savings

Consent orders can save parties substantial legal costs by avoiding court appearances and lengthy negotiations associated with litigation.

2. Time efficiency

As the parties agree upon the terms of the consent order, they can significantly reduce the time spent resolving their disputes compared to going through the court process.

3. Control over outcomes

Consenting parties can shape the terms of the agreement to suit their specific needs and circumstances, maintaining greater control over the outcome instead of relying on an imposed court decision.

4. Reduced conflict

Consent orders encourage cooperation and communication between parties, promoting a more amicable resolution and minimising conflict during the dispute resolution process.

Find out: Consent Orders Vs Binding Financial Agreements: Which is the Best for You?

The Process of Obtaining a Consent Order

An overview of the steps involved in drafting, negotiating, and lodging a consent order with the court:

Step 1: Negotiation and agreement

The parties must first negotiate and agree upon the terms of their consent order, often with the assistance of their respective legal representatives or through alternative dispute resolution methods such as mediation.

Step 2: Drafting the consent order

Once the terms have been agreed upon, consent orders must be drafted clearly and legally enforceable, typically by qualified legal practitioners.

Step 3: Lodging the consent order

Consent orders must be submitted to the court for approval and a signed Application for Consent Orders document. Parties should also include any supporting documents or evidence that may be relevant to their application.

Step 4: Court approval

Once lodged, the court will review the consent order to ensure the terms are just and equitable in property matters or the child’s best interests regarding parenting arrangements. If satisfied, the court will approve and legally bind the consent order.

When Consent Orders May Not Be Appropriate?

Recognising specific circumstances where consent orders may not be the best option for resolving disputes:

1. High levels of conflict

Consent orders rely on agreement and cooperation between the parties. In highly acrimonious disputes, where communication has broken down, reaching an agreement may be challenging or impossible.

2. Domestic violence or abuse

In situations where there has been domestic violence or abuse, consent orders may not adequately protect the victim, and court intervention may be necessary to ensure their safety.

3. History of non-compliance

If one party has a history of non-compliance with previous orders or agreements, consent orders may not provide sufficient enforcement mechanisms, and litigation may be more appropriate.

Conclusion

Consent orders can be a powerful tool for resolving family law disputes more amicably and efficiently, while empowering the parties involved to take control of their outcomes.

By understanding the legal framework, recognising the benefits, and following best practices on the consent order application process, you can effectively navigate the family law dispute resolution process and protect your interests.

If you want advice with consent orders, Andrews Family Lawyers can help.

Consent Orders vs. Binding Financial Agreements: Deciding the Best Approach for You

How to Achieve a Fair Property Distribution in Divorce? (Achieve Balance and Fairness)

Peter Andrews — Thu, 09 May 2024 18:05:51 +0000

One of the most critical aspects of any separation or divorce is determining a fair division of assets to ensure that both parties can move forward on a secure financial footing.

This article will offer valuable insights into determining a fair property distribution in divorce.

We will explore the key factors and considerations that must be considered when dividing property between separating partners, ensuring you have a comprehensive understanding of the process and the various options available to you.

4 Simple Steps for Property Distribution in Family Law

A four-step process is typically used in Australia to determine a fair and equitable distribution of assets in divorce cases. Understanding each step is essential in navigating this complex process:

1. Identifying the Asset Pool

The first step involves compiling a comprehensive list of all assets and liabilities owned by both parties, whether jointly or individually. This includes real estate, vehicles, bank accounts, superannuation, investments, and debts.

2. Assessing Contributions

The next step requires consideration of each party’s financial and non-financial contributions during the relationship. Financial contributions may include salaries, inheritances, or business interests, while non-financial contributions could involve child care, homemaking, or supporting the other party’s career.

3. Evaluating Future Needs

The future needs of each party are also taken into account, including factors such as age, health, income-earning capacity, and any responsibilities for the care of children.

4. Ensuring a Just and Equitable Outcome

Finally, after assessing the asset pool, contributions, and future needs, a fair and equitable property distribution must be determined to meet each party’s needs and circumstances.

Key Factors and Considerations in Assessing Contributions

When evaluating the contributions made by each party in a relationship, there are several factors to consider, including:

1. Direct Financial Contributions

Earnings from employment, business ownership, or passive income sources such as rent or investments are considered when determining each party’s direct financial contributions.

2. Indirect Financial Contributions

Financial efforts that indirectly contribute to the relationship are also considered, such as paying for the education or training of the other party or providing guarantees for loans.

3. Non-Financial Contributions

The court considers the non-financial contributions made by each party, such as the role of homemaker, child-rearer, or caregiver for family members.

4. Contributions Before and After Separation

Assets and liabilities brought into the relationship and those acquired post-separation may also be considered in assessing contributions.

Identifying Your Future Needs

When determining the division of assets, it is crucial to consider each party’s future needs and circumstances. Key factors include:

1. Age

The age of each party is often an essential factor, as older individuals may require additional financial security due to a reduced capacity to earn income or increased healthcare expenses.

2. Health

The health of each party may impact their future financial needs, particularly in cases where long-term medical care is required, or earning capacity is limited due to illness or injury.

3. Caring Responsibilities

If one party is the primary caregiver for children or other family members, this may affect their earning capacity, thereby having an impact on the division of assets.

4. Earning Capacity

Each party’s ability to earn income in the future can significantly influence the division of assets, considering factors such as education, work history, and available opportunities.

Important: How to Split Assets in Divorce in Australia?

4 Ways to Achieve an Agreement for a Fair Property Distribution in Divorce

Reaching an agreement on the property distribution requires compromise, negotiation, and a commitment to achieving a fair outcome. Some strategies to ensure a smooth and equitable settlement include:

Step 1: Open Communication

Foster open and honest dialogue between both parties to resolve disputes more effectively.

Step 2: Financial Disclosure

It’s crucial to provide full and transparent disclosure of all assets and liabilities to facilitate a fair division of assets.

Step 3: Legal Advice

Engage a qualified family lawyer who can help you understand your legal rights and provide guidance throughout the negotiation process.

Step 4: Alternative Dispute Resolution

If negotiations stall, consider mediation or arbitration as alternatives to litigation. These methods can save time and resources by avoiding a lengthy court battle.

Conclusion

Determining a fair property distribution in divorce cases is a complex and often emotionally charged. Understanding the key factors and considerations allows you to make informed decisions and achieve a just and equitable outcome.

At Andrews Family Lawyers, we aim to provide honest, practical advice to help you navigate the complex process of dividing your property after a relationship breakdown.

If you need assistance with family law matters, Andrews Family Lawyers can help.

Divorce Vs Separation: Discover What Is Their Significant Difference

Peter Andrews — Wed, 24 Apr 2024 03:12:15 +0000

Separation and divorce are associated concepts in family law. Separation of a minimum of one year is mandatory before spouses can pursue a divorce. However, they have crucial differences that are vital to understand.

This article will explore the primary differences between separation and divorce.

Divorce Vs Separation

Separation

Definition
The decision by parties to end a relationship.

Legal status
No formal legal processes. Tax and evidentiary implications.

Is that right for you?
Chances for reconciliation. Gradual step toward final resolution.

Divorce

Definition
The formal process of ending a marriage.

Legal status
Formal requirements and Court recognition.

Is that right for you?
Can provide closure. Allows parties to move on.

Definition

Separation

In Australian family law, “separation” refers to the situation where a couple (married or de facto) decides to end their relationship and live apart. At least one party must have a clear intention to end the relationship. This intention must be communicated to the other party.

Both parties don’t need to agree to the separation. Separations are generally demonstrated by the parties taking steps to live separate lives. This may involve living apart, maintaining different social circles and separating their finances.

If you want to know more about separation, read our blog here.

Divorce

A divorce is the formal process of ending a legal marriage. Divorce legally dissolves a marriage, officially recognising that the marriage has ended. After a divorce, the individuals are free to remarry if they choose. The only grounds for divorce in Australia are the irretrievable breakdown of the marriage.

This is demonstrated by 12 months of separation, indicating that the couple has lived apart and there is no reasonable likelihood of reconciliation. Australian family law operates on a ‘no fault’ principle in divorce proceedings.

This means the court does not consider why the marriage ended, and either party’s fault or wrongdoing is irrelevant. A divorce can be sought by one or both parties.

Discover: 5 Simple Steps on How to File a Divorce in Australia Today

Legal status

Separation

Recognition of Separation. A legal separation begins when a couple decides to end their marital or de facto relationship. It is marked by one or both partners choosing to end the relationship and acting on that decision, usually by living apart.
No Formal Legal Process Required. Unlike divorce, no formal legal process or documentation is required to establish a separation. However, it is essential to note the date of separation as it has legal implications, especially when applying for a divorce or settling property and financial matters.
Evidence of separation. Couples may need to provide proof of their separation. This evidence is typically circumstantial and can include things such as the following:
- The parties maintain separate finances;
- Sexual activity has ceased;
- The parties live in separate residences;
- Friends and family understand the couple to be separated;
- Government agencies like Centrelink have been notified of the separation.
Separation under one roof. Couples can be considered legally separated even if they continue to live under the same roof. This is provided they can demonstrate that the marital relationship has ended (e.g., by living separate lives). Evidence of this situation may include:
- Changes in domestic arrangements, like cooking and cleaning separately, doing laundry individually, and generally maintaining separate domestic lives;
- Evidence that the couple is no longer presenting themselves as a couple in social settings;
- Evidence showing a change in the nature of communication between the parties, indicating a shift from personal to more formal or practical;
- If applicable, evidence showing how parenting responsibilities are managed separately;
- Evidence shows that the couple has been leading separate lives, such as social engagements, holidays, and household responsibilities.
Time limits for de facto relationships. The date of separation will determine the time limit de facto couples are subject to when finalising a property settlement or spousal maintenance. Unless exceptional circumstances apply, de facto couples have two years from the separation date to form a financial agreement.
Financial arrangements. Once a separation occurs, you and your ex-partner can organise a property settlement.
Tax implications. Once separated, couples may have access to a tax exemption. Once a property settlement has been formalised through court orders, assets transferred between the parties aren’t subject to capital gains tax.

Divorce

Proof of divorce. Unlike separation, proving a divorce is much more straightforward. Producing a divorce order is sufficient to show a divorce took place. A divorce order is granted one month and one day after the Family Court accepts the application.
Formal divorce process. Parties seeking divorce must undergo a legal process with the Federal Circuit and Family Court of Australia. The application may be made as a sole or joint application.
Time limits for married couples. Ex-spouses have one year from the date their divorce order was granted to finalise property settlements and spousal maintenance orders.
Remarrying. A divorce is required to allow the parties to remarry.
Residency requirements. Unlike separating couples, those seeking a divorce must meet certain residency requirements. At least one party to the divorce must meet one of the following:
- Regard Australia as their home and intend to live indefinitely in Australia or
- Be an Australian citizen by birth, descent, or by grant of Australian citizenship, or
- Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

Which is right for you?

Emotional considerations

Divorce is a significant step and shouldn’t be taken lightly. This is a crucial reason why a 12-month separation is mandatory before a divorce application can be made. Here are things to consider concerning whether a temporary separation is the best option.

Time for Reflection. Temporary separation provides a period for both partners to reflect on their relationship and what they want for the future. Time apart can help people better understand their relationship issues and if a divorce is the best course.
Opportunity for Reconciliation. Many couples consider temporary separation as a step towards reconciliation. It can serve as a break to work through personal or relational issues, with the possibility of coming back together.
Less Traumatic for Children. A gradual transition like temporary separation can be less traumatic if children are involved. It gives children a more gradual adjustment period to the new family dynamics.
Testing Independent Living. Separation allows both partners to experience living independently while still being legally married. This experience can be crucial in deciding whether to pursue a divorce or not.
Legal Simplicity. Separation does not require legal proceedings, whereas divorce does. This simplicity can reduce stress and emotional burden.

At times, divorce is the best choice for some couples. Some benefits of divorce include:

Legal Closure and Certainty. Divorce provides a definitive legal end to a marriage. This legal closure can bring certainty, which is vital for those who need a clear end to their marital status for personal or religious reasons.
Remarriage. If either party wishes to remarry, a divorce is necessary. In Australia, you cannot legally marry someone else if you are still married to another person.
Psychological and Emotional Closure. For many, the act of divorcing is an essential psychological step in moving on from a relationship. It can provide emotional closure, allowing individuals to focus entirely on their new life and future relationships.
Parenting Arrangements. Parenting arrangements can be made during separation. However, finalising these arrangements in a divorce can provide more stability for parents and the children.

Conclusion

Relationship breakdowns are never easy, and it’s crucial to consider your options carefully. When analysing “divorce vs separation,” some couples opt for divorce, while separation benefits others. Understanding the differences and many factors to consider when determining which is best for you is essential.

The legal status of separation and divorce affects how each can work for you. It’s also important to consider the emotional toll and parenting arrangements to protect your children’s best interests.

Before making any permanent decisions, seek legal advice from an experienced family lawyer. This guidance will help ensure your choices align with your legal rights and personal circumstances.

If you need assistance with family law matters, Andrews Family Lawyers can help.

7 Tips to Develop a Healthy Diet During and After Divorce (Eat Right, Feel Better)

Peter Andrews — Mon, 08 Apr 2024 03:05:07 +0000

We all understand our diet impacts our physical health. Bad diets can lead to serious outcomes like developing heart disease. However, it can also profoundly affect our mental and emotional well-being. Protecting all these aspects is crucial during stressful times like a divorce, making a healthy diet essential.

This article will cover 7 tips to help you manage your diet and encourage healthy eating.

Key takeaways

Professional assistance can help you approach your diet appropriately and realistically.
Maintaining a balanced diet benefits from nutritional understanding and a meal plan.
Routine meals help provide structure, help with sleeping patterns, and help with managing weight.
Target whole foods and opt for healthy snacking options.
Try cooking at home with simple recipes and healthy options in the pantry.
Control portions with smaller plates and keep a diary to track your eating patterns.
Listen to your hunger cues and exercise compassion for yourself.

7 Tips to Help You Manage Your Eating Habits and Promote a Healthy Diet

1. Seek Professional Guidance

Professional advice can help craft a healthy diet during and after a divorce. You can receive tailored guidance, support, and strategies to navigate challenging periods. Here’s how to effectively use professional advice for your dietary planning.

Consult a Registered Dietitian or Nutritionist

These professionals can offer personalised dietary advice based on your needs, preferences, and lifestyle. They can help you develop a balanced diet. They can also suggest meal plans so you eat fewer calories and provide strategies to deal with emotional eating or other challenges you might face during this time.

Set Realistic Goals

Work with the professional to set achievable dietary goals. These should be specific, measurable, attainable, relevant, and time-bound (SMART). Gradual changes work better than drastic alterations. The idea is to create long-term sustainability rather than short-term improvements.

Follow-up and Adjustments

Regular follow-ups with the professional can help you stay on track and make necessary adjustments to your diet plan. Your needs or circumstances may change, and your diet can be modified accordingly. For example, you may experience a change in your employment. This could affect your eating times or ability to afford certain foods.

You can find a professional dietitian in Australia here.

2. Maintain a Balanced Diet

Maintaining a balanced diet during and after a divorce involves a holistic approach. Addressing your nutritional needs while considering the emotional and lifestyle changes accompanying major transitions is helpful. Here are some things to consider when maintaining a balanced diet during this period.

Understand Nutritional Needs

A balanced diet should include a variety of healthy foods from all the major food groups. Find ways to incorporate fruits, vegetables, grains, protein sources, and dairy or alternatives. Each group provides essential nutrients that your body needs to function.

Monitor Your Progress

Keep track of your eating habits. Consider how you feel physically and emotionally and any changes in your weight or health. This can help you identify patterns and make adjustments as needed.

Plan Your Meals

Planning meals can help you consume nutrients and prevent last-minute unhealthy food choices. If you’re pressed for time, you may succumb to the temptation of consuming packaged and processed foods. While these are convenient, they’re not beneficial long-term. Create a weekly meal plan that includes balanced meals and snacks.

3. Routine Meals

Having your meals in a defined routine during and after a divorce benefits your physical and emotional well-being. Here’s how a structured meal routine can help.

Provides Structure

During significant change and uncertainty, having a set meal routine can provide a sense of normality. It offers a predictable and controllable aspect of your day, which can be comforting. It’s also one less thing to worry about.

Promotes Better Sleep

Eating regular meals can also help regulate your sleep cycle. Meals can affect our biology. For example, having a set dinner time can signal your body that it’s time to wind down for the night, promoting better sleep quality.

Supports Weight Management

Regular meal times can help with weight management by preventing overeating or snacking on unhealthy foods. You may be less likely to overindulge when you know your next meal or snack arrives at a set time.

Guide: How to Split Assets in Divorce in Australia? (Divorce Settlement)

4. Limit Processed Foods

Avoiding processed foods is a key step in developing a healthy diet. This is particularly vital during or after a divorce when maintaining your physical and emotional well-being. Here are strategies to help you minimise processed foods and embrace a healthier diet.

Shop the Perimeter

It’s good to get to know your local grocery store. In most grocery stores, the perimeter is where you’ll find fresh fruit and vegetables, lean meats, and dairy products. The aisles tend to contain more processed items. Focus your shopping around the perimeter.

Choose Whole Foods

Target whole, minimally processed foods like fruits, vegetables, whole grains, lean proteins, and nuts. These foods are more nutrient-dense and less likely to contain unhealthy additives. You can reduce salt intake and add more healthy fats to your diet.

Healthy Snacking

Replace processed snacks with healthier alternatives, such as fruits and fruit juice, nuts, seeds, yogurt, or homemade granola bars. Having these healthy options readily available can prevent you from reaching for processed snacks.

5. Cook at Home

Cooking at home is a powerful strategy for developing a healthy diet during or after a divorce. It gives you control over ingredients, helps you avoid processed foods, and can be therapeutic. Here’s how to leverage home cooking for a healthier diet.

Start with Simple Recipes

If you’re not accustomed to cooking, begin with simple, straightforward recipes that require few ingredients. Many online resources, cookbooks, and cooking shows are aimed at beginners. As you increase in confidence, you can try more complex and interesting recipes.

Use Healthy Cooking Methods

Use cooking methods that retain nutrients and minimise unhealthy saturated fats. Try grilling, baking, steaming, or stir-frying rather than deep-frying.

Stock a Healthy Pantry

Keep your pantry and fridge stocked with healthy staples like whole grains, legumes, canned tomatoes, spices, and frozen vegetables. These items make it easier to throw together a nutritious meal.

6. Portion Control

Portion control is a crucial aspect of maintaining a healthy diet. When you’re experiencing stress and emotional upheaval, you can give in to overeating or undereating. Here’s how to effectively control food portions.

Use Smaller Plates

Smaller plates can help trick your brain into feeling satisfied with less food. This simple change can significantly affect the food you consume at each meal.

Don’t Skip Meals

Skipping meals can lead to overeating later. Regular, balanced meals can help maintain energy intake and prevent hunger-induced overeating. This can help you sustain a healthy weight.

Keep a Food Diary

Tracking what you eat can increase your awareness of portion sizes and eating patterns, which can help you make adjustments where necessary.

7. Listen to your body

Listening to your body is crucial for developing a healthy diet. Everyone’s body reacts differently to stress, and the impact of eating habits and physical health also varies. Here’s how to tune into your body’s signals to nurture your well-being.

Identify Hunger and Fullness Cues

Learn to differentiate between physical hunger and emotional hunger. Physical hunger builds gradually and is satisfied when you eat. Emotional hunger is sudden and not satisfied by eating. Stop eating when you’re comfortably full, not stuffed.

Be Patient and Kind to Yourself

Developing a deep understanding of your body’s cues is a process that takes time. You don’t have to get things right immediately. Practice self-compassion and recognise that it’s a journey of learning and adapting.

Recognise Emotional Eating

Be aware of patterns where you might use food to cope with emotions. If you reach for food when you’re not physically hungry, try to identify the emotion and address it more constructively. A dietitian can help you make these connections.

Conclusion

During a divorce, you can experience many stresses, which can significantly impact your mental and emotional health. Poor dietary patterns can amplify the effects of stressful situations.

These 7 tips aim to help you craft healthy meals. This will help you control your nutrition and live a happier and healthier future.

If you need assistance with family law matters, Andrews Family Lawyers can help.

Marriage and Divorce Statistics in Brisbane (2024 Updated)

Peter Andrews — Tue, 02 Apr 2024 11:04:28 +0000

Marriage and divorce rates are affected by many factors and can also indicate social trends. For these reasons, it’s crucial to keep updated about the latest marriage and divorce trends to understand family law. These trends have implications for property and parenting matters that are relevant for sociological and policy reasons.

This article will look at the latest marriage and divorce statistics and what they tell us.

Brisbane Marriage and Divorce Rates

This data was sourced from the Australian Bureau of Statistics and released in December 2023. Queensland’s population is about 5.2 million. Looking at the state’s population density, about three-quarters live in South-East Queensland.

Note: The main population centre in South-East Queensland is Brisbane. Therefore, state-wide marriage and divorce trends can be taken to reflect the trends in Brisbane specifically.

Marriage statistics

The latest ABS data recorded 25,014 marriages occurring in Queensland. This was an increase of 3,387 (15.7%) over the previous year. This is a minor increase when compared to the rest of the country. There were 127,161 marriages Australia-wide. This was an increase of 42.6% over the previous year.

The median age at marriage has increased slightly to 32.5 years for men and 30.9 years for women.

Image Source: www.abs.gov.au

Crude marriage rate

The crude marriage rate is a significant figure when reporting marriage rates. It is the number of marriages registered per 1,000 people as of the end of June of the reporting year. The crude marriage rate in Queensland was 5.9 marriages per 1000 people. This represents a decrease of 1.4 from a decade ago. The crude marriage rate was 6.1 across Australia.

Divorce statistics

The ABS reported that 11,410 divorces were granted in Queensland, a decrease of 2,065 over the prior year. This is a 15.3% reduction in the divorce rate. The divorce rate across Australia over the same period was 49,241, which is 12.5% lower than last year.

The median age at divorce was 46.7 for men and 43.7 for women, a slight increase over previous years.

Crude divorce rate

The crude divorce rate uses the same formula as the crude marriage rate. In Queensland, the crude divorce rate reduced by 0.5 to 2.7 divorces per 1000 people year over year. The crude divorce rate nationally stands at 2.4 per 1000 people.

Same sex marriage and divorce rates

The Family Law Act has recognised same sex couples since 2017., which means that same-sex marriages and divorces have only been included in ABS data since 2018. Given that the average marriage length in Australia is 8.9 years, it’s difficult to draw statistically significant conclusions. However, the available data shows that male and female same sex divorces occur at roughly the same rate.

However, female same-sex couples marry at a slightly higher rate than male same-sex couples.

Divorce Capital of Australia

In recent years, Queensland has become the divorce capital of Australia. The state’s crude divorce rate has been consistently higher than that of other states and territories. Experts have identified many reasons for this.

The 2020-21 COVID-19 pandemic significantly impacted marriage and divorce rates. Family mediator Stacey Turner believes the pandemic gave married couples a new life perspective. They wanted to move on quickly after the pandemic began as it showed life’s fragility.

Mediation pre-pandemic took around four to six weeks. During the pandemic, however, couples worked together much more collaboratively.

Ms. Turner also recognised that the pandemic profoundly affected people’s mental health and financial stability.

Mental health impacts

While Queensland wasn’t subject to lockdown measures as severe as other states, the Brisbane population was affected greatly. This directly contributes to divorce rates.

Increased Anxiety and Stress

Many individuals in Brisbane experienced heightened levels of anxiety and stress due to the uncertainties and fears associated with the pandemic. Health concerns, the well-being of loved ones, job security, and the economic fallout contributed to this increased anxiety.

Depression

The isolation measures, including lockdowns and social distancing, along with the economic and social disruptions, led to increased rates of depression among the population. The lack of social interaction and changes in daily routines affected people’s mental well-being.

Domestic Violence

There were concerns about an increase in domestic violence incidents during the lockdown periods, as families spent more time in close quarters, often under increased stress and financial pressure.

Guide: How to Split Assets in Divorce in Australia? (Divorce Settlement)

Financial pressures

Various financial impacts caused by the pandemic affected divorce rates.

Unemployment and Job Losses

The pandemic led to significant job losses and increased unemployment rates in Queensland. Sectors like hospitality, retail, and tourism were particularly hard hit. This contributes to anxiety and stress that exacerbate marriage concerns.

Lockdowns and Proximity

Extended periods of lockdown and working from home increased the time couples spent together, intensifying existing relationship issues in some cases.

Interstate migration

Ms Turner also notes that Queensland experienced higher migration than other states. People moved to the Sunshine State for the weather and outdoor lifestyle. Some couples hoped that a new location would help with marital issues. However, Ms Turner feels they may have underestimated other problems. Moving interstate separated people from their extended family and friend groups.

Legislative impact

The Family Court will only accept a divorce application once a couple completes a 12-month separation. Professor Janeen Baxter from the University of Queensland believes the true extent of pandemic-related divorces will not materialise for several years.

Conclusion

Marriage and divorce trends can inform us about broader social trends. Queensland’s reputation as the divorce capital of Australia is the result of many factors. The COVID-19 pandemic and Queensland’s popularity for interstate migration significantly affected divorce rates. The pandemic impacted people in many ways, including their mental health and financial situation. However, divorce rates are decreasing gradually.

If you have questions about divorce, our team can help.

Divorce – Andrews Family Law

3 Ways to Resolve Financial Settlements During Divorce (What’s the Best Method for You?)

Key takeaways

The 3 Best Ways for Resolving a Property Settlement in Family Law

Mediation

Negotiation

Litigation

What is a financial settlement?

Consent orders

Step one

Step two

Step three

Step four

Binding financial agreement

A Collaborative Approach to dividing financial resources

Cost-effective

Time-efficient

Confidential

Direct Communication

Flexibility

Informality

Control

Privacy

Turning to the Court

Enforceable outcomes

Impartiality

Clear procedures

Legal representation

Factors to Consider When Choosing a Resolution Method

Nature of the relationship

Complexity of financial matters

Willingness to compromise

Potential impacts on children

Conclusion

Related Articles

How to Split Assets in Divorce in Australia? (Legal Guide in 2024)

How do you split assets during a divorce?

1. Non-legal arrangement

Advantages

Disadvantages

How to make an effective non-legal arrangement?

Step 1: Communication

Step 2: Compile Financial Documents

Step 3: Consider future needs

Step 4: Seek legal advice

Step 5: Draft the agreement

Step 6: Review and revise

Step 7: Sign the agreement

Who gets what?

2. Binding financial agreements (BFA)

How to form a binding financial agreement?

Step 1: Communication

Step 2: Disclose finances

Step 3: Seek independent legal advice

Step 4: Draft the agreement

Step 5: Review the agreement

Step 6: Sign the agreement

Step 7: Independent legal advice certificate

Who gets what?

3. Consent orders

How to apply for consent orders?

How assets are divided in Family Court?

Step 1: Valuation of Assets

Step 2: Assessing the non-financial and financial contributions of both parties

Step 3: Determining Future Needs

Step 4: Evaluating the Impact

What to consider when dividing assets?

Litigation

What am I entitled to in a Divorce Settlement?

Are assets split 50/50 in divorce in Australia?

Which assets are considered in a divorce?

How long does a divorce settlement take?

How can I protect my assets from divorce?

Can I get divorced without a financial settlement?

Can I get divorced before the property settlement?

Can a divorce settlement be reopened?

Divorce Property Settlement Example

Case Study

Joint Assets and liabilities

Individual Assets and liabilities