Services
Anthony and Thomas practice in all areas of Family Law including:
Property settlement / Division of matrimonial property (including superannuation) / Consent orders
If your marriage or de facto relationship has broken down, and in the absence of a Binding Financial Agreement, the Family Court will divide your property and assess the issue of spousal maintenance under the Family Law Act (if the parties are or were married) or under the Family Court Act (if the parties were in a de facto relationship).
The Court will go through several steps when assessing a Family Law matter.
Firstly, the Court will identify the nature and value of the assets of the parties. Then, the Court will consider the contributions of the parties, both financial and non financial. This will enable the Court to determine each party's entitlement in percentage terms, based on their respective overall contribution to the marriage or relationship. Once this is done, the Court will consider whether there is any necessity for an adjustment in favour of either party. To do this, the Court will have regard to matters such as present and future circumstances of the parties. After going through all those steps, the Court will be in a position to determine the final entitlement of each party.
This may sound reasonably simple, however, when considering such matters as earning capacities, taxation consequences of property division, effect of gifts and/or inheritances and how superannuation should be treated, matters can quickly become complex.
If you are able to reach an agreement with your the other party and you are able to lodge Consent Orders with the Family Court to be approved, then Court will still go through the steps descrived above to ensure that the orders sought are just and equitable. If the Court finds that the orders sought are not just and equitable, then the Court will not make orders even when the parties are in agreement.
This one of the reasons why it is important to seek legal advice even when you have reached an agreement in relation to property settlement.
We can provide you practical advice to help you negotiate and reach a final agreement.
If it is not possible to reach an agreement, then our experienced team is able to help you and represent you in the Family Court.
Children and parenting matters
The circumstances surrounding the break down of a marriage or relationship can prove to be a very difficult and confusing time not only for you both but also for your children.
Obtaining expert legal advice early on can be of great benefit to help you reach an agreement and protect all involved.
As for property division, parties are able to lodge consent orders with the Family Court to formalise their agreement. Once again, you should obtain legal advice to ensure that your children's interests are protected. We can also provide you with advice in relation to how to make your agreement legally binding.
If you are unable to agree about the arrangements for the children of your marriage or relationship, you are required to first attend mediation with a Family Dispute Resolution Practitioner prior to commencing proceedings in the Family Court. There are some exceptions to this rule such as if there is family violence.
The issues to be considered when making arrangements for your children include:
- who will the children live with?
- how much time will the children spend with each parent and other family members?
- how will the children's time be divided during holiday periods?
- what arrangements can be made in relation to things like schooling, sporting activities, health care and so forth?
- the ages of the children.
We are able to provide you with expert advice in relation to parenting matters. We can also provide you with advice in relation to children relocation.
Thomas Kuurstra also specialises in issues relating to child support, including Child Support Agreements.
We can also assist in urgent matters such as obtaining orders in relation to passport applications.
Spousal maintenance
Spousal maintenance is the financial support which one party to a marriage or de facto relationship may be required to provide to the other party after their marriage or relationship has broken down.
The Family Court is able to order one party to pay spousal maintenance to the other if the said party is unable to support him/herself and the other party is able to provide support.
There is no automatic entitlement to spousal maintenance, nor is there any general rule about how much spousal maintenance should be paid. This is an area where the Court must assess each matter on a case by case basis.
You should seek the advice of a Family Law specialist so that you can understand how the laws apply to your situation.
Issue relating to de facto and same sex relationships under the Family Court Act
Generally, two people are considered to be in a de facto relationship when they are over the age of 18, are not related to one another, and live together as a couple in a marriage like relationship. This also applies to same sex couples.
The issues relating to de facto relationships are governed by the Family Court Act. Essentially, the laws governing de facto relationships are quite similar to the ones which apply to married couples, except in relation to superannuation.
However, in order to be able to commence proceedings in the Family Court, you are required to show the Court that:-
- you have been in a relationship for at least two years; or
- there is a child of the relationship under the age of 18, and failure to make a property settlement order would cause serious injustice to the person caring or responsible for the said child; or
- the person applying to the Court made significant financial and/or non financial contributions to the relationship and failure to make orders in relation to property settlement would result in serious injustice.
You are also required to show at least one of the following:-
- that you and the other party resided in Western Australia for at least one third of the period of your relationship; or
- that substantial financial and/or non financial contributions have been made by you or the other party while resident in Western Australia.
In any event, an application for property settlement must be made within 2 years after the date of separation.
Advice on Binding Financial Agreements
A Binding Financial Agreement can be made by parties, whether it be before, during or even after separation or divorce. Such an agreement can also be made before parties are married. Such agreements deal with how property is to be dealth with upon separation of the parties and also with how parties are to be maintained.
In this case, it is a strict legal requirement that both parties obtain independent legal advice in relation to the Agreement. This is to ensure that both parties are fully aware of the consequences of the Agreement and of what rights, if any, that they might be giving away.
Divorce
We can advise you on issues such as whether a sole or joint application is appropriate.
Also, special considerations apply in cases where couples have been married for less than 2 years.
The Court will have regard to the following when assessing an Application for Divorce:-
- whether appropriate arrangements have been made for the children of the marriage, if any;
- whether you have been married for less than 2 years;
- whether you have been separated for at least 12 months.
We can help you prepare your divorce application or simply give you advice in relation to the application. If necessary, we can also appear for you at the divorce hearing.
Additional Services available to our clients:
- Preparation of Wills
- Powers of Attorney
- Enduring Powers of Attorney
- General conveyancing following the conclusion of a Family Law matter that requires the transfer or sale of real estate