family law.
The stress and emotion of a divorce or separation can
often overshadow the legal and financial consequences.
Our experienced lawyers can provide practical, expert legal support to help you and your family navigate the difficult path ahead, so you can move forward with your lives in a timely and cost effective manner.
SPM Law provides a full range of family law services, whether it be to protect your assets when entering a relationship, or to work with you and your advisors if your relationship is ending or at an end, or if there has been a change to your circumstances such that your existing arrangements are no longer suitable, we have the skills, experience and resources to assist.
Our Services.
Financial
Agreements
A Binding Financial Agreement (BFA), in accordance with the Family Law Act, allows you to predetermine what happens to your property if your relationship ends. You may have seen these in the American context on television in which they are called pre-nuptial agreements, or pre-nups.
A BFA can enable you to retain the assets you bring into a relationship, as well as stipulating the method for dividing any assets and liabilities that you accumulate during the relationship. These documents can be invaluable and save you a great deal of money. However, they are technical, and each party must have a lawyer who also signs the document. Strict formalities must be met to ensure the validity of a BFA. These include full disclosure by the parties of their assets and liabilities, that each party obtains independent legal advice, and that the agreement is signed by both parties and not done so under duress or coercion.
If these requirements are not met, a party to the agreement may be able to challenge the BFA when the relationship comes to an end. In such cases, the agreement could be set aside by the Court, leaving the parties open to a potentially costly property settlement.
Divorce
The 12-month separation period can include circumstances in which you are ‘separated’ but living under the same roof. You should seek advice if you have
separated from your partner but are living in the same household to ensure that the relevant details are included in your application for divorce.
A divorce can be quite a simple process, although if there are minor children from your relationship, the Court must be satisfied that there are adequate arrangements in place for their care.
Parenting & child-related matters
Following the breakdown of a relationship, the care arrangements for children are more often than not the most difficult and important decisions. This is because when deciding which parent the children will live with and how much time they will spend with each parent can involve so many considerations, and everyone’s circumstances and needs are different. We can advise and assist you in relation to matters concerning parenting agreements and consent orders; grandparents’ and stepparents’ rights; relocation, abduction and recovery; child support; concerns about, and allegations of, child abuse; Hague Convention cases; adoption, surrogacy and IVF.
If an agreement regarding the care arrangements for the children of the relation is able to be reached, that agreement can be formalised by either a Parenting Plan or a Consent Order. A Parenting Plan is not legally enforceable, whereas a Consent Order is. Even though a Parenting Plan is not legally enforceable, if you are considering a Parenting Plan you should seek legal advice. This is because if your matter ends up in Court, the Court must consider a recent Parenting Plan when making orders about child-related matters. Consent Orders are legally enforceable and a Court will only consider changing them if both parents agree, or if there has been a significant change in circumstances or a reasonable period of time has passed since the Consent Order was made. For this reason, it is important that you carefully consider all of your circumstances as well as those of your children on a long term basis before entering into a Consent Order.
If an agreement is not able to be reached, then either of the parents, a child, grandparent/s or any other person/s concerned with the care, welfare and development of the children can apply to the court for a parenting order. Before a court application for a parenting order can be filed, the parties must first obtain a certificate from an accredited family dispute resolution practitioner stating that the parties have attending counselling, or that counselling is not appropriate in the circumstances.
To discuss your particular circumstances, and the advantages or disadvantages or a Parenting Plan, a Consent Order or a court application for parenting order, please contact our Family Law team.
Property & financial matters
After separating, you and your ex-partner will need to divide up your assets, liabilities and financial resources (whether they are held in your name, the name of your spouse/partner, jointly or in companies or trusts). Superannuation is also included in a property settlement.
It is best if you and your spouse/partner can come to an agreement yourself in relation to these matters, with the assistance of your lawyers providing you with appropriate advice. We can guide you through this process while also taking into account tax and stamp duty concessions which may be applicable to the transfer of any assets. If an agreement is reached, it can be formalised in a financial agreement or consent orders.
In some cases, an amicable division of property cannot be reached, and the matter may need to proceed to Court. In this case, we can explain the process, draft the necessary documentation and represent you. Many such matters are still resolved during the Court process without having to go to a full trial.
When making orders regarding a financial property settlement, the Court will take into account:
- the financial resources of each party (including their assets and liabilities);
- the parties’ contributions to the relationship (which may include non-financial contributions such as childcare and homemaking);
- the future needs of the parties (including the earning power, child rearing duties and the age and health of the parties);
- an order that is just and equitable in the light of the above factors.
Domestic & family violence
Domestic and family violence includes:
- Coercive control;
- Emotional abuse;
- Financial abuse;
- Physical violence and threats of physical violence;
- Sexual abuse;
- Social abuse;
- Verbal abuse.
The Family Law Act 1975 defines family violence as: ‘conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the persona’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal well-being or safety.’
The Magistrates Court can make a domestic violence order for a aggrieved party. That order can be temporary or permanent. Temporary protection orders are put in place until the court decides whether to make a permanent protection order.
Whether you are wanting to apply for a domestic violence order or if an order is being sought against you, we can explain the process, draft the necessary documentation and, if necessary, represent you in court.
For additional information about domestic and family violence and your particular circumstances, please contact our Family Law team.
We are experienced and compassionate family lawyers and can assist you to reach a settlement with as little stress and expense as possible. We will advise you as to the current law and options available and, if matters are unable to be resolved by negotiation, we can represent you at Court.