Divorce and Family Law FAQ

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Here at Femme Fiscal we know that separation is a difficult time. Here are some frequently asked questions and answers provided by the Law Society of New South Wales and the relevant legislation which will hopefully assist you.

Do I need to have grounds for wanting a divorce?

No.  Separation and a belief that the marriage has irretrievably broken down are the only requirements.  The cause of the breakdown has no bearing on the outcome of disputes concerning children, spouse maintenance and property.

After I separate how long do I have to wait before I can apply for a Divorce? 

12 months.

Do I have to wait 12 months before applying for orders relating to the children? 

No.  As soon as you separate you and your spouse can agree with whom and where the children who are under 18 years will live.  You can also agree on how often the non-residential parent will see the children.  The older the child, the more input the child will have into the decision-making as to his/her residence.

If we cannot reach agreement, what happens then?

Before you can start proceedings in the Court, it is necessary for you to attempt to mediate the matter.  If that is not successful, then you can apply to the Court for orders to determine all issues relating to the children.

If the children are living with me how can I ensure that my spouse pays the appropriate level of Child Support?  

You can make application to the Child Support Agency (CSA) to assess the spouse’s Child Support liability.  This Agency is part of the Australian Taxation Office.  If you prefer, you can have the CSA collect the child support for you.

Do I have to do a property settlement at the same time as I apply for a divorce? 

No.  Like issues relating to the children, you can structure a property settlement with your spouse immediately following separation.  Divorce is quite separate to issues relating to children, spouse maintenance and property.  However, once your divorce becomes absolute, you only have 12 months from that date in which to make application for a property settlement.  After that, you must first seek the consent of the Federal Magistrate’s Court or the Family Court before you can make application for property orders.

What does the Court take into consideration when determining my share of the property? 

The Court will look at both the financial and non-financial contributions you and your spouse have made to the acquisition or improvement to any property.  It also takes into consideration the contribution each of you has made to the welfare of the family as well as taking into consideration any other matter which it considers relevant.

The Court will also consider your future needs including your health, your earning capacity, your responsibility to care for others, child support being paid or received and your standard of living.

If the children live with me, will I get a greater proportion of the property?
Generally speaking, yes because the Court tries to compensate you for the expense associated with providing a residence for the children.

Please note that all information in this post is taken from other sources and none should be credited to the authors of Femme Fiscal. Secondly, always visit a solicitor when going through divorce for appropriate and personalised legal advice.

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