FAQs

Every family is different and the outcome will depend on the individual facts of each case. Many people believe that the division between parties should be or is an equal 50/50. This is not the case. A number of factors must be taken into consideration, including what assets and liabilities each person had at the beginning of the relationship, the parties’ financial, non-financial and homemaker and parenting contributions, and the future needs of each party. Each of these factors is considered individuallyand will affect the overall outcome.

No. However, it is certainly preferable that you do so.

Family Court Orders can be obtained without the parties having to attend Court in person. Parties can reach an agreement by negotiation and file an Application for Consent Orders. The Court has a duty to review and assess each application on its own merit and ensure that the Orders being sought are just and equitable to both parties. If the Court is satisfied that the Orders are fair and equitable, the Orders will issue in due course, after which time you can implement them.

There are a number benefits to having Family Court Orders:

• It sets out clearly for each party what is to happen with the assets and liabilities accumulated during the course of a relationship and since separation.
• It ensures that should one party fail to comply with the Orders, that those Orders can be enforced by making an application to the Court.
• It provides certainty, so that there is limited chance of the other party seeking a further property settlement in the future.
• If a property is being transferred from one party to the other or from joint names to one party’s sole name, it ensures that only nominal stamp duty is paid on that transfer and can result in considerable savings for the parties.

Another option is to enter into a binding Financial Agreement. This is a private written agreement between the parties, and it not filed in the Court. Each party must obtain independent legal advice prior to signing. A Financial Agreement has the same benefits as Court Orders, though is often more expensive.

A property settlement is calculated based on the current value of the assets and liabilities, at the time the agreement is reached or the Orders are made. This means that any assets you accumulate after separation could form part of the property pool available for division. For this reason, it is often beneficial to attempt to resolve property matters promptly.

Separation is when one or both parties decide the relationship is over, they communicate that decision to each other, and then act on that decision.

You do not need to register your separation, but you should make a note of the date for future reference. De facto couples have 2 years from the date of separation to commence property settlement proceedings (though they can settle at any time before that). Married couples can apply for divorce as they have been separated for 12 months, and then have 12 months from the date of their divorce order to commence property settlement proceedings.

You should also seek advice from a specialist family lawyer to ensure that you understand your rights and entitlements, especially before moving out of the family home.

At Leach Legal, you and your children are our number one priority. It matters to us that you feel supported throughout the process. Our lawyers are industry leaders in the family law field, and regularly attend training seminars both outside the office and in-house to ensure our knowledge and skills are up to date. We are one of the largest family law firms in Western Australia, so our clients benefit from the collective experience of our entire team.

Former de facto couples including same-sex de facto couples have the same legal rights under the family law as married couples. The only exception is in Western Australia, that they currently cannot split their superannuation interests. This is different in other states of Australia, but in October 2018 an agreement was reached between the WA government and the Federal government to implement legislation to allow this to occur. At this time, it is unknown when those changes will take effect.

Yes, however you may need to provide additional evidence to show the Court that you are living separately and apart.

Separation occurs when one or both parties to the relationship form an intention to separate, act on that intention, and communicate that intention to each other.

If you are living separately under the same roof, the Court will decide whether or not there has been an overall change in your relationship by considering things such as:

• Change in sleeping arrangements
• Reduction in shared activities such as family outings
• Reduction or decline in undertaking household duties like cooking or washing for each other
• Division of finances and separate bank accounts
• Notification of friends and family members about the separation

When you separate, you should make a note of the date in your calendar for future reference, as strict time limits apply to commence financial proceedings in the Court.

You can still apply for divorce, but you will need to attempt relationship counselling with your spouse and provide a counselling certificate to the Court. If your spouse refuses to attend counselling with you, you can still apply for divorce but your counsellor must provide a certificate stating that you did attend counselling but your spouse refused. There may be some other limited circumstances where counselling is not required, and you will need to explain to the Court your reasons for not doing so.

Yes, however there are many loopholes that can cause a DIY will to be invalid. The law has very specific requirements about what constitutes a valid will, and failure to comply may render your will worthless. For example, if you are separated, you need to ensure that your will is specifically drafted in contemplation of divorce otherwise you risk a claim from your ex to your estate. People work very hard for many years to get ahead, and it is important that when you die, your intentions for your assets are fulfilled, and not at risk of a claim from someone else.

Yes. Our lawyers regularly attend mediations with great success. We have excellent mediation facilities at our office including a large boardroom and private breakout rooms so that our clients can attend mediations in comfortable and familiar territory. Further, some of our lawyers are also trained mediators themselves, meaning that they are qualified to chair mediations between couples who may be represented by other lawyers.

Find out more about the mediation process here.

A mediation involves the parties and their lawyers meeting and attempting to reach an agreement. Usually, very senior lawyer such as a former Family Court judge or a senior barrister is engaged by the parties as the chairperson to help guide the negotiations.

Each mediation is different, and tailored to the needs of the parties themselves. However, there is a general structure that most mediations do follow.

Often, each party and their lawyer meets separately with the chairperson before the mediation so the chairperson can explain the process and get a feel for the issues at hand.

On the morning of the mediation, the parties and their lawyers meet together, usually in a boardroom. The mediator opens the mediation and sets the guidelines for the day. The parties might choose to make an “opening statement”, though this is not mandatory. The mediator will generally create an agenda of important matters to be discussed.

With the formalities attended to, the parties can start negotiating. Sometimes they all stay in the same room together, but often they move into their “breakaway rooms” to have private conversations with their respective lawyers. Depending on how the negotiations progress, the parties may convene in the main room again, or the lawyers may meet with the mediator separately. Sometimes, the chairperson goes back and forwards between the parties’ breakaway rooms. A mediation is a fluid process, and is tailored to ensure the best chances of a settlement in the individual circumstances.

If an agreement is reached, the lawyers will jointly prepare a Minute of Consent Orders or other documents to formalise the agreement. If no agreement is reached, the chairperson will assist the parties and their lawyers to narrow the issues in dispute, and to document those matters which can be agreed.

Maintenance is the financial support from one party to another party. Usually it is paid on an interim basis until the financial matters can be finalised, but sometimes it can extend beyond that.

In deciding whether one party should pay maintenance to the other, the Court must be satisfied that:

• The reasonable living expenses of the party seeking maintenance (“the payee”) is higher than that party’s income earning capacity. This is often referred to as the payee’s “need”; and
• The other party’s (“the payer”) income earning capacity exceeds their reasonable living expenses. This is often referred to as the payer’s “capacity to pay”.

If the Court is satisfied that the payer has capacity to pay, the Court may then order the payer to provide the payee with spousal maintenance. The quantum of this spousal maintenance is usually the lesser of the payee’s needs and the payer’s capacity to pay.

In determining the two steps above, the Court will consider many factors including the following:

• Each party’s income earning capacity;
• Whether either party has the control or care of the child of the marriage;
• The standard of living and all that circumstances that is reasonable;
• The size of the asset pool;
• Whether either party is cohabiting with another person and the financial circumstances relating to that cohabitation;

The terms of any order made or likely to be made in the final property settlement.

An application for divorce is the formal end to a marriage. It is separate to a property settlement or parenting matters.

You can usually expect to receive a divorce hearing within 2 to 3 months of filing your application. Provided there are no unexpected complications such as with serving the other party, your divorce order will be granted at that hearing. Your divorce order will take effect 1 month from the date of the hearing.

The Court does not consider arrangements for pets the same way as children, even though they are often a much loved member of the family. Pets are classified as property under the family law and will be distributed accordingly.

For more information, read our blog post on who gets custody of your pets in a separation.

At Leach Legal, we aim to ensure you speak to a lawyer on the same day that you call. Sometimes if you choose a specific person they might not be immediately available, but we will arrange for you to speak with them as soon as possible.