When it comes to separation and divorce, the challenge is often not knowing where to begin. We understand that separation is a huge life changing decision to make and if you aren’t ready just yet, that is okay.
Leach Legal is Perth’s leading Family Law firm dedicated to achieving Better Outcomes for clients. In this webinar transcript, we will provide you with information and clarity by helping you to understand the basics of divorce, property settlement and parenting arrangements, leaving you feeling well informed to be able to take that next step.
We Will Answer 5 Frequently Asked Questions
- What are the requirements of getting a divorce?
- How are bank accounts, property and assets divided?
- I have accumulated savings since separation. Will this be included in the property settlement?
- Do I have to be divorced to finalise parenting and/or property arrangements?
- At what age can children decide with whom they can live?
Catherine Leach - Introductions
Ok everybody, let's get started. Thanks for joining us today on our online webinar, your top family law frequently answered questions or frequently asked questions answered, and we get a lot of these. So what we've done is we've tried to compile what we think are your most frequently asked questions and hopefully give you some answers today to those. Obviously, we don't have an opportunity to speak to you about your individual circumstances so we don't know what your situation is so we can’t give you legal advice about it. But what we do want to do is give you information in which you can have an understanding about what goes on and what the principles are and if you need more specific legal advice, then you can get in touch with us and have a chat to us about it.
So just a little bit about me quickly, my name is Catherine Leach. I am the founder and managing partner of Leach Legal, we’re the largest family law firm in Perth. We've been around since 2004 when I set up with two lawyers in a very small office and we've grown since then, we're now in the CBD and we're very focused and always have been on getting people better outcomes. We do a lot of mediation and negotiation and we really want people to be able to walk away from this process without a marriage, but still with a family. So that's where we have a focus. Our services revolve around the family law issues and they are dealing with relationships, children, finance and all of the things that come with those. We do binding financial agreements, which are prenuptial agreements. We do appeals, we do consent orders and we do all the things that come from those things arising from a separation, whether you're married or whether you're in a de facto relationship.
What Are The Requirements of Getting a Divorce?
So the first question is the requirements of getting a divorce. Now, divorces are interesting historically for most of Australia's life. There was a requirement that you would have to have a reason for a divorce or grounds for divorce and until 1976, there were quite a few of those grounds. The most notable ones were things like adultery or abandonment and if you didn't agree to the divorce, then someone would have to provide evidence to the court about why those grounds existed, which spawned a whole lot of private investigators taking photos of people, so-called adulterous acts and presenting them to the court to try and get a divorce.
So fortunately, in 1975, when the new act came in there was only one reason that you could cite for a divorce and that was irreconcilable or irretrievable breakdown marriage, which the only way you could say that that had happened was to say that you'd been separated for 12 months. So it was a fairly simple and straightforward grounds for divorce. There's obviously a lot of uproar at the time because everybody felt that it would be very, very easy to get a divorce. It's certainly not difficult to get a divorce. It's very difficult to dispute a divorce if one party wants to get one it will get through one way or another generally. Annulments are not really a thing that happens, I’ve probably in 30 years, done no annulments. So divorce is the most common way of finalizing the breakdown of the marriage. So when you do your divorce application, you'll be asked about the date of separation and a lot of people contact me and say, where do I register my date of separation? And the answer is nowhere. There is no separation register, there's no document. The way that separation is gauged is when one party says to the other party that they consider that the relationship is over and if the other party dispute that, you can have an argument in the court about it. Sometimes some people do dispute it. One person might say, look, we separated on the 1st of January. The other person might say, well look, we separated on the 10th of May. As long as you file your application on the 11th of May, the following year you've got 12 months of separation, so the actual date itself doesn't really matter. Some people like to backdate their separation so they can get a quick divorce. But that, of course, is illegal because you’re going to swear the document and say that it's true and correct. So separation is gauged on one party telling the other party that they consider that the relationship is over. That’s it, that’s all you have to do. If you file for divorce, but you're still living in the same house, but you've been living separately, you're going to need somebody else to make, to do an affidavit to say that you were actually living separately and that you weren’t living together as a married couple, and they will need to file that affidavit in the court and the court's got to be satisfied that you were living separately and apart.
If you have children under 18, there is a big section in the form that asks about the arrangements for the children.
The reason for this is that there is a section in the act that requires that all parties must satisfy the court that the arrangements for the children are proper. It doesn't have to be a long list of the arrangements for the children. We don't need to know what age and what time they go to bed but we do need to know are they at school? Are they doing okay? Are they in good health? Are they spending time with each parent? Are they being financially supported? So all of that information needs to go into the form, and bearing in mind that a child of the marriage is not just a child of the husband and the wife or the two parties if it’s a same sex marriage, but it is a child of the marriage that has lived with them during the time they have been together. So it could be the child of one party, it could be like a step child and you have to satisfy the court that their arrangements are appropriate as well so don't leave them out when you do your divorce. If you don't agree you should divorce, there's only two reasons you can't agree to it. One is that the marriage hasn't irretrievably broken down so there's a likelihood that you’re going to get back together and the other one is that you haven't been separated for twelve months. So, if you say, well look we're going to get back together, the easy answer to that is the court says to the other party do you want to get back together? And if the other party says, no I don't, the court says, well clearly, you're not going to get back together. If you haven't been separated for twelve months and one of the party’s disputes that, then the court can set it down for a trial and they can basically hear evidence about why it hasn't been twelve months.
And the last one, which is the big one, can I set my wedding date or organise my big divorce party for the day of my divorce? I wouldn't. In my experience, if you are doing your own applications sometimes people make mistakes, sometimes the divorce doesn't go through because they put things in the wrong place and the court might adjourn the matter to get more information. They might dismiss it if it is completely done incorrectly. So, you are not guaranteed that your divorce is going to go through on the date it's listed.
The other thing that you need to take into account is that your divorce isn't final on the day that it goes through. Basically, one month and one day later it is final and the reason for that is that either party can appeal the decision in that 28 days, and so the court waits for the 28 days before they then make the divorce final. So, I would wait until the divorce has been granted before you set your wedding date or otherwise have your big divorce party.
This is a very common question because obviously when people separate, they want to know what happens with all of their assets. So, what is an asset? An asset is what it seems to say, it's something of value. It's property, it's cars, it's furniture, it's superannuation, it's businesses. It's the money that mums hiding in the back shed for you. It's the diamond ring that you're hiding under the pillow. It's all of the things that each of you own or that somebody else is holding on your behalf. And the value of those assets is the date that we're looking at them. So if I'm looking at all your assets today and we're doing a settlement, then we use the values today. If you're going through the family court and it takes you two or three years to get through, which it can do, the values are at the date that you're going to go to trial, which could be further down the track. So the values are as you agree them, so the two of you could say, look, let's just call that car ten thousand dollars, that's just easier. Or if you can't agree them, then then you get a valuer to that value them for you and generally speaking, you both choose one valuer and that valuer does the valuation and that's the value that you use.
Can you hide assets or give them to your mum to keep for you? I think we all know the answer to that. No, you can't. If you hide assets or somebody else is keeping them for you, you need to disclose them. There’s very, very wide powers that the court has to find things. Subpoenas could be issued to trace bank accounts. I can recall getting orders called Anton Piller Orders where you actually go to someone's house with a couple of security guards and go into the house with the order and grab stuff out like computers and cash out of safes and things like that. So, it's really not a good idea at all to hide assets or to try and keep them away.
And if you don't agree on the value of the assets, you either get them valued or the court will make a decision on them. So, in most cases, a value can be agreed, or a valuer can value it. But some assets are very, very complex and they will require maybe some judicial intervention to decide what the value is. It is fairly rare, but it is an opportunity for the court to make a decision if people can't come to their own decision.
So, one of the common things that people do, which is not strictly correct, is that they think that every asset sort of has to be sold and then divided equally. And that looks a little bit like this. You've got a house, car, furniture, wife's super, husband's super and everything split equally. And you can see that basically you end up with half of everything and a total 223,000 dollars.
The asset by asset approach is very rarely done. It's certainly not a situation where you say, well I had the house in the beginning and so therefore she's only put 20 percent into it so I'm going to give her 20 percent of the house. And the car was mine, but we bought it two years ago so I'm going to give her 50 percent of the car. So that's an asset by asset approach and that's not what we generally do. What we generally do is we look at all of the assets and add them up. So, we might end up with, so for instance here, 446,000. And then that 50/50 split might be appropriate. But it doesn't look like this. It doesn't look like you're getting half each.
It looks like something like this. That the house, one person is keeping it, one person is keeping the car, you’re splitting the furniture, you’re keeping your own super but then you can see down the bottom that there's a super split so everyone gets 50/50. So husband gives 20,000 more to the wife and then we've got the husband paying the wife some money, some cash money, because he's keeping the house.
There's two ways to go through a property settlement. There's only two. One is you reach an agreement and you get it done by way of a consent order or financial agreement or you don't reach an agreement and the court makes an order. That's it. There's lots of techniques along the way to get you to an agreement. But at the end of the day, if you don't agree, the only other way of dealing with it, well, there's probably three ways. You do nothing at all, you reach an agreement, or you go through the court.
I have Accumulated Savings Since Separation. Will This be Included in The Property Settlement?
Okay, this is a tricky one because sometimes people are separated for a really long time. You might be separated for five years and then you decide to do a property settlement. What that means is that your assets have substantially changed often from the time of separation and it's quite common that one person will be a saver and the other person will be a spender. And sometimes that's the reason why you split up, because you have very different ways of dealing with money. The bottom line is that all assets go on the table at the time that you're doing the property settlement. Now, it might be that they’re treated in different ways. So, for instance, if it was normally a 50/50 case, if one person had just spent all their money and the other one had saved all their money, then 50/50 might not be appropriate. And you might end up with maybe a 60/40 or something different to that.
But it is a risk, people who wait a long time to do a property settlement. They run that risk that they're going to have assets included that they've accrued after separation. And there's a real feeling of that being unfair because people want to get on with their lives and they don't want things like a lotto win or an inheritance to come into it. And how does the court treat that? Well, the court says that's got to go on the table and again, there could be an adjustment made in terms of percentages for that. But effectively, it's still got to come on the table and all of the assets have to be included in the property settlement, which is problematic.
So it's generally my advice to people to get advice about their property settlement very early. And if they can, to do the property settlement very early before things change substantially. But for some people, it might be great if things change substantially. Values might go up, things might happen. So it's also important to understand the strategy about why you're doing what you're doing and why you're doing it in the timing that you're doing.
Do I Have to be Divorced to Finalise Parenting and/or Property Arrangements?
Another one that we get asked, people will ring me and say, I have to wait 12 months before I can do my property settlement or my parenting? Really, the short answer is no, you don't. You can do parenting the day you separate. You can do property arrangements the day you separate. You can do those straight away. The divorce is completely separate to those things.
The only thing that divorce really has an impact on is that if you do a divorce, you will then need to make sure that you apply for a property settlement within the twelve month period since you've done your divorce. Otherwise, you have to get special leave of the court. So don't get a divorce and then wait for five years to do a property settlement because you're going to have a problem. Get the advice early. Your divorce should really be, hopefully the last thing you do after you’ve sorted out your parenting and your property arrangements.
At What Age Can Children Decide With Whom They Can Live?
So I think why this arose is that when the Family Law Act came in in 1976, there was actually a section in the act that said that if the child is 14 or over, they have to be interviewed as to what their wishes are about where they live. As far as I can tell, that got removed in 1983, but it still seems to linger because people keep saying to me, what age can children decide with whom they live? And a lot of them say to me, my child is 14, don't they get to decide? So that's the history of it. It doesn't exist in that format anymore. What the court says, is that one of the factors that they look at is the wishes of the children. And in practical sense, the older the child, the more weight they'll put on those wishes. But they look at the whole picture. So they say, well how old is the child? Is the child a mature child? Is it an intelligent child? Is the child being influenced? All of those sorts of things. So you might have a nine year old who is incredibly forthright, very clear about their views, very mature and the court puts a lot of weight on those wishes.
And you might have a 14 year old who says, I want to go and live with dad because he lets me play Xbox all night and drink beer. And that's obviously going to have a different weight on it. The child never goes to court. We do not take children into court. They are not allowed to go there as a matter of course in any event. The court needs to hear about the wishes, but they do not want to see the child. The judge doesn't want to meet with the child. It's not the way that we do it in this state and in this country. I knew in New Zealand, the judges, some judges will meet with the children, but we've just never really gone down that road. So the child is interviewed by a single expert witness or a psychologist or a social worker, or they might be interviewed by a lawyer that gets appointed for and in certain cases. And it's not a discussion about who do you love the most and you know, who do you want to live with? It's more about what do you see as being ideal and why do you want that?
And the court needs to have an understanding which is generally put in a report about why the child has the views they have. Now, the very big danger with that is that children often don't really know what they want.
They do, but they don't have the maturity to see all of the surrounding circumstances and they’re very much, particularly teenagers, about what's going to be the best thing for them.
So sometimes children lie about what they want because they think that that's what everyone wants to hear or that that's what will get them what they want or that that's what will make someone happy.
Fortunately, a lot of the people who interview the children know the questions to ask and have an understanding about why the child is the way they are. But sometimes kids say they want one thing and they want to do something else. So, it's a really tricky one. And obviously, as a parent, you know what your child is like. And really, at the end of the day, if you can keep your child out of that system altogether, it's a much better outcome. But we try and run a system where we take into account a whole bunch of things, not just what the child wants, but what everybody's like and what the best interests of the child are.
So that brings me to the end of my frequently asked questions. I've got some questions on the question and answer. So if you have any other questions, please pop them up there and I shall do my best to address them.
Questions From the Audience
What Do I Need to Prepare For my First Meeting With Leach Legal?
There is a blog on our website that sets it out. But effectively, the more you prepare, the less time it takes. So if you're coming in to talk about a property settlement, it's a really good idea to sit down and try and work out what you think the assets are, what you think the liabilities or the debts are. Try and get some up to date super statements and just get as much information as you can and bring it with you. There's a lot of things you'll be asked, you’ll be asked about what were the assets at the date you got together? You'll be asked whether any inheritances or large gifts of money came into the relationship or during the relationship.
So all of that information is really useful for us. And the quicker we get that off you, the quicker we can give you advice. Also, if you’re coming in to discuss parenting matters, you might want to just set down what the current arrangements are and be clear about what they are and have bit of an understanding about what the history of the arrangements were, because those are the questions we'll ask you.
How Long Does The Court Process Take?
Basically, about half the people that we see, that come to us, don't go through the court system. They end up reaching an agreement. They stay out of the court system. The other half will start in the court system and of those people, about one point five percent of them will end up with a judgment from the court. So it's a really small percentage that goes through. But ultimately, if you are one of the one point five percent, you're looking at two, three, sometimes four years. So it's a really, really long process unfortunately. If you get an agreement, it can be really short. It can be done within a matter of months. So that's the ideal arrangement.
Are There Any Scenarios About How People Work Out Their Entitlements to Work Out a Split?
It's a lot of information that we gather to be able to give you that split. It's a really tricky thing. There's no computer program. I can't copy new details and plug out an amount. Unfortunately, it's a discretionary issue. So there's a range of what is likely and you might get one judge who says, they think it's 70/30 and one who says it's 60/40 and one who says it's 50/50. So we work within a range of what is likely and what we do is we try and obviously get you the best outcome within that range. But there's no definitive way of telling you what that should be, because it's based on a whole lot of factors.
How Can You Get a Court Order For a Partner That Won't Sign a Parenting Agreement Without it Costing You an Arm and a Leg?
Probably the best place to start would be maybe to go to a community legal centre and see if you can get some assistance through there, because obviously, the more assistance you can get with it, the easier the process will be for you, certainly to start off with it's always really, really good advice to get your documents done correctly in the start and then the courts very helpful along the way. But the documents are super, super important to get done in the beginning.
Does Your Partner Have The Right to Contact People at Your Work to The Point of Impeding You and Are There Any Repercussions?
No, I suppose is the short answer. How you deal with that, you can, if there is family violence, you can get a family violence restraining order to stop them doing that. You can get an order from the court to prevent them doing that. So you would have to make an application to the court. And the repercussions are if you have a court order and they breach it, then obviously the court can deal with them in that manner. But it's a tricky situation because it doesn't stop it immediately and I understand that's probably a big issue at that time.
How Does Maintenance For a Child With a Disability That's Over 18 Years Work?
You can make an application to the family court for child maintenance for a child that's over 18 years. So it gets taken out of the child support agency and goes back into the family court. And there can be orders made by the court in relation to children over the age of 18. And that's the avenue that most people go down to, to pursue that.
How do You Gain Information or Evidence That You Need if You Feel The Other Parents Not Capable of Looking After The Children But Wants to Increase Access And You Don't Agree?
It's very tricky because you're not in their house, generally. They're not in your house. You’re just relying on what the kids are reporting to you, which is not great because they're suddenly being a policeman. I would really urge you to keep a diary because there will be changes in the children's behaviour if things are not going as well as they should. But it's a tricky, tricky situation. The court looks at good enough parenting. So if the children are not at risk, the fact that they’re not, and I'm not suggesting this is what you are asking about, but if they're not being fed in the manner that you want them to be or they're not putting them to bed at times, those sorts of things the courts unlikely to intervene in.
If You Separated in Australia But Only Start With Property Division in New Zealand Which Court Will Have to Be Involved?
We’re just actually doing one of these, so I don’t have the complete answer to that. I believe there is a trans-Tasman agreement so that we can deal for super for New Zealanders, but we haven’t actually finalised that meeting with that client yet. There is a property division available, there is a way of doing it, not sure exactly what it is, but it’s possible, is my short answer.
Can I Get A Court Order to Stop my ex From Bad Talking me to my Daughter?
Yes, is the short answer. The long answer is you can get all the court orders you like but the court does not enforce its own orders so how are you going to know if that’s happening? You have to ask your daughter, suddenly your daughters being made to be the reporter of what goes on in each house. So it’s a little bit difficult.
Can you Agree to Take The Values at The Date of Separation Instead of The Current Values When Working Out The Separation?
Yes you can, you can agree on whatever you like to a degree. It gets a little bit tricky documenting it, so there might have to be some additional information provided to the court if you’re doing a consent order but certainly if you want to agree a different situation there are methods allowing you do to that, effectively.
What Happens if we Split Our Assets But There Isn’t Enough to Pay Out And There is no House?
You can’t get more than 100%, so if you’re splitting the assets there’s got to be some exchange of money if the assets aren’t evenly split. Whether that’s done by way of a super split or by someone keeping other assets then that has to be moved around to get you to that point otherwise yeah I think you probably need to have a look at what that division is because that seems a little bit tricky.
Is It Likely That Spousal Maintenance Is Given Even If You Earn a Decent Wage?
So spousal maintenance generally doesn’t continue after you do a property maintenance, its usually an interim situation, sometimes final, but it's based on what each of you earn and what each of your expenses. So if you’re both able to support yourself then spousal maintenance is not usual, which is different to child support which is ongoing.
If You Haven’t Reached A Settlement Agreement At The Time Of Separation, How Much Time Do You Have To Claim Relationship Property?
So, if you’re de-facto and you’ve separated you’ve got 2 years to make sure that you apply for a property settlement, otherwise you need to get leave of the court which is not always granted.
How Long Does It Take Before A Spouse Is Able To Claim 50 Percent Of Assets From Divorce If They Have Two Or Three Children?
That’s assuming a husband contributed a house fully paid to the marriage and the spouse contributed nothing. Its not a question of how long it takes, it’s really what your situations were at the time you separated and what the likely range is so it might be that based on that situation if the husband had made all of the financial contributions and they were significant that the husband receives more than 50 percent of the assets but you would have to look at the individual situation because they are all different and there’s lots of different nuances to it that give it a different outcome.
How Are Premarital Assets Treated And Are There Any Time Periods Applicable?
We look at what you had at the beginning of the relationship and that is factored into what the financial division is so its really important that you have evidence about what you owned at the beginning of the relationship because it might be really important in how the assets are eventually divided up.
Can Spousal Maintenance be backdated?
Yes it can, the court can do lots of things, it doesn’t usually get backdated very far because there’s a real lack of fairness around that I suppose, if somebody suddenly gets hit with a huge bill. Often it will be backdated to the date of application if somebody has applied and there’s been a delay in the court but often it's from the date of hearing.
If You Do A Super Split Does It Have To Be Transferred To A Super Fund Or Can It Be Paid Out In Cash?
The answer to that is you can’t get it in cash, it has to be transferred to a super fund, unless you are eligible then you can cash it out as you usually would.
How Are Assets Divided If Both Parties Worked, Husband Made Significantly More But Household Costs Were Paid By Wife And Husband Spent All Pay On Drugs?
There’s a lot in that one. Depends if they had children, so if the contributions while they were together were equal because one party worked, one party looked after the house and looked after the children, it may well be that the contributions are deemed to be equal. Spending the money on drugs, you could argue that they have wasted money but that doesn’t usually get very far. So, the court will take all of that into account and probably look at the fact that the wife’s contributions were more difficult because the husband was taking drugs, but not an easy answer.
So look, that’s all I’ve got time for today, really grateful that you’ve joined me today and we will be doing some more of these, this will be put up on the website for people to view it and if you have any other questions then you can contact the office and we can help you through that. So, thank you everybody, hope we have done some good work today and given you a bit of clearer indication. You all have a great day and thanks very much. We will see you later.