The 5 things you need to know about the law and your divorce
There’s 5 things that you should know right off the bat to help you to cut through the confusion and get on with finding an amicable, positive way forward.
Most people going through separation and divorce are doing it for the first time, so it’s not surprising that you may not know even the most basic facts. However, we’re constantly shocked at the sheer amount of misinformation and confusion that we come across when we talk to people about amicable separation and divorce. Let’s cut through that and get to the 5 most important things that anyone hoping to separate and divorce amicably should know about the family law act.
Need help getting to a financial or parenting agreement with your ex-partner? The adieu process includes the support of an expert mediator and 3 lawyers and is designed for amicable couples. See how the adieu process works.
1. Children have rights, parents have responsibilities
Parents don’t have rights when it comes to children. In the eyes of the law, children have rights and parents have responsibilities. This means that no parent has a right to equal time with a child, regardless of what they may pay in child support. Rather, parents can agree to spend equal time with a child, or a court can order it if they think it is in the best interests of the child and practicable.
Start with what’s best for the children and work backwards from there. Then formalise your arrangements as a parenting plan or parenting orders to make sure you’re both on the same page.
2. Super is included in the shared property pool to be divided (as well as almost everything else)
All assets and liabilities that you have should be included in the shared property pool, regardless of who’s name they may be in or whether you got them before or after the separation. This includes things like superannuation, interests in companies and trusts and even assets and liabilities shared with a third party. This doesn’t mean that everything identified will be divided, but it all contributes to the value of the pool. Things that you owe like credit cards and loans also need to be included to get an overall picture.
You need to agree on a full picture of your property pool before you can decide how to best divide it between you. You can use our free template to help with this: Property Pool Template (Excel) OR Property Pool Template (PDF). Those using the Adieu process use our intelligent property tool to agree on their property pool.
3. Property shouldn’t necessarily be divided 50/50
Many separating couples assume that they should just keep everything already in their name and then split anything jointly owned 50/50. While this may be appropriate in some cases, the family law act lays out very clear principles for how property should be divided, based on contributions and needs.
Current and future needs are a key consideration in working out how you should divide your assets and liabilities. The most common needs looked at by the court are to do with your ages, your health, your ability to earn now and in the future, and your responsibilities for caring for children. Generally, if one of you is worse off than the other when comparing these factors, then an adjustment should be made to the division to help balance this out.
Contributions can be financial, but also include things such as caring for children, being a homemaker or renovating a property. In general, the longer your relationship, the less contributions matter.
Make sure you divide your assets and liabilities in a way that is fair according to the family law act or your ex-partner may be able to revisit this at some point in the future. Getting good legal advice is crucial to this, those using the Adieu process benefit from the advice of 3 lawyers and real-time feedback from our intelligent property tool to come to a mutual agreement that is consistent with the law.
4. Getting divorced and doing a financial settlement are 2 different things
Legally finalising your finances and getting a certificate of divorce are 2 separate processes. To legally finalise your finances, you’ll need consent orders or a binding financial agreement; whereas to formally end the marriage, you need to do an application for divorce. Surprisingly for many people, you’ve only got 12 months after you divorce to do a financial settlement – so you’re better off doing this before you actually apply for divorce.
Sort out your financial settlement as soon as you can. You’ll need to have been separated for at least 12 months in order to apply for divorce, but can do a financial settlement as soon as you’ve separated. You can use the family court DIY kit to help with consent orders. Those using the Adieu process will have their agreement written up by a lawyer and formalised as consent orders with the court.
5. It makes no real difference if you’re de facto or married
All of this applies equally to de facto couples. The law around separation and divorce is pretty much the same when it comes to your children and dividing your assets and liabilities. Although there may be some small differences in the details of how you formalise things, de facto couples need to go through the same basic process, with the same outcomes as those who are married.
Talk to your ex-partner about how you’re going to move forward amicably and positively as soon as you can, regardless of whether you’re married or de facto. You can use the Adieu process or see your other options here.