Family Law - Owen Hodge Lawyers

FAMILY LAW

Owen Hodge Lawyers

SEPARATION

Things to Consider at Separation

• Who will pay outstanding bills or debts

• Who will stay in the house

• How will the rent or mortgage be paid

• What will happen to any joint bank, building society or credit union accounts

• What will happen to the house, car, furniture and other property

Have I Separated?

• Intention

• Communication

• Action (NB- under “same roof”)

DIVORCE

No Fault Divorces in Australia

APPLICATION FOR DIVORCEMust be separated for no less than 12 months.

HEARINGIf the divorce is not contested and any children are

being properly supported and spending appropriate time with each parent a Registrar will make the Divorce

Order.

DIVORCE ORDERMarriage is dissolved. This will take effect one

month and one day after the Divorce Order is made.

Two Main Areas of Family Law When Couples Separate

• Property

• Children

PROPERTY

De facto vs. Marriage

The main distinguishing factor between de facto relationships and marriage is the issue of jurisdiction

De facto vs Marriage

No strict jurisdictional issues for married couples

De facto vs. MarriageFor De-facto, Court must be satisfied:

1) Genuine de-facto relationship

2) Geographical connection

3) The relationship broke down after 1 March 2009

4) One of the following conditions are met:

The period of the de-facto relationship was at least 2 years

There is a child of the relationship One of the parties made contributions The de-facto relationship has been registered

What is a Genuine De facto Relationship?De-facto Relationships:

Two adult persons

Not married

Not related by family

NB: includes both same and opposite-sex couples

Genuine De facto Relationship•The duration of their relationship

•The nature and extent of their common residence

•Whether a sexual relationship exists

•The degree of financial dependence or interdependence

Genuine De facto Relationship•The ownership, use and acquisition of their property

•Their degree of mutual commitment to a shared life

•Whether the relationship has been registered in a State or Territory with the laws for the registration of relationships

•The care and support of children

•The reputation and public aspects for their relationship

When Parties Agree1) Consent Orders

2) Binding Financial Agreement

Property division by way of consent orders

• A consent order is a binding written agreement that is approved by a court

• You have to reach an agreement with your spouse prior to applying for a consent order

• When the consent order is made, it has the same effect as a court order made by a judicial officer after a court hearing

Property division by way of Binding Financial Agreement

• Agreement made before marriage/de facto relationship

• Agreement made during marriage/de facto relationship

• Agreement made after divorce order is made/after breakdown of de facto relationship

When parties do not agree

Application is made to the Court is a four step process

How the Court approaches property settlements

ONE: Identify and value the property and financial resources

Current assets and liabilities

• Full and frank financial disclosure

• All combined assets and liabilities, regardless of whose name the assets and/or liabilities are in


TWO: Identify and assess the contributions made by each party

Contributions

• Financial

• Non-financial

• Domestic

Financial

• Direct or indirect contributions? i.e. Did you pay for things, or a member of your family, such as your father or uncle assist your relationship financially?

• Who paid the mortgage?

• Who paid the bills?

• Who paid for the groceries?

• Inheritances?

• When was the contribution made?

Question of “when”

Pre-marital assets and the erosion principle:

The longer the duration of the marriage, depending on the quality and extent of the contribution, the more the proportionality of the original contribution will have eroded. This occurred, not by the passage of time, but by the offsetting contributions of the other spouse

Non-financial

• Did any party perform renovation work on the home?

• Was one party the ‘money manager’ of the relationship?

A wife’s ability as a money manager and her entrepreneurial expertise as an investor were held by the Full Court to be clearly significant contributions which the wife made to the marriage (Brazel and Brazel (1984) FLC 91-568)

Domestic contributions

Who cleaned the home? Who mowed the lawn? Who did the washing for the parties? Who cooked? Who cared for the children?


THREE: Identify and assess the future needs of the parties

Future need factors

• Age and health

• The income, property and financial resources of each of the parties

• Care or control of a child of the marriage

• Commitments of each of the parties

Future need factors

• The eligibility of either party for a pension, allowance or benefit

• Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable

• If either party is cohabitating with another person, the financial circumstances relating to the cohabitation

Future needs

• Whether any child support is being paid

• Any other fact or circumstance which the Court thinks relevant


FOUR: Just and equitable

Case study I

• The couple have been married for 20 years

• The husband inherited $100,000 in the first year of marriage

• The husband earns $40,000 more per year than the wife

• The wife has the primary care of a child of the marriage, under 18 years of age

Case study II

• The parties have been married for 2 years

• Each party came into the marriage with $50,000 each

• There are no children

• The wife earns more than the husband

• The husband is terminally ill

Need Family Law Advice?

Contact the experts…

Owen Hodge Lawyers

Ph: 1800 770 780

Email: [email protected]

Sydney Office

3/171 Clarence St

Sydney NSW 2000

Hurstville Office

2/12-14 Ormonde Pde

Hurstville NSW 2220

mailto:[email protected]