Applications for divorce can be made either by one party to a marriage or both parties jointly.
For the divorce to be granted the Court must be satisfied that the parties have been separated for a period of at least 12 months immediately preceding the application and that appropriate arrangements have been made for the care of the parties’ children.
In certain circumstances a divorce can be granted where the parties are separated although living under the same roof.
The Family Law Act provides that each party is entitled to seek ongoing financial support from the other. This is referred to as spousal maintenance. It is a payment (or other benefit) received by a party who is unable to support themselves adequately by reason of:
- having the care and control of a child under the age of 18
- age or physical or mental incapacity for appropriate gainful employment or
- for any other adequate reason.
The other party must have the financial capacity to provide support.
Hilton King Lawyers can advise on your ability to claim spousal maintenance or whether the Court would make orders compelling you to pay spousal maintenance for your spouse.
The Family Law Act grants the Court power to make orders restraining parties from disposing of or in any way dealing with their assets after separation. The Court is also able to set aside transactions entered into by a party to the marriage designed to remove assets from the asset pool available for division between the parties. The Court is able to preserve the asset pool pending a final hearing as to an appropriate division of assets.
In some circumstances urgent applications can be made to the Court seeking orders restraining the other party from disposing of assets.
In some circumstances people seeking to resolve the issues which arise from the breakdown of a relationship prefer to utilise alternatives to the more “traditional” methods of dispute resolution.
Mediation is a process in which a third party (“the mediator”) helps the parties to a dispute come to an agreement. A mediator does this by facilitating communication, assisting the parties to identify their needs and interests, and using creative problem solving techniques to enable the parties to reach their own agreement.
In other circumstances parties to a dispute agree to jointly appoint a person (“the Arbitrator”) to consider each parties’ arguments and make a decision. The parties agree in advance to be bound by the arbitrator’s decision.
We are also able to assist in a collaborative approach to resolving the issues that arise on the breakdown of relationships. Under this approach the parties’ Lawyers and the parties enter into a written agreement to negotiate the issues in dispute. The Lawyers advising each party agree that they will not continue to act for the parties should the negotiations prove unsuccessful and the matter proceed to Court.
In 2008 Greg Woods completed a Course through the University of Technology in Collaborative Law. He is a member of Collaborative Family Lawyers Illawarra Shoalhaven.
Hilton King Lawyers has experience in all forms of dispute resolution and can advise as to the most appropriate approach in individual cases.
Issues relating to child support can cause difficulties for many people on the breakdown of their relationship.
In the majority of cases parties make an application for assessment directly to the Child Support Agency. The Child Support Agency will assess through an administrative formula the obligation of each party to contribute towards the support of the children. Amendments to the Child Support Act (introduced on 1 July 2008) have altered the child support formula to take into consideration both party’s income and the time each party spends with the children.
If you are dissatisfied with an assessment of the Child Support Agency you are able to make application to review the Agency’s assessment.
Many people choose to reach agreement on the issue of child support. Agreements can be registered with the Child Support Agency. In most cases where an agreement is made with respect to child support it can only be varied by reaching a new agreement or by application to Court for a variation of the terms of the Agreement.
In some circumstances it is appropriate for the child support to be paid by way of a lump sum. Lump sum child support orders can either be made by agreement or following application to a Court exercising jurisdiction under the Child Support Assessment Act.
Hilton King Lawyers is able to assist with every aspect of this process. In particular we will ensure that our clients are fully aware of the issues which may flow from their child support arrangements and that taxation and other issues are fully considered.
After the breakdown of a marriage or de facto relationship the division of property is critically important to the financial future of both parties. Whilst some property settlements can be reasonably straight forward others can be extremely complex. In either case accurate and prompt legal advice is essential.
Hilton King Lawyers can advise on your likely entitlements with a view to achieving an appropriate settlement as quickly and efficiently as possible. We offer a range of options to achieve this division including negotiated settlements, mediation, arbitration, a collaborative approach and, if no agreement is able to be reached Court proceedings.
Where the parties are able to reach an agreement we can advise on the most appropriate and cost efficient means of formalising matters to ensure security for the future. In some cases this will involve obtaining Consent Orders under the Family Law Act. In other cases it may be more appropriate to enter into a Binding Financial Agreement so as to exclude the jurisdiction of the Court in the future.
We are experienced in ensuring that all relevant matters are considered in determining an appropriate settlement including Capital Gains Tax consequences and Stamp Duty implications.
After the breakdown of the relationship between parents it is necessary for arrangements to be made for the ongoing parenting of children. Often with the assistance of appropriate advice parents are able to reach agreement in relation to these issues usually involving the children living with one parent and spending time with the other parent.
The Family Law Act presumes that the parents have equal shared parental responsibility (previously referred to as joint guardianship) for any children of the relationship and requires a Court to consider if it is appropriate to make orders for the children to spend equal time with each of their parents.
In circumstances where it is not appropriate for the children to spend equal time with both parents the Court would usually make orders providing for the “non residence” parent to have significant and substantial time with the children.
Agreement can also be sought regarding specific issues such as the education of the children and/or medical matters.
Where parents are able to agree they can either enter into a parenting plan or consent orders under the Family Law Act. We are able to assist with the preparation of these documents and in obtaining Court approval of any agreement reached between the parties.
Where parents are unable to agree on the arrangements for their children proceedings in the Family Court can become necessary. Hilton King Lawyers is able to advise in relation to all matters relating to this most difficult and complex litigation.
Wherever possible it is preferable to give advance consideration to matters which may arise in the future. With a little planning, lengthy and expensive Court proceedings can be avoided.
This can take a number of forms.
Recent legislative changes allow Australians to reach agreement before, during or after their marriage or de facto relationship as to their financial circumstances if they separate. Specifically married and de facto couples are able to enter into Binding Financial Agreements which will determine how their assets are to be divided upon separation.
There are many situations where such agreements under the Family Law Act may be appropriate such as:-
- Subsequent marriages or relationships
- Prior accumulation of assets
- Preservation of family business
- Protection of inherited assets
- Avoidance of Court imposed decisions
As international and interstate relationships become more common issues surrounding the relocation of parents and children after the breakdown of a relationship come to the fore.
Hilton King Lawyers is able to assist its clients in dealing with these issues including negotiations and/or litigation regarding relocation and associated issues of where the children will live and the time each parent will spend with the child.
Where appropriate our services include:-
- taking urgent instructions to prevent the removal of a child from New South Wales or Australia
- preventing the issue of a Passport for a child where there is a risk of abduction
- liaising with the Federal Police to prevent international abduction