Frequently Asked Questions
Whether you have questions about a Family Law issue (children and parenting arrangements, dividing assets after you have separated or helping out with your Divorce), preparing your Estate Planning Documents (i.e. Wills and Powers of Attorneys) or about administering an Estate and obtaining Probate after a loved one has passed - hopefully we have answered it here.
If you have a question that we have not answered here, or if you are wanting more information about a particular situation you are facing, please book an appointment below and let’s have a chat!
Either click on a topic below, or simply scroll through all of the FAQ’s that we currently have.
Children & Parenting
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There is no rule book which sets out whether living with mum, dad or grandparents would be best.
As your circumstances are always unique to you, try and talk to your former spouse to try and come to an agreement regarding where your children should live.
If you need someone independent to bridge the gap in the between you and your former spouse when you are trying to come to an agreement, then there are community based services such as Family Relationships Centre and Relationships Australia or even private mediators you could use.
However, there are occasions when you and your spouse will not be able to come to an agreement and it may be necessary for you each to seek legal advice as to your parental rights when it comes to where the children are to live, who the children are to live with and the time that you are able to spend with the children.
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Regardless of whether you have Court Orders or not, the process is the same.
Initially, the police may not assist – not because they don’t want to – but because they need a specific Order directing them to search, locate and take the child. The police can do a welfare check if you believe you know where the child is, however that is the limitation of the police power until they have a specific Court Order.
If phone calls are not successful in getting the parent to do the right thing, then you might need to apply for what is called a Recovery Order. A Recovery Order is an Order that is directed to the Australian Federal Police (AFP) to search, locate and bring the child back to you. You might need to at the same time get the child’s name onto the Family Law Watch List (formally known as the Airport Watch List).
The AFP have an information pack which you can download here.
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There is no specific age because there can be a very immature 14 year old or there could be a 17 year old* that is heavily influenced by one parent. So there is no specific age set in any legislation or case.
* There is a case where a 17 year old was ordered back to Australia to live despite stating that his wish was to remain living in the US with his father. That was because the Court believed that the Father was heavily influencing the 17 year old and his wishes were not his true wishes.
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You cannot do this without the consent and agreement of the other parent.
If the other parent will not consent or agree then you might need to make an application to the Court seeking to change your client’s name.
The leading cases for children’s name changes set out the following things to consider:
1. the best interests of the child, which is of paramount importance
2. the short and long-term effects of any change to the child’s surname
3. any embarrassment likely to be experienced by the child if their name is different from that of the parent with whom the child resides
4. any confusion of identity that may arise for the child if their name is changed or is not changed
5. the effect that any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage
6. the effect of frequent or random changes of name.
7. the contact that the father has had and is likely to have in the future with the child
8. the degree of identification that the child has now with the father
9. the degree of identification that the child has now with the mother and stepfather
10. the degree of identification that the child will have with a child that is about to be born to their mother and any likely confusion in the future if their father’s surname is restored
11. the desire of the father that the original name be restored.
Divorce
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Firstly - there are no formal requirements that you need to satisfy in order to separate. Essentially separation will occur when you or your spouse intends to end the relationship, that party has communicated their intention to the other party and one of the parties act on that intention i.e. living separate lives under the same roof or moving out of the house.
You can live under the same roof and still get a Divorce. There are however you will need to supply extra information to the Court.
To find out more about divorce and what constitutes separation under one roof and what further information you are required to file, click here for the Court brochure or why not book in and have a chat with us to discuss your particular circumstances.You can live under the same roof and still get a Divorce. There are however you will need to supply extra information to the Court.
To find out more about divorce and what constitutes separation under one roof and what further information you are required to file, click here for the Court brochure or why not book in and have a chat with us to discuss your particular circumstances.t goes here
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There are no formal requirements that you need to satisfy in order to separate/end a relationship.
Essentially, separation will occur when you or your spouse intends to end the relationship, they communicate their intention to the other party and one of the parties act on that intention. For example, you go on living separate lives under the same roof or moving out of the house just to name of few things that can show separation/ending the relationship. -
No, it’s not.
A Divorce is a legal severance of the relationship, allowing you to remarry as well as invalidating certain documents (i.e. your Will) as well as starting a time limitation for you to do a property settlement within.
A property settlement is a division of your assets and severs the financial ties between you both.
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Yes, you can. You can do a property settlement at any time, regardless of whether you are Divorced or not.
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You obviously also need to be married first! If you were married, and have been separated for 12 months and 1 day - you can get a Divorce - which is a legal severance of your marriage. Getting a Divorce will impact on a few things - let us help guide you through.
Remember: A divorce is separate from a property settlement.
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Firstly - there are no formal requirements that you need to satisfy in order to separate. Essentially separation will occur when you or your spouse intends to end the relationship, that party has communicated their intention to the other party and one of the parties act on that intention i.e. living separate lives under the same roof or moving out of the house.
You can live under the same roof and still get a Divorce. There are however you will need to supply extra information to the Court.
To find out more about divorce and what constitutes separation under one roof and what further information you are required to file, click here for the Court brochure or why not book in and have a chat with us to discuss your particular circumstances.
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Once you are Divorced - it will mean that there is a time limitation that begins to run for you to undertake and complete a formal property settlement (12 months after the date the Divorce Order becomes effective) and it can void any previous Will you have made.
That is why it is important for you to revisit and change your Estate Planning Documents - such as preparing a new Will, changing any Binding Death nominations for your superannuation funds, changing the beneficiary of your insurance policies and revoking any Enduring Power of Attorney’s that appoint your former spouse!
There are other things that you should consider doing as well - we can help guide you through what they are.
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Prepare the Divorce Application online - the Federal Circuit and Family Court of Australia is the Court to file the Application in and this can all be done online! You will need a copy of your Marriage Certificate, and if someone was born overseas, a copy of their citizenship certificate. These do not need to be original or certified - however they do need to be in English.
File & Serve - if you are doing the Divorce jointly (i.e. your spouse is going to sign the Application) then you will need them to sign the Application before it is filed online. If you are doing a sole Divorce (i.e. without your spouse signing) then you can file it online and then you will need to personally serve your spouse with the filed Application, as well as a copy of the Court brochure Marriage, Families and Separation.
Divorce Hearing - If it is a joint divorce, or a sole application without children under 18, then no one needs to attend the Divorce Hearing. However if it is a sole application and there are children under 18 then someone will need to attend the Divorce Hearing.
Obtain Order - the Divorce Order will not be issued at the Divorce Hearing. It will take 1 month and 1 day for the Divorce Order to issue and become effective.
Want to get your Divorce finalised now? Book in for your Initial Consultation.
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No, you don't. You can choose to stay married - however be aware of the potential consequences of this.
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Any gift in your will left to a spouse will become invalid upon your divorce. If your Will has not been updated since separation you, then you should look at doing that as soon as possible - also look to review any death nominations for your superannuation and life insurance policies.
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Yes you can - in fact you can retain or use your maiden name even whilst married. There is no formal process start to use your maiden name – a simple letter of notification will usually be enough - some institutions/agencies may have their own forms for you to complete so check with them directly.
Dividing assets
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There is no automatic right that your superannuation (or your former spouses' for that matter) be divided equally - this is dependent on the facts of your case. Your superannuation is considered an asset (or a 'different species of asset' as the case law has referred to it) and it will be taken into account in any property settlement.
All superannuation benefits are considered in a property settlement — not just superannuation that accumulated during a marriage – superannuation accumulated before and after the relationship will be taken into account.
There are different ways a Court will deal with superannuation and this is a complex area of law. It is recommended that you seek legal advice and obtain appropriate valuations of the superannuation interests, particularly if the superannuation relates to a defined benefit fund such as a Commonwealth or State Public Service superannuation fund.
If your former spouse is the nominated beneficiary of your superannuation entitlements we strongly urge you to obtain financial advice as it may be recommended that be changed. -
No, it does not. You do not forfeit any rights to a property settlement or to your children. However, if you are safe it is suggested that you remain in the same house as long as possible until a property settlement is finalised.
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Nope! The values are taken as at the date you do the deal.
The values as at separation can become relevant, particularly with superannuation, However the current value will be used in the first step (the assets, liabilities and superannuation that you both have as at today) and will be a consideration on the second step (post separation contributions).
Wills & Estate Planning
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Yes! You do. Everyone should have a Will and all the other documents that make up Estate Planning. And if you have a blended family or former spouses, you will want to make sure certain people are properly provided for or those that you don't want provided for aren't.
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Somewhere safe. We offer a free safe custody storage service for all of our clients. That way you and your executor/attorney's have peace of mind knowing exactly where to look when any of the documents are needed. In fact, you also get a plastic card to keep in your wallet to notify your next of kin where your documents are held!
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With Estate Planning it is not just about a Will that you may need - there are other documents to think about like an Enduring Power of Attorney or an Advance Health Directive, and you will also need to ensure that you deal with your Superannuation and Insurance policies as they do not automatically fall into your Estate when you pass.
Estate Administration (Probate)
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Technically - no. You can administer an Estate yourself. However if you are unsure as to what you need o do, we can help you understand your role and legal obligations. We can either do everything that is needed to be done, or just help you along the way with you to do most things yourself. Our involvement is up to you and what you need to make sure this process is as easy as it can be for you and your family.
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The following people are entitled to a copy of the Will:
Spouse, parent or child of the deceased.
A parent or guardian of a child of the deceased.
A creditor of the deceased.
A person named as a beneficiary in the current (or even a previous) Will of the deceased
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An Executor is the person who manages and distributes an Estate and does such things as find and notify the beneficiaries (people who will benefit from the Estate i.e. receive something), obtaining Probate if needed, check and protect the assets as well as determine and pay the debts, prepares the tax returns, collect any insurance payments, talk to superannuation funds, sell or transfer assets and then distributes the Estate.
It all begins with a chat. Maybe you have separated. Maybe you need help with parenting arrangements. Or maybe you have lost a loved one. Whatever it is, let’s have a chat.
Our initial consultations have no timer - we'll talk as long as needed to listen and to provide you with all of your options. Initial Consultations are a fixed fee of $440, which is payable on the day.