20 Common Family Law Questions Answered by Our Lawyers

Posted on July 28, 2023 by Donna Nguyen - Family Lawyer

Team member Donna Nguyen.

Donna Nguyen - Family Lawyer

Author
Donna is a family law solicitor admitted in the Supreme Court of New South Wales with a double degree in Business and Law. Donna is drawn to family law as she is interested in helping clients during a difficult and transitional period following separation. She strives to achieve the best outcome for her clients and has their best interest at the forefront of her advice.

Key Takeaways:

    • Family law in Australia covers legal issues arising from family relationships, including parenting and property matters after a relationship breakdown.

    • While many family disputes can be resolved without a lawyer, having a family lawyer can provide guidance, representation, and ensure lawful decisions are made.

    • The time to resolve a family law matter varies depending on the complexity of the issues involved and the unique circumstances of the case.

    • The family law system encourages alternatives to court, such as mediation and negotiations, before resorting to court proceedings.

    • Having questions about your family law matter is normal as it can be complex and overwhelming to understand.

We’re family lawyers who help countless people around Australia successfully resolve family law disputes and we do this by offering advice, negotiation services, guidance, representation, and by answering your questions.

To help you feel more at ease with your family law matter, we’ve put together some information about the most common family law questions we’re asked. We cover a wide range of matters and issues in this article, however, if you can’t find the answer you’re looking for, you can always get in touch with us calling us on 1300 667 461 or using the button below.

The most common family law questions we get asked

1.      What is family law and what matters does it cover in Australia?

Family law in Australia is an area of law that deals with various legal issues and aspects that can arise for families. Many of the legal matters that arise in family law are due to the breakdown of the family relationship, where people in a relationship separate or decide to divorce.

Family law matters that can arise due to the breakdown of the family relationship usually fall into one of two major categories – parenting matters and property matters. For example, child custody and parenting arrangements fall under parenting matters, while how you will divide your assets when the relationship ends falls under property matters.

This is a simplistic overview, however, family law does cover other things like domestic and family violence and the issuance of protection orders too.

The key legislation of the family law system in Australia is the Family Law Act 1975, and this is used alongside various other pieces of state and territory legislation to determine how decisions should be made. The legislation provides guidance in terms of the factors that should be taken into consideration when resolving disputes and determining outcomes of family law matters. For example, for matters that involve children, decisions should be made with the best interests of the children as the key consideration. The best interests of the children are based on a number of factors. You can learn more about the best interests of the children here.

2.      When do I need a family lawyer?

Technically, many of the issues that are family law matters do not require the help of a lawyer to resolve them.

The family law system in Australia has been developed in such a way that allows many of the disputes that may arise to be able to be resolved without necessarily needing a family lawyer. The aim is to help people resolve disputes between themselves as amicably as possible.

However, this isn’t always possible to do, and while you can resolve a dispute or family law matter yourself, it doesn’t mean that you can’t benefit from the help of a family lawyer.

The role of a family lawyer is to provide advice, guidance, representation and ensure that you’re aware of all of your options and making lawful decisions.

When you’re involved in a family law matter, chances are that you’re going through a difficult time in your life, and you’re faced with making a lot of decisions. We can help you to understand your options and know where you stand.

Even if you’re able to come to an agreement with your ex-partner about your matter, it’s still a good idea to work with a family lawyer to sense check the agreement and ensure you’ve considered everything.

If you want to learn more about what a family lawyer does and how they can help you, read this article.

3.      Do I have to go to Court to sort out my family law matter?

We touched on this above, but the family law system has been developed in a way to provide people with information and processes that can help them to avoid having to go to Court to resolve their matters.

Court is often seen as a last resort option, even if you and the person you’re in dispute with cannot come to an agreement yourselves, there are other options, such as negotiations and communications with a family lawyer’s support, as well as mediation and family dispute resolution services.

Sometimes it’s just not possible to resolve the disputes, even through mediation, and making an application for Court orders is the best way to resolve your matter.

There are some legal processes that mean you may have to appear in court, for example, if you’re getting divorced and you’ve filed a sole application for divorce and there are children under the age of 18 years.

cartoon image of courtroom scene.

4.      How long does it take to resolve a family law matter?

Unfortunately, as much as we would love to give you an answer to this question, it depends on the type of family law matter and the unique circumstances of your situation.

For example, if you’re divorcing your spouse, you will need to wait 12 months from the date of separation before you can apply for a divorce. Getting an actual divorce order may then only take a couple of months. However, a divorce usually involves working out how you will divide your assets (a property settlement) and if you have children, working out living arrangements and custody information too. Depending on the different factors of your situation, working out each of these things could take a long time.

Often the things you need to work out because you’re getting divorced take longer to resolve than the actual divorce itself.

One of the benefits of working with a family lawyer is that they can provide you with information about the various matters that need to be resolved, your options for resolving them, and they can review the factors of your case and give you a time estimate for sorting out these matters.

5.      When can you get divorced in Australia and how do you get divorced?

In Australia, a married person is able to apply for a divorce if they are legally married and there is no chance of reconciliation of the marriage.

Before applying for divorce, the married couple must have been separated for at least 12 months. While it’s common for people to live apart during the separation period, it’s also possible for the former couple to remain living under the same roof.

The divorce system in Australia is a “no fault” divorce system, which means that neither party needs to prove that the other was at fault for the relationship breakdown, they just need to demonstrate that there is no chance of reconciliation.

Applying for a divorce is relatively straightforward and can be done online through the website of the Federal Circuit and Family Court of Australia. You will need to pay a lodgement fee and submit relevant documents, such as your marriage certificate.

You can apply for a divorce through a sole application or a joint application. A sole application will require you to serve divorce papers to your ex-spouse, while a joint application is one that you do together.

As we mentioned earlier, when you get divorced, you may also need to work your way through other family law matters that arise from divorce, like child custody arrangements and property settlements.

6.      How is property divided in a divorce or separation?

When assets are divided between spouses or partners, this is known as a property settlement and is how the financial relationship between the parties is able to be ended.

Prior to entering a marriage or relationship or even during it, the spouses may have created a prenuptial agreement that outlines these details, however, it’s very common for a property settlement to be needed after the end of relationship.

A property settlement involves not only property like houses, real estate, investments, jewellery, inheritances, superannuation and money, but it also includes debts and liabilities.

When it comes to dividing assets and liabilities, this can be done in various ways. The spouses can come to an agreement between them, they may go through negotiations and mediation and sometimes with legal support, or the court can make orders.

The property division process usually involves 4 steps which are:

  1. Identification of assets and liabilities;
  2. Identify the contributions of each party;
  3. Work out the future needs of each party;
  4. Assess if the agreement is fair.

Some factors that could influence the outcome of a property settlement include the age and health of each party, as well as their ability to earn an income in the future.

If you would like more information on dividing assets and property settlements, read our guide here.

7.      What if my ex-partner and I can reach an agreement, do we need a lawyer?

Depending on the matter you’re resolving, if you and your ex-partner can come to an agreement, you don’t necessarily need a lawyer.

Agreements made between people in family law matters, such as parenting arrangements and property settlements can be informal agreements and left as that. However, if you want to be protected, you can apply to the Court for consent orders or create a binding financial agreement.

cartoon image of two people making an agreement.

You can apply for a consent order without a lawyer but it is highly recommended that you have your agreement reviewed before applying to formalise it legally. That ensures that the agreement is fair and likely to be approved by the court.

If you’re planning on creating a binding financial agreement, for it to be valid, each party needs independent financial advice to ensure they understand the terms of the agreement and their obligations before the agreement can become legal.

Even if you can come to an agreement about your family law matter, regardless of what it is about, seeking legal advice means that you know where you stand and you have all of your options, and most importantly, that your agreement is fair to all people involved.

If you would like to learn more about consent orders, read this article. And if you would like to learn more about binding financial agreements, read this article.

8.  When are you eligible for spousal maintenance?

To be eligible for spousal maintenance, it needs to be established that one spouse is unable to adequately support themselves and that the other party is reasonably able to do so.

Spousal maintenance, a type of financial support available to formerly married couples as well as de facto couples who have separated, is not an automatically guaranteed payment, rather it needs to be applied for.

Some factors that could impact the eligibility for spousal maintenance include:

  • They have to care for a child (usually of the relationship) that is under 18 years of age, and this impacts their earning capacity;
  • They are too old or have a physical or mental incapacity that prevents them from being able to support themselves.

The amount of spousal maintenance that you may be entitled to or that you may be required to pay is dependent on the unique factors of your situation.

9.      How does the family law system provide protection when domestic and family violence is present?

The family law system in Australia recognises how serious and harmful domestic and family violence can be for children and adults that are affected by it. The system provides measures and options to ensure that protection is available to people and the system is constantly evolving to provide protection. An example of this evolution is the change to coercive control laws in New South Wales.

The family law system provides protection in various ways, including with family violence orders, domestic violence orders, and other protection orders being available which help to restrict certain behaviours of the abuser. These protection orders usually have serious legal consequences that the abuser will face if they breach the protection order.

In addition to protection orders, there are various roles in the family law system designed to enable to communication and protection for victims of violence, such as Independent Children’s Lawyers who can represent the best interests of the child.

The court system also allows for urgent applications for serious matters, such as violence to be lodged and reviewed to enhance protection of victims.

A family lawyer can be very supportive when family violence is involved, ensuring that you understand all of the options available to you to be protected, helping to ensure applications are made urgently and they can facilitate communication between parties too.

10.  Are de facto relationships treated differently to marriages in Australia?

In many ways, de facto couples enjoy the same sort of legal protections as married couples under the Australian family law system, however, there are some differences between the two.

For example, a marriage is a legally recognised union between two people and while a de facto relationship is legally recognised under the Family Law Act 1975, certain criteria must be met. For a de facto relationship to be legally recognised, one of the following must apply:

  • The relationship needs to have lasted for at least two years; or
  • There must be a child of the relationship; or
  • The relationship must be registered in the state or territory the couple reside in.

Another difference is that when a marriage ends, if the couple wishes to divorce, they need to apply for a divorce order, whereas there is no legal process to end a de facto relationship.

While there is no legal process to end a de facto relationship, the members of the de facto relationship do have the right to apply for property settlement, like married couples. There are differences in the time limits that married people have vs de facto couples have when it comes to applying for a property settlement. If you were legally married you have up until 12 months after the divorce has been granted to apply, while if you were in a de facto relationship, you have 2 years from the date of separation to apply.

There are some other differences but many similarities, so if you’re concerned about your rights and obligations when your de facto relationship ends, we recommend seeking legal advice.

We also have put together a 2 part guide to de facto relationships that is available to read here and here.

11.  Do same-sex married couples have the same rights as heterosexual married couples?

Yes. Same sex marriage was legalised in Australia in 2017 and same sex couples now have the same legal protections as other married couples.

The process of getting married is the same for all couples in Australia and if a same-sex couple wishes to divorce they can also do so with the process being the same for same sex couples as it is for everyone else.

If you wish to learn more about the road to same sex marriage legalisation in Australia, you can read this article and for more information on how divorce works for same sex couples, read this article.

cartoon image of same sex couple.

12.  Can I relocate my child after a separation or divorce?

Child relocation is an exceptionally complex area of family law, and it is highly recommended you obtain legal advice before making any decisions.

In some cases, the other parent may be ok with this relocation and with their consent you can relocate relatively easily, however, this is entirely dependent on the unique circumstances of your situation and your relationship with the other parent.

If the other parent objects to the relocation, you may need to apply for court orders for permission to do so, and factors such as the reason for the relocation, the child’s safety and their relationship with the other parent can be highly influential in decisions about child relocation. Essentially the court will review as to whether the relocation is in the child’s best interests or not.

Different rules and obstacles may apply depending on the distance that you’re moving, if you’re staying in Australia or if you’re planning to move overseas.

This is one key area where we cannot stress enough how important it is to seek legal advice if you or your child’s other parent wishes to relocate the child.

13.      What factors does the Federal Circuit and Family Court of Australia consider when determining child custody arrangements?

Earlier we mentioned the best interests of the child and in the Australian family law system, when decisions are made that impact a child, the best interests of the child must be the Court’s paramount consideration, especially for matters relating to living, care and custody.

The best interests of the child are determined by a number of considerations, including the two primary ones, which are the benefit of the child of having a meaningful relationship with both parents and that the child is protected from harm of any kind.

Some other factors that could influence decisions about child custody and parenting arrangements include the child’s wishes (depending on their age and maturity), the parent’s capacity to care for their children, the parent’s willingness to facilitate a relationship with the other parent and the history of family violence.

As each situation is unique, there are other potential factors that could impact custody arrangements and we recommend talking to a family lawyer to understand your options. Parenting matters can be confusing, and there are numerous options. You can learn more about parenting arrangements here and if you would like to know more about different types of child custody arrangements, you can read about them here.

14.  What is parental responsibility?

Parental responsibility refers to the authority, responsibility, duty and powers of a parent to make major decisions that impact a child’s future. Decisions that are considered major include those about education, healthcare, names, and religious and cultural upbringings – essentially anything that may have a long-term impact on a child.

Parents automatically have this responsibility, and it is shared between the parents unless there is a court order stating otherwise. When parents have separated, they still retain equal shared parental responsibility and must consult with each other to make these major decisions together, however, it is possible to apply for sole parental responsibility in situations where it is not appropriate for the other parent to have any control over these decisions.

Parental responsibility does not refer to the time spent with a child and just because parents share equal responsibility it does not mean that each parent has equal time with a child.

To learn more about parental responsibility, read our guide to who can have parental responsibility here and more about sole parental responsibility here.

cartoon image of a child in front of parents.

15.  Can I get divorced in Australia if I was married in another country?

It is possible to get a divorce in Australia if you were married overseas, but there are some requirements that must be met.

Your marriage must be legally valid and in Australia for a marriage to be considered valid, it must be valid under the law of the place where the marriage took place.

In addition to the marriage being valid, you or your spouse must meet one of the below requirements:

  • Consider Australia as your home and want to remain here for the indefinite future;
  • Must be an Australian citizen either by birth or have been granted Australian citizenship; or
  • Must be an Australian resident; or
  • Have lived in Australia for at least 12 months immediately before applying for a divorce.

You can then apply for a divorce and submit a copy of your marriage certificate as part of the application. If your marriage certificate is not in English, then it will need to be translated by someone who is qualified to do so and they will need to include an affidavit for the translation of the marriage certificate which includes their qualifications to make the translation.

If you have questions on this process, you can get in touch with our family lawyers here.

16.  What is mediation and when is it an appropriate option?

Meditation is a type of dispute resolution where the disputing parties can work with a mediator who facilitates discussions and negotiations with the aim of coming to an agreement that resolves their dispute.

Mediation can be used to resolve all kinds of disputes, including parenting disputes, property division and much more, and it is an encouraged option as it allows the parties to control the situation and outcome but also provides a safe environment to talk through their concerns.

You can attend mediation with just the other party and the mediator or you can often have legal representation and/or support.

It is an appropriate option when you’re unable to reach an agreement but it’s still safe for you to discuss things with the other party and to be in the same area as them. Many people successfully reach an agreement about their matter or dispute in mediation and often, before you can apply for court orders, you will need to participate in mediation.

To learn more about mediation, read our guide to how mediation helps resolve family law matters here.

17.  What if my ex is hiding assets?

People involved in family law matters have the duty of disclosure which means that they must provide all relevant information that could have an impact on the outcome of their family law matter.

In the instance of asset division and property settlements, it’s important that all assets and liabilities are identified as it allows for a fair and just outcome which is an important part of a property settlement process.

If you suspect that your former partner is hiding assets, it’s important to make your legal team aware of this as it may be possible to issue subpoenas to various institutions, like banks, who may be able to provide more details.

If a person is found to have hidden assets, it could invalidate any property settlement agreements that were made, and result in other consequences, like having to pay the legal fees of the other party too.

cartoon image of a person hiding assets.

18.  When should I get legal advice for a family law matter?

While you do have the option to resolve your family law matters without legal help or intervention, we highly recommend getting legal advice at an early stage.

It doesn’t mean that you need to use a family lawyer’s service to resolve your dispute but by seeking advice early you can find out where you stand and make informed decisions. It may make resolving your matter easier or could make you see how having a family lawyer will be beneficial in your situation.

Many people seek legal advice once they have already made an agreement with their former partner, and this can result in the resolution process taking longer as the agreement is not as fair as it could be or it doesn’t take all factors into consideration.

Our services may cost money but often we can help you resolve your matters faster and more effectively.

19.  What should I ask my lawyer during my first consultation with them?

Many family lawyers offer a free consultation which is a great time for you to learn more about your situation and how they may be able to help. It allows them to learn about you and ultimately gives you the chance to see whether their services are right for you.

We recommend asking questions about your specific situation, how the issue can be resolved, as well as the strategy they plan to use and the costs associated with their services.

We recently put together a guide on how to prepare for your first consultation with a family lawyer, including the questions you may need to ask. Read that guide here.

20.  How do I find the best lawyer?

Choosing a lawyer can be overwhelming and if you’re involved in a family law matter, chances are that you’re already feeling a bit stressed. This is normal but it can make thinking straight more difficult.

While many family lawyers can help you, it’s an important partnership for you as you will be providing them with a lot of personal information and putting a lot of trust in them, so you want someone that you feel comfortable with and who has the knowledge and expertise to resolve your matter.

The first consultation you have with a lawyer is a great opportunity for you to get a feel for them before committing to working with a particular lawyer. So, ensuring you’re prepared for that is important. And if you need tips on what qualities to look for in a family lawyer, read this guide here.

Let Unified Lawyers help you today

If you’re looking for experienced, empathetic, and easy-to-work-with family lawyers, then you need us here at Unified Lawyers. We help people all over Australia to resolve family law matters, including those that we have mentioned today.

We have offices in Melbourne, Brisbane and several throughout Sydney, and our services are available Australia-wide.

If you need help with a family law matter or you have more family law questions that you need answered, call us today on 1300 667 461 or book a free consultation online using the button below.

Team member Donna Nguyen.

Donna Nguyen - Family Lawyer

Author
Donna is a family law solicitor admitted in the Supreme Court of New South Wales with a double degree in Business and Law. Donna is drawn to family law as she is interested in helping clients during a difficult and transitional period following separation. She strives to achieve the best outcome for her clients and has their best interest at the forefront of her advice.

“All materials throughout this entire website has been prepared by Unified Lawyers for informational purposes only. All materials throughout this entire website are not legal advice and should not be interpreted as legal advice. We do not guarantee that any of the information on this website is current or correct.
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