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Family Law

What is family law?

When separation and divorce first strike, everybody wants to reach an amicable settlement and everybody wants to avoid going to court – which means everybody needs a lawyer who knows how to make that happen.

Ilberys are the no-shortcut lawyers, and we know comprehension is the key to success.

Family law is usually invoked when a relationship breaks down (or is about to break down). In most cases, these relationships have led to joint property and finances that need to be ‘disentangled’ peacefully. Just because you go to see a lawyer, it doesn’t mean you will be going to court – it’s simply a step toward understanding the full extent of your rights and responsibilities in a separation scenario.

What can Ilberys help me with?

Ilberys provides objective, reasonable advice and representation in family law situations. We can help you to understand what is required of you and your ex-partner, what’s involved in a common separation/divorce scenario and what your options might be. You’re free to consult with an Ilberys lawyer for complete representation or for more limited, discrete advisory services. Your partner doesn’t have to know that you have been seeking our advice.

Nobody wants these things to drag on – it’s expensive and emotionally distressing, and not everything has to go to court. That’s why our goal is to manage family law cases with finality. We’ll sort it out once and for all so that you can get on with your life. 

Find out why Ilberys has been a preferred family law practice in Perth since 1955 – reach out for a free and confidential initial consultation here.

Frequently Asked Questions

Before you can apply for a divorce, you have to be separated from your spouse for at least 12 months. This does not mean physical separation, and the Court will consider periods of separation where you remain living in the same home. Importantly, you do not have to be divorced in order to obtain a property settlement.

Once 12 months of separation has passed, you can then lodge an application for divorce. You do not have to obtain your spouse’s agreement to lodge it, but you do have to formally serve it on your spouse after lodgement. Service of a court application usually requires someone else, not you, physically handing it to the person being served.

From the date of lodgement, it usually takes between two to three months to obtain a divorce order, and it then takes a further month for the issued order to take effect and for the divorce to be finalised. However the process is entirely dependent on the level of cooperation from your spouse: whilst your spouse cannot stop a divorce if you meet the legal requirements, they can prolong the process by, for example, avoiding service of the application.

We have years of experience in obtaining divorce orders against spouses that avoid service or otherwise prove difficult during the process. If you believe that your spouse will try to obstruct your application, contact us and we can help streamline the process.

No, you do not have to wait for a divorce. You can reach an agreement as to property settlement before a divorce order is made, and you can apply to the Court for a property settlement before a divorce order is made.

You only need to show that you and your partner have separated on a final basis. This does not mean physical separation, and you can still be residing in the same home.

The way in which property is split after a separation or divorce is different for each couple. During a separation, the couple are expected to try and reach an agreement on how their property will be split, and may seek legal advice and assistance during the process. If an agreement can’t be reached, you can apply for financial orders from a court to decide how property is split.  

There isn’t a mathematical formula that is used when determining property division: the Courts have repeatedly emphasised that there is no assumption or default position of a 50/50 split, or that one year of a relationship equals 5% of the assets, or anything like that.

No relationship is identical and what is a fair and reasonable division will depend on the relevant circumstances of that relationship. The Court will take into account considerations like the financial and non-financial contributions of each party to the asset pool and to the welfare of the family, and the future needs of each party.

Unlike in other countries such as the United States, unless there is particularly damaging or extreme behaviour, misconduct during the relationship (such as unfaithfulness) is generally not considered relevant for property division.

With our years of experience in Family Law, we can advise you as to likely outcomes if the Court were asked to determine a property settlement, which you in turn can use as a guide when trying to reach an agreement with your former partner.

Even if you were not married to your partner, if you were in a de facto relationship, you may still be able to have a property settlement, in a similar manner that a separated married couple can.

Under section 205Z of the Family Court Act 1997 (WA), which deals with family law property settlements for de facto couples in Western Australia, you may be able to have a property settlement if you have separated from your de facto partner and at least one of the following is satisfied: 

(a) that de facto relationship lasted for at least 2 years; or
(b) there is a child of the de facto relationship who has not yet attained the age of 18 years and failure to provide for a property settlement would result in serious injustice to the partner caring or responsible for the child; or
(c) a de facto partner made substantial contributions to the property or welfare of the relationship and failure to provide for a property settlement would result in serious injustice
to the partner.

Whether or not these conditions are met can sometimes be difficult questions, and there are many cases dealing with how the law applies to people in different circumstances. If you are unsure about whether you are entitled to property settlement, we can help.

In Western Australia, a de facto relationship is defined by section 13A(1) of the Interpretation Act 1984 (WA), as a “relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship”.

Section 13A(2) of the same Act explains this further, by listing the following factors which are indicators of a de facto relationship:

(a) the length of the relationship between them;
(b) whether the 2 persons have resided together;
(c) the nature and extent of common residence;(d) whether there is, or has been, a sexual relationship between them;
(e) the degree of financial dependence or interdependence, and any arrangements for financial
support, between them;
(f) the ownership, use and acquisition of their property (including property they own
(g) the degree of mutual commitment by them to a shared life;
(h) whether they care for and support children; and
(i) the reputation, and public aspects, of the relationship between them.

The Act also makes clear that these factors are only indicators, and none of them are essential to having a de facto relationship. This means that, for example, it is possible to have a de facto relationship where 2 people have never resided together, if otherwise all relevant circumstances indicate that the couple are living “in a marriage-like relationship”.

It also does not matter if the parties are of the same sex, or if one of the parties is married to another party.

Any application for property settlement (including an application for orders by consent, where you and your former partner have agreed a settlement) must be lodged with the Court:

(a) if you were married, within 12 months of the divorce order being finalised; or
(b) if you were in a de facto relationship, within 2 years of separation.

These time limits can only be extended in limited circumstances, but only apply in relation to lodging an application: the application does not have to be determined by the Court within these timeframes.

Accordingly, if a time limit is appearing, it is generally advisable to lodge an application within time to ensure that your right to apply is not lost.

An agreement between two parties for property settlement is not enforceable by the Court unless the agreement is formalised into:

(a) court orders; or
(b) a Binding Financial Agreement.

Otherwise, the agreement is merely an informal settlement, and the Court is not bound to follow its terms, and either party can later make an application for property settlement in different terms if they are not outside of the time limits.

Further, informal settlements do not provide stamp/transfer duty concessions or Capital Gains Tax rollover relief, which may cost you and/or your former partner tens of thousands of dollars, much more than an application for consent orders would cost.

No, it is usually a straightforward and easy process. If the parties agree, court orders can be obtained by consent, using a Form 11 Application for Consent Orders. It does not require an argument before the Court or a formal court hearing with witnesses, examination and so on, and it can be an easy and straightforward process if all of the correct information is given to the Court in the application. The Court will consider the application “on the papers” and if it considers that the agreement is just and equitable pursuant to the relevant law, it can make orders in those terms.

Neither you nor your partner are required to have lawyers or receive legal advice when making an application for consent orders. However, legal advice will ensure that you are making a fully informed decision, and will further ensure that the consent orders reflect the agreement reached and have the effect you want them to have.

The alternative to consent orders is a Binding Financial Agreement. This does not involve any application to the Court, and instead is a written agreement between the separating couple, prepared in strict accordance with the legislative requirements of the Family Court Act 1997 (WA) or the Family Law Act 175 (Cth), depending on whether the parties were married or in a de facto relationship.

If the requirements for a Binding Financial Agreement are not followed, then it is likely to be set aside and be unenforceable. The requirements are technical and strict, and include that each party must receive independent legal advice from a suitably qualified lawyer about the effect of the agreement, and its advantages and disadvantages.

As a result, a Binding Financial Agreement is usually more expensive than an application for consent orders, and exposes the parties to greater uncertainty than court orders. However, they are sometimes useful in limited circumstances where an application for consent orders may not be suitable.

In Australia, a pre-nuptial agreement is simply a Binding Financial Agreement entered into before the parties marry. They can also be entered into before a couple enter into a de facto relationship, and at any time during a marriage or a de facto relationship, not just beforehand.

If properly prepared, the situations in which a Binding Financial Agreement can be set aside and held not enforceable are limited, but they do exist. Examples include, but are no limited to, where there was fraudulent conduct, duress or undue influence. They may also be set aside to the extent that, without spousal maintenance, a person would be unable to support themselves without an income tested government benefit or allowance.

If you are considering entering into a Binding Financial Agreement, or if you are a party to one and are considering whether or not it is enforceable, it is essential that you receive correct and accurate legal advice from experienced lawyers like Ilberys.

How can we help?

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