Estate Matters

Separation can be a difficult and stressful time and it is important that you have the right support and advice. At Hikma Legal we can guide you through the complex process and ensure you receive the best possible outcome.

Our expert Family Lawyers are skilled at negotiating and can provide high quality advice on arrangements for children, property, superannuation, domestic violence, and court proceedings.

Divorce is usually the last step in Family Law proceedings, as couples need to be separated for at least 12 months before applying for Divorce. Couples can make a joint application or a sole application for Divorce and will need to serve the document on their spouse in accordance with the rules of service.

Legal Process:

1. Couples must be separated for at least 12 months before applying for a Divorce.
2. A Divorce Application must be filed with the court.
3. The Divorce Application must be formally served on your partner where it is a sole application.
4. A Divorce Hearing will be set and if there are no issues, a Divorce Order will be made.

Where a sole application is made for Divorce, the Application for Divorce must be formally served on your spouse.

Service can be performed by post, on your spouse’s lawyers or in person through a process server.

The relevant proof of service will need to be filed with the Family Court. This could be an Acknowledgement of Service of Divorce signed by your spouse, and/or an Affidavit of Service.

1. Separated for at lease 12 months (You can still be living be under the same roof).
2. You or your spouse must regard Australia as your home and intend to live in Australia indefinitely, or
3. You or your spouse are an Australian citizen by birth, descent or citizenship, or
4. You or your spouse live in Australia and have been for 12 months immediately prior to applying for divorce.

A divorce application can only be opposed under a few circumstances in Australia.

Australia has the concept of No Fault Divorce established by the Family Law Act 1975 (Cth).

The only ground for divorce is the irretrievable breakdown of the marriage evidenced by 12 months of separation.

A divorce application can only be objected to when:

1. A couple has not been separated for 12 months.
2. The court does not have jurisdiction to hear the matter (residency requirements).

If you object to a divorce a Response to Divorce must be completed and filed with the Court.

The legal complexity surrounding Divorce Applications can be difficult and we can help take care of the application process and attend the Divorce Hearing on your behalf if required.

An important issue after separation is the division of matrimonial assets. These assets include the family home, any investment property, businesses, cars, superannuation and other household assets like furniture.

Property settlements can be stressful and complex however it is important to have your property settlement done correctly as it affects you and your family’s livelihood for the future. Having a legally binding settlement reduces the risk of future disputes and uncertainty.

Our expert Family Lawyers have the specialised experience and skills to ensure you are financially taken care of and receive the best possible property settlement. We can provide you with advice on your entitlements, the likely outcome of a property settlement and negotiate on your behalf.

If you agree on arrangements for property we can help you formalise that agreement by applying for Consent Orders with the Family Court or preparing a Binding Financial Agreement (BFA).

Consent Orders are a legal document that is drawn up by solicitors. We can help prepare the document detailing the agreement and once signed by both parties we can file the agreement with the Family Court. Consent Orders ensure that your agreement is legally binding and if any potential issues arise in the future you have a formalised agreement and your interests are protected.

When an application for Consent Orders is made with the court, the court must first be satisfied that the terms of the agreement are ‘just and equitable’ before making the orders. The agreement must therefore comply with the requirements of the Family Law Act and propose a fair division of property.

Binding Financial Agreements (BFA) also known, as a Pre-Nuptial Agreement is a contract that sets out how your property and assets will be divided if a relationship breakdowns. BFA’s can be made before, during or after a relationship breaks down and are usually used when one party to the relationship has significantly greater assets in the beginning of the relationship, and/or a future inheritance is involved.

These agreements cover:

• Financial settlements after the breakdown of a marriage or a de facto relationship.
• Maintenance support of one spouse by the other after the breakdown of a relationship and any other incidental issues. For the agreement to binding:
• It must comply with strict legal requirements.
• Signed by both parties.
• Both parties must have received independent legal and financial advice before signing. Where the agreement is not done legally it may not be upheld in court and result in property disputes in the Family Law Courts. In situations where parties cannot come to an agreement concerning property we can make a court application on your behalf.

Court Process on Division of Assets & Property:

The Court will undertake a four-step process in the division of Assets and Property. This process encompasses the following steps:

1. Identifying the Net Property Pool
2. Financial and Non-Financial Contributions
3. Future Needs
4. Final review of proposed division of assets to ensure it is just and equitable

Step 1: Identifying the Net Property Pool

At the initial stage, the Court determines the net property pool; assessing the eligibility and ineligibility of assets.

The net property pool is made up of property assets of both parties. ‘Property’ assets include real estate, shares, cars, jewellery, savings, furniture and effects. The Court will also add properties to the net property pool, where a party may influence and/or have control over certain assets. The Court will also consider properties which may at a future stage fall under the control of either party involved and as subsequently add that it to the net pool of assets. It is paramount to the Court that all assets are taken into account in the property settlement process.

In most cases, all property will fall into the net pool of assets, with property purchased before, during or after separation taken into account. However, superannuation is treated differently at the point of division. Subject to the type and value of funds; the funds may be divided between the parties at the time that a Property Order is made or an Order made at a later time which splits the funds.

Liabilities, which include mortgages, car loans and other such debts will be deducted from the total net property pool.

The next step is to calculate both parties’ contribution in the relationship. Contributions in the relationship are both financial and non-financial. These are all contributions that occurred initially in the relationship, during and after the relationship.

Financial Contributions

The monetary contributions made throughout the duration of the relationship will usually consist of:

• Wages
• Legal Costs
• Lottery Wins
• Assets
• Gifts and Inheritance
• Compensation payouts

In the instance where one party accuses the other of wasting money, the court can take this into consideration. Monetary contributions are considered waste if they are spent on:

• Gambling
• Drugs and alcohol
• Prostitution
  

Non-Financial Contributions

Non-Financial contribution are just as significant as financial contributions, Courts recognise three important non-financial contributions.

1. Homemaker Contributions The court will assess the domestic duties of the parties and whether it was carried out on a full-time or part-time capacity.
2. Parental Contribution This is important as it allows one parent to earn a wage and increase the family’ asset pool.
3. Property Maintenance If one party has carried out home-improvements on the property this would increase the value of the property and add value to the asset pool, which the courts would take into consideration.

The following stage sees the Court assess the future needs of both parties, with factors including:

• Age
• Health
• Income earning capacity
• The property of each party
• Whether the party has the care of or support of the children
• Duration of the marriage and impact on earning capacity
• The financial circumstances of any new relationship

Where the Court finds appropriate, necessary adjustments will be made in respect to the aforementioned factors, subsequently resulting in an altered distribution of the net property pool.

Step 4: Adjustments to ensure a just and equitable outcome

The final step is to ensure that the proposed settlement, after taking all factors into considerations is just and equitable in all circumstances.

Based on the current legislation under the Family Law Act (NSW) the outcome of the property matter must be “just and equitable” in all situations, when making final orders for the property. The court must make a decision as to who will retain specific assets and liabilities. This step of the process will sometimes include a consideration of the appropriate blend of any settlement between immediately available assets, and deferred but important benefits such as superannuation.

A parenting plan is a written informal agreement that sets out parenting arrangements for your children. These include whom the child should live with, spend time with, the allocation of parental responsibility, location of changeovers, and any other issues in relation to the children.

A parenting plan can be helpful in certain situations and to put arrangements in writing however a parenting plans is NOT legally binding or enforceable. There is usually no penalty for breaching a parenting plan. Generally speaking, parenting plans are only helpful in a few situations and it is more appropriate to obtain Consent Orders.

Consent Orders are written agreements that are approved by the Family Court. A Consent Order can cover parenting arrangements for children as well as financial arrangements.

Consent orders have the same legal effect as if a Judge/Magistrate had made them after a court hearing. The Court must be satisfied that the orders you ask for are in the best interest of the child. An Application for Consent Orders can be filed with the Court without initiating any other court proceedings or they can be made during court proceedings if the parties come to an agreement.

If the Court is satisfied that the orders you seek are in the best interests of the child and they comply with the legal requirements they will make the orders. These orders amount to a legally binding agreement between you and your former spouse that is enforceable if either party breaches a term of the orders.

Family Dispute Resolution (FDR) are services that can help parties resolve their disputes without going to court such as mediation, conciliation and arbitration. FDR can help parties save time, reduce costs and avoid stressful court proceedings.

In most family law cases, parties must make a genuine effort to resolve their disputes without initiating court proceedings through dispute resolution services.

For parenting arrangements and children’s issues FDR is compulsory before making an application with the court. FDR can help parties reach agreements about parenting arrangements for their children and property matters.

However, in some circumstances, FDR may not be appropriate and a party can make an application with the court for parenting orders without attending FDR. These exceptions include where: the matter is urgent or there are issues of family violence or child abuse.

In circumstances where an agreement is reached at mediation, Consent Orders can be drafted and filed with the court to formalise that agreement. In circumstances where an agreement is not reached at mediation, lawyers can further negotiate to come to an agreement or an application can be made with the court for parenting orders.

Court Proceedings:

Where an agreement cannot be reached we can assist in advising you how the Family Law Act deals with Children’s issues and making an application with the Court.

A parenting order is a set of orders made by a court about parenting arrangements for a child. When a parenting order is made, each person affected by the order must follow it.

Where a parenting order is breached the other party can apply for Enforcement of the orders or Contravention, which can result in the party being punished through a fine or imprisonment.

Legal Process:

1. One must follow the pre-action procedures, particularly attend FDR with Family Relationships Australia or an Accredited Family Dispute resolution practitioner and genuinely attempt to come to an agreement.
2. Obtain an s.60I Certificate from FDR indicating that mediation was attempted.
3. File an Initiating Application with the FCC or FC along with supporting documents including the s.60I certificate, affidavits.
4. Your partner will be able to file a response to your application.
5. During the court process if parties come to an agreement on parenting arrangements, consent orders can be drafted and made by the court as long as the court considers the orders are in the best interests of the child.

Domestic Violence is an endemic that has intergenerational effects. With statistics for domestic violence higher than previously estimated, you and your family have the right to be protected from the physical and psychological trauma endured by domestic violence.

Unfortunately, being a victim of domestic violence, with the threat of violence can make it difficult for you to separate or to exercise your legal rights.

We at Hikma Legal, are experienced in dealing with cases of domestic violence and AVO’s and will be able to help you when you need it the most, assisting you through the legal process.

What constitutes Domestic Violence

The following is considered Domestic Violence:

• Physical Abuse
• Sexual Abuse
• Controlling another person
• Psychological Abuse
• Emotional Abuse
• Stalking

Where you feel that you or your family’s safety is at risk you can apply for Apprehended Domestic Violence Order (ADVO).

An ADVO is made where the people involved are related or living together. For Aboriginal people or Torres Strait Islander people, an ADVO can also be made against people of kin.

How to apply for Apprehended Domestic Violence Order (ADVO)

You can apply for an ADVO in two ways:

1. You can contact the police to make an application for ADVO. Officers trained in domestic and family violence will assist you throughout the process.
2. You can also make an application at the local court if you are older than 16 years. You will be given a court date by the court staff once the application is filed.

Court Proceedings

The application will tell the defendant (the person who is causing fear for your safety) the details of their court appearance. It is important to note, that the court will not always accept an ADVO in instances where the court believes it is not reasonable.

In instances where you file an ADVO through the police, you do not need a lawyer as the Public Prosecutor will represent you.

Where you apply for the ADVO through the court, it is recommended to have a lawyer represent you.