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2. How do you get spousal maintenance?

Spousal maintenance applies in circumstances where one spouse has a need for financial assistance and the other spouse has the ability or capacity to pay.

This usually occurs in circumstances where one spouse is unable to work due to a lengthy period of not working such as being a home carer. That party may need to attend re-training, alternatively the full-time caring of the children or have a physical or mental disability that may preclude work.

Spousal maintenance orders often have a sunset clause being limited to a defined period of usually not more than two years.

A spousal maintenance application has to be much within 13 months after the granting of a certificate of divorce otherwise leave of the Court will need to be obtained to make the application.

Contact us if you are not sure and we can help you sort this out.

3. How is property divided?

Parties following separation can apply to the Court for property orders. The Court will take into account all assets acquired during the marriage or defacto relationship, the contribution of each party to that asset pool, and the future needs of the parties.

The general rule is that all assets must be taken into account, whether they are acquired before or during the marriage or after the separation.

The definition of "property" is very wide. It includes almost everything of value. "Property" includes assets of either or both the parties, such as real estate, shares, cars, jewellery, savings, furniture and effects.

Superannuation is treated differently and, depending on the type and value of fund, it may be divided (split) at the time that a property order is made.

The Court must also consider the financial resources of the parties. These can be funds or assets over which a party has influence or control or (in certain circumstances) prospective entitlements.

In ascertaining the net assets of the parties, valuation issues frequently arise. Taxation (including capital gains tax), stamp duties and other issues also arise. It is important for parties to have appropriate legal advice to ensure that all those issues are taken into account where appropriate.

If you reach agreement with your former partner regarding property settlement, there are two ways of formalizing that agreement:

• Consent Orders through the court; and

• Making a Financial Agreement which is binding under the Family Law Act.

You should take legal advice as to which of those options is more appropriate for your circumstances.

In any property settlement, both parties have a clear obligation to make full and frank disclosure about their respective financial circumstances. A failure to make a proper disclosure of a relevant matter can have very serious consequences.

Every case is different so we can talk to you to work out how to help you and what the Court requires.

4. Can parties agree that there is to be no spousal maintenance?

The parties can agree that there is no spousal maintenance but in order for it to be binding, it has to be in the proper form namely Binding Financial Agreement which has to be drafted in compliance with the Family Law Act 1975.

Every case is different so we can talk to you to work out how to help you and what the Court requires.

5. Is an agreement between the parties binding in all circumstances?

As long as the agreement has been entered into with good faith and there has been full and frank disclosure the prospect of setting aside the agreement is minimal expect in circumstances where there has been a duress, fraud or failure to make full and frank disclosure.

Every case is different so we can talk to you to work out how to help you and what the Court requires.

6. Does the Family Court have power to bind third parties such as Trustees, Directors and Creditors?

Yes, the power that the Family Court has to bind third parties is wide and the Court has the discretion to make orders pursuant to Section 79 that are binding the third parties.

Third party Creditors can apply to the Court to be joined as Interveners in relation to a claim seeking orders to be made affecting the parties for example in relation to an outstanding tax debt of the Husband.

Every case is different so we can talk to you to work out how to help you and what the Court requires.

7. What are the Court procedures for determining property matter as between the parties?

Proceedings are commenced in the Family Court when one party file his/her Application and the Application is given a dare then the matter is listed before the Court usually about 4-6 weeks time. The Respondent is served with these documents. The Respondent files his/her Response and Financial Statement and the other party files his/her Response and Financial Statement. Once the other parties have filed their pleadings the Court allocates a Conciliation Conference date for the parties to attend for a Medication which is conducted by the Registrar of the Court.

At the Conciliation Conference, each party is represented by their legal representatives. A large number of matters are settled at the Conciliation Conference.

The Conciliation Conference is mandatory for the parties to attend. If no agreement is reached the Court will then list the matter for hearing.

Every case is different so we can talk to you to work out how to help you and what the Court requires.

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