Frequently Asked Questions
Separation
If you are thinking of separating from your spouse or de facto partner, it is important you meet with a family lawyer who can discuss your options with you.
There are a wide range of issues to consider including property, children, assets, financial planning etc. Each situation is unique and careful consideration is required to address the issues relevant to your relationship and personal circumstances.
Relationship breakdowns are very emotionally taxing on all parties and you need a lawyer who is able to be a good advocate for you. Talk to us today to arrange a meeting with one of our family lawyers.
For more information contact our Family Law team on (03) 9629 9629.
If you have separated, it is important you meet with a family lawyer who can discuss your options with you. Don’t rely on stories that others have told you about settlements or arrangements and think you will receive the same result as someone else. Each situation is unique and careful consideration is required to address the issues relevant to your relationship and personal circumstances.
Relationship breakdowns are very emotionally taxing on all parties and you need a lawyer who is able to be a good advocate for you. Talk to us today to arrange a meeting with one of our family lawyers.
For more information contact our Family Law team on (03) 9629 9629.
In Victoria you are not able to obtain a divorce until you have been separated for a period of one (1) year and one (1) day. Generally speaking, this period begins from the date that you were not living under the same roof.
For more information contact our Family Law team on (03) 9629 9629, or read more about Divorce.
Binding Financial Agreement
A Binding Financial Agreement, or “BFA”, is a legally-binding agreement between couples before, during or after their de facto relationship or marriage.
A Binding Financial Agreement usually details what will happen to the couple’s individual and joint assets and liabilities both during the relationship or marriage and in the event the couple separates.
For more information see Binding Financial Agreements.
Yes. They are called Binding Financial Agreements or Financial Agreements. They are legally binding if they are correctly drafted by a lawyer and contain a certificate from a lawyer stating that each party has been provided with independent legal advice. It is not possible for both parties to seek legal advice from the same lawyer or law firm in relation to an agreement.
For more information contact our Family Law team on (03) 9629 9629 or read more about Binding Financial Agreements.
One way of protecting your assets is entering into a Binding Financial Agreement. There are also other ways you can protect your assets. We can discuss options to suit your individual circumstances.
If you would like to make an appointment to discuss your options, please call us on (03) 9629 9629 or read more about Binding Financial Agreements.
To create a legally binding agreement you need to enter into one of the following:
- Binding Financial Agreement. These are private agreements between parties that are legally binding. Binding Financial Agreements are prepared by lawyers and must contain a certificate signed by a lawyer stating that you have had independent legal advice. They are not filed at the court. Read more about Binding Financial Agreements.
- Consent Orders. These are orders that are made by agreement between the parties and are filed in court.
Talk to a member of our Family Law team on (03) 9629 9629.
Property Settlement/Financial Settlement
A property settlement occurs when a couple agree to a split of the assets and liabilities of a relationship or a Court orders the split of assets and liabilities of a relationship.
A property settlement is usually obtained at the end of a relationship.
It is possible to apply for a property settlement from the commencement of the marriage, until one (1) year after Divorce is final.
It is possible to apply for an extension of time to apply for a property settlement under the Family Law Act 1975 section 44(3). This extension is only provided if the Court believes that a party has experienced hardship that affected their ability to apply for a property settlement. However this is a more costly process, and there is no guarantee that you will be successful in applying for an extension of time.
For more information contact our Family Law team on (03) 9629 9629 or read more about Financial/Property Settlements.
There is no definitive rule about who gets to keep the house. It may not be possible for one person to keep the house. It is dependant upon the value of the asset pool, and a number of factors outlined in the Family Law Act 1975 and precedent (previous) cases. One of our lawyers can meet with you to discuss all the factors that influence a property settlement including pre-relationship contributions, financial contributions, domestic duties, children etc.
Talk to a member of our Family Law team today on (03) 9629 9629 or read more about Financial/Property Settlements.
An Asset of a relationship is any asset owned by either person of the relationship whether jointly, individually or with any other person in Australia or overseas. This includes any assets that were owned by either person before the commencement of the parties' relationship. Common assets that people may own include: property, motor vehicles, businesses, companies and superannuation.
A Liability of the relationship is any debt owed by either person in the relationship, whether jointly or individually, or with any other person. This could also include a liability resulting through a company or a trust. This liability could have existed at the commencement of the relationship; generated throughout the relationship or came into place at the end of the relationship.
A Financial Resource is an interest in any entity, property or trust held by either person in the relationship. A Financial Resource needs to be declared through the Discovery process.
De Facto Relationships
Under section 90RD of the Family Law Act 1975, the Court may make a declaration of the existence of a de facto relationship if the following applies:
- if there is an application for an Order where one of the parties claims that a de facto relationship exists;
- if there is an application for financial support of one of the parties to the de facto relationship.
When will the Court may make an Order concerning a de facto relationship if they are satisfied for the following as outlined under section 90SB of the Family Law Act 1975:
- that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
- that there is a child of the de facto relationship; or
- that the party to the de facto relationship who applies for the order or declaration made substantial contributions to the relationship;
- a failure to make the order or declaration would result in serious injustice to the applicant;
- that the relationship is or was registered under a prescribed law of a State or Territory.
One way of protecting your assets is entering into a Binding Financial Agreement. There are also other ways you can protect your assets. We can discuss options to suit your individual circumstances.
If you would like to make an appointment to discuss your options, please call us on (03) 9629 9629 or read more about Binding Financial Agreements.
Children
The law determines the living arrangements for the children based upon what is in the best interests of the children.
For more information contact our Family Law team on (03) 9629 9629 or read more about Children, Separation and Divorce.
The Family Court determines what is in the best interest of the child or children with the assistance of experts. The court will request expert evidence in the form of a Family Report from a Family Consultant or private psychologist, and will examine the information provided by the parties in their respective Affidavits.
For more information contact our Family Law team on (03) 9629 9629 or read more about Children, Separation and Divorce.
If the other parent does not return your child/children to you, a Recovery Order will need to be filed. If it is granted, the Family Court will normally suspend all further time with the other parent. This will remain in place until a final decision has been made by the Court in relation to the children’s living situation.
If you do not know the whereabouts of the child/children, a Location Order may ordered by the Family Court to determine their location.
In the event that the parent refuses to return them, the Federal Police may be engaged to collect the child/children.
If court proceedings are required to be filed, a Family Report will be ordered which is completed by a Family Consultant from the Family Court or a private psychologist. The court generally holds the recommendations of the Family Report writer in high regard. If a Family Consultant is appointed, parties will not be required to pay for the cost of the report, however if a private psychologist is appointed, then parties will be required to share the cost of the Family Report.
There are advantages and disadvantages of either option so please discuss these options with one of our Family Law team.
In complicated cases an Independent Children’s Lawyer may be appointed to represent the children. The lawyer will meet with the children and discuss their concerns and wishes. The Independent Children’s Lawyer will provide the court with a legal opinion as to the best interests of the children. Children are not permitted in the Family Court and therefore an Independent Children’s Lawyer can be used to convey the wishes of the children to the court.
For more information contact our Family Law team on (03) 9629 9629 or read more about Children, Separation and Divorce.
The Child Support Agency website (www.csa.gov.au) contains a calculator to obtain an estimate valuation of your likely child support payment in the event that you need to make or receive a payment for child support. In almost every case the most cost effective method of obtaining child support is by obtaining an assessment through the Child Support Agency. It is possible to enter into a private arrangement with your ex-partner to deal with issues such as payment of school fees, extra curricular activities, school uniforms, health care, medical expenses etc.
If you would like more information, please contact a member of our Family Law team on (03) 9629 9629.
You can apply for a Court Order to add your children to the Family Law Watchlist.
International Family Law
We have acted for clients who live interstate or overseas and we have conducted their file as if they were living in Australia but without the face to face contact. We have access to modern technology and can organise phone conferences to suit your timezone, use Skype and of course, email.
For more information contact our Family Law team on (03) 9629 9629.
General Questions
Accredited Specialists are lawyers who have practised for a minimum of five years practical experience, with a minimum of three years in their chosen area of law. They have to pass a comprehensive exam process and reapply for accreditation every three years, meaning that you can be sure that an Accredited Specialist is up to date with the latest developments in law. You can read more about Accredited Specialists here.
Lewis Holdway Lawyers are an Accredited Family Law Specialist firm. That means you can be confident that we have the experience and expertise to handle any legal issue, whether large or small. Call and talk to our Accredited Family Law Specialist today on (03) 9629 9629.
Talk to the Legal Experts Now
Lewis Holdway Lawyers
+613 9629 9629
+613 9629 9630
Level 2, 91 William Street, Melbourne, 3000
P.O. Box 138, Collins Street West, Victoria 8007
DX Mail: DX 650 Melbourne