Separating Spouses

Spouses cannot apply for divorce until they have been separated for at least 12 months.

Separated spouses are not obliged to make an application for divorce as soon as the 12 months has expired. They may stay married for a longer period of time.

Important issues relating to children, property and finances can be resolved immediately after separation, whether a divorce is sought or not.

 What is separation?

Separation means the breakdown in the marital relationship as a whole. There is not one single event that determines separation. Generally, separation is taken to occur when spouses cease to have lived together in the same household. The court may take into account, however, periods of time when the parties are living separately under the same roof. In determining whether the parties have been living separately under the same roof, the court will look at a range of factors to decide if the parties have truly separated or not.

These factors include whether the parties have:

• ceased sleeping together;
• ceased sharing social activities;
• ceased sharing finances;
• advised the other that they are separated;
• advised other people that they are separated.

If parties resume living together after initial separation, and the resumption of cohabitation is no more than three months, the earlier period of separation may be added to the later period of separation in calculating the necessary 12 months for the divorce.

There is no need to take any steps to register or formalise the initial separation. The court will generally accept the evidence of a party as to that of separation – unless it is disputed by the other party.

How to apply for a divorce

Applications for divorce must be made in the Federal Magistrate’s Court. The application may not be filed until 12 months after the separation. A filing fee is payable, but it may be waived depending on the financial circumstances of the applicant. A copy of the Marriage Certificate must also be filed. If you have lost your Marriage Certificate, a copy can be obtained from the Registry of Births, Deaths and Marriages.

Generally, one spouse makes the application for divorce, and the other spouse is the respondent. The application must be served on the respondent. The correct serving of the application is essential. If there is not proper evidence of the application being served on the other spouse, the court will not grant the divorce at the first hearing date. The hearing will need to be adjourned to allow for proper service of the divorce application.

The divorce application contains details of the marriage including date of separation. It must also contain sufficient details to allow the court to determine whether proper arrangements have been made for any children of the marriage who are under the age of eighteen years. You should be careful in providing these details. The information may become relevant if there are subsequent disputes in respect of arrangements for the children.

If you have been married for less than two years, a certificate from a counsellor must be filed with the divorce application indicating that you and your spouse have considered reconciliation with the assistance of the counsellor. In some circumstances, the court may be persuaded to waive the counselling requirements.

When filed, the divorce application will be given a hearing date in about six to eight weeks. The application must be served on the respondent at least twenty-eight days before the hearing, or forty-two days when the other party is served outside of Australia. The respondent may dispute the divorce application if they disagree with the date of separation or dispute whether appropriate arrangements have been made for the children. In most cases, however, the respondent does not appear at the hearing.

At the hearing, it is necessary that you prove your spouse has been properly served within the required time period. This is generally done by the filing of an Affidavit of Service by the person who served the application on the respondent (which cannot be the applicant). Service can be done by post provided the respondent signs an Acknowledgement of Service in the time period of service. At the hearing, the court may ask additional questions about arrangements for any children.

If the court is satisfied that the application meets the requirements of the Family Law Act for divorce, a Decree Nisi will be granted at the hearing. That Decree becomes final or absolute one month and one day after the hearing.

The court will issue a divorce certificate a few weeks after the hearing.

Consequences of divorce

A divorce has no effect on the rights, obligations, or entitlements of the parties about property, child support, or children.

Any application in respect of property or spousal maintenance can be made either before a divorce or within twelve months after the divorce becomes absolute. After twelve months from the divorce, a property application or spousal maintenance application can only be filed with the consent of the other party or with special leave of the court.

Applications for orders in respect of children can be made at any time.

Divorce does not revoke any wills of the spouses. The divorce, however, will terminate any gifts made in the will by one spouse to the other or any appointment of them as executor, trustee, or guardian. You should review your will following divorce and check whether it still has the effect you desire. For further details, see our other information sheet in respect of Separation and your Will.

Spouses are free to re-marry following the divorce becoming absolute. A marriage celebrant may request to see the divorce Decree prior to a subsequent wedding.

The divorce may effect the entitlement to a spouse under superannuation or insurance policies. It may also effect entitlements for social security, tax benefits, and immigration status.

Working out what is best for the children is a priority of most separating parents.

Happily, most separating parents reach agreement relatively easily in respect of arrangements for their children. These arrangements can be agreed on an informal, non-enforceable basis or reflected in consent orders.

In a small number of cases, parents are unable to reach agreement and it is necessary to commence court proceedings.

Reaching agreement

Working out what is best for the children is a priority for all separating parents. Happily, most separating parents reach agreements with each other relatively easily in respect of the arrangements for the care of their children. Generally, these agreements are made informally without any legal procedures. Ideally, parents are able to informally review and re-arrange these agreements to reflect the changing needs of the children.

There are different process parents can use to discuss and reach good agreement about their children. Processes include mediation and family dispute resolution, and collaborative family law. Matthew Shepherd is a mediator and family dispute resolution practitioner and can help both parents reach good parenting agreements. Matthew is a trained collaborative practitioner and assist parents who choose to use collaborative family law.

If arrangements for the children are agreed, parents then need to decide how they wish to document the agreement. They can keep the agreement on an informal verbal basis. If so,  the effect of the Family Law Act is that both parents retain equal parental responsibility. Legally, neither has any greater or lesser responsibilities in the lives of their children than the other. Informal agreements however, are not legally binding or enforceable.

In some circumstances, parents may wish to document their agreements in legally binding and enforceable court orders, or parenting plans. This may avoid on-going disputes or discussions in respect of week-to-week arrangements for the children. Written parenting plans are not enforceable and do not prevent a parent making a subsequent application to a court. Consent orders are enforceable and are as final as if a Judge had decided the case. Orders may also protect children from being removed from the usual place of residence or from Australia.

 What happens if parents cannot agree?

A minority of parents cannot reach agreements in respect of care of their children after separation. If so, one or both parents may wish to make an application to the court for parenting orders. Court proceedings damage the relationship between parents and create great stress for parents and children.  A court can make different orders to those sought by either parents. Neither parent, and certainly at least one, will be unhappy with the court decision creating difficulties with their willing implementation of the orders.  All court orders can do is apportion children’s time between parents – they cannot change the personality of attitudes of either parent.

In most cases, parents are obliged to attempt family dispute resolution (a special type of mediation) before applying to a court for parenting orders. This is to see if parents can reach their own agreement and avoid court. Matthew Shepherd is a family dispute resolution practitioner and can help separated parents to engage in effective dispute resolution about their children.

There are three main types of parenting orders:

• An order as to with whom the child shall live. The Order may provide that a child lives with one parent only, or with each parent under a shared residence arrangement.
• An order about spending time with a child. This determines when and how often the child will see the non-resident parent. Orders in respect of living with or spending time with a parent merely determines where the child lives. They do not affect the responsibilities of either parent for other aspects of the child’s life: see Specific Issues Orders.
• Specific Issues Orders determine the responsibilities from each parent for other aspects of the child’s care such as religion, education, names, discipline, medical treatment, extra curricular activities, and other issues which may be of specific concern to a parent or child. A Specific Issues Order may be made giving one parent sole parental responsibility in respect of the day-to-day or long term care of the child.

Who can apply for a Parenting Order?

Generally, parents seek parenting orders from a court. The Family Law Act however, allows any person who has a relationship with the child to seek parenting orders including relatives and friends.

What factors does a court consider in making Parenting Orders?

The child’s best interest is the paramount consideration when making Parenting Orders (Section 60CA).

Section 61DA creates a presumption that it is in the best interests of a child for both parents to have equal shared parental responsibility except if there are reasonable grounds to believe the child may be subjected to abuse or family violence. Equal shared parental responsibility does not relate to the amount of time a child spends with each parent – rather it relates to decision-making responsibilities including issues such as education, names, religion, medical treatment, extra curricular activities etc.

Section 65DAA provides that where equal shared parental responsibility applies, the Court must, firstly, consider whether the child spending equal time with each parent would be in its best interests and be reasonably practicable (taking into account the factors listed in Section 65DAA(5)).

If a Court determines that equal time is not in the child’s best interests or not reasonably practicable, it must consider whether the child spending substantial and significant time with each parent would be in its best interests and reasonably practicable. Substantial and significant time is defined as time that both falls on weekends and holidays, and also during school weeks, and is time which allows the parents to be involved in the child’s daily routine and events that are of particular significance. Arguably, a child spending a weekend commencing Friday afternoon and/or finishing Monday morning falls within this definition of significant and substantial time.

Some parents have misunderstood that the effect of the Act is that there is a presumption that children living with each parent is in their best interests or is a starting point. This misunderstanding is a simplification of the effect of the Act as applies to children. Parents (and Courts if asked) need to consider the particular circumstances of their children in determining what is in their best interests.

 Court procedure

Except in special circumstances (such as child abuse, family violence or urgency) a parent cannot make an application to the Court for parenting orders without first having attempted family dispute resolution and obtaining a Section 60I Counsellor’s Certificate. See our page in respect of family dispute resolution for further details.

An application for interim or urgent parenting orders can be heard by the court within a few weeks. At an interim hearing, the court will generally continue the pre-existing status quo arrangements for the care of the child unless they pose some risk to the child.

Applications for final orders may take many months before they are heard by the court. Before the final hearing, the court will require that the parties participate in counselling and other forms of dispute resolution. As a result, the majority of parenting applications are resolved by agreement and do not proceed to a final hearing.

If a parenting application proceeds to a final hearing, it is common for a family report to be prepared by a court counsellor or child psychologist. The report will address any wishes of the child and may make recommendations as to what is in their best interests.

In some cases, a lawyer (called the child’s representative) may be appointed to represent the children before the court. The children, however, would not attend at the court hearing or give evidence.

Are Parenting Orders final?

Parenting orders are not final. Parents may seek to change parenting orders. Unless both parents agree, the court would need to be persuaded that there has been a change in the circumstances of the child since the earlier orders were made, and that the proposed change is in the children’s best interests.

Most separated parents reach parenting agreements relatively easily and informally – perhaps with the assistance of family lawyers and  mediators. The methods parents use to  reach agreements have a big impact on the quality of the agreement. Methods include mediation and family dispute resolution, and collaborative family law. Matthew Shepherd is a mediator and family dispute resolution practitioner and can help both parents reach good parenting agreements. Matthew is a trained collaborative practitioner and assist parents who choose to use collaborative family law.

In most cases, parents are obliged to attempt family dispute resolution (a special type of mediation) before applying to a court for parenting orders. This is to see if parents can reach their own agreement and avoid court. Matthew Shepherd is a family dispute resolution practitioner and can help separated parents engage in effective dispute resolution about their children.

To commence a court application for parenting orders, a parent must obtain a certificate from a family dispute resolution which will state one of the following:

1. That the parent did not attend family dispute resolution due to the refusal or failure of the other party to attend.
2. That the parent did not attend family dispute resolution because the family dispute resolution practitioner considered it not appropriate (for example due to issues of domestic violence or abuse etc).
3. The person did attend family dispute resolution with the other party and that both made a genuine effort to resolve the issues.
4. That the person did attend family dispute resolution but that they or the other party did not make a genuine effort to resolve the issues.

The certificate is not necessary for the commencement of Court proceedings in certain circumstances being:

• Abuse of the child by one of the parties or risk of abuse if there was delay in applying for the Order.
• Family violence on one of the parties or risk of family violence.
• Urgency.
• One of the parties is unable to participate effectively in family dispute resolution due to factors such as disability, physical remoteness etc.

Large government funded family relationship centres provide dispute resolution services to separated families and to issue the certificate if required. There are also private mediators who can do so. Private mediators cost more than a family relationship center but can often provide mediation more quickly and privately, and customise the process to meet the needs of the family.

Family dispute resolution practitioners are mediators assisting parents in reaching agreement. They are independent and neutral, and do not takes sides. They cannot force parents to reach agreements or to enter into parenting plans. They cannot give legal advice. Parenting arrangements (whether reflected in parenting plans or court orders or not) have financial ramifications on issues including on property settlements and child support.

Whilst family dispute resolution practitioners are independent, they have obligations prescribed by the Family Law Act including to advise parents that they should consider children spending equal time with each parent if it is reasonably practicable and in the best interests of the children, and if not, consider whether it is reasonably practicable and in the best interests of children to spend substantial and significant time with each of them. Further, they are required to inform parents they should consider entering into a parenting plan. Parenting plans are important documents that whilst not legally enforceable can override Parenting Orders in certain circumstances. They should only be entered into after careful consideration.

Getting the Best Results from Mediation and Dispute Resolution

Look at Matthew’s guide to getting the best results from mediation.

Separated parents may reach agreements in respect of the financial support of their children. In the absence of agreement, either parent may apply to the Child Support Agency (“CSA”) for an assessment of the other parent for child support. The CSA has a number of formulas using the taxable income of the parents.

Child Support Agency assessments

The CSA has a number of different formulas. The most commonly used formula takes into account both parent’s taxable incomes (less to the same self support amount for both parents). The total combined child support income for each parent (disregarding the self support amount) is then used to determine the average cost spent by parents on their children reflecting their income level. Those costs are apportioned between the parents reflecting their share of the combined child support income and also the care arrangements for the children.

We can perform the child support calculations for you and explain how they work.

Review of formula

The assessment can be reviewed by a child support review officer in special circumstances including:

• the capacity of either parent to support the children is significantly reduced because their duty to maintain another person or child including themselves;
• the capacity of either parent to support children is significantly reduced because of high cost in exercising contact;
• special needs of the child including the costs of caring for or educating the child in a way in which the parents had intended before separating;
• the assessment is unjust and inequitable because of the payer’s income, earning capacity, property or financial resources;
• the assessment is unjust or inequitable because of a prior payment or transfer of property made to the payee parent for the childrens’ benefit;
• high child care costs (exceeding 5% of carer’s income) for a child under twelve years of age.

If a parent is dissatisfied with the decision of the child support review officer, an application may be filed in the court seeking variation of child support.

The CSA can only issue assessments in respect of children under the age of eighteen years or, where children turn eighteen in their last year of school, until the end of their last year of school. Applications must be made before the child turns 18. Applications may be made to a court in respect of child maintenance for children over eighteen who have left school.

Child Support Agreements

Separated parents can enter into two different types of child support agreements.

Limited Child Support Agreements

Limited child support agreements must be in writing and signed by each party. They can only be made in relation to a child in respect of whom an application for administrative assessment could be made. That is, a child who is under 18 year, not in a relationship of their own, is in Australia or is an Australian Citizen or has an ordinary residence in Australia. There must be an administrative assessment of child support in place in respect of the child. A limited child support agreement has no effect unless and until it is accepted by the Child Support Agency.

The agency is only able to accept a limited child support agreement which provides for a level of child support which is not less than the rate that would otherwise be payable under a formula assessment. This can include provision for child support of a non-parenting manner. That is, by way of a lump sum or payment of expenses directly to third parties.

Significantly, a limited child support agreement can be unilaterally terminated by one parent by giving written notice following the expiry of three years from entering into the agreement, or upon the amount to be paid pursuant to the Agreement deviating more than 15 % from child support payable pursuant to a formula assessment.

A limited child support agreement can be terminated in the following ways:

• Both parents agreeing to enter into a new child support agreement.
• Both parents agreeing in writing to terminate the child support agreement.
• A court order setting aside the agreement.
• After 3 years from entering into the Agreement, either parent can unilaterally advise the other and the Child Support Agency of their intention to terminate.
• A parent can request the issue of a new Notional Assessment at any time. If the Notional Assessment differs by more than 15% from the Child Support Agreement, either parent has 60 days to give notice to unilaterally terminate the agreement.

Limited child support agreements therefore have much less certainty and finality than binding child support agreements. Limited child support agreements have a statutory sunset clause of three years (whether stated in the agreement or not). Lawyers advising in respect of child support agreements will need to consider whether the agreement is intended to be and is, in fact, a limited or a binding child support.

Binding Child Support Agreements

Binding child support agreements must meet the same requirements as for a limited child support agreement excepting the following two points:

• Parties to a binding child support agreement must obtain independent legal advice and have different lawyers sign Certificates of Independent Legal Advice.
• Binding child support agreements can provide for a lower rate of child support than would be payable under a formula assessment.

A Binding Child Support Agreements can provide for the payment of less child support than would be payable under a formula assessment. This can however impact on a parent’s entitlement to Family Tax Benefit. Family Tax Benefit Part A will be calculated as if the child support agreement had not been made. That is, it will be calculated as if the payee parent had been receiving child support at the amount payable pursuant to a formula assessment.

To facilitate this, the Child Support Agency must issue a Provisional Notional Assessment when accepting a child support agreement, setting out what would be payable without the agreement.

Lawyers providing the necessary independent legal advice in respect of binding child support agreements should explain the impact of child support agreements on the entitlement of parents to receive Family Tax Benefit Part A.

Binding child support agreements cannot be unilaterally terminated in the same way as Limited Child Support Agreements. They can only be terminated as follows:

• By both parties agreeing to enter into a new binding child support agreement.
• Both parties agreeing to enter into a written Termination Agreement. Independent legal advice would be required.
• By a court order setting aside the binding child support agreement.

Court Applications to set aside a Child Support Agreement

Section 136 of the Child Support (Assessment) Act has been amended to allow for a court to set aside a child support agreement in certain circumstances including:

1. That a parties agreement was obtained by fraud or a failure to disclose information, or;
2. That a party to the agreement (or someone acting for them) has exerted undue influence or duress or engaged in unconscionable conduct so that it would be unjust not to set aside the agreement, or;
3. In respect of a limited child support agreement, (i) Due to a significant change in the circumstances of one of the parties or a child the subject of the agreement, it would be unjust not to set aside the agreement, or; (ii) That the agreement provides for an annual rate of child support that it is not proper or adequate, or
4. In the case of a binding child support agreement, that because of exceptional circumstances, relating to a party or the subject child, that have arisen since the agreement was made, the applicant or the child will suffer hardship if the agreement is not set aside.

Child maintenance for children over eighteen years

A parent or a child can make an application to a court seeking that one or both parents make payments to the child or the other parent to meet the costs of the child. This can only be done when the child needs the ongoing financial support due to health or educational reasons. The most common ground to seek child maintenance is when the child is attending tertiary education.

In assessing child maintenance for children over the age of eighteen years, there is no standard formula used by the court. The court will look at the following factors:

• the financial needs of the child;
• the capacity of the child to meet their financial needs (including some possible part-time employment);
• compare the financial ability of each parent (after meeting their own reasonable needs and expenses) to contribute to the needs of the child.

The majority of separated couples reach negotiated agreements in respect of property settlements without going to court.  Generally, they will enter into Consent Orders or a Financial Agreement to document the settlement and determine their respective obligations and entitlements.

The following discussion applies to married couples, and also applies to de facto couples (both opposite sex and same sex) who separate on or after 1 March 2009.  This is provided that the de facto partners have cohabitated for at least two years, or there is a child of the relationship, or a party has made substantial contributions and would suffer serious injustice.  A minority of separated couples are unable to reach negotiated agreements.  One or both parties will make application to a court for property settlement.  Only between 5–10% of applications filed for property settlement proceed to a final hearing.  The other 90–95% will reach a negotiated agreement during the course of court proceedings. Preparation of a well planned negotiating strategy can assist spouses in reaching a satisfactory settlement promptly and without unnecessary conflict. This should include considering what dispute resolution process might be most effective  – mediation, collaborative family law, arbitration, lawyer-to-lawyer negotiation, direct discussion between the spouses? The dispute resolution process chosen has a big impact on the quality of the agreements reached.

An application for property settlement can be commenced any time after separation, but must be commenced by a married spouse within twelve months after the granting of a divorce. After that time period, special leave must be given by the court.Generally, a de facto spouse must make an application for property settlement or spousal maintenance within two years of separation. A court application cannot be made by a de facto partner more than two years after separation without special leave from a court.

In most cases, the court follows four steps in deciding a fair property settlement.

Step 1:  Identifying and valuing all property and debts of the parties

Generally, all property and debts of each party (whether individual or joint) form part of the assets which will be available for division – irrespective of whether the asset was received or the liability incurred before or after cohabitation or separation. The asset pool should include all possible tax liabilities and the costs of selling or transferring properties.

Step 2:  Assessing contributions made by each party to the property of the relationship including:

• direct financial contributions such as pre-marital assets, inheritances or gifts, compensation payments etc;
• indirect financial contributions.  For example, if one party’s income is used to pay household expenses whilst the other party’s income is applied to pay the mortgage or to savings;
• non-financial contributions such as home-making and care-giving for children, or improvement of property.  It is difficult to give an exact financial value to non-financial contributions.  Contributions as home-maker and care-giver to children, however, are generally recognised by the court in a substantial way.

Step 3:  Consider the future financial needs of each party

Section 75(2) of the Family Law Act requires a court to consider a number of factors including:

• the age and state of health of each of the parties;
• income, property, and financial resources of each party and their physical and mental capacity for appropriate gainful employment;
• whether either party has the care of a child who is under eighteen years of age;
• commitments of each of the parties necessary to enable them to support themselves or a child or other;
• the responsibilities of either party to support any other person;
• any entitlement of either party to a social security benefit or entitlement under a superannuation fund;
• the extent to which one party has contributed to the income, earning capacity, property or financial resources of the other;
• the duration of the marriage and the extent to which it has affected the earning capacity of either party;
• any child support payable by one party to the other and whether it is, in fact, being received;
• any other relevant facts or circumstances.

Step 4:  Consider how each party is to receive the entitlement determined under Steps 1, 2, and 3

That is, how are the assets of parties to be distributed between them.  In many cases, it is necessary to sell a property to allow each party to receive their entitlement from the sale proceeds.

Asset by asset approach

Generally, the court takes a global approach as outlined in the four step process above.  In a short relationship without children, the court may take an asset by asset approach.  This involves considering the contributions made by each party to each individual asset. Less weight is given to the differing future financial needs of each party.

Regrettably, some personal relationships can be marred by allegations of violence – especially at the time of the relationship breakdown and separation. Alleged or actual family violence has a significant impact on both spouses and the children, and the efficient resolution of financial and legal issues arising on separation. Family violence is defined legally to not just be physical violence, but also psychological and controlling and coercive behavior.

Consequences of family violence include:

Impact on children

Family violence is damaging children and causes time long term trauma psychological harm. It effects their adult lives and their ability to form their own healthy relationships.

Criminal charges

In respect of  violence between spouses, the most common criminal charge is assault. Police will not generally bring criminal charges unless there are reasonable prospects of proving the charges beyond reasonable doubt.

Apprehended Violence Orders

An AVO can be made in the Local Court if the person in need of protection (“PINOP”) has reasonable grounds to fear, and in fact fears:

• an act of personal violence;
• harassment or molestation;
• stalking or intimidation.

The PINOP does not have to be physically assaulted or to suffer actual abuse. Intimidation, harassment, or threats of damage to property are sufficient. The burden of proof is balance of probability. It is therefore easier for a court to be satisfied to impose an AVO than to make a guilty finding of assault.

The PINOP may make an application for an AVO or the police may apply on their behalf. The police are obliged to apply where they suspect or believe a domestic violence offence has been, or is likely to be, committed. When the police bring the application, the PINOP must be represented by the police prosecutor. Where an individual applies for the AVO, they may represent themselves and have a private lawyer appear for them.

In exceptional circumstances, the police can obtain a telephone AVO from a magistrate which will remain effective for a short period until the matter is listed in court.

At the first court date, the defendant is entitled to be represented by a lawyer. Legal Aid is not generally available for defendants to AVOs. The defendant may consent to the AVO “without admissions”. If the defendant does not consent, the matter will be set down for a hearing at a later date. At the hearing, both parties and any relevant witnesses will give evidence. Each party is entitled to cross-examine the other party and their witnesses.

Consequences of an AVO

AVOs are commonly made for a period of between six months to two years, although they can be made for longer periods. The making of a final AVO automatically disqualifies any fire-arms licence of the respondent.

The making of an AVO does not constitute a criminal offence. A breach of an AVO – if proved – is a criminal offence. A report of an alleged breach of an AVO will result in arrest and criminal charges being laid.

Depending on the terms of the AVO, an AVO may restrict contact by the defendant to children. A court order allowing contact will prevail over an AVO.

Separately from AVOs, domestic violence may give grounds for a spouse to seek a sole occupancy order of the matrimonial home from the Family Court. Allegations of domestic violence will be taken into account by the Family Court in considering parenting arrangements for children after separation. In some cases, the Family Court has found domestic violence to be relevant in dividing the property of the marriage. The contributions of a party to the property of the marriage whilst suffering from domestic violence may be seen by the court to have been greater than if no domestic violence had taken place. A spouse who has suffered domestic violence may in some circumstances be able to seek compensation from the other spouse.

Australia has high migration levels and an extremely mobile population. Separations therefore often raise international law problems. A spouse may wish to move to or from Australia – possibly with the children. Marital property may be located outside of Australia – or moved in or out of Australia. One or both spouses may be advantaged or disadvantaged by whether family law issues are resolved in or outside of Australia.

Early consideration of these issues may simplify negotiations and litigation. Listed below are common international family law issues that need to be considered – but the list is not exhaustive. You should obtain expert advice in respect of your specific circumstances.

1. WHAT FOREIGN MARRIAGES ARE RECOGNISED IN AUSTRALIA?
   A foreign marriage that is recognised under the law of the place of the marriage will be recognised in Australia unless:[bulletlist]
   • either party was at the time of the marriage already married under Australian law to another person;
   • either party was not of “marital age”. This means eighteen years in respect of persons domiciled in Australia, and sixteen years in respect of persons domiciled elsewhere;
   • if the parties were within personal relationships prohibited by Australian law;
   • if the marriage lacked consent or a party had mental incapacity to understand the ceremony. A party to an invalid marriage not recognised in Australia would not be able to make application under the Family Law Act for the division of property or spousal maintenance. They may have entitlements under the various De facto (Relationships) Acts of individual Australian states. A foreign marriage may allow a spouse to make an application to a foreign court even if one of those spouses resided in Australia.

    

2. WHAT FOREIGN DIVORCES ARE RECOGNISED IN AUSTRALIA?
   An overseas divorce which complies with the law of an overseas jurisdiction is recognised in Australia provided that either party had a sufficient connection with the foreign country. For example, that one of the parties resided in the foreign country, or had domicile or nationality in the foreign country. A foreign divorce may be refused recognition in Australia if:[bulletlist]
   • a party to the marriage was denied natural justice in respect of the hearing. That is, that they had not been provided due notice of the proceedings or had not been given the opportunity to be heard at the hearing;
   • recognition of the divorce would be contrary to Australian public policy.

    

   Tips: The place of the divorce may effect the choice of jurisdiction for resolving parenting and property matters. An Australian divorce may stop a party seeking property orders in other jurisdictions. Parties must bring an application for property settlement or spousal maintenance in Australia within twelve months of an Australian divorce. This time period does not apply however where the divorce has been granted outside of Australia.

    

3. WHEN CAN THE AUSTRALIAN FAMILY COURT HEAR APPLICATIONS FOR PROPERTY SETTLEMENT OR SPOUSAL MAINTENANCE?
   Property and spousal maintenance applications may be made in the Australian Family Court if either party to the marriage is at the time of the application:
   [bulletlist]
   • an Australian citizen; or
   • is ordinarily resident in Australia; or
   • is present in Australia.

    

   Note: The Australian Family Court may make orders in relation to property outside of Australia – although difficulties might be experienced in enforcing the orders. The Australian Family Court, however, cannot make “super splitting” orders dividing superannuation or pension interests held outside of Australia. A spouse’s entitlement to such interests however may be taken into account in determining a fair division of the other property.

   In some circumstances, the Australian Family Court may decline to exercise its jurisdiction to hear an application for property settlement or spousal maintenance. The Australian Family Court would need to be persuaded that it was a clearly inappropriate forum to hear the proceedings. This can be a difficult test to satisfy.

   By contrast, courts in some other countries may be persuaded not to exercise jurisdiction unless it is the most convenient forum.

    

4. DE FACTO PARTNERS
   Property settlement and spousal maintenance between de facto partners is governed by different legislation in each Australian state. The relevant legislation in New South Wales is the Property (Relationships) Act. To make an application for property settlement or spousal maintenance under this Act, it is necessary that:
   • one or both spouses is resident in New South Wales on the day the application was made; and
   • either both parties were resident in New South Wales for a substantial period of the relationship or substantial financial, home-making or other contributions were made in New South Wales for one of the parties.

    

5. WHEN WILL FOREIGN PRE-NUPTUAL AGREEMENTS BE RECOGNISED IN ANOTHER COUNTRY INCLUDING AUSTRALIA?
   Since 2000, the Australian Family Law Act has provided for married couples to enter into Binding Financial Agreements before or during the marriage defining how property and financial matters are to be resolved in the event of separation. Similarly, de facto partners are able to enter into Cohabitation Agreements under the laws of the Australian state. Many foreign countries have similar laws allowing parties to enter into what are commonly called “Pre-Nuptial Agreements”.There can be great difficulty in enforcing these types of agreements in other countries. If there is a possibility of a spouse having entitlements to make application for property or spousal maintenance in another country, the parties should consider whether they should enter into such agreements in a number of different countries. Alternatively, they should ensure that there is sufficient property and assets located in a country where the agreement is made to allow for each spouse to receive their due entitlement under the agreement.
6. WHEN WILL THE AUSTRALIAN FAMILY COURT HEAR APPLICATIONS IN RESPECT OF CHILDREN?
   An application for parenting orders may be made in Australia if at the time of the application:
   • the child was present in Australia; or
   • the child was an Australian citizen or ordinarily resident in Australia; or
   • a parent of the child (or other party to the proceedings) is an Australian citizen, is ordinarily resident in Australia, or is present in Australia.

   An application can therefore be made to the Australian Family Court in respect of a child who is residing outside of Australia. In some circumstances, however, the Australian Family Court may decline to exercise its jurisdiction if it is contrary to the welfare of the child.

    

7. CHILD ABDUCTION AND THE HAGUE CONVENTION
   Australia is a signatory to the Hague Convention on the International Abduction of Children. There are a large number of other countries which are signatories to this Convention including New Zealand, Canada, South Africa, the United States, the United Kingdom, and most European countries.The purpose of the Convention is to discourage child abduction and to encourage resolution of parenting disputes in “home” countries. If a child is removed from a Hague Convention country to another Hague Convention country by a parent, the other parent may make an application to the court in the foreign country seeking the return of the child. The court in the foreign country will generally not consider what is in the overall best interests of the child, or with which parent the child should reside in the long term. The foreign court will generally order the return of the child to the original country for the resolution of final parenting orders.The application by the parent seeking the return of the child is generally made by a Central Authority prescribed under the Convention.An application must be made within twelve months. It is therefore important to act quickly in the event of child abduction.If a child is removed to a non-Hague Convention country, it is necessary for the aggrieved parent to make an application for custody or residency to the court in the foreign country. Generally, the proceedings
   would take place in that foreign country.
8. PREVENTING CHILD ABDUCTION
   It is generally preferable to avoid having to bring proceedings under the Hague Convention by preventing the removal of the child from Australia in the first place.Some practical steps to achieving this include:[bulletlist]
   • Obtain parenting orders in Australia including an order restricting either parent removing the child from Australia along with an order for the child to be placed on the Australian Federal Police Airport Watch List.
   • Ensure that a copy of the order is registered with the Australian Federal Police and check its continuing registration from time-to-time – ideally, at least every six months.
   • Consider what countries can issue a passport for the child. The Australian Passport Office should not issue a passport for a child without both parents signing the application forms. To avoid applications being falsely signed, a parent may also lodge a form with the Australian Passport Office. Australian Family Court orders cannot be binding on embassies of foreign countries in respect of the issue of passports for children. The procedure of foreign embassies in issuing passports for children vary. Many embassies, however, would not issue a passport without both parties signing the application, and will voluntarily provide information about whether applications have been lodged for the issue of a passport.
   • Parents should think carefully before consenting to a separated spouse removing a child from Australia. They may wish to impose various restrictions on the removal of the child. At the very least, they should require copies of return plane tickets and detailed itineries including departure and return dates. A failure to return by the stated return date will trigger a Hague Convention application. A parent may require that the other parent provide some form of financial security – for example, deposit of funds in a bank account or mortgages over real property located in Australia. A parent should be particularly cautious before consenting to the removal of a child to a non-Hague Convention country. Of course, even if a parent consents to the removal of a child to a Hague Convention country, the child may be taken on to a non-Hague Convention country.
   • If a parent is unwilling to consent to the removal of a child from Australia – the other parent may wish to make an application to the Australian Family Court seeking permission from the court. Depending on the circumstances, the court may impose conditions on the removal of the child.

    

9. CHILD SUPPORT
   The Australian Child Support Agency (“CSA”) can issue assessments of child support if:
   • the child is present in Australia, is an Australian citizen or ordinarily resident on the day of the application;
   • the liable parent is a resident of Australia on the day when the application is made; and
   • the applicant parent is a resident of Australia on that day.

    

   All of these criteria must be met for the CSA to have jurisdiction.

   The CSA however can issue assessments if the applicant or liable parent is in a foreign country with which Australia has reciprocal enforcement obligations.

   If there is no reciprocal enforcement agreement between Australia and the foreign country, a parent may still be able to seek child maintenance via an application to the Australian Family Court provided:

   • the child is present in Australia; or
   • the child is an Australian citizen or is ordinarily resident in Australia;
   • a parent of the child, or party to the proceedings, is an Australian citizen, is ordinarily resident in Australia, or is present in Australia on the day of the application being filed; or
   • it would be in accordance with a treaty or international agreement or the common law laws of private international law.

Your legal fees

Solicitors are required to provide written costs agreements to clients explaining how they charge. Family law solicitors generally charge by time. A costs agreement may provide for the charging of time spent by both the solicitor and also support staff such as clerks, paralegals, and secretaries. Generally, disbursements (such as search fees, registration and filing fees, faxing and photocopying etc) are also charged. GST is payable on legal bills.

Family law solicitors cannot predict exactly how long it may take for a family law settlement to be agreed. This largely depends on the attitude taken by the spouses. A family law solicitor can therefore not exactly estimate the likely fees to be incurred. A family law solicitor, however, should be able to provide a range of likely costs.

When offers of settlement are made, consider the likely future costs if the offer is not accepted. If the likely future costs are similar or greater to the differences in offers made in respect of you and your spouse, you should accept the offer.

Settle with your partner without going to court

You will save significant legal costs by reaching agreement without going to court. Settlement can be reached through private discussion, counselling, mediation, or by negotiations through lawyers.

Generally, agreements will be documented by the making of consent orders in the Family Court or the Federal Magistrate’s Court. There is no need for a court appearance when making consent orders.

Once court proceedings are commenced

Court proceedings involve significant time by lawyers in the following preparation and presentation of your case. Costs can be controlled in the following ways:

• provide your solicitor promptly with documents and information requested by them;
• seek realistic orders;
• most family law matters commenced in a court are still resolved by agreement. Continue to negotiate agreement through private discussion, negotiations through solicitors, counselling, mediation;
• use each court event to explore settlement;
• make genuine offers of settlement during proceedings in writing. The court will require that you do so;
• be sure that you and your solicitor comply with all court directions and rules. Failure to do so may allow the other party to seek an order for costs against you;
• most family law cases are settled on the basis that each party pays their own costs. When a matter proceeds to a final hearing before a judge, generally each party pays their own costs. In exceptional circumstances, the court may order that one party pay some or all of the costs of the other. These circumstances include when one party has declined to accept an offer of settlement but receives a less favourable judgement from the court. Costs may be ordered when the conduct of a spouse’s case has led to additional and unnecessary costs to the other.

It is difficult and nerve-wracking giving evidence in court.

Here are some rules to make it easier.

1. The most important rule is to tell the truth as succinctly as possible.
2. Get to court early. Be sure you know the location of the court beforehand. You may wish to attend at court to view other cases in the days or weeks prior to your hearing. This will help you familiarise yourself with the surroundings. It will also allow you to understand the logic behind the rules of giving evidence.
3. In most family law proceedings, evidence-in-chief is given in written documents called affidavits. Your own lawyer may be able to obtain some short further evidence-in-chief by asking you some questions. This is generally limited to you commenting on matters raised in the evidence of the other party or in respect of matters that may have occurred since you swore your affidavit. Generally, however, your oral evidence in court is being asked questions in a cross-examination by lawyers for the other party.
4. The purpose of cross-examination is for the other side to attack, challenge, or weaken your evidence. It is essential, therefore, to accept that, as a general rule, you will not win your case with answers you give in cross-examination. The best you can do in cross-examination is not to harm your case. Answering questions in cross-examination is essentially a damage-control exercise.
5. Most of the questions asked in cross-examination can be answered with a simple ‘yes’ or ‘no’. If the question can be answered with ‘yes’ or ‘no’, you should say nothing more.
6. You should not argue with a lawyer for the other party – that may be their intention. Do not be offended if it is suggested by the other lawyer that you are not telling the truth. What the lawyer for the other side thinks does not matter. The only person’s opinion which matters is the judge.
7. If you did not understand or hear the question, ask for it to be repeated. Do not risk answering a different question to that which was asked.
8. You are giving your evidence to the judge, not to the lawyer asking questions. You should look at the judge from time-to-time.
9. Your own lawyer may wish to object to the questions being asked. If your lawyer does so, stop talking immediately. Wait until the judge has decided whether your lawyer’s objection is valid. If the judge decides you should answer the question, but you have forgotten it, do not be embarrassed to ask that the question be repeated.
10. Cross-examination is not a memory test. If you are not sure of the answer – say so. If you are asked questions about your affidavit or another document which is before the court – do not be embarrassed about asking to see the document. If you are shown a document which you have not previously seen, do not feel obliged to agree with its contents. Just because it is written down does not mean that it is true or that you have to agree with it. Similarly, do not agree with a proposition put to you by the other lawyer because you are unsure, intimidated, or he or she seems to be certain.
11. The judge is entitled to ask you questions. Answer them as carefully and thoroughly as you can.
12. Do not raise your voice or pull faces. Do not become angry or sarcastic. Do not use cross-examination as a “soap box” to express your views. In particular, do not use cross-examination to express your thoughts or feelings about the other party. Do not throw questions back at the lawyer questioning you.
13. If there is a break during your evidence, you are not able to discuss your evidence with any other person including your lawyer. It is safest to have no discussion with your lawyer at all.
14. Commonly, the judge will not give a decision at the end of the hearing. Instead, they may “reserve” their judgment. This means that a judgment will be given some weeks or months after the hearing. Your lawyer can explain the length of the likely delay.

Be polite and courteous to everyone – including your spouse and their lawyer. Do not glare or point at your spouse. Even when you are not giving evidence but sitting next to or behind your lawyer, do not pull faces or express your views through noises. Communicate calmly with your lawyer by whispering or passing short notes.

Expecting separation?

Tips to protect yourself.

Planning for separation and divorce can assist you in resolving legal and financial issues more quickly, favourably, and cost effectively.

Here are some tips to help you:

1. Consider re-directing your mail to a friend or relative’s address, or get a post office box for incoming mail including sender and return addresses.
2. Open a new email address. This will ensure you have privacy of communication.
3. Check monthly statements for all accounts, loans, credit cards etc to which you are a party. Look for increased or unusual withdrawals or expenditure. Consider freezing loan facilities – if allowed by the bank. Similarly, if your spouse has generally been responsible for tax matters, check that your returns have been lodged and any tax liability paid.
4. If you are a silent partner in the business of your spouse, take a greater interest. Obtain all relevant information including bank statements, corporate tax returns to financial statements, loan applications etc.
5. Refuse to enter into further company or joint loans with your spouse. Think carefully before obtaining further joint assets. Do not give personal guarantees or give further security by way of mortgages over your property.
6. Check the contents of any safe deposit box and itemise furniture and valuables kept at the home. Consider taking photographs or videos. Consider storing portable items of value away from the home.
7. Check registration, insurance, and condition of your motor vehicle.
8. If you receive gifts, inheritances or other lump sum payments, keep separately and do not put into joint funds or joint assets.
9. Consider resigning as a director of private companies or transfer your shares. Generally, it is best to remain as director and shareholder until finalisation of property settlement. It allows you greater rights to information and it is a valuable bargaining chip. On the other hand, directors of companies can be liable for companies – especially if the company is trading whilst insolvent.
10. Review your will and beneficiaries nominated by you for any life insurance or superannuation benefits.
11. Collate or copy significant documents. See our separate page listing Important Sources of Family Law Information.
12. Do not move out of the family home without properly considering advice from your family law solicitor in respect of the advantages and disadvantages.
13. Look after your health. Avoid overuse of alcohol, tobacco and other drugs to deal with stress. Get assistance from your doctor or a counsellor if you are having difficulty coping emotionally. Remember however that there is no doctor/patient privilege. In the event of court proceedings (especially about children) spouses may subpoena the records of each other’s doctors, counsellors etc.

Information is power when negotiating family law settlements. After separation, it may be difficult to access financial documents – particularly those held by your spouse. Obtaining documents and information for court proceedings and the issuing of a subpoena can be expensive.

You can save significant time, stress and costs by collating or copying important financial documents. You should review the contents of the home to locate the following documents:

Address book

• Details of names, address and telephone numbers of the following might be of use:
• lawyers;
• accountants, bookkeepers, financial planners;
• counsellors, doctors, and therapists;
• mailing services such as post office boxes; and
• telephone service providers.

Sources of information

• Personal income tax returns. These can show sources of income including interests from bank accounts and shares and dividends, capital gains from the sale of properties, and depreciation information.
• Business tax returns or financial statements. These provide significant information in respect of the operation of businesses. Also look for Business Activity Statements in respect of businesses.

Other business records

• Loan applications.
• Asset lists and depreciation schedules.
• Marketing materials including websites.
• Trust Deeds.
• Articles of Association.
• Partnership Agreements.
• Leases.
• Balance sheets, asset lists, and depreciation schedules.

Employment benefits

• Pay slips.
• Superannuation statements.
• Expense accounts.
• Documents in respect of share options and profit sharing.
• Entertainment and travel expenses.
• Contracts of employment.

Personal documents

• Statements or bank accounts, loans and credit cards.
• Loan applications.
• Cheque books. Notes on cheque book butts may provide more information than bank statements.
• Passports, plane tickets, travel itineraries.
• Buy and Sell notes of shares.
• Telephone statements.
• Employment resumes.
• Diaries – particularly evidencing work commitments.
• Wills.

Sources of further information
We can assist you in obtaining additional information (without knowledge of your spouse) including: Searches for real estate bought or sold by your spouse or companies in which they have an interest.

• Australian Securities Insurance Commission (“ASIC”) searches giving details of shares or provisions in private companies held by your spouse.
• Searches in the probate division of the Supreme Court in respect of inheritances.
• Detail of super funds of you and your spouse.

Separated spouses need to carefully review their Wills – presuming they have one.

Separation does not revoke or affect your Will. Any gifts in your Will to your separated spouse will continue to be effective. If a spouse dies without a Will, they die intestate. This means that their property will be distributed according to a prescribed system by which in most cases their separated spouse will receive all or the majority of their assets.

Gifts made by a spouse in their Will are revoked upon divorce. If their Will left all of their assets to their former spouse, it will no longer be effective, and there will be confusion as to the entitlement of other possible beneficiaries.

Most spouses purchase real estate (especially their primary residential property) as joint tenants. This means that the interest of one joint tenant automatically passes to the other on their death – irrespective of provisions made in their Will.

Separating spouses should therefore consider making a new Will. Matters to be considered are:

• who is an appropriate executor and trustee;
• who will be the new beneficiaries;
• when should children receive their entitlements – eighteen or some specified older age;
• appointment of guardians for children under the age of eighteen years;
• provision for the education and support of children;
• superannuation and life insurance benefits are generally not distributed according to the Will, but according to the beneficiaries nominated. Separating spouses should therefore also consider who they have nominated as beneficiaries to their superannuation fund or life insurers. Historically, the payment of death benefits from superannuation funds was ultimately at the discretion of the trustees of the fund. Some funds now provide Binding Death Benefit Nominations which leaves the trustee no option but to pay the benefit to the nominated beneficiary – irrespective of changes in the relationship between the beneficiary and the deceased. If you have made a Binding Death Benefit Nomination, it is essential therefore that you review the beneficiary from time to time.

In addition to changing their Will, a separated spouse should also consider the following estate planning issues:

Power of Attorney
A Power of Attorney authorises a person or persons to deal with your financial affairs on your behalf. The appointment must meet various formalistic requirements and be signed by you and your designated Attorney before a witness. The extent of the authority given to your Attorney can be defined by you. The Power of Attorney enables the appointed person to look after your assets and financial affairs on your behalf. This can include allowing them to act on your behalf when you are no longer capable of making financial decisions for yourself due to illness or disability.

Enduring Guardian
The appointment of an Enduring Guardian allows you to appoint a person or persons to make decisions about your personal welfare when you are no longer able to do so yourself. The appointment must be in writing and signed by you. The authority only comes into effect once you are incapable of making decisions for yourself.

Almost 50% of all Australian marriages end in divorce.  The breakdown of de facto relationships is greater.  Separated spouses may seek a share of the assets of the relationship. This includes assets held both jointly and solely by the other spouse – irrespective of whether the assets were acquired before the commencement of the relationship or after separation.

Protecting your property

Married and de facto couples can enter into formal agreements defining their respective entitlements even if separated.  These agreements can therefore avoid legal disputes arising after separation.  They can also reduce the possibility of disagreement arising between the parties during the relationship.  A full discussion and agreement in respect of domestic finances can assist the health of the relationship and avoid relationship breakdown.

Financial Agreements

The Family Law Act allows married couples and de facto spouses to enter into Financial Agreements before entering marrying or commencing de facto relationships, and also during marriages and de facto relationships.  If the Agreement has been properly made, a Court cannot make an order in respect of property settlement or spousal maintenance inconsistent with the Agreement except in limited circumstances.  Each spouse must obtain independent legal advice about the agreement.  There are some limited grounds on which a spouse can seek to setting aside of a Financial Agreement.

Financial Agreements require careful consideration and planning.  It can be difficult to determine at the commencement of the relationship what might be a fair division of property at a future point in time.  Commonly, following separation, one spouse will consider that the agreement is prejudicial to them by limiting the amount of property to which they otherwise would have been entitled.  They may consider if there are grounds to vary or set aside the Agreement.

It is also important to review agreements from time to time on significant events such as the purchase of property, or the birth of children.

Practical steps in protecting your assets

One or both spouses may not want to enter into a formal agreement such as discussed above.  It is still possible to take practical steps which may limit the entitlement of the other spouse upon separation.

Such steps include:

• Keeping property and finances as separate as possible.  For example, hold separate bank accounts, and avoid acquiring jointly held assets.
• Keep financial records.
• Keep your assets separate from your spouse.
• When acquiring significant assets such as real estate during the relationship, consider how they are to be held – for example, solely, jointly, or by a third party such as a company or trust.
• If significant gifts or loans are received from family or friends, keep documents evidencing such gifts or loans at the time of receipt.
• Do not accept liability for debts of your partner.  For example, avoid joint loans, giving guarantees, becoming a partner or director in their business.
• Review your Will.
• Review the beneficiaries you have nominated of your insurance or superannuation policies.

Avoid having your partner work in your business.  If they do, pay them an appropriate wage to avoid subsequent allegations of their non-financial contributions to your business.

Separating spouses (both married and unmarried) have many issues to resolve – including choosing the most appropriate decision making process.  Early selection of the best process helps separating spouses reach the best possible agreements plus save time and money, and minimise acrimony.

The following chart compares the five main process choices.

Collaborative Family Law is about cooperation, not confrontation.   It aims to meet the real needs and interests of both spouses – and avoid court.  It fosters positive post-separation relationships – especially important when there are children.

Collaborative Family Law has many advantages including:

• Each spouse is represented by his or her own lawyer throughout the process.  Both lawyers help you and your spouse work as a team to:
  • • identify your common interests and understand each other’s concerns;
    • exchange information;
    • explore a wide range of possible choices; and
    • reach the best possible solution that is acceptable to both of you.
• Both lawyers and spouses sign a Collaborative Law Participation Agreement at the start of the process which provides that all four parties to the contract will not go to Court or use threats of Court to solve the dispute.  If the collaborative process fails, both lawyers and their law firms must withdraw from acting for their respective clients.  The lawyers therefore share with their clients the incentive to make the Collaborative Process work.
• The Participation Agreement requires both spouses to provide full and frank disclosure of all relevant information.  Lawyers are obliged by the Agreement to require that their own client meets this obligation – or to cease acting if their client refuses to do so.
• Both spouses have skilled legal advisers at every stage of the process.   Both lawyers understand how to reach creative settlements.   You are never on your own; your lawyer is at your side, explaining issues and helping you to achieve goals by mutual participation and agreement.  This is in contrast to mediation where the independent mediator cannot offer legal advice.
• The Collaborative Law process is different to the traditional positional bargaining approach that most lawyers adopt.  Traditional negotiations are generally based on what lawyers argue might happen in court (although most separated spouses do not go to court).  Parties take opposing positions based on these theoretical court outcomes and make allegations and counter-allegations to support them.  This process can worsen the relationship between spouses and make future communication and cooperation (in respect of children, for example) more difficult.
• Collaborative law (in contrast to traditional negotiations) is based on both spouses and lawyers adopting interest based negotiation techniques.  The threat of court (or what a court might decide) is not made.  Spouses and lawyers work together as members of a settlement team, rather than working against each other as “opposing parties”.
• Negotiations are carried out almost entirely in four-way meetings attended by both lawyers and both spouses.  This ensures both spouses are aware of each other’s concerns and interests.  It encourages trust and avoids misunderstandings.  It can help establish new and workable post-separation modes of communication that will assist spouses cooperate into the future.
• In the Collaborative Law Process spouses:
  • • treat each other with respect;
    • listen to each others’ perspectives, interests and concerns;
    • explore all possible choices;
    • let go of the past in order to focus on the future;
    • establish new techniques for communicating.
• Both clients may spend less money and time using the Collaborative Law Process than in other processes – particularly going to Court.

WHAT IS THE COLLABORATIVE LAW PROCESS?

Both spouses must instruct lawyers who are trained and accredited as Collaborative Practitioners.  If your spouse does not wish to do so, we can still act for you in traditional negotiations or litigation.

A series of four-way meetings of spouses and lawyers is held.  The exact number and length will vary.

A typical series of meetings may be as follows:

1. Initial meeting to confirm each party’s commitment to the collaborative process.  The Collaborative Participation Agreement is checked and signed by each party and lawyer together.  Spouses are able to meet and establish trust with the other spouse’s lawyer.
2. At the second meeting, parties and lawyers will identify issues of concern to each party.  They will identify what additional information may be required to fully understand the relevant issues.  This might involve exchanging of documents or obtaining reports from experts.  For example, real estate value, superannuation or business valuation.
3. Following identification of issues and collating of relevant information, the third meeting allows for brain storming of all possible options and solutions.  This then allows for negotiations as to which possible solutions might be acceptable to both parties.  This would then enable the drafting of relevant settlement documents to reflect the agreement.
4. Final meeting in which the settlement documents can be checked together by parties and lawyers, and if acceptable, signed jointly.

Generally, the location of each meeting alternates between the offices of the lawyers.  Meetings normally take between one to two hours.  Discussions and negotiations occur primarily at the four way meetings to encourage trust and avoid misunderstanding.  There is contact between spouses and their respective lawyers in between meetings in order to obtain relevant information and plan for the next meeting, as well as checking settlement documents.  As a result, meetings generally occur around two weeks apart.

Experts may be employed to help with particular steps.  For example, parties may employ a neutral real estate valuer, or an accountant to calculate tax liabilities.  A child counsellor or psychologist may help parents consider age appropriate residency arrangements – including speaking with the children to assist them in dealing with separation.  Counsellors or psychologists known as divorce coaches can help spouses deal with the emotional effects of separation and teach effective communication techniques.  This can assist spouses in negotiating agreements with unnecessary conflict and to establish post separation modes of communication in respect of children and other long term issues.  Such experts should be trained in collaborative practices and should enter into the Collaborative Agreement.

Matthew Shepherd is a member of Collaborative Professionals NSW.  He is a member of the Relationships Australia Collaborative Practice Group.  He is also a founding member of the Northern Sydney Collaborative Practitioners Group.  Matthew can explain the Collaborative process in more detail and help you decide if it is the best process for you to solve your family law issues.