Key Information in Family Law Matters
Parties involved in a family law matter often must make some of the most significant financial decisions of their lives. We advise our clients that the first and most important step is to become fully informed.
What Our Clients Need to Understand
- The law as it affects their case.
- The facts involving their case, for example, say, in property matters, what are:
- the assets, the liabilities and the financial resources.
- The value of the assets.
- The extent of the liabilities.
- Their entitlements.
Available Legal Remedies
We advise our clients of the legal remedies that may be available to them, including interim remedies such as:
- To obtain restraining orders to protect their assets if necessary.
- To receive maintenance, even in appropriate cases, urgent maintenance from the other party.
- Perhaps even an order that the other party finance our client’s legal representation in appropriate cases.
Understanding the Family Law Process
In addition to understanding the law, clients should understand how the family law system operates in Australia. This includes the strong emphasis on pre-action procedures, which require parties to make reasonable efforts to resolve disputes before litigation, including through negotiation and, where appropriate, mediation.
Addressing the Legal Costs of a Family Law Matter
Parties involved in a family law matter must understand the legal costs’ implications of their case. In appropriate cases a party may be entitled to to obtained a loan to meet the costs (“litigation lending”) or even obtain an order that the other party meet his/her costs to obtain appropriate representation.
Cohabitation Agreements under Family Law Act, 1975 (Cth)
Some people prefer to organise their finances formally through a Binding Financial Agreement (BFA)
Spousal maintenance and de facto partner maintenance
A party involved in a family law matter may apply from the other party to pay spousal maintenance or de facto maintenance.[1]
The threshold test is twofold:
- Is the payer reasonably able to pay?
- Is the applicant unable to support herself or himself adequately?[2]
In de facto matters, the applicant must establish that the relationship lasted two years or that the applicant made substantial contributions to the relationship or that it is a registered relationship.
There a time limit within which a former spouse may bring an application for spousal maintenance, namely, within 12 months after a decree of divorce has become absolute.[3]
The time limit for former de facto parties is two years after the parties separated.[4]
In each case, a party seeking to commence an action out of timer must obtain the leave of the court to do so.
Urgent Maintenance
A party may seek urgent maintenance against a former spouse[5] or a former de facto partner[6] when he/she may establish that it has an urgent need for financial assistance.
Addressing the legal costs of a family law matter
The legal costs of a family law matter sometimes become a major if not the principal issue surrounding the dispute. Parties may even end a matter not necessarily in the most favourable terms because of the legal costs involved. Therefore, it is important that parties consider the costs issue and always address same during the life of the matter. See our article at How to Keep Your Family Law Costs Down.
There are options available to address the legal costs of a family law matter including:
- Litigation lending – there are organizations that provide credit to parties involved in appropriate family law disputes including, for example, JustFund.[7] Turini McKean Law is accredited to raise funds for clients.
- A “Barro-type” application to the Court – a court may order in appropriate cases that one party fund the other party’s legal representation.[8] this normally would be the case when one party controls the couple’s wealth and has access to financial resources which the other party does not and which the latter requires to be able to pursue the matter appropriately.[9]
Binding Financial Agreements include:
- Pre-nuptial and post-nuptial agreements.
- Agreements before de facto relationship.
- Agreements during marriage and during relationship.
People Choose to do a BFA for many reasons including:
- Ensuring certainty about how assets will be divided if separation occurs
- Avoiding future disputes or court proceedings
- Keeping premarital or personally accumulated assets separate
- Setting clear rules for contributions to any jointly‑acquired property
- Assisting with estate planning in blended families
For further information see BFA – Binding Financial Agreements
[1] See section 72(1) of the Family Law Act, 1975 (Cth), (“the Act”) for a claim against a former spouse in a marriage and section 90SF against a former de facto partner.
[2] https://thefamilylawbook.com.au/ebook/
[3] Section 43 of the Act.
[4] Section 44(5) of the Act.
[5] Section 77 of the Act.
[6] Section 90SG of the Act.
[7] See at https://justfund.com.au/
[8] Barro & Barro [1983] FamCA 54.
[9] Zschokke [1996] FamCA 79 at [71]-[72]; Hogan [1986] FamCA 34
If you would like advice about negotiating a financial settlement or maintenance please contact us:
Email: info@turinimckeanlaw.com.au or
Phone: +61 2 61983384