People who are leaving a marriage or a de facto relationship have many questions to ask when they first go to see their Family Lawyer. This is usually a new experience for them, and they should use that first interview to ask their most important questions.
Here are 10 frequently asked questions, and answers.
Should my partner and I talk about arrangements for the children?
Yes, of course you should – if you can. Ideally, that should happen before either of you leave the home to set up house elsewhere. It’s vitally important for the children’s welfare that those arrangements be made as soon as possible, to minimise the impact of the separation on the children. If they are old enough, discuss what you and your partner have agreed with them, so they understand that, while you both love them, the two of you are not going to keep living together, but you will make sure they spend meaningful time with each parent. If you can’t agree about how much time the children will spend with each of you, consider going to mediation to try to come up with a Parenting Plan. The Family Relationship Centre in Greensborough offers an excellent, low-cost service – phone 9404 7800.
Will I get child support?
If you will be the parent who has primary care of the children (that is, they spend most of their time with you), you are entitled to ask your partner to pay child support to help you financially care for the children. You can find out an estimate of how much should be paid at the Child Support Agency website.
The amount depends on you and your partner’s incomes and how many nights a year the children will spend with each of you. If you and your partner can agree on child support, you can both sign a Child Support Agreement, to be registered with the Agency, which then becomes legally enforceable. But the payments must be in line with what the Agency would have assessed. Agreed expenses, like school fees, medical and dental treatment and sporting activities for the children can be included in that Agreement.
If my partner leaves the home to live somewhere else, what happens about paying the mortgage and the household bills?
Again, it’s best if you and your partner can sort these things out before either of you leave the home – to decide who is going to pay what. The biggest recurring payment is usually the mortgage. One way to deal with that is for each party to make the repayments in proportion to their incomes. If the payments are in credit and there is a redraw facility, that can be used in the short term to cover the mortgage. If you can’t agree, approach the mortgagee bank and ask that repayments be stopped, in part or in full, while you and your partner sort out a property settlement.
What is “Spousal Maintenance”?
Spousal maintenance is a payment that one partner pays to the other, if a partner can’t support themselves without a Centrelink pension.
Spousal maintenance can often be negotiated through mediation or with the help of your Family Lawyer.
Unlike child support, it’s not calculated by a government agency, but by the courts. That means, if you and your ex. can’t agree on an amount, the Family Courts can be asked to set a figure, either periodically (weekly or monthly), or in a lump sum, for example from a bank account. The court will look at the need for spousal maintenance and the other party’s ability to pay. Going to court is a stressful and expensive process, for both parties, and it’s best to avoid if possible.
What is a fair "Property settlement"? I only want what I’m legally entitled to.
A property settlement is the dividing of assets of a marriage or de facto relationship. We find that people often believe that the assets of a marriage or a de facto relationship should always be split 50/50 between the parties. That is not correct.
It depends on a number of factors, including whether one party has the primary care of children under 18, whether those children have any special needs, the income earning capacities of each party, their state of health, the financial and non-financial contributions of each party and a number of other factors.
It can be difficult to discuss these matters with your ex - a family lawyer will explain what a fair settlement might be given your specific circumstances and help you negotiate this with your ex and their lawyer.
What happens if we reach agreement about children/property between ourselves?
Well, that would be good! We recommend formalising any agreements so that they are legal enforceable, just in case circumstances change. Mediation services can help you prepare a Parenting Plan that sets out how much time the children will spend with each parent. These are not legally enforceable, but they can be turned into Consent Orders that are enforceable by the Family Courts.
Similarly, final property orders can be made by agreement, and these are often combined with orders about children. An alternative to final property orders are Binding Financial Agreements. These do not go to the Family Courts, but each party must get independent legal advice about them.
If the relationship ends and it’s not good for the children for both of us to stay in the home, who should leave?
The answer is a practical one. If children are to live mainly with one parent and spend time with the other after the separation, the parent who has the primary care of the children usually should stay. Otherwise, that parent has to find accommodation, not only for the children, but for themselves, whereas the other parent only has to house him or herself. It’s also better for the children, facing the inevitable stress of their parents’ relationship breakdown, to be able to stay in familiar surroundings, close to their friends and neighbours
If I’m staying in the home, can I change the locks?
Yes. When you separate, you are each entitled to your privacy. Just as you would not go, uninvited, into your former partner’s new home, so they should respect your privacy where you are living, even if they are on the title to the property.
What should I do if there has been family violence?
Long gone are the days when the police used to say, “it’s only a domestic,” and little was done to address the problem of family violence.
Today, both the state Magistrates Courts and the Family Courts take it very seriously. People in a relationship do not have to put up with abuse, be it physical, emotional or sexual.
The police have wide powers to issue Family Violence Safety Notices to protect an adult or child from a family member who is using family violence, if a person needs immediate protection and the courts are not open. This is a powerful tool and can include the perpetrator of the violence being required to leave the home until the matter can be heard in court, which can take months.
Alternatively, a victim of family violence can apply to a Magistrates Court for an Intervention Order, which has the same force and effect as a Safety Notice. You don’t need a lawyer to apply for either of those, but it can be helpful to discuss your situation with a family lawyer so you understand the consequences – for example, these measures will often include children, which may prevent them from having contact with the other parent for many months.
Finally, an important question – what if I can’t afford to pay for a lawyer?
In cases where there is property to be divided, lawyers may be able to arrange for their fees to be paid at the end of the matter, when a property is to be sold or refinanced. There are also litigation lenders, who will finance a case and, again, be paid at the end. Theycharge interest, but at lower rates than credit cards. Otherwise, family members may be able to help with legal fees.