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Family Law | Frequently Asked Questions

By 11 July 2014Family Law
Family Law Frequently Asked Questions

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How long will it take to have my divorce finalised?

The law requires that a marriage reach a state where there is no reasonable likelihood of resuming married life. The married couple must therefore live separately for at least 12 months.

Newly married couples may be subject to additional requirements.

Can I agree to a property settlement before my divorce/split finalises?

Yes, a financial agreement may be made before, during or after a marriage or a facto relationship. Theses agreements have very specific requirements and it is important that a lawyer is consulted for independent legal advice.

How is custody of my children determined?

In many cases custody of your children, as well as any other arrangements that involve your children, will be dealt with by parenting orders. These are orders made by the court.

In other cases agreement may be reached by consent in regards to custody and other matters.

Do I have to go to court?

Court can be mostly avoided, but only if agreements can be reached between both parties to a divorce. Some documents will still be required to be lodged with the courts, irrespective of agreement between the parties.

What is collaborative law?

Collaborative law is a process that encourages the private resolution of disputes. Parties and their lawyers sign an agreement that states that the parties will not go to court. Should the process fail, both parties will be forced to find new representation.

Negotiations occur in confidential environments and the lawyers take a back seat in negotiations. Collaborative law can be highly effective in some situations. Trained collaborative law practitioners are able to better advise you of whether your situation is suitable for this approach.

I don’t know much about our family assets, will this put me at a disadvantage?

The law requires that parties to divorce and settlement proceedings provide each other with full and frank disclosure of assets. This means that if a party has no idea of the current financial situation of the family, they will be provided with the appropriate documents that will allow them to assess the financial situation.

Do grandparents have any rights or options in regards to custody?

Grandparents are eligible for custody of their grandchildren in many situations. They are not excluded from seeking parenting orders (despite the name).

My situation is pretty similar to a friends, will my matter be finalised in a similar manner?

Cases are dealt with on a case-by-case basis. Whilst similar, it is almost a certainty that your friend situation differs in many important ways, as such it is best to focus on your own proceedings, and not dwell on the outcomes of the proceedings of other parties.

I want a divorce but can’t afford to move out just yet, can I count the time I’m still living in the matrimonial home towards to the 12 months required for a divorce?

Parties can be declared separate but still reside in the same residence. It is often that case that parties are unable to move out due to financial reasons or to make the transition easier for their children. The court will have to be satisfied however that you meet the criteria for proving separation.

How can I enforce a parenting order?

As an order of the court, the court that issued it generally enforces a parenting order. A party is generally required to return to the court to deal with any non-compliance.

Exceptions apply to non-compliance that are serious enough to elevate the breach become a criminal matter.


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