Family Law - Questions and Answers (Part 1)

Posted on 20 July 2011


Can property and parenting/custody issues be dealt with before we get a divorce? 

Yes, they can be dealt with separately & independently before you apply for a divorce.

We want to try and resolve our divorce and family law issues without going to Court, what are my options? 


In most situations an out-of-court settlement is a lot cheaper and quicker way to resolve Family Law disputes.  Settlement discussions can take place directly between the parties or through their lawyers.

You should start by seeking initial advice from a family lawyer so you understand the family law process and what your entitlements are.  We then recommend, if you and your ex are on speaking terms, that you try and communicate with your ex either in writing or directly to discuss the issues and reach and agreement. If you are not on speaking terms with your ex, we recommend seeking assistance from a third party to communicate with them to try and reach an agreement; you can seek a lawyer’s assistance to negotiate or you and your ex can engage in mediation with a qualified family disputes resolution provider.

To reach an agreement and avoid Court, you both need to be realistic and practical in settling your issues – you need to consider both your financial and non-financial issues. If you reach an agreement, get assistance from a lawyer to draw up the documentation required to formalise your agreement to make it legally binding on you and your ex.

If you both compromise and work together to reach an agreement, you can, and will, avoid any Court involvement.

If I can’t reach and agreement with my ex, or I don’t have time to negotiate, how do I start Court proceedings for my Parenting (custody) and Property Issues? 

You can start proceedings in either the Family Court or the Federal Magistrates Court by filing an Application for Final Orders. 

If you are dealing with Property issues, you will also need to file a Financial Statement disclosing your financial circumstances. These documents can be very complicated and if not completed correctly, you could jeopardise your case; we recommend seeking advice from a lawyer  before you start any court proceedings.

If you issue relates to your children, then you must (unless the matter is urgent) first try to resolve the issue by engaging in mediation with a qualified family disputes resolution provider. Only after trying mediation and not being able to reach an agreement will you be permitted to lodge and Application with the Court.

My relationship is getting serious and my partner and I have decided to move in together/get married, can I protect my assets if our relationship were to breakdown? 

The simple answer is that 100% guaranteed protection is not possible. 

The best you can do is seek assistance from a lawyer to prepare a comprehensive Binding Financial Agreement.  A Financial Agreement is a contract between you and your partner which details what will happen to your assets if the relationship breaks down. The Financial Agreement can deal with property and financial issues between you and your partner and can be made prior to you both moving in together or getting married (prenuptial agreement).

Agreements can apply to either marriages or de facto relationships.  The best time to enter into these agreements is before problems start although unless both parties are on the same wavelength, the subject of contracting into a relationship can be difficult to broach.

Financial agreements allow you to detail, in writing, what you and your partner want to happen to their respective assets if your relationship ends – it will help you both avoid any unpleasant disputes over property that invariably occur following a relationship breakdown. 

If a Financial Agreement is not prepared correctly, they will be set aside by the Court so ensure that you seek legal advice before preparing or signing an Agreement.

What if I am already living in a de facto relationship or married, can I still enter into a Financial Agreement to protect my assets/inheritance/family business if our relationship were to breakdown? 

Again, the simple answer is that 100% guaranteed protection is not possible.  The good news is that the Financial Agreement can be made during a relationship or marriage and even following the relationship breakdown.

Many people often enter into a Financial Agreement during a relationship to protect their interest in a family business or an inheritance they receive during the relationship.

The catch is that as it is an Agreement both you and your partner must agree to sign the agreement otherwise, the Binding Financial Agreement is not possible. If you and your partner cannot agree, you may need to contact us to discuss whether there are any other options available to you.

If you need assistance with a family law matter, please feel free to make an enquiry with our friendly family law team.

More informative Q&A's coming soon!