We have listed some of the more commonly asked questions below.
If you still have questions, please feel free to call us on (03) 9803 5673 to book in an initial consultation.
Do I need to get a Divorce?
You are not legally required to apply for a Divorce Order. However, you cannot legally remarry if you have not first divorced. Bigamy/polygamy is a crime in Victoria.
Separation and Divorce also have potential effects on how your estate is distributed after your death. We are able to provide you with more detailed advice if you contact us for further information.
How does a Divorce affect our property settlement?
The mere fact that you are separated or divorced does not mean that your assets and income are protected from your former spouse. A Divorce is not the same as a property settlement. At our initial consultation, we can advise you further on the relationship between the two and important things you need to consider in relation to Divorce and property settlement.
Does it make a difference whether a significant asset is in my name or my spouse’s name?
In most cases, all assets, debts and financial resources of the spouses are potentially “up for grabs” regardless of whether a particular item is only in one person’s name or in joint names. This does not mean that a particular asset that is in one spouse’s name will definitely be divided with the other, but the value of that asset is usually considered when deciding the overall property pool.
You should not assume that an asset will be “quarantined” and protected from division merely because it is registered in your sole name or was acquired prior to marriage.
It is important to preserve as much of the asset pool as possible to ensure that you will actually receive a just and equitable settlement. Sometimes, even jointly owned assets (such as savings) can be disposed of by one spouse without the other’s spouse’s knowledge. You should not assume that an asset can be clawed back once it has been disposed of by your spouse. At an initial consultation, we will give you advice about how to lock down assets and protect your interest.
My friend received 70% of the property pool when she got divorced. Why can’t I also receive 70%?
The property split is assessed on a case by case basis, as each case has a different set of circumstances. For example, the size of your friend’s property pool may be significantly smaller or larger than yours. Even if you and your friend may each own a home in the same area, the equity in those homes may be different. The size of the property pool may affect how it is divided. The relative size of the property pool is just one of many factors taken into account when determining how to split a property pool.
Will our assets and liabilities be automatically split 50/50?
There is no rule that the property pool should always be equally divided upon separation. There are a list of factors considered when determining how a property pool should be divided. At our initial consultation we are able to advise you on these factors and how it affects your rights and entitlements.
Is it possible for us not to have a formal property settlement?
Yes, it is possible, but you may potentially be significantly disadvantaging yourself if you do not obtain a legally-binding and enforceable agreement.
Do I need the other parent’s consent before moving homes?
You do not need to obtain the other parent’s consent to move to a new home with your child if the move does not mean that the child will have to change schools or if the move will not make it impractical or significantly more difficult for the other parent to spend the same time he or she currently spends with the child. For example, if you currently reside in Glen Waverley and you wish to move to Hawthorn with your child, you do not require the other parent’s consent provided the child can continue to attend the same school. However, if you wish to relocate to Geelong with the child, then you should obtain the other parent’s consent.
Do I need the other parent’s consent before relocating interstate or overseas?
If you wish to relocate interstate or overseas with the child, you should definitely first obtain the consent of the other parent unless there is already a Court Order permitting you to do so.
If the other parent does not consent to the move, you will need to obtain a Court Order permitting you to move with the child before you carry out the move (“relocation order”). If you move prior to having obtained the other parent’s consent or a Court Order, the other parent may be able to obtain a Court Order forcing you to return the child (“recovery order”) and the Court may take an unfavourable view of your decision to unilaterally move with the child.
Whether you will be granted a relocation order or recovery order depends on many factors. International relocation and recovery orders are particularly complex. We are able to provide you with more detailed advice if you contact us for further information.
Does the mother usually get the primary care of the child after separation?
There is no presumption that the mother of the child will receive custody of a child or become the child’s primary carer after separation. The Court will consider the circumstances of each case when determining what parenting orders to make. The Court must make its decision based on what it believes to be in the best interests of each particular child.
Statistically speaking, the Courts are more likely to order that very young children spend more time with their mothers because mothers are more likely to have been the children’s primary carers prior to separation and the Courts would be wary to disrupt that attachment whilst it is still developing. A father who was more involved with a child’s upbringing prior to separation is more likely to receive more time with his child than a father who had limited involvement, assuming all other factors are the same.
What’s the difference between custody and parental responsibility?
Parental responsibility is defined as all the duties, powers, responsibilities, and authority which parents have in relation to children (section 61B Family Law Act 1975). Those powers include the power to make decisions about issues affecting a child. For example, where a child should attend school, what sort of medical treatment a child should receive, and what religion a child should practise.
Custody (also known as live with/spend time with arrangements) refers to how a child’s time should be divided between his or her parents.
My former spouse has refused to return our child, what do I do?
You may first wish to contact the Police and the Department of Human Services so they can help you to check on the welfare of your child. You may also wish to contact your child’s school to ascertain whether your child has been attending school.
If there are no existing Court Orders in place, you can seek a Court Order for your child to be returned to you and further Orders about the long-term custody arrangements. If there are already Court Orders in place and you believe your former spouse is breaching these Orders, then you may need to make an application to the Court. The type of application you will need to make to the court will depend on the circumstances of your case. For example, you may wish to:
- Lodge a Contravention Application against the other parent;
- Apply for new Orders to be made; or
- Apply to enforce the existing Orders.
Each application has advantages and disadvantages. We are able to provide you with more detailed advice if you contact us for further information.
In an emergency, you should always first contact emergency services.