By Surendra Bennett - 15 Jan 2018
Not every separation requires a lawyer, especially if you and
your partner are amicable and can resolve things between
yourselves. However, if there are disagreements, a lawyer can help
with practical solutions. We can tell you the steps and timeframes
required during the process and let you know likely outcomes based
on previous case law.
Child care arrangements (child custody)
A parenting agreement is a good idea to outline care
arrangements for your children. Although this is not enforceable in
the way a Court order is, most people find it useful as a way of
recording agreements reached and expectations, especially in the
event there are disagreements later on. It can also be a valuable
reference point and records the parties' intentions if court
proceedings later become necessary. It is often prudent to obtain
input from a lawyer when preparing a parenting agreement in order
to ensure all the necessary aspects are covered.
If parents are unable to agree as to care arrangements, there
are two steps which need to be completed before court proceedings
can be commenced (unless there are urgency or safety issues in
which case court proceedings can be commenced without taking these
steps).
The first step is that each parent must attend a Parenting Through Separation course. The
second step is to engage in a Family Dispute Resolution process
(mediation) to try and resolve matters without requiring court
proceedings. Once these two requirements are met and, if agreement
has not been reached by that stage, an application for a Parenting
Order can then be made in the Family Court to determine care
arrangements. A lawyer can assist with this.
If one parent is a risk to a child or children due to issues
such as to drugs, alcohol or domestic violence, you may need to
apply to the Family Court on an urgent basis rather than relying on
a parenting agreement.
Relationship (Matrimonial) Property
If you and your partner are able to agree on how the
relationship property is to be divided after separation, we
recommend the agreed arrangement is recorded in a Separation
Agreement. The benefit of recording the agreement in a formal
document is it becomes a binding agreement which then prevents
either party later changing their mind and seeking to change the
terms.
In order for a separation agreement to be valid and enforceable,
each party needs to have independent legal advice and the agreement
needs to be witnessed and certified by each party's lawyer. This
process ensures you are aware of your legal entitlement and whether
you are receiving your full entitlement to relationship property
under the terms of the agreement. What is fair under the law will
be dependent on the circumstances of your relationship and that is
why you need to ensure that you obtain independent legal advice
from a family lawyer.
We have a wide breadth of experience from simple separation
agreements to protection orders and child custody. Every case is
different and our team will be right beside you helping you
navigate the law. Our goal is to get the best outcome for both you
and your family.
If you need any advice relating to the divorce or separation or
would like to understand more about your legal entitlements when
separating, please contact Surendra Bennett to discuss your
matter further.