frequently asked questions
General Advice
If I engage a lawyer how much will it cost me?
Legal matters vary in complexity and the scope of the dispute. You will be charged for the solicitor’s legal services at an hourly rate and non-legal services such as para-legal and clerical work at a lower rate. In general if a dispute is resolved quickly and through negotiation, costs will be less than if the matter proceeds to a hearing in court. At Adelaide Family Law we will assist you to consider the most cost effective options for finalising your case.
What happens in a general advice session?
Adelaide Family Law offers a fixed fee general advice session for your first meeting with a solicitor. In this session we can obtain complete details regarding your circumstances, which will assist us to give you advice on your legal entitlements, the legal process, whether any urgent action is required and the likely future cost.
Do I have to go to court?
No. In many cases parties can reach an agreement without the assistance of the court through mediation, conciliation, counselling and conferencing. However, it is important that any agreement be properly formalised. Adelaide Family Law can advise and assist you with these processes.
Divorce/Separation
When do I need to see a lawyer?
Ideally before you separate to ensure that you are fully informed of your rights, responsibilities, obligations and likely entitlements in the event of a relationship breakdown. Of course that is not always possible so we recommend that you obtain legal advice, at least for your peace of mind if you have recently separated, if your partner or spouse provides you with a proposal for settlement and of course if you are served with court documents.
When can I get divorced?
You may apply for a divorce 1 year after separation.
How do I apply for a divorce?
To apply for a divorce an Application for Divorce must be filed with the Federal Circuit and Family Court of Australia. You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. The Court must be satisfied that proper arrangements have been made for the welfare of the children. This includes housing, education, time with each parent, health and financial support arrangements for the children. We can prove this by an affidavit prepared by a specialist family lawyer and sworn by you. The Court then grants a provisional divorce, if satisfied of those matters. This becomes final or absolute one month and one day later. You cannot remarry until the divorce decree becomes final.
Property
How is property divided?
The Family Law Act requires orders for a just and equitable division of assets, but do not assume it will be 50/50 split. All cases are different and take into account starting assets, current and past incomes, health, age, inheritances and other contributing factors.
Can I have a property settlement before my divorce is finalised?
Yes, you can begin proceedings after separation and if both parties agree the Court can make Consent Orders to formalise your agreement.
Children
Do we have to be divorced before orders can me made about the children?
No, you can apply to the Court for both interim and final parenting orders following separation. If you both agree the Court can make orders to formalise the arrangements you have agreed to.
Who will the children live with?
There are various factors which are taken into account by the Court in deciding who the children live with. The paramount consideration is not the parent’s rights but ensuring that the best interests of the children are served. Although it is most common that the children do stay with their mother it is certainly not the law and does not occur in every case. The court will have regard for the primary care arrangements that are in place for the children.
Intervention orders
What is an intervention order?
An intervention order (previously known as a restraining order) is a court order which prohibits a person from behaving in a particular manner towards a protected person. The object of an intervention order is to protect anyone against whom it is suspected the defendant will commit an act of abuse, including any child who may be exposed to the effects of abuse committed by the defendant against another person.
How do I apply for an intervention order?
An application for an intervention order is made to the Registrar of the Magistrate’s Court of South Australia. A member of the South Australian Police or your family lawyer may also assist you when making an application. Download an Intervention order application form here.
What happens if an intervention order is breached?
A person who contravenes a term of an intervention order, other than an order in relation to an intervention program, is guilty of an offence with a maximum penalty of imprisonment for 2 years. A person who contravenes a term of an intervention order in relation to an intervention program is guilty of an offence with a maximum penalty of a fine of $1,250.
Do the Family Law Courts take family violence into account?
Yes. In making parenting orders in the best interests of a child, the Court must give the greatest consideration to the need to protect the child from physical or psychological harm. Therefore the court must consider if an intervention order is in place for the child or a member of the child’s family.
DeFacto Relationships
Are de facto relationships treated the same?
The Family Law Act 1975 (Cth) applies to you if you have been in a de facto relationship on a ‘genuine domestic basis’ and separated on or after the 1st of July 2010, and either lived with your ex-partner for at least two years or have a child with your ex-de facto partner.
What about the children of de facto couples?
All children are treated the same way under the Family Law Act. It does not matter if the parents are married or not married.
Superannuation
What happens to my superannuation when I separate?
Superannuation is treated as an asset and is generally split as part of the property settlement process. The options for splitting superannuation are to: (1) Enter into a formal written agreement to split superannuation. A formal written agreement requires that both you and your partner instruct a lawyer who must sign a certificate stating that independent legal advice about the agreement has been given. Once this agreement is made you do not need to go to court. The agreement is not registered in court and you must be careful that each of you retains a copy, or (2) seek consent orders in the Family Court to split superannuation, or (3) If you cannot reach an agreement, seek a court order to split superannuation.