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What are our legal rights?

We all have legal rights to protect us when we confront challenging times like separation and/or divorce. If you have a lawyer use them. But use them wisely to reduce cost. And to assist them and you, equip yourself with the right questions to ask them by clicking here and downloading the 'Questions you need to ask your lawyer' checklist.

If you require legal advice speak to us and one of the members of our service network can assist.

While you do not need, by the letter of the law, to engage a lawyer for all stages of a separation or divorce it is vitally important to understand your legal rights.

Do I need a lawyer?

By the letter of the law you do not during all stages of a separation or divorce.

But you must understand both your legal rights and how to navigate the maze.

And depending on the nature of your settlement you may need independent verification of the fairness and equity of your settlement - something which The Separation Guide can organise.

If your separation is fair and equitable and on good terms, then both parties could engage a qualified professional to guide or mediate the separation.

This takes you down a more pleasant path. No need for long expensive court battles, no need to instruct lawyers to be ultra – aggressive, less cost, less angst and easier for everyone.

The Separation Guide provides this. This process is called Guided Separation™.

It involves a legally qualified FDRP helping you both make the arrangements you choose.

If the separation is not on good terms then both parties having their own independent legal representation is advisable. This can also be organised by The Separation Guide.

And then both parties can use a Mediator through The Separation Guide to assist in the settlement so the matter does not have to proceed into the Courtroom.

Mindful that if a person wants to apply to the court for an order in relation to a child they will need to obtain a certificate from the FDR practitioner before applying, unless an exception applies.

That means in these types of matters dispute resolution is compulsory as required by the Australian Government.

So, whether you are involved in a Guided Separation™ or a mediation depends on the nature of the separation.

There is no right or wrong path, it depends on the circumstances you are in.

Sometimes there has to be a legal confrontation in order for a party to assert its legal rights – this tends to be the case where there has been a power imbalance in the relationship or where there is a lack of trust.

What are my legal rights if I have property?

In general terms you have a right to an outcome which is ‘fair and equitable’. That’s what separation and divorce settlements have to be in accordance with Australian Law.

In order to work this out a number of things need to be established:

  1. The size of the property pool must be established.
  2. This includes all the parties’ assets, liabilities and financial resources.
  3. This involves full and frank financial disclosure by each party.
  4. It will mean obtaining valuations on some assets such as houses, superannuation accounts and businesses.
  5. The parties’ financial, non-financial and homemaker contributions to the relationship are assessed. This includes an assessment of inheritances and gifts received by either party from a third party.
  6. The parties’ future needs are assessed by comparing. among other considerations, the income disparity between the parties, the primary care of children and medical issues that will affect a parties’ earning capacity.
  7. For married couples, applications to the Court for property division must be made within twelve months of the divorce becoming final.
  8. For de facto couples, applications to the court for property division must be made within two years of separation.

What are my legal rights if I have children?

In general terms, the law requires that the interest of the child or children come first.

Thus whatever arrangements are made in a parenting plan these interests come first and need to be maximised.

The law also tries to foster out of court settlement to try and reduce the stress on all parties and especially children.

To this end, this is how it works:

  1. Prior to making an application to the court for the resolution of children’s issues, both parents are required to make a genuine attempt to reach agreement in relation to parenting arrangements.
  2. A genuine attempt to reach agreement includes the parties attending dispute resolution with a registered family dispute resolution practitioner.
  3. If the parties reach an agreement, then the parties have the opportunity to enter into a parenting plan or Consent Orders.
  4. Should the matter remain unresolved after family dispute resolution, a Section 60I Certificate can be issued.
  5. This Certificate must be filed with any children’s issues application to the court. However, in certain circumstances, the court may grant you an exemption from participating in family dispute resolution. These circumstances include urgent matters and matters involving child abuse and/or family violence.
  6. A Parenting Plan sets out parenting arrangements for the children.
  7. A Parenting Plan must be in writing, signed and dated by the parents. It is not a court order and is not legally enforceable. However, if a Parenting Plan is signed by parents after a Consent Order, then the Parenting Plan will take precedence over the earlier dated Consent Order.
  8. A Consent Order is a legally enforceable document and if a party does not comply with the terms of a Court Order, there can be serious consequences. A Consent Order must be prepared in a form which is appropriate to the court. The document must then be signed, dated and filed in the court.
  9. If the Court decides that the parents should have equal shared parental responsibility for the children, then the Court must consider if it is in the best interests of the children and reasonably practical for the children to spend equal time with each parent.
  10. If a Court does not consider equal time suitable, then the Court must consider an Order such that the children live primarily with one parent and spend significant and substantial time with the other parent. Significant and substantial time can include weekends, weekdays, holidays and other special events.

How does mediation and Guided Separation™ work?

Guided Separation™ involves a trained, independent legal professional/FDRP helping you both reach an outcome together under your instructions.

Mediation is where you both have your own independent legal advisors who work with a Mediator to reach an outcome.

Both mediations and Guided Separation™s are:

  • Confidential as far as the law allows;
  • Informal but with a structure; and
  • Without prejudice meaning things which are said cannot be used in Court against either of the parties.

In order to be able to mediate a The Separation Guide Mediator must:

  • Be legally qualified;
  • Hold a Diploma of Family Dispute Resolution
  • Be a Family Dispute Resolution Practitioner accredited by the Commonwealth of Australia Attorney General’s Department;
  • Be a nationally accredited Mediator;
  • Be a member of the relevant legal or Mediator professional body and subject to its disciplinary and complaint management procedures; and
  • Bring full professional, public and private indemnity insurances

The benefits of mediation and Guided Separation™ are that:

  • It avoids all of the costs of going to Court;
  • Avoids all of the stress of going to Court;
  • In both, the parties are in charge. In Court, the judge is in charge;
  • Because many people going through separation and divorce are in one of the most vulnerable periods of their life, they often need a less aggressive process which is more mindful of their emotional and psychological needs;

The goal of both processes is to assist the parties to reach settlement on fair and equitable terms without the need for litigation, in a process which is as supportive as it can be.

The Separation Guide Mediators and separation specialists follow a 12 step process asking 12 questions which ensure the process is both right and effective:

1. Is The Separation Guide Guided Separation™ or mediation appropriate?

Before commencing a Guided Separation™ or mediation there is open dialogue with the parties to assess if family dispute resolution is appropriate as required by Section 25 of the FDRP Regulations 2008

2. To guide or to mediate?

The Separation Guide Mediators and separation specialists must then assess if the parties are better suited to either Guided Separation™ or mediation.

As a rule, if there is a sufficient level of amicability, a mutual desire to achieve settlement, flexibility in the approach of the parties, transparency from both parties, confidence that the matter can be guided and instructions from both parties to do so, then Guided Separation™ is an appropriate service.

If there is less trust and amicability, then both parties should receive independent legal advice prior to participating in a mediation with the benefit of legal advisors present.

3. Being Informed

Whether it be for mediation or Guided Separation™ the parties prior to either must be fully informed of all information as it relates to prior to contemplating any decisions which may be taken.

The Separation Guide Mediators and separation specialists will communicate to the parties in advance of the importance of full disclosure. Noting that in the event orders are sought from the Court to formalise any agreement the parties need to give undertakings as to the honesty of their disclosures.

4.Costs and Fees Disclosure and Billing

After an initial assessment the party and/or parties will be given a cost estimate on the fees which the The Separation Guide is likely to charge based on the best information available at that time.

5. What is success in this process?

This is a crucial question to ask both parties precisely because most people tend not to have thought of the answer. As such they lack clarity on what the two important elements of the answer to this question are:

  • What are your goals?
  • What are you needs for achieving them?

6. How to help people prepare for the discussions.

Part of the task of the The Separation Guide separation specialist and Mediator is to ensure that all of the time which people are paying for is time and money well spent. That means running an efficient process. To achieve this the following are the questions which need to be asked:

  • How do you wish the discussions to take place? That is, together in a conference room, in separate rooms, as a teleconference, as a video conference or with the Mediator/separation specialist shuttling between the parties.
  • Do you have all the information you need to make good decisions during the discussions?
  • What is your plan for managing your own wellbeing and that of others affected by the process throughout it?
  • Have you allocated sufficient time and head space to give the process the instructions you need to achieve your goals?
  • On the day/s of the discussions do you have the support you need to help you manage? This can be friends, professionals, lawyers or whomever you need to manage?
  • Do you have clarity on what instructions you will be giving to the process or to your legal advisors?
  • What questions do you want to ask during the discussions?
  • At the end of what can be difficult discussions what help do you need to manage the stress?

7. Being in the discussions

It is very useful for parties to rehearse how they will conduct the discussions once they have commenced. Preparation like this can reduce stress, improve decision making and make the discussions more efficient.

8. Generating solutions?

A successful meeting will tend to be characterised by both parties suggesting solutions in relation to custody matters, property settlements, maintenance arrangements, custody of pets and matters of timing.

9. Reality testing agreements?

Whenever an agreement is reached in principle its important that it be reality tested. This involves walking the parties through the suggested ‘sliding door’ to test what circumstances which the proposed agreement shall encounter.

10. Formalising or waiting to formalise - Getting the paperwork right

Depending on the nature of the agreement there may need a need to formalise certain elements of it. This will require the drafting of:

  • Parenting plans;
  • Property Settlements;
  • Maintenance schedules; and
  • Consent Orders; and or
  • Binding Financial Agreement Prepared Entirely by Independent Lawyers

And seeking independent verification to ensure there is fairness and equity in the agreements

11. Life after agreement

All The Separation Guide Mediators and separation specialists are encouraged to speak with both parties about the importance of taking steps to manage their health and well - being. And to do this by accessing the services available in The Separation Guide network.

12. Review

The Separation Guide is a business which pursues excellence based on the principles of continuous improvement and high performance. As such it is important for both performance and individual matters to be reviewed from time to time and on a need’s basis.

Can we separate and/or divorce on good terms?

You can if the separation or divorce is fair and equitable. The Separation Guide Q&A will help you and your partner determine some of these key factors around amicability.

And so, the important question to ask is: is this separation fair and equitable?

Is there enough goodwill and trust so we will be honest with each other through the process? This especially applies to full disclosure of all of the assets and liabilities to be divided.

If the answer is yes then separation is simpler, less expensive and less emotionally draining.

A fair and equitable separation takes you down a more pleasant path. No need for long expensive court battles, no need to instruct lawyers to be aggressive and demanding, less cost, less angst and easier for everyone. If you feel like you can separate on good terms then the separation becomes a guided negotiation. What we call a Guided Separation™.

If the answer is ‘no’ then the animosity between the parties takes you down a different road.

Where a good faith negotiation becomes a more bitter confrontation. This tends to happen when the information is not shared or when there is bitterness in the nature of the break up.

In separating or divorcing, there is no right or wrong path, it depends on the circumstances you are in. Sometimes there has to be a legal confrontation in order for a party to assert its legal rights – this tends to be the case where there has been a power imbalance in the relationship or where there is a lack of trust. Some separations and divorces can become like trench warfare and this can happen: Court costs are destroying parents and their children.

Others can be done quietly, sensibly and reasonably. The first question is to decide which category you are in.

And so, start the Q&A now to find out the best path for you.

Start the Q&A

What short term arrangements do we need to make?

It is important to ask yourself: How prepared am I to get through the day to day realities of this situation?

Think on these practical questions. Do I have:

  • A place for my children to live?
  • Carers for the kids if I/We are working?
  • A plan to tell the kids what is happening?
  • A way of sharing what is happening with family members and friends
  • Capacity for paying outstanding bills or debts
  • Plans for where I will live?
  • An idea of what will happen to any joint bank, building society or credit union accounts
  • An idea of what will happen to the house, car, furniture and other property
  • A full list of all of the property and income both parties have brought into the relationship?

What is mediation or Guided Separation™?

Under the Australia’s Family Law Act you must obtain a Mediator’s approval before you can submit a divorce application to the courts where there are children involved. That means at some point you need to enter the mediation process. The timing of that can be discussed with your advisors or with your partner. Starting a mediation or a Guided Separation™ is a question of agreeing with your former partner to enter mediation at a time and place you agree to.

The mediation process provides an impartial, neutral third party to guide the separation.

How does mediation work?

The Separation Guide mediates separation and divorce settlements.

We are Mediators accredited by the Commonwealth Government by virtue of our training and experience.

Depending on a party’s needs and circumstances we mediate with:

  • parties and their legal representatives;
  • legal representatives solely; or
  • directly with the parties.

What is the difference between mediation and going to court?

The difference between mediation and Court is that in mediation the parties decide who gets what.

In Court, the judge decides.

What are the steps and how do we get started?

  1. Make an inquiry here.
  2. One of our Mediators meets with each party in person or by phone for 1 – 2 hours to discuss how to prepare for the mediation.At this stage we give practical advice on how to prepare for the mediation, when and where it will be, and what to expect.
  3. We mediate with both parties to reach a settlement – this tends to take between 3 and 6 hours over one to two meetings.
  4. With preparation and reading, pre-mediation and mediation sessions our services tend to be required for between 8 and 12 hours.

Where does mediation take place?

We mediate at locations accessible to our clients including phone, Skype or in-person at an agreed location.

What is our pool of assets?

Understanding your pool of assets will help you understand what will need to be considered. You may wish to engage a Mediator to help reduce time, stress and money as you come to a long-term solution for your pool of assets.

What am I likely to get?

If you go to Court, there are no hard rules as to what you may get a separation.

The court will decide what is ‘just’ in the circumstances considering:

  1. The parties’ financial, non-financial and homemaker contributions to the relationship are assessed. This is the pool of assets.
  2. This includes an assessment of inheritances and gifts received by either party from a third party and
  3. The parties’ future needs are assessed by comparing. among other considerations, the income disparity between the parties, the primary care of children and medical issues that will affect a parties’ earning capacity;

What does our pool of assets include?

Your pool of assets can include:

  • Property
  • Investments
  • Superannuation

How can I calculate our pool of assets?

Use our pool of assets calculator to get a very rough estimate of what may happen in your circumstances should you be unable to reach settlement in mediation. This is an indicative estimate only based on all the factors which the court may consider.

What will our parenting plan be?

Separation can be a confusing time for your children. You will need to establish how you will communicate the process with your children, what their living arrangements will be and your long-term parenting plan.

How do we make our separation or divorce legal?

Once you have been separated for 12 months or more you are ready to submit your divorce to the courts. Your lawyer or Mediator can help you with this process.

The Family Law Act states:

  • You must make a genuine effort to resolve your disputes through ‘dispute resolution’ before you can apply to the courts for divorce;
  • You can apply for a divorce in Australia if either you or your spouse:
    • are an Australian citizen; or
    • ordinarily live in Australia and have done so for 12 months
  • When granting a divorce, the Court does not consider why the marriage ended;
  • The only ground for divorce is that the marriage broke down and there is no reasonable likelihood that the parties will get back together.
  • 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 granting of a divorce does not determine issues of financial support, property distribution or arrangements for children. It simply recognises that the marriage has ended.
  • It is possible to live together in the same home and still be separated

How can the agreements be enforced?

A mediation agreement is a legally binding agreement. That means its enforceable. It is essentially a contract.

Both parties must adhere to the agreement. If either does not there will be consequences for the breach.

If you feel your former partner has breached the agreement you do have legal rights to pursue the other party to ensure the commitments in the agreement are kept.

What is the cost of separation or divorce?

The cost is dependant on the parties.

If the separation is fair and equitable and the parties want to move on sensibly then the costs will be lower.

You may work directly with The Separation Guide to guide an outcome to reach agreement.

But if there is bitterness, a protracted process and a need to go to court then the costs will be higher.

The reason is simple, most charge by the hour and so time literally is money.

And sometimes Court will also mean briefing both solicitors and barristers.

And if the case is complex and so the trial is long then the costs add up.

As an example, here are some articles about a recent case of costs ballooning out of control through a full court case was:

  • How family court costs are destroying parents and their children
  • Family law solicitors referred to watchdog over exorbitant fees

By contrast, the projected average cost of a The Separation Guide Guided Separation™ from the start of the process to settlement is $8,000 to $12,000 to settle all of the issues in their entirety and to be paid at the end of the process.

The projected average cost of a full mediation to assist you, your partner and the various legal representatives reach settlement and including – mediation meetings and subsequent mediations up until settlement would be approximately $7000 to $10,000 payable at the end of the process.

The Separation Guide will provide a cost agreement should we be engaged to provide you with some comfort on the costs front.