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Separation Lawyer Advice – Can your ex take your super?

By Andrew Banna, a Principal of Matthews Folbigg, in our Family Law Group.

Superannuation falls within the scope of property under the Family Law Act. Upon the breakdown of a relationship, the superannuation splitting laws provide for the possibility for your superannuation to be divided between you and your ex partner as part of your property settlement with a separation lawyer. However, as superannuation is held on trust, different rules apply to how this type of property can be divided. Dividing your superannuation will not automatically turn the interest into cash that you can take home with you, rather, the interest will remain subject to the laws of superannuation. The options available to the non-member spouse that is receiving the split include:

  1. Leaving the super benefit in the member’s super fund in their own name
  2. Rolling over or transferring the super benefit to another fund
  3. Apply for the benefit to be released  to them if you have reached the conditions of your retirement
  4. Continue reading…

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Divorce Lawyer Advice – I Want a Divorce – Married Less than Two Years

By Andrew Banna, a Principal of Matthews Folbigg, in our Family Law Group.

If you have been married for less than two years and you decide to divorce, there are a few things for you to consider with a divorce lawyer. A divorce application is not to be filed within two years after the date of marriage without the leave of the Court. When establishing how the two years is calculated, it is determined from the date of the marriage to the date of applying to the Court for a divorce. You and your spouse must also have been separated for at least 12 months before applying for a divorce.

What do you need to do to get around this?

If you have been married less than two years and want to apply for a divorce, you must either:

  1. Attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse. OR
  2. Continue reading…

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‘I Want a Divorce’ – Divorce Lawyer Advice

By Andrew Banna, a Principal of Matthews Folbigg, in our Family Law Group.

Divorce Lawyer advice; Can I apply for a divorce?

In Australia you can apply for a divorce with a divorce lawyer if either you or your spouse:

  • Regard Australia as your home and intend to live in Australia indefinitely, or
  • Are an Australian citizen by birth, descent or by grant of Australian citizenship, or
  • Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

Additionally, you must be able to prove to the Court that you and your spouse have lived separately and apart (it is possible to live in the same home and still be separated) for a minimum of 12 months and that there is no existent likelihood of resuming married life.

Divorce Applications

This is where seeking legal advice and assistance is recommended. Prior to filing a divorce application a divorce lawyer can assist you in identifying your legal rights and obligations. They are able to assist in providing divorce advice in relation to your child custody rights as well as property settlements.
Continue reading…

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Divorce lawyer advice about property settlements

By Andrew Banna, a Principal of Matthews Folbigg, in our Family Law Group. In the event of a divorce or separation, parties will need to arrange the division of assets and debts. There are a few different avenues that could be taken with a divorce lawyer to do this depending upon your unique situation. Such avenues may include:

  1. An agreement being reached between you and your former partner on the division of property without Court interference ; or
  2. An agreement by applying to the Family Court for consent orders; or
  3. The matter proceeds to Court and a Judge could ultimately determine the outcome of your case.

With guidance of a divorce lawyer you will be able to have a clearer understanding of the general principles under the Family Law Act that are deliberated in property settlement orders; thus enhancing your chance of receiving a positive outcome.

The principles consist of:

  • Working out what you’ve got and what you owe, that is your assets and debts and what they are worth;
  • Continue reading…

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Divorce Advice when Children are Involved

By Andrew Banna, a Principal of Matthews Folbigg, in our Family Law Group.

It is important to recognise that divorce and parenting arrangements are two separate matters. There is a requirement that individuals wait a year in order to divorce however this time restriction is not in place in relation to making parenting arrangements. Couples can be separated and never divorce, however they are permitted to engage in parenting proceedings with a divorce lawyer immediately after separation.

In the event of a divorce or relationship breakdown it is highly recommended that individuals seek advice, particularly when children are involved. Legal advice from a divorce lawyer can assist you and your partner in negotiating and reaching short-term arrangements prior to implementing formal Court orders that may become necessary if an agreement cannot be reached.

Such short-term agreements may consist of:

  • Where the child/children will live until you reach a final agreement
  • Who will occupy the family home
  • How much time the children will spend with each parent
  • Continue reading…

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Unhappy with your current Parenting Arrangement? How to Change your Family Court Orders

In 2016, the Federal Circuit Court of Australia made Orders with the consent of both parents. In summary, they were that the child live with the mother and spend time with the father and the time with the father was to increase as the child increased in age. The parents lived, and continue to live in different towns. In 2018, the father’s divorce lawyer brought fresh proceedings based on two possible scenarios:

  1. If the mother relocates near the father, the child to spend equal time with the parents, or
  2. If the mother does not relocate, he sought Orders in the reverse so that the child lives with him.

In order to revise family law court Orders, the case of Rice & Asplund [1978] FamCA 84 requires the existence of a material change of circumstances. The father’s divorce lawyer argued that since the time of making the consent Orders, his circumstances had changed in three ways:

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Not a Parent of the Child? What you need to do to Challenge Your Child Support Assessment

When making an application for child support with the Department of Human Services (DHS), your Child Support Lawyers need to satisfy the Registrar that the person being assessed to pay the costs of the child is a parent of the child. This is often called “proof of parentage”. While parents may be biological parents, the term parent also includes adoptive parents, where the child has been born as a result of artificial conception procedures, or if the child was born as a result of a surrogacy.

The Registrar can presume paternity in the following situations:

  • The child was born during the course of a marriage
  • The person is recorded on the child’s birth certificate
  • The person has signed a statutory declaration
  • The person has adopted the child
  • The person cohabitated with the child’s mother at any time during the period 44 weeks and 20 weeks before the child’s birth
  • Where a Court order has determined parentage
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Child Support Lawyers can help to challenge your assessment

If you are unhappy with your child support assessment, your child support lawyers can apply to the Registrar for a change of assessment in special circumstances. Although the Child Support Act does not define the meaning of ‘special circumstances’, the Family Court indicates that something special or out of the ordinary is required: Gyyselman and Gyselman (1992) FLC 92-279. The Registrar only has the power to make a change of child support assessment for 10 discrete reasons. These are:

  1. The costs of spending time with or communicating with the child(ren) are more than 5% of your adjusted taxable income amount
  2. The child(ren) has special needs
  3. There are extra costs in caring for, educating or training the child(ren) in the way both parents intended
  4. The child(ren) has income, a earning capcity, property and/or financial resources
  5. You have provided money, goods or property for the benefit of the child(ren)
  6. The costs of child care for the child(ren) under 12 years of age has changed
  7. Continue reading…