Commercial Law.

Separating from a spouse or partner can be traumatic with many practical and financial considerations. A break-up places stress on the emotional wellbeing of all parties and their decision-making capacity – getting advice early is important to ensure the best possible outcome is reached in your circumstances.

KCH Lawyers are a Legal Aid Queensland Preferred Supplier. Legal Aid Queensland gives legal help to financially disadvantaged Queenslanders about criminal, family and civil law matters. Depending on your situation and the details of your legal matter, you may be eligible for Legal Aid Queensland to fund your legal costs. If you are seeking Legal Aid, please contact us and we can assist you with the application process.

Married couples in Australia can apply for a divorce if their marriage has broken down irrevocably. To make an Application for Divorce there are a number of matters to consider but essentially the parties must have been separated for a period of at least 12 months. This can include a period of separation where the parties were living under one roof. If you have children under the age of 18 years, you will be required to attend Court for the hearing of the application. The Court will need to be satisfied that proper arrangements have been put in place for the children.

Considering how parenting will work after the breakdown of a relationship can be difficult to navigate. The Court’s primary considerations include the need to protect the child/children from harm and acting in the best interest of the child/children. The Court also places emphasis on promoting a meaningful relationship between the child/ children and both parents. Parents should be guided by these objectives in considering parenting matters. Parenting arrangements can be recorded in the form of a Parenting Plan or by application to the court for a Parenting Order. Parenting Plans are not enforceable like Court Orders are, however, if a Parenting Plan has been entered into, the Court is required to have regard to that agreement before making any further Order. If both parents can agree on parenting arrangements and prefer the enforceability of a Court Order over a Parenting Plan, an Application for Consent Orders can be made to the Court requesting your agreement to be formalised by way of a Parenting Court Order. In circumstances where parents cannot agree on parenting arrangements, important to be aware that parents are required to make a genuine attempt to resolve parenting disputes by way of mediation or other dispute resolution services prior to instituting court proceedings in relation to parenting matters. There are exceptions to this rule in matters involving risks of harm and if this situation applies, you should seek legal assistance immediately. Parenting Plans and Parenting Orders often include matters such as: a) how major long-term decisions for the child/ children will be made (known as “parental responsibility”) b) with whom the child/ children are to live c) time that the child/ children are to spend with the other parent (or some other person) The law imposes a presumption of equal shared parental responsibility between parents when matters come before the Court. This presumption allows both parents equal responsibility and authority for the child/ children and requires parents to reach joint decisions about long-term care arrangements such as health, welfare and education. However, this presumption can be rebutted in certain circumstances. Equal shared parental responsibility does not automatically mean that a child/ children should live in an equal shared care arrangement (eg. week on/ week off). However, today, equal shared care arrangements are quite common. In determining the time that the child/ children should spend with each parent, various practical and other factors should be considered including the age of the children and their ability to cope with change, the nature and existence of any relationship with other siblings, the work commitments of each parent, schooling and location. If you need advice or assistance with these matters, please do not hesitate to contact us.

The Family Law Act provides that spouses and de facto partners have an obligation to maintain and support each other and that the obligation continues even after a relationship has broken down. Spousal maintenance is where one person from a former relationship provides financially for the other. Essentially, spousal maintenance is payable in circumstances where one party cannot adequately meet his or her reasonable living expenses and the other party has the financial capacity to assist that person.

A property settlement concerns the division of assets, liabilities and financial resources between a separated couple to legally finalise their financial affairs. The conclusion of a legal property settlement enables the parties to move on with their respective financial activities and enables various stamp duty concessions when transferring certain assets such as real estate. A person may seek a property settlement once he or she separates from a former spouse or de facto partner. There is no requirement to be divorced before settling your financial affairs however the following time limitations are important: for de facto partners, any court proceedings for a property settlement must be commenced within two years of separating; the granting of a divorce triggers a twelve-month limitation period within which to bring court proceedings for a property settlement or spousal maintenance. Even ex-partners on good terms should ensure that any agreement reached concerning the division of their property is legally documented and each receives independent legal and financial advice before finalising their affairs. The division of assets after separating can be achieved through a financial agreement, consent orders or court proceedings. Most family law property settlements are finalised without going to court which should only be considered as a last resort. The Family Law Act encourages separating couples to settle property issues amicably and full disclosure is essential. When negotiating how property should be divided after a break-up the same steps that a court would take are generally applied. These are: identifying the parties’ assets, liabilities and financial resources; assessing the parties’ respective financial and non-financial contributions; evaluating the parties’ future needs including their relative earning capacities, state of health, education and responsibilities as primary carer of any children; making just and equitable orders in consideration of all circumstances. Whether you achieve, for example, 40%, 60% or ‘somewhere in between’ out of the property pool, it is essential that you are aware of the financial implications before you finalise a property settlement. The retention, transfer, disposal or division of assets must be considered in light of taxation and stamp duty implications, the effect on your personal circumstances, and your current and future needs. Consideration should be given to the nature of assets retained or disposed of, as it may be more advantageous to hold onto one type of asset over another. It is important to understand and utilise the best structure to manage tax liabilities, achieve legitimate tax savings and safeguard, as far as possible, your financial future.

A superannuation split may form part of your proposed property settlement and it is important to evaluate the net result of this. The split may permit the creation of a new interest for the non-member spouse / partner or a transfer or roll-out of benefits for the non-member spouse / partner to another fund. The splitting of superannuation does not convert its value into cash as it is still governed by superannuation laws and will generally only be accessible at retirement age. With assistance from a legal and financial expert, your options can be presented and explained so you can make informed decisions that are in the best interests for you and your family. If you need any assistance contact one of our lawyers at reception@kchl.com.au or call 07 4927 9477 for a no-obligation discussion and for expert legal advice.