We have included below some of our more frequently asked questions from clients regarding Family Law and Divorce. Click on each heading to expand.

I'm not sure where to start with my Family Law matter. When should I see a solicitor?

You should seek legal advice as soon as possible in relation to any Family Law matter. You should also seek legal advice as soon as you know there are matters which need to be resolved if the relationship is going to, or has failed, whether or not you believe you can reach an amicable agreement in either resolving either financial, children’s or both types of matters.

The first thing to do in any situation such as this is to arm yourself with knowledge. Make an appointment to see us at MCG Legal as quickly as possible. 

This will allow us to provide you with timely and accurate Family Law advice. This advice will assist you in understanding your rights and entitlements regarding financial and children’s matters.

In order to provide you with timely and accurate advice, we will require a lot of information from you.  The information will include details of both your family and financial history.  We estimate that an initial consultation normally takes between 45 minutes to 1 ½ hours.  We advise that the first 30 minute consultation relating to any family law matter is free.  Please do not hesitate to contact our office to arrange an appointment with our principal, Matt Gill in relation to taking the first step to resolving your issues.

Financial matters

Financial matters vary on the facts and circumstances of every individual. Some financial matters can be extremely complex whilst others are not. What is true for all financial matters is that there are a number of determining sections within the Family Law Act which assist both Lawyers and the Courts in ultimately determining the division of financial assets and resources. Sections 79(4) and 75(2) of the Family Law Act are two of the main sections and there are a number of determining factors which we will need to discuss at length with you.

What Information Do We Need?

There is a lot of information that needs to be gathered so that you can be properly advised. Some of the questions you can expect to be asked during your initial consultation with a family lawyer include:

  • Your full names and dates of birth
  • The type of relationship (marriage, de facto)
  • The commencement and conclusion dates of the relationship
  • Whether there are any children to the relationship
  • Whether there are any children to previous relationships
  • Children’s full names, ages and current living arrangements
  • The health and welfare of you, your former partner and the children
  • Property and financial resources of both parties at the commencement of the relationship
  • The financial and non-financial contributions made by both parties during the relationship
  • The property and financial resources held by either party at the end of the relationship
  • Any property or financial resources which have been disposed of since separation
  • Any and all liabilities held by you
  • Qualifications held, employment and earning history of both parties
  • Any superannuation held by the parties

The above information will allow us to obtain an overall picture of your circumstances.

What do I need to bring?

There is a lot of information that needs to be gathered so that you can be properly advised. Some of the questions you can expect to be asked during your initial consultation with a family lawyer include:

  • Your full names and dates of birth
  • The type of relationship (marriage, de facto)
  • The commencement and conclusion dates of the relationship
  • Whether there are any children to the relationship
  • Whether there are any children to previous relationships
  • Children’s full names, ages and current living arrangements
  • The health and welfare of you, your former partner and the children
  • Property and financial resources of both parties at the commencement of the relationship
  • The financial and non-financial contributions made by both parties during the relationship
  • The property and financial resources held by either party at the end of the relationship
  • Any property or financial resources which have been disposed of since separation
  • Any and all liabilities held by you
  • Qualifications held, employment and earning history of both parties
  • Any superannuation held by the parties

The above information will allow us to obtain an overall picture of your circumstances.

Do I have to disclose all of my information?

The answer is simply yes you do.  The Family Law Act 1975 states that both parties must make full disclosure of all matters in relation to their Family Law matter.  The disclosure obligation is an ongoing obligation until the matter is finalised and completed.

Failure by one party to disclose financial information to another party may allow for any Judgment and/or Orders agreed to, to be set aside and the matter re-commenced.

If I win the Lotto or receive an inheritance after separation but before we have finalised financial matters, can my spouse obtain any of that money?

Yes, they could.  In the conduct of any matter in the Family Court, all financial details are relevant up until either a Binding Financial Agreement, Consent Order or a Judgment of the Court is obtained.  It does not matter if you have been separated for 1 year or 5 years. 

If you are separated and you have not finalised your financial matters and you win lotto or receive a significant inheritance, those monies will form part of the matrimonial pool in reaching a final resolution.  What percentage your spouse may get of those monies is a matter which we can best advise you on and will be specific to the facts and circumstances of your Family Law matter.

Does a Divorce affect a property settlement?

Yes it can.  You only have 12 months to file an Application in the Court to resolve property matters from the date the Divorce was granted.  If you wish to resolve property matters outside the 1 year period, you will need to seek leave of the Court to proceed.  Should you find yourself in this situation, please immediately contact us to discuss your legal position.

Do I need to have Mediation?

In most circumstances involving children’s matters, there is a requirement before commencing proceedings in a Court that you undertake mediation.  There are a number of institutions which provide mediation services in relation to children’s matters.  The following are links to a few of those organisations for your easy referral:

Do I need a lawyer for a divorce?

  • No you do not need a Lawyer for a divorce.  Located on the Family Law Courts’ website is a Divorce Kit.  This kit is an easy DIY kit and will save you considerable expense in engaging a Lawyer.  If you do not have children there may be no need for you to even attend Court but if you have children under the age of 18 years, it will be necessary for you to attend Court either in person or by phone.  A Court appearance in relation to a divorce is usually quite short and again does not require a Lawyer.

    Divorce is very separate to the division of assets or children’s matters within Family Law. Divorce is simply obtaining what is no more than a piece of paper from the Court to say the marriage is at an end. Property and Children’s matters are not dealt with in a divorce application. Any party to a marriage only has twelve months from receiving their divorce to commence property proceedings in the Court. After that time it becomes more difficult with the person applying to the Court having to seek leave from the Court to proceed. 

    It is in these circumstances that consulting with a Solicitor regarding your Family Law matter can ensure a fair outcome. 

Does my Superannuation form part of the finances we have to sort out at the end of a relationship?

The answer is yes. Superannuation is a part of the financial resources of the relationship and the superannuation of both parties will be taken into account.

What is Spousal Maintenance?

It is the payment by one party to another in a relationship.  A Spousal Maintenance Order is normally made when there is a significant disparity in earnings between the parties.  The classic example of spousal maintenance is when one partner is working full time in a high earning job and the other partner stays at home and raises the family.  In this instance, spousal maintenance allows for a payment to the lesser earning partner to re-train, re-educate and allow them to place themselves back into the workforce to improve their earning capacity.

How can I afford legal fees?

Generally speaking, the Family Court and the Federal Magistrates Court subscribe to the mantra that each party shall bear their own costs of proceedings, but how can you pay your legal representatives if one of the parties to the relationship is in the position of financial dominance over the other?

There are 3 possible scenarios that can take place:

  • Attempt to get consent from the other side for a joint draw down of funds (from the pool of matrimonial assets) to be placed into each solicitor’s trust account.  A joint drawn down of funds will not be any more or less favourable to one side than it will be to the other.  It is usually the case that both parties will be relieved that the immediate financial burden of being able to pay your legal team is removed.
  • The next step might be to enquire about a litigation loan.  Many financial institutions offer funding for litigants prior to settlement actually occurring.
  • The final step is to head to Court.  The Family Law Act 1975 provides the Court with the authority to order the financially dominant party to provide the other party with sufficient funds to be able to prosecute their case.  This is commonly known in legal circles as a "Hogan Order" and ensures a level playing field for each party.  It is so named after the leading case in this area of law.

Find out more about affording Divorce legal fees here.

How do I resolve what happens with the kids? What are my options?

This is always a very complex and emotional issue to resolve for both parties.  At MCG Legal, we also understand that being apart from your children is hard to handle.

You should know that the Court will always determine matters as to what is in the best interests of the children.  This is the approach you should adopt in trying to resolve these matters.  Unfortunately, it is sometimes the case that the children or time with the children is used by one parent to compel the other parent to resolve issues of a financial nature.  Should you be experiencing this sort of behaviour from your partner then you need to immediately seek our advice.  The Court will always make decisions which are in the children’s best interests and the Court endeavours to have the children enjoy relationships with both parents and even grandparents in some circumstances.

My former partner has threatened to take the children to another state or overseas. Can they do that?

The answer is no.  It is the Court’s position that no parent can relocate to another state or overseas without the other parent’s consent or an Order of the Court.  If this is the situation for you then you need to urgently contact our office so we can make application for Orders seeking that the children are relocated back to the locality from which they left.  MCG Legal on numerous occasions have been successful in having a child or children returned in these circumstances.

Can I have shared parenting?

If your circumstances allow and these include your employment, your locality in relation to the other parent and the children’s schooling and other relevant factors, there is no reason why you cannot have shared parenting.  Shared parenting is determined on a number of factors such as these and in a number of matters, shared parenting isn’t going to be achieved straight away.  It is very common in parenting matters that shared parenting is something which is built up to over a number of years in increments but it is most certainly achievable.

What is parental responsibility and does that mean equal time?

Parental Responsibility is where two parents make joint decisions for the benefit and welfare of their children.  The Court presumes that shared parental responsibility will occur in most cases unless there are extreme circumstances.  Shared parental responsibility however does not necessarily equate to equal time.  Equal time or shared parenting will be determined on the circumstances of your case.  See the frequently asked question about shared parenting above

My former partner has said that I am not having the kids. What can I do?

The first thing is if there are no Orders in place, neither parent has greater right to the children than the other.  That said, you need to do what is in the children’s best interests and make your decisions based upon that.  You should immediately seek a mediation to try and resolve the differences but the process is long and can take up to 6 weeks in some matters. 

Unfortunately, in most cases a mediation certificate is required before being able to file in the Court on children’s matters.  We at MCG Legal are able to advise you on all of these matters and you should contact us immediately to discuss same.

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At MCG Legal we have an experienced team of Family Law Solicitors. Please don't hesitate to contact us with any queries relating to separation, divorce and family law on the Gold Coast.

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