This website is for people who are facing Divorce or separation and want to find out as much as they can to help them through. My firm is Journey Family Lawyers, who are specialist Family and Divorce Lawyers in Queensland. They have their own website at www.journeyfamilylawyers.com.au. This is a divorce blog where you can comment and ask questions about your marriage property settlement or children custody problems.
I hope you can find the answers to your divorce issues here, if not please email us at enquiries@journeyfamilylawyers.com.au or comment on the blog or phone us on (07) 3832 5999 and we will get back to you so you can know where you stand. Don’t forget we offer free 10 minute consultations by phone too, or one hour for $143.00. I am still slogging away on my book, Divorce a new users guide, and will post bits of it from time to time. The good news is that the book should be ready for publication mid 2013, if I can keep up the pace of writing, that is!
Regards Lynette Galvin
Hi Lynette,
My husband has been separated for 3 years and officially divorced for one year now. His ex-wife has been a torment, she would not change her surname to her maiden name. They do not have any children together. Her reason for not changing back to her maiden name is ‘just because and thats my name’.
My question is, if she doesnt change her name, in the future would there be any legal implications- finances etc (she never worked whilst they were married), also I guess personally, from a womans point of view, when we have kids together, I rather my kids have no connection with her – I know there is none but she carries my husbands surname.
Please advise. Thank you for taking the time.
Thank you for your question. It is strange, but there is actually no law requiring her to surrender your Husband’s name. If she insists on keeping it, there is nothing you can do I am afraid. I completely understand that tit is frustrating, but the law is the law. Good luck in your future life and just put her out of your minds.
As for the financial implications, as long as your Husband has had his property settlement documented by Consent Orders, or Court orders of some sort, I cannot see any problem in the future. IF, on the other hand, they haven’t had property settlement, even if it is just recording that hse gets nothing and filing that document appropriately in the court, then in the eyes of the law, she can come back at your Husband and demand her property settlement which will be based on the assets as they stand at the time she makes her demand.
Because it is one year since the Divorce, she would need the Courts consent to bring a property Application now, but that consent is not hard to get.
I hope that helps,
Regards, Lynette
hi lynette
my husband and I are seperating after 10 yeras of marriage. We have 2 boys aged 5 adn almost 1. he has moved out and I am still in the family home. however we have put the house on the market to sell. he mentioned that once the sale went through we would pay all debts mortgage and credit cards and then split 50:50 as we do not want to pay legal costs. I am of the same opinion and i also want to keep this very ampicable for the sake of our children. However i have been told I am entitled to a greater percentage as theh children are going to stay with me. up until the birtyh of our first child we both worked full time contributing to the house. i know work partime adn care for the children. Can you please help me with a reaonable split as i really want to keep the lawyers out and keep things ampicable
thnaksk carla
HI Carla. In short, the answer is that you would be entitled to more because you will have the care of the children. This percentage extra varies from person to person because of things like salary and age differences and health and employment prospects.
I also worry about what it is your Husband plans to split 50/50. For instance does it include Super? I think you should see a lawyer for an obligation free one off visit to at least know where you stand. Its too important to do without knowing your true entitlement, and in any event your Husband will most likely want it all documented so you cant come back for more, and this means getting a lawyer involved anyway.
Hi,
Firstly, I have been separated from my husband for nearly 10 years. It was a very abusive relationship and it took me years to finally get him out of my life. Many times I wanted to file for divorce but feared facing him, so I just left it as I had no intention of ever getting married again. Now I am with a wonderful partner and we want to get married. I’m not sure if my ex has gotten the divorce, is there anyway I can find out? If I’m still legally married, are there steps I can take without having to pay a fortune to track him down? I recently had 3 surgeries on my knee and I’m looking at not being able to work for another year as I need more surgery and my partner is my carer so money is tight. I know that in America you have to prove reasonable steps were taken to find the other party ie: article in the paper etc etc, I’m not sure if that’s the case in Australia. His electoral role address is the same as when we got married so I know he’s not there.
Also, my partner has a 6yo son who he never gets to see. He has come to terms with this and has agreed to let his ex’s new husband adopt him once they marry. Since he was 2 his paternity was in question as she had an affair the same day the donor sperm was inseminated through IUI(he was left infertile after botched surgery). She advised him that she got a DNA test done but refuses to give him a copy of the results. He is paying child support for his son but finds it hard to believe he’s his if she refuses to show him the results. Does he have a right to see them and how would that be done.
Thank you for any advice you can provide on these matters.
Hi.
If you contact the Federal Magistrates Court they will do a search and tell you if there has been a divorce. There would be no charge for this but you may have to give proof of identity.
With the issue of your partner not seeing the son, normally he would have the right to see him. If the mother is refusing, your partner should see a lawyer about the issue.
Regards
Bryan
Journey Family Lawyers
Hi, My friend has seperated and he has a 2 year old girl and 4 month old girl, His ex wife only allows him supervised access to the 2 year old one per week for 6 hours and a small amount of supervised access weekly with the 4 month old 1 or 2 hrs ( the baby is breast fed). He works full time and is asking only for one week night and every second weekend with the 2 year old and 3 x 1-2hr unsupervised time per week with the 4 month old. His ex says this is not possible they are two young. Is he asking for anything he may not be entitle too and is this somthing the courts would give him if it went that far. Is there somewhere on the internet we can find some sort of guidelines the courts use for access and custody going of the age of the children. Regards Dale any help or advice very much apreciated!
Hi Dale, I can feel your distress in your coment and I feel for your partner to whom this all seems so unfair. I can tell you that the Family Law Courts have been applying Attachment Theory when they are deciding custody of small children for some time now. Here si the link to a wikipedia description of the theory:
http://en.wikipedia.org/wiki/Attachment_theory
I think it would be too early to ask the Court to order more than roughly what he is getting now, although as time goes by, that would change. The Courts must consider equal parental responsibility. Also ultimately, when the kids are old enough for it to be in their best interests, the Family Law Act requires the consideration of significant time with each parent. Tha Act actually says in its objects, ” children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development “. But only to the extent, I would paraphrase here, that it is in the child’s best interests. So read the section of the Family Law Act below, and the description of attachment theory to understand what is happening to your partner. He needs to be patient, but ultimately the Law supports him having greater involvement in the future. I hope this helps you all,
Kind regards, Lynette Galvin
( Here is the part of the Family Law Act most relevant to you:
http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60cc.html
Hi there,
On the 21st September I wrote a message that was really in two parts. Lynette answered the first part of my message (Which I am very grateful for) she also said she would email a reply to the second half. Is it possible to have someone reply to that part of my message? I am happy to rewrite the message if you can no longer access the other part.
Regards
Kerry
Hi Lynette,
My step-daughter and her husband have been separated for 12mths now and during this time he hasn’t made her life easy. He claims to have had her followed on the rare occasion she has gone out alone and texts her constantly demanding to know where she is and who she is with.
They have a 21/2 year old daughter and I keep telling her she needs to get a parenting agreement drawn up but he wont agree to anything. He has made threats to take the child off her if she decides to move away from the immediate area and so my step daughter lives with her father under not so great living conditions. Her ex just turns up when ever he feels like and to see his daughter and only takes her for one night a week when and if it suits him. If she asks him to have her for a weekend he always refuses and always has an excuse as to why he can’t have her, yet if she comes and stays with me for a week (2hrs away) he is constantly demanding her to return so he can see his daughter.
She is looking at filing for divorce now they have been apart for the year and there are no monies to be divided and hardly any household items. Only her vehicle and the one he owns. He damaged her car whilst they were together and it still remains un-drivable as he refuses to get it fixed and so she is paying for a car she can’t drive. So many little issues but the major one is the child.
What does she need to do to make him have weekend visits and or regular visits and what does she have to do if she decides to move away??
Regards Shirreen
Shirreen,
Hi.
Lynette is unavailable so i am answering for her…
With the child, you cannot make a person exercise access. however if the Ex is threatening to take the child away, your step-daughter really needs to get a court Order so that she and the child are protected from that threat. You mention there is not a lot of money around. It sounds like she would be eligible for legal aid. If she is in Queensland, then she can approach Legal Aid dirct or go through one of the local lawyers who do Legal Aid. If she is in south east queensland, our firm can assist.
You mention that the Ex threatening her and following her around, etc, that is a police matter and she should contact them if it becomes a serious threat.
If she wants to move away, a lot depends on where she wants to move and why. If it is less than an hour or so’s drive, then it probably would be okay, If it is more, we would need a lot more information before commenting. If it was a big move, the appropriate action would be to apply for a “relocation” order from the court.
hope this is of some assistance.
Regards
Bryan
Hi i just wanna know where u stand my husband and i are married 1year and 10 months now and beeb living rogether for 4years.i have 7years old daughter in the past and since i come here in australia and marry him his attitude is change especialy when we find out that i cant easily get pregnant because of tubal problem:( and when he get angry he can be so vioent and say a lot of disgusting words. Since im not australian resident i dont know where to go or what to do, everytime he tell me to get out in his house! Hes business is not in his name but in family trust! I dont wAnt anything from him but im worried where to put my self and my daughter. Sometimes in winter we walk in rain and cold sitting down in the park beacause he said he will kill us and even the immigration wont find us. Where did i stand for this?
Thanks! Trish
Trish,
Hi. I do not know where you live but there are a lot of community support organisations, womens refuges and so on, around. You should try and track them down and get some assistance from them. If you are not sure if there are any in your area, you might contact someone like “Relationships Australia” , Social security departments or the Salvation Army for some guidance.
Depending on which state you are in, you may also be eligible for Legal Aid to assist you in relation to maintenance. If your husband is working, i expect you would be eligible.
with the business being in a trust, that does not necessarily mean it is out of the property settlement. As well property settlement looks at all assets including real estate, superannuation and businesses. Your entitlement will depend on a range of factors so i cannot say what your entitlement is.
I think your first step is to get in contact with a support organisation and then they can guide to to a lawyer to work out your rights.
hope this is of some assistance but let us know if you need further advice.
regards
bryan
I regretfully cheated on my husband and he wants a divorce. He found out about the affair three days ago but is unwilling to speak to me. He wants me out of our apartment (which we rent). Our pay goes into the one account and all our bills are paid from there. We have no shared debt, most of the bills are in his name. I don’t know if I have to leave or what to do. I’m going there this afternoon with his dad and stepmom to pack some clothes and necessities. He won’t speak to me (he has sent me messages telling me he hates me and will never speak to me again). He is the bread winner and controls everything. I don’t know what to do?
Dannielle,
Hi. Lynette is unavailable so i am replying for her.
Strictly speaking, if the apartment is in both names, you have a right to stay in the apartment. However, in practical terms, if he is determined to finish the relationship, there is not much point in staying. You do not lose any family law rights by moving out.
If you want to try and keep the relationship, you might try and organise some counselling. Some organisation like Relationships Australia might be able to assist and try and “patch” things up. He might still be angry but hopefully he will calm down over time; his messages are probably more a result of anger than really meaning them.
If the relationship is definitely over, you will have to work out your respective property entitlements and you really need to go a see a lawyer about that aspect. a lawyer can talk to you in detail and work out your entitlements and see what is best for you to do in your situation. You can also discuss whether you are entitled to spousal maintenance.
In the meantime, you might consider setting up a separate account and arranging for your pay to go into your own account. Also if you have any joiny funds, you might consider taking out half.. this does not mean that you are necessarily entitled to half but it is intended that you have some money ot set yourself up.
hope this is of some assistance but let us know if we can help further.
regards
bryan
Hi
I am writing on behave of my partner, who has been seperated from her husband for 3 years now. My partner has limited understanding of her rights and I would like to know your thoughts on this matter.
My partners has been married for 27 years and her husband left about 3 years ago and has not made any contact since. My partner has not been able to contact him and does not know where he is. She recently received a letter and a copy of a transfer form from a solicitor, acting on her husband behave, saying that the property which is in both her and her husband name is being transferred from Joint tennants to tennants in common. We took this letter and the transfer form to a solicitor for advice and he has said that the transfer form has been incorrectly filled out and would not be processed. This has inspired my partner to act and proceed with property settlement. She has asked her solicitor to responded requesting that her husband provide a financial statement so they could settle their financial affairs and move onto divorce.
My question is if her husband provides a financial statement how does she know that it is accurate?
Wayne,
Hi. There are a number of ways to find out a persons financial situation and i would expect your partner’s lawyer woudl be making their own enquiries. If he does not cooperate, your partner’s next step is to lodge an application for property settlement ans part of the interim orders would be one for the Ex to disclose his financial situation. If he still doesn’t, then there are ways of finding things out and as well, a court takes a dim view of anyone trying to be “sneaky”.
Regards
Bryan
Hi,
This is quite a story – beware.
I was married to my wife in QLD Australia in 2005, and had a son in 2006. Shortly after the birth of my son, we relocated to Thailand for my work – renting out our PPR ( principal place residence in Australia). Whilst working O/S we purchased an investment property in Australia using 50% money borrowed from my mother and all of our(my) savings – as my wife did not work.
We had planned to live in Thailand ( not return to Australia ) after adopting my wifes neice and learning that Australia was th eonly country on the planet that did not recognise the legal adoption and would not issue a permanent visa for my legally adopted daughter. ( The adoption process took more than 2yrs to finalise ).
I also refinanced our home loans in Australia so that we could buy a house in Thailand. The developer/builder was paid more than AUD$225,000 but never completed house construction and has gone into liquidation with 54 other people also trying to recover money from him. I have Thai Lawyers acting for me (us) trying to recover the lost money.
After finalising the adoption of our daughter my wifes drinking got worse – with 2 children in the house rather than 1 – with it getting to the point that we needed to hire a maid to maintain a small 2bedroom house. My wife would use money for food/groceries on beer and not even go shopping towards the end of our relationship.
My wife insisted that her sister should be our maid – so she could talk to her every day. Her sister was the natural mother of our adopted daughter, so I relectantly agreed to this provided the sister was gone before our daughter returned home from school.. I didnt want excessive contact between natural mother and daughter as I was concerned about the impact it would have on my daughter.
The final straw for me was her neglecting the children to the point that they were not fed or bathed when I arrived home from work at 7pm – and her sister ( our maid ) was still at the house working ( sometimes / too often getting our children ready for bed ).
I asked my wife to leave in Feb 2010, she refused stating she didnt have a drinking problem and was providing enough care for the kids. Her drinking continued to get worse, arguements worse and then domestic violence ( her to me ) in front of the kids and her mother I convinced her to move out – leaving the 2 kids in my custody.
When she moved out, she took everything from the house we were renting – even the toilet paper. And she even “threw” my son into the back of the final truck load of belongings and drove away – breaking her word that I would have custody of the kids. I immediately contacted the local police & tourist police ( this was evening ) and they advised me not to try and stop her as she is a Thai citizen and the police would “side” with her. I contacted a lawyer in Thailand shortly after but was advised there was nothing I could do to get custody of y children without going to court in Thailand, unless she was prepared to agree a custody settlement. And going to court as a foreigner trying for custody of my Australian son and our adopted Thai child would likely result in her winning custody – so I waited and tried to work out a settlement with her. I didnt even get to say goodbye to him.
We had agreed custody arrangements that worked for 3months ( Fri-Sun the kids were with me ) – suited her lifestyle ( drinking ) and allowed me to continue working. This fell apart quickly after she became violent towards me several times because my son refused to return to her – screaming “not mummy”. Considering he has learning and speach development problems – this was quite complelling as he spoke very few words, and these were very clear. I am unsure why he hated going back his mum to live.
I have a number of police reports from the physical attacks on me – one with a pice of wood where she also dented my car ( with my son inside it ) because he wouldnt hop out of the car.
After the last police report she stopped all contact with me, prevented me from speaking or seeing the kids. She even moved out of where she was living ( she dissapeared ) – taking the kids out of school without my knowledge and failing to take my son to a speach therapy assessment that had been planned for him.
( NB: When she moved out, she moved into an appartment “next door” to her sister – the natural mother of our daughter. And according to my daughter, her natural mother was the one getting her ready for school and bed each night. My wife continued to have little to do with her after taking her from me. )
It came as no surprise that my wife’s sister also moved out and dissapeared when my kids did.
My son’s passport expired in Nov11, thus I sought assistance from the Australian Embassy in Bangkok ( his visa was granted to stay long term as part of my work permit ). The Embassy provided no help, tried to call her & her sister 1 time and then said it was a family matter, so up to me to resolve.
I fumbled around for a long time ( months ) trying to find a lawyer that provided a positive feedback to me and confidence I could do something. And after engaging the Thai lawyer, I was able to reach property and custody settlement with my wife. When this occurred I had not seen or spoken to my children for more than 4months.
The legal process in Thailand allowed me ( my circumstances ) to divorce my wife after reaching these agreements. We were divorced in Thailand on 5th July 2011.
My wife has ended up with Custody of our daughter ( because of her family connection – despite fact that my wife does not care for her, her natural mother & Grandmother do ) AND I ended up with custody of my son ( Australian citizen ).
As this process took a number of months, it affected my employment and my contract was cancelled. Small sacrifice for getting my son – but what it meant is that my work permit was cancelled and I had to leave Thailand, now back in Australia.
I want to check that the Legal divorce in Australia is binding – what I have to do in Aust to register it and same for the property settlement and child support I am required to pay.
My wife works for her Aunt in a convenience shop in Rural Thailand apparently – so would earn very little. I am currently unemployed looking for work.
If you managed to read all this -thanks.
Daryl,
Hi.
Firstly, the divorce is recognised in Australia. As you were resident at the time in Thailand it is considerd by Australian law as the apropriate place to have your divorce. As for registering the divorce, there is no formal process in Australia though you will be required to produce it, no doubt, from time to time to various organisations.
The rule about property settlement in Australia also applies. This means your Ex should apply for property settlement within 12 months of the divorce otherwise she needs to get permission of the court to do so. With child support, there are a lot of complications for her to apply for child support in your situation. You would need to talk to a Thai lawyer about that aspect. Also, child support is normally based on your income and if you are not working, then you would not be required to pay it.
Hi Lynette let me start by saying that this is a wonderful service you are providing. Separating from your life partner is such a difficult experience and providing this support and service makes it a touch easier to ask the questions you might be anxious to ask a lawyer for fear of being judged. I posted another online legal question, paid a fee and never received a response…
I’m sorry this is rather lengthly but its somewhat involved and I felt the background information was relevant.
I’m ashamed to say this is my second failed marriage. On both occasions I have found my husband being unfaithful. My first divorce I was so devastated I left pregnant, with a 12 month old and only a suitcase of clothes. My husband and I were very comfortable owning a very successful and profitable company in London, we had the best of everything but I left it all, just wanting to come home to my family. Later attempts to get anything back proved expensive and futile. I had put everything (including $140,000 from the sale of my home) into helping my husband build a successful business and ended up with nothing.
My second husband was again an entrepreneur. He owned several successful café’s and was seeking to expand his portfolio and move into larger venues, so purchased a restaurant/bar. The venue he purchased was in liquidation and had been unmanaged for a significant period of time. It was losing money at a rapid rate and lacked any notable business structure.
At the time I was studying my Masters of Entrepreneurship (MBE) and working as a business consultant. I was excited by the challenge and agreed to take this venue on as a project. Given my prior experience I insisted we enter into a contractor agreement. Our agreement stated that I would receive an annual fee of $72,000 (equiv to my consultancy income), in exchange for managing the operations of the venue and undertaking the qm system design and development including the development of systems for potential licencing/franchising. As the venue was suffering a financial loss I agreed to accept my fee annually to maximise the business cash flow increasing the businesses opportunity for success. I withdrew from studies and undertook the project full time. During the first 12 months of our agreement we married. Towards the end of the first year I started talking with my husband about using my income for a deposit on a property. As these talks became more serious he told me that the business was going through a rough patch with the GFC and as we don’t really need the money it would be best used to keep cash flow in the business during the downturn. As a business woman I was very uneasy, as a wife, I was sympathetic to my husband.
It has now been 2 years that I have worked tirelessly on the business, even working an extra 25 hours a week on the shop floor (to reduce labour costs) as well as managing the overall operations of the business, and not received any money. I am now a single mother and need the money to support my children. My ex has said that as he supported us during this time I’m not entitled to anything as I was performing a wifely duty and regardless the company doesn’t have any funds or assets. He has sold his other shops and has “had enough” and wants out. I have told him that I will take over the shop I’ve been operating including the rent arrears (approx 40k and a couple of outstanding suppliers’ approx 10k) to finalise our debt and that I agree not pursue anything further from him – he can have the BMW and properties and proceeds from the settlements of the other businesses.
Can we do this? And do we just need to draw up a transfer of business contract or is it more complex?
I want to do this asap as he is draining the business and at this rate there won’t be anything left to take over.
I don’t want to sound like I’m trying to be a “money grubber” but I’ve been left with nothing before and I have 3 children to think about.
Thank you.
Nardia,
Hi. Lynette is unavailable at the moment so i am repsonding to your enquiry.
There are two aspects to your issues, one is that you firstly need to know what you are legally entitled to; secondly, you need to have a strategy to get what your entitlement is. I suspect that as an “entrepeeur” he will try and avoid giving you your entitlement. You will probably need a plan to force him to face he has to give you something. As part of the plan, you can work towards getting the business.
With property settlement, the law looks ata range of factors and the total of the asset pool, not just one or two assets. So you need to look at it in this context.
Also, in your situaiton, it is probably a case of ” the sooner you start, the sooner it will finish”. In that regard, you really need to go and see a lawyer, work out what you are entitled to and a plan to get it. With all that is involved, it is probably to important not to go and see a lawyer.
Hope this is of some assistance but let us know if we can assist further.
Regards
Bryan
Hi, My wife after 6 years of marriage wants to file for divorce. We have been to counselling many times over the years and she just started again. We have 2 boys aged 5 & 3 and also a new bub on the way due next year. I think this time it is too hard to save.
My questions I have are about the family home. My wife did not have any assets when she met me. Not even a car. I had a home, cash and car. I was ready to start buying investment properties but held back because my wife wanted a home that we bought together. When we moved in, my own property was worth about 300k, cash of about $140k and car. She had saved about $5k by then. We got married, she worked another year before giving birth and got a redundancy from her job. She stayed home but for the last year she worked to get back around people without being stuck at home all the time. A year after our first child, we purchased a house together in both our names.
I need some advice about the house we bought together. Do my previous assets that I earned before living with my wife still belong to me? At the time of purchase, I think she had about 10% of the cost of the home and I had 90%. We did look at a pre nup but at the time the cash could not be included in the prenup as advised by our solicitor. Also my wife did say before marriage I am not after your assets but things do change over time and now she wants half.
My wife will get about 20K+ in child support from me for 3 children. I just don’t want to be in a worst situation than I was before I married her. I would like to keep the family home as I treat that as my investment. The family home does not have a mortgage. There is also a some of cash in the bank but I understand that that was saved as a marriage so we would probably claim that as 50/50.
Please advise on the asset situation. I understand the kids will be in her care and I assume I get them 3-4 days out of 14. The other question is how far can she take the kids from me? Can you move to the other side of Melbourne which would mean a 50 minute drive to see my children.
Timeline, dated about a year, moved in together then married at 18 months.
Thanks in advance.
Anthony,
Hi.
In working out property settlement, the courts / law looks at three main areas; the initial contributions by both parties at the start of the relationship; the financial and non financial contributions to the relationship during the relationship and then the post separation factors after the relationship. There are dozens of these and thet include things like who has the children most of the time, the age health and income earning capactiy of the parties and so on. You haven’t given us enough information to work out your exact entitlements. Because so much is at stake, you really need to see a lawyer to work out where you stand. After that, you can work out what to do next.
We would also recommend seeing a specialist family law firm as they will give you accurate advice.
hope this helps
Bryan
Hi Bryan,
Anthony
Anthony,
Hi.
Done..
bryan
I’m after some advice on financial settlement following the recent separation from my partner. We bought a house together approx 4yrs ago after both selling individual properties we owned. We also have a block of land that was purchased together and some shares, that were bought prior and since the relationship. At the moment we are amicable and trying to work things out between us, for the sake of our 3yr old child.
The shares have a loan outstanding for which i am guarantor and they are secured against our house. I am wondering how i can protect myself from the possibility that my ex could sell the shares without repaying the loan. I have offered to buy out his share of the house, but we need to come to an agreement about the split.
Any advice on how best to proceed would be appreciated
Hi Shelly,
I am glad to hear that you are trying to resolve things amicably for your child’s sake. I hope you will be successful, but remeber that if you do reach agreement, you need to make sure it is binding. As for your question about the shares. If your ex partner sells them and blows all the money, what the Familly LawCourt will usually do is just add that the value of the shares back into the asset pool as though they were still there. After deciding on the distribution of the property each of you should take, the Court would then say ” well he has already had $%&&^%& so he only gets enough of the other property to bring the total up to what he should get. The Family Court applies Section 79 of the Family Law Act and other relevant legislation to work out the share each of you should have. I hope this helps you. I have put a link to the relevant legislation below . ( PS I know you are not planning to go to Court, but we always negotiate by knowing what the Court would do, because that is the strongest argument for settling amicably. I mean, what is the point of him resisting a settlement that does what the Court would do if you took him to Court? He might as well accept your offer and save himself the cost and inconvenience of going to Court. That is why I always say that the best thing your ex can do for you is get a great Family Lawyer who will tell him exactly what I am tellling you. If you both know the likely Court outcome, neither of you will need to go to Court.!
Here is that link: http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s79.html
Kind Regards,
Lynette
Thanks Lynnette for that information. Can i ask you to remove my surname from my initial post, i didn’t realise the whole name would be published.
absolutely
Hi Lynette, I have been separated for over 12 months and I’m now ready to file for divorce. The reason we separated is because my wife had an affair with a colleague.
My question is, we have an investment property and she is on a higher income than me. If we are to sell the property am I entitled to a larger share due to her infidelity?
Thanks
John
Hi. Lynette is unavailable so i am responding in her stead.
In Australia we have “no fault” divorce so her infidelity is not relevant to the property settlement. In relation to your property settlement, it is not automatically a 50/50 split and if her income is significantly higher than yours, it may increase the percentage either directly or indirectly. you should also be aware that you can sort out your property issues any time you want (until 12months after the divorce). however, if you want to move on with your life, we recommend you do it sooner rather than later. There are a lot of issues with property so you really need to know where you stand and that needs a lot more information. If you have further questions we are happy to assist but it might be better if you email me direct on bg@journeyfamilylawyers.com.au
Regards
Bryan
Hi, I have been merried nearly one year and I have separated from my husband over 7month ago. I have been told I can get divorce after 12 month separation. I have left our home 7month ago, is that proof we have been separated??I have changed my address and contacted the immigration as Im not Australian citizen!!!!! I want to get divorce as quick as possible, we have no kids and financies together. I dont want enything from him.
How about money I have earned since we got separated?? Is he intitle to any of them?Is he intitle to ANYTHING since we are separated? How can I find out where to send him divorce papers?I dont know where he lives and I if I dont press the divorce I will be probably merried to him forever. Thank you for your help.
Joanna,
Hi. Lynette is away so i am replying to your query.
You have to be separated for 12 moths and if you are married less than you years there are a couple of extra steps. you don’t need proof that you are separated but of course you have to swear the document beofre a Justice of the Peace so you cannot mislead the court.
With finding your Ex, if that is an issue, we normally employ a process server who is experienced in tracking people down to serve court documents on them.
With the property, if you do not formalise your property then there is a risk that he can come back at you until a year after the divorce. The property aspect can be a bit complicated; generally your Ex can’t come back at you for income but he may come back at you for property such as any real estate, superannuation or other assets you acquire.
Let us know if you want further information.
Regards
Bryan
my ex wife has just threatened to move without telling me where taking my son with her,he is 13yo and hates me with a passion according to her any way.any help would be appreciated
Brad,
Hi. Lynette is away so i am replying.
If a break-up is likely to happen, i would suggest you firstly try counselling to see if you and your partner can sort out the arrangements for your son. You can try Relationships Australia or The Family Relationships Centres.
If that doesn’t work you may have to consider going to court to get an order so that your wife cannot take the child away from you. The law recognises the right of the child to know and spend time with both parents and a court will normally enforce that right. If you cannot afford to go to court yourself, Legal Aid may assist you.
If you want further information let us know.
Regards
Bryan
hope
Hello,
I have been separated for 2.5 years. My ex is Colombian and currently lives in Bogota and has been living there since we split. I removed my sponsorship of his Australian residency visa about 2 years ago.
I sent the forms about two months ago, but he claims he hasn’t received them. I also e-mailed the documents several weeks ago but he is not signing the service by post form. He only occasionally replies to e-mails, and when we have arranged phone times to discuss how to sign the documents, his phone is turned off. Although I lived in Colombia for while, I don’t know anyone whom I could trust to serve him the documents.
We don’t have any children or joint property. When he left I gave him most of my savings in order to have a clean break. At the moment I’m a full-time student again and can’t afford expensive lawyers. I had wanted to settle the matter this year while I’m still studying as I can have the court fee waived.
I have a court date for October 18 – but this is looking more and more ambitious.
If you have any advice, I would really appreciate it as I am eager to have this situation resolved.
Thank you.
Amanda,
Hi. Lynette si away so i am responding for her.
The solution is to apply for substituted service of the documents. The alternative ways to serve him may be to serve by email or on a relation such as his mother. That way you can satisfy the court that he has notice of the proceedings even though you cannot prove personal service. You won’t get the divorce on the next hearing date but it would be a good time to apply for an order for substituted service. Then you can go and serve him according to that order and the divorce should go through the following court date.
If you want to try it yourself, you shoud research “substituted service”. It can be a bit complicated and a lot depends on the individual situation. An alternative if you think it is too hard to to see us or another lawyer to get them to do the documentation for an application for substituted service and you do your own court appearance. That way you can save some money ans still get a succesful outcome.
Hope this hlpes and let us know if we can assist further.
Regards
Bryan
I’ve been seperated from my ex since July 2009. We were never married but had a child together.
I’m now with a new partner and a member of defence force. I’m about to be deployed and my ex is refusing to allow my daughter to continue the visitation schedule we have in place while I am away. We only have a parenting plan done between us prior to us getting new partners. I am engaged to my new partner and would like to know if I should pursue legal action? We currently see my daughter every second weekeend and all of the school holidays. My fiance has two children to a previous marriage who live with us. I think that it would be in my daughters best interest to continue visitation as it maintains routine and also maintains the relationships she has built with her new extended family.
Darren,
Hi.
The law recognises the right of a child such as your daughter, to know and spend time with persons other than the parents. A good example is grand-prents. If you are getting married and your child has a relationship with both your new wife and her children, a court would normally recognise the right of your daughter to continue that relationship with them, even when you are away. So, yes, a court will be sympathetic to the situation and is likely to make orderd for access even when you are away.
Regards
Bryan
Hi Lynette,
I am making this query for a friend who I believe is in denial at the state of her marriage. Her husband who is previously divorced with one child, is currently seeking treatment with a psychiatrist for an undisclosed illness. He is an emotional and social abuser who has lost all their money through bad business decisions. They have had their cars repossessed and their house is on the market as they are unable to meet their mortgage repayments. They have three children under the age of 6. My friend is a qualified teacher and has recently gone back to work to bring in some sort of income. This income goes toward some new business venture of the husband and he has coerced her into registering this new company in her name and she is the director!! As a result she is stressed over where money is going to come from just to feed their kids. She is terrified that if she leaves he will get custody, 50/50, of their children. Is she right to fear this outcome from the courts? She can provide stable work and care for their children which I don’t believe he can. Sorry for the long winded question but I feel she really needs som real information and advice
regards, Brooke
Brooke,
Hi. Lynette is away so i am responding for her.
The law is very tricky in this area and it is fair to say a lot depends on the individual circumstances. 50/59 arrangements are becoming less common. Studies are showing the the children can be adversely affected by the “shuttle” arrangements so a more common type of arrangement is that dad has the children 3 or 4 nights in a 14 day cycle (plus half school holidays etc). If there are reasons why the father is not the best person to care for the children then a court is not likely to agree to a 50/50 arrangement. If he had a serious psychiatric issue, that might easily preclude him. Also if the children are too young, that might be a reason.
It sounds like your friend’s relatinship is over and if that is the case, she probably nees to accept that she is going to have to deal with the problems sooner or later. Leaving them however won’t stop the stress whereas if she deals with the issue, it will eventually be sorted out.
Hope this is of some assistance. Let us know if we can assist further.
Regards
Bryan
Hi there,
I left my husband and father of my three kids two months ago. The separation is largely amicable and I am determined to keep it that way for the sake of our kids.
I moved out of our 5 acre property to rent five minutes away as I felt that as I instigated the split, I should be the one to move. Also, his parents live in a grannie cottage on the same property – living there with them would be rather awkward
. I walked away with nothing but the car (worth $40,000), the washing machine, the laptop, some clothes, some toys and a chest of draws.
My ex wants to settle asap and herein lies the problem. The property is worth around $750,000 and we owe $385,000 on our mortgage. I did consult a lawyer once and he said I would be entitled to between a 60-70% split. I have no desire to take my ex for a ride so a split of 50-55% would be fine with me. (I have the kids nine nights a fortnight). The problem is that my ex’s income will not support the resulting mortgage or even come close. He is fretting that he’ll have to sell the house to pay me out but I refuse to allow that to happen. I couldn’t live with uprooting my ex, his folks and denying my kids access to such a wonderful place to spend time as they grow up. How can this issue be resloved so that a mutually agreeable solution can be met? My ex is fully stressed about it and I have no answer for him. I hate stressing him out like this but I also need to consider my future and that of my kids in terms of purchasing a house of my own.
Another glitch is that my in-laws spent $130,000 on the grannie flat in which they reside and they feel that that amount should be taken off the value of the property amount as their share. My arguement is that they still get to live there – they can’t have their cake and eat it too. I also pointed out that just because they spent 130K on their house doesn’t mean it increased the property value by that amount, if at all. Where do I stand with this issue? This is only a verbal request on their part – there are no pertaining contracts.
My primary concern is to keep things friendly and amicable for the sake of our kids. How can I achieve this and also look after my interests?? HELP!!
Cheers,
Kate.
Kate,
Hi. Lynette si away so i am responding to your query.
Firstly, i need to say that your approach is admirable. It is always important to try and keep a civil relationship iwth your Ex; As a parent of your children, it is good for them to see you treat each other civilly. Of course it is not always possible and it should not be at the cost of you being substantilly disagvanteged financially.
As for your problem, there may be other solutions, such as take a lesser cash amount up front and have the rest paid over (say) five years. Depending on your ages and the amount of superannuation you and your Ex has, you might take over some of his super as part of the settlement. It really depends on all the circumstances around your situation. Also, as much as you do not want to, by not selling the property, you may be depriving your children because your lifestyle and accomodation etc are adversely affected by not getting your fair share. The law likes to see these property issues sorted out finally so each party can move on. Even if this means your Ex might suffer in the short term, it might be better for all in the long term.
As for the issue of your in-laws, you are pretty right on your view though it is a complicating factor if the property was to be sold. given you are prepared to accept a bit less that your fair share, it may be that if the property were sold, some of their repayment might have to come out of their son’s share..although there is no reason they cannot enter into a similar arrangement with their son (your Ex) at another property.
The problem has to be dealt with and from the sounds of it the sooner the better. I think you really need to see a lawyer, go through all the facts and work out a couple of possible solutions; then you or your lawyer should approach your Ex with some options to finalise things.
Hope this helps; if you want to discuss it further, i suggest you email me direct on bg@journeyfamilylawyers.com.au
Regards
Bryan
Hi could you let me know what the message ***Your comment is awaiting mederation” means?
HI Helen, it just means that I hadn’t got to your post to answer it yet! But I have now,
Cheers,
Lynette
My situation is that I wish to divorce my husband of 9 months but we need to be separated for 12. We have no joint children and will continune to reside under the same roof while separated. Do I need to register this separation with anyone?
Hi Deb,
No you don’t need to register your separation, as such, but you will have to prove that you have been separated in accordance with the Family Law Act for 12 months before you can get a divorce. See this section of the Family Law Act
http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s48.html
You will need to establish that your separation under one roof is a real separation and the test is very stringent. You will need to provide additional evidence to the Court about how you live under one roof, if you are to have any hope of getting a Divorce. Sometimes it is better to wait to file for divorce after you have actually been living in two separate homes for 12 months than try to establish separation under one roof. If the reason you still live together is because of the difficulties in dividing the property, then you may need to think about getting that process in train anyway. It can be done even if you are waiting to sell the house, or whatever.
Kind Regards Lynette
Hi there
My husband left me 13 months ago and moved straight in with another woman. I have 2 questions
1. He has sent through the mail divorce papers which he lodged through the courts portal. I collected these from the post office and signed a delivery confirmation card to say I collected the envelope. The divorce papers included a checklist with the first thing telling me to sign an Acknowledgement of Service form. There was no such form included. Do I have to sign an acknowledgement form or is the confirmation card I signed enough?
I would appreciate your answer to both questions or at least the first one in regards to divorce.
Kerry
Hi Kerry, I edited out the second part and will try to send you a personal email about that ;0).
As for the acknowledgement of divorce, if you want the divorce to proceed with out him having to serve you again through someone else like a process server, you should print out the Acknowledgement of Service document on this link, and send it to him. http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Forms/Divorce+forms+and+kits/Acknowledgment+of+Service+%28Divorce%29
He has to prove service one way or another to get the divorce through.
I will try to get a chance to respond to your other query by email,
Kind Regards
Lynette
Hi Lynette,
Thanks very much for the reply. I now have more to add to my story. I made my ex aware of the fact that I never received the Acknowledgement of Divorce form and through the discussion it has become apparent that he has sent me incorrect and incomplete Divorce documents. He spoke of 11+ officially stamped pages. I only received 7 pages, no stamps and no court date on the form either. I have asked to receive the correct forms – does he have to serve them on me again? If I sign the Acknowledgement of Service form with the new service date (Which won’t be 28 days before the set court date) will that change the court hearing in any way? If I sign it with the service date of the incorrect documents can that be used against me somewhere down the track?
Thanks very much for your reply. I also look forward to your email.
Kerry
Hi Lynette
My ex and I legally seperated 2 years ago (my decision) and since then I have had custody (no formal agreement) of our 7 year old child, with him having visitation every 2nd weekend. I try and be as flexible & understanding as possible, he hasn’t paid child support except for the 1st 6months after we seperated – which I have let go just asking that he meets all our sons needs when he has him. He has never really had the same standards of care as me, and I understand that there are different parenting ways – but for the past 6 months he has been out of work & now my son is coming home dead tired (he tells me he was up half the night playing Xbox) hungry, unbathed and generally uncared for. Today he came home after 5 days with his Dad because it’s the holidays and he said he just played Xbox for 5 days straight or watched R Rated violent movies, didn’t go outside to play or go for a walk anywhere – for a very active child who loves sports this really concerns me. He is always very withdrawn (almost like he is so tired he is incapable of talking) and just wants hugs, food & bed. There are more issues but I don’t want to list them all here. He loves his Dad so I don’t want to stop him seeing him & there is not enough cause to prove he is an unfit parent anyway, but is there ANY mediation assistance out there for addressing my concerns with the father? I have tried on many occassions to talk to him about it but he just gets angry, swears at me & storms off. I am frustrated & hurting as it seems there are no laws or rules & he can just treat our son however he wants & I am left to mend the broken little boy I get home. I dont know what to do about it – any advice would be appreciated.
Thankyou
Hi Andrea, and thanks for your question.
I wonder if you are in Australia? If so, there are relationship centres that could help you with this , but probably only if your ex agrees to go. One thing I can say, is that you are wise in identifying it as simply differences in parenting styles, although quite extreme differences. So, the best thing you can do, I think, is begin to train your son to make his own sensible decisions about bedtime and how much x box is too much. Perhaps you could get him a little clock or alarm that he can set to remind him to put himself to bed. If he is too young now, these things can work when he is a little older. You can do these things without being disrespectful to his Dad, and maybe take a little of the heat out of the situation. You could practice this new responsibility for him at home, first. There is no reason why his Dad should get defensive about it, and your son doesn’t have to make a big deal out of it, just go quietly to bed when it is bedtime. The good news is, that these problems can get better as the children grow and become more responsible for themselves.
It is lovely that you don’t see these problems, as serious as they are, as an opportunity to interfere with his relationship with his Dad. That boy is very lucky to have you as his Mum in my opinion.
Kind Regards,
Lynette
Hi Lynette, I am a stay at home mum to two kids under 5. My hubby and I are looking at separating as we just can’t communicate. He believes because I don’t work outside of the home that he will get sole custody of the kids. I do have a job I can return to, but was planning on extended leave from it. Is he right? I can’t lose my kids. Thanks
Hi there,
You must be so worried. You can be reassured that you will not lose your kids just because you haven’t worked. In fact I would think that you have a better chance of having them live with you most of the time because you have had the most day to day care of them. Since the amendments to the Family Law Act in 2006, shared parenting is the model that the Family Courts have been ordering most of the time. It is a question really of how much tiime the kids spend with each parent. You say they are under 5. If one of them is under 3, then there is a strong case for the children to spend themajority of the time with you.
I am attaching a link to Section 66 of the Family Law Act so you can read it for yourselves. Basically it says that children have the right to be cared for and know both their parents, and that where practicable,and in the childrens best interests, shared parenting is to be considered. The Family Law Act then goes on to set out in section 66C those factors that a Court must consider in deciding the best interests of the children.
Here are the links.
http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60b.html
http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60cc.html
http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/
I hope this can stop you worrying so much, but if there are any other things that you haven’t told me or if you are still concerned, why not give my firm, Journey Lawyers a call on 07 32059000? One of my lawyers will talk to you for free and you can get a lot more specific advice.