Divorce – who gets what and why – mediation is the key
Separation is a painful and often bitter experience affecting both parties and their children. With the only ground required for Divorce now a 12-month separation, both property and children’s issues can be resolved during this time. However generally you have only 12 months AFTER a divorce is granted to initiate property proceedings in Court, otherwise special leave of the Court is required.
Separating parties are encouraged to seek early advice from an experienced family law solicitor who can advise on the likely distribution of property and the factors which are considered. Such factors include:
- the length of the relationship or marriage
- the number of children (if any) and who has their daily care;
- the financial and non-financial contribution of the parties;
- the health and medical needs (if any) of the parties; and
- the future earning capacity of both parties.
Early advice can head off Court proceedings which can be both traumatic and expensive. In Family Law, each party retains separate legal representation and must bear their own legal costs, so the earlier the matter can be settled, the better.
Fortunately, today mediation is compulsory, and the vast number of cases are settled here rather than in Court. Also, there are more options available now including the parties’ ability to split their superannuation entitlements.
The longer the marriage or relationship, the more the parties’ contributions are subsumed and the more likely it is that the division will be 50/50. However, in shorter relationships where one party has made significantly more contributions than the other, it is more likely that the percentage of property will swing towards that person.
The Courts are most concerned to protect the children in separations and children’s interests come first. Anyone seeking to resolve both Residency (custody) and Time Spent (access) must first attend Relationships Australia – at Mallee Family Care here in Swan Hill – for mediation before a solicitor can issue children proceedings, except in urgent cases.
All experienced Family law practitioners will attempt to settle cases after negotiation by way of either a Binding Financial Agreement, or by Consent Orders filed with the Court, reflecting the agreement reached between the parties. Only where negotiations fail will the matter be referred to Court, where compulsory mediation will take place before any final determination.