FAQ's

If your marriage has broken down irretrievably then you can apply for a divorce once you have been separated for no less than 12 months.

Whilst it is important to consider and have regarded to all the circumstances of the specific relationship in general terms for there to be a defacto relationship recognized at law you and your former partner who maybe of the same or opposite sex must have a relationship as a couple living together on a genuine domestic basis.

The law recognises separation under the one roof. It is not unusual for a husband and wife to separate but continue to live in the same home this can be for any length of time following separation. For the purpose of making an application for divorce however the court will require extra information about the separation under the one roof.

You may commence proceedings for property settlement at any time following separation. However once you have obtained a divorce you must commence proceedings for property settlement and / or spousal maintenance within 12 months of obtaining your divorce. If you do not commence proceedings within the 12 month period then you can only proceed with leave of the court to do so. This can prove to be complex and costly. In the case of a defacto relationship proceedings must be commenced within 2 years after the day upon which the defacto relationship has ended.

If parties reach agreement on the issue of property settlement then there are 2 ways to formalise the property settlement. Firstly by means of a Consent Order filed and approved by the court. Secondly by entering into a Binding Financial Agreement pursuant to the Family Law Act 1975. Talk to us about your circumstances to determine which of the 2 alternatives is better for you.

It is important that upon separation you undertake a review of the terms of your Will. It is important that any new will takes into account your change in circumstances. In addition it is also important to review any Power of Attorney and or superannuation policy and make necessary changes to take into account the separation. It is strongly recommended that this be done as soon as practicable after separation.

Generally it does not matter whether the property is in one name or joint names. What is important is to look at contributions to determine the asset pool. If however you are concerned that your spouse may do something with a property in his or her name only then there are a number of things you can do to stop this from happening for example obtaining an undertaking to the court for certain property not to be dealt with or ask the court to make an urgent order not to deal with certain property pending resolution of property settlement.

A parenting order is an order of the court which deals with a number of issues concerning children under the age of 18 years such as a) The person or persons with whom a child is to live. b) The time a child is to spend with another person or other persons. c) The allocation of parental responsibility for a child. d) Communication a child is to have with another person or other persons. e) Maintenance of the child. f) Any aspect of care, welfare or development of the child or any other aspect of parental responsibility for a child. It should be noted that persons may also include for example a grandparent or other relative of the child.

A number of persons can apply for a parenting order including either or both parents, the child, a grandparent and any other person concerned with the care, welfare or development of the child.

Before you can apply for a parenting order you must first participate in pre action procedures including attending a family dispute resolution conference. A person must first make an attempt to resolve disputes about parenting matters using the family dispute resolution services before applying to a court for a parenting order subject to some exceptions.

A will is a legal document which states how you want your assets to be distributed upon your death, and who you want to make responsible for carrying out your wishes. If you die without a will, you will not have any say over how your assets are distributed. You will also increase the burden placed on administering your estate, normally to your next of kin. It also has the potential to create conflicts amongst those who survive you at time when they may be grieving.

Any person who is over the age of 18 can make a will, as long as they have mental capacity. In cases of diminishing/diminished capacity, people can still make a will however if there is any question, an assessment is required from qualified person such as a doctor, psychologist or psychiatrist.

The cost to make a will varies depending on the complexity of the will. We make sure all our advice is cost effective and competitive compared with other firms. Call us to discuss your plans and obtain an accurate fee estimate.

A will can be challenged in cases where it is alleged that the will itself is not valid. Alternatively, certain people may also make applications to the court can contest a will if they believe they were not adequately provided for. Strict time frames apply to these kinds of proceedings.

A will is valid until you die, until you revoke it, change it or make a new one. Certain circumstances can have the effect of revoking wills, such as marriage. If you’re concerned that circumstances may affect your will, you should contact a lawyer as soon as possible.

You can always make a new will when you feel it’s appropriate, which will replace previous wills.

As an executor it is your job to finalise the estate of the deceased, including paying all debts and distributing assets. Executor’s duties and obligations can be very complicated, and it is important you obtain legal advice before beginning to act as executor.

You don’t have to be executor if you don’t want to or are unable to. Special steps may be required before you can renounce your executorship.

Probate is the proving and registration of a deceased’s final will and the Supreme Court’s recognition that a will is legally valid. It is common that financial institutions and other bodies holding estate assets will refused to release them until probate has been obtained.

Applying for probate is a complex process with strict rules imposed by the Supreme Court. Errors can lead to lengthy time delays and extra expenses for the estate. We recommend you instruct a lawyer to apply for probate on your behalf.