Frequently Asked Questions about Separation
Nicole Jevtovic LLB LLM BPsySc Accredited Mediator
Nicole Jevtovic is a family lawyer, mediator and principal solicitor at Clarity Family Law Solutions. She is passionate about helping those going through the separation process to resolve their dispute as stress-free as possible and achieve the best result for their family. Her team focuses on positive solutions and simplifying the separation process for clients all over Australia.
Nicole answers questions often asked by couples about the separation process under Australian Family Law.
How do I start the divorce process?
The divorce process can mean different things to different people. To get an official divorce, you just need to be separated for one year and you can then apply for divorce. You can engage a lawyer to do this or you can download the DIY kit from the Family Court website.
If you wish to apply for property settlement, you need to make sure you do this within one year after divorce or within two years from separation for de facto relationships. You do this by starting negotiations with your former partner yourself or use a family lawyer. If you cannot reach an agreement, you can apply to the court to have them assist in your settlement.
If you wish to organise parenting arrangements, you can try to reach an agreement yourself or engage a separation solicitor. You may also apply to the court for parenting orders if you cannot sort it out between yourselves.
For both parenting and property, you can attend mediation for some guided assistance in reaching an agreement outside of court.
How can I get custody of my children without going to court?
Trying to resolve your dispute outside of court is a great idea as the legal process can be lengthy and expensive. You can try to reach an agreement between you and your ex-partner by proposing the agreement you would like and hearing their response. The key to resolving your matter outside of court is maintaining a civil relationship with your former partner. This can sometimes be difficult in the middle of a separation when emotions are high so it is a good idea to get some help with learning how to manage this process from a professional.
If you are having trouble negotiating with your former partner, you can engage a lawyer to undertake the discussions on your behalf. It is often useful to have a legal representative involved as it takes a little of the emotion out of the negotiating and you can focus on what your end goal is.
A fantastic way to negotiate is through mediation. During this process, you are guided by an independent mediator to assist you to express your proposals and achieve an agreement. It is a good idea to get some legal advice or guidance before mediation to put yourself in the best position to succeed.
What is the normal child custody arrangement?
There is no standard arrangement. The legislation, Family Law Act 1975, outlines that the children’s best interests are paramount and that it is in their best interests to have a meaningful relationship with both parents except in certain circumstances. For many people, a ‘standard arrangement’ is week on/week off but for others, this means one person spends time with their child every second weekend. It depends on what works for your family.
When you are thinking about arrangements, you need to focus on what is best for your child, not what suits the adults. On top of your individual circumstances, the court will consider what is in the best interests for a child of the same age according to academic literature – for example, a young child who has a primary attachment to one parent should not spend a significant amount of time away from that parent.
Is a 50/50 split the normal financial division for long relationships?
It can be. Generally, the starting point for a court is 50/50 for a long relationship (more than 10 years) but there can be many variables to this. The court considers a four-step process when making determinations on financial settlement:
- Identify the property pool: this includes all assets and liabilities, regardless of whose name they are in.
- Consider contributions made by each party: this includes initial contributions, financial and non-financial contributions and contributions as a parent or homemaker.
- Look at the future needs of the party’s: the court will then look at what each person needs to rebuild their life and considers issues such as health, employment and care of another person.
- What is just and equitable: the final step is for the court to consider if all of the above information leads them to a decision that is fair for both parties.
Do I need a lawyer to attend mediation?
No, you do not. You are able to attend mediation without a lawyer however it is always useful to seek legal advice prior to attending mediation. It is also useful to engage assistance from a qualified professional, like a divorce coach, to assist you to be in the best position possible. Mediation is an excellent way to resolve your dispute and very often people finalise their separation in just one day. When you are in a mediation, the environment creates both parties to be in a very collaborative state of mind and it can be difficult to get back to that after a mediation. For this reason, it is very important that have received all the appropriate advice before, or during, mediation so you can finalise your agreement in one sitting.
Do I have to get a lawyer to deal with my separation?
Again, no you do not. It is absolutely possible to finalise your separation without using a lawyer at all – but there are some things you need to be careful of. If you simply reach an agreement with your former partner and do not finalise it through the court, then you need to be prepared that the other party can come back and make a claim against you at a later stage. Additionally, you should receive legal advice in relation to the agreement that you have reached, even if this does not change your mind about what your settlement is. Some lawyers even offer free initial consultations so you can discuss your proposed agreement with them to make sure that your interests are being protected.
How do I pick the right lawyer for me?
It is incredibly important that you call around and speak directly with the lawyer who will be representing you. Too often people engage a law firm only to find that a personal assistant or junior lawyer will be dealing with your case. Below are a few tips to help you find the right solicitor:
- When you first speak with someone, ask them who will be dealing with your case on a day-to-day basis. Talk with that person. Make sure that you connect with them and feel that they understand your case and your goals. Ensure that the senior partner you are speaking with isn’t going to hand your case over to a junior lawyer to run.
- Check the fees. Most lawyers charge on a time-costing basis. This means that you will be charged for every letter, every phone call, every email and every minute that your lawyer spends on your case. Some lawyers charged as much as $500-800 per hour. This means that a quick 15 minute phone call to see what is happening with your case can cost you $200. Fixed fee lawyers are usually the best value as they quote you for the work they do, rather than per minute, so you can feel comfortable emailing or calling them with any questions.
- Look up their qualifications. Make sure that your lawyer has the appropriate expertise for the area of law that you need help with. Some general law firms will have the same lawyer practising in commercial litigation, criminal law, wills and estates, contract law and family law. Family law is a complex area and is it always best to use a lawyer who practises exclusively in family law so you can be confident that they are familiar with court process and keeping updated with relevant law.
- Shop around – Australia wide! The Family Law Act 1975 is Commonwealth legislation meaning it is the same law across all of Australia. Especially since the COVID-19 pandemic, law firms have adapted to operating mobile and electronically so you can easily engage a lawyer in a different State if it works better for you. Many family lawyers work Australia wide because of this, so you should be speaking with lawyers all over Australia to see who best suits you.
How much does a family lawyer cost?
As mentioned above, this depends on how your lawyer charges. Time costing lawyers will charge in 6 minute increments and are responsible for reporting to their superiors and accounting for every minute of their day. This means that they will charge you for every little part of your file, from reading an email to answer a two minute phone call from you (but guess what, those two minutes will be charged at six minutes!). The lowest cost for a family lawyer might be around $300-400 per hour and the most expensive can be up to $800 per hour.
Family lawyers in big cities, like Sydney and Melbourne, are generally more expensive than those outside of those cities. This is another reason why it is a good idea to shop around. Family lawyers on the Gold Coast, for example, have lower overheads like rent and other expenses so their rates are much more competitive than those than you would find in the Sydney CBD.
Finding a lawyer who will provide a fixed fee quote is the best way for most people. They can give you an exact quote as to how much the work they complete will cost and you can engage a lawyer without worrying about every phone call and every email.
How can I resolve my separation amicably?
This can be difficult when emotions are high during a separation. Resolving your separation amicably means keeping your emotions under control, always treating the other party with respect, and trying to understand their point of view. Learning to keep your emotions under control takes time and sometimes you need to seek outside assistance. Engaging with a professional, like a divorce coach, can help you develop some useful skills to assist throughout the separation process and beyond. It is also useful to engage a solicitor to represent you to keep the focus on the legalities. Some lawyers can be combative and litigious so make sure you shop around and find a lawyer who wants to help you reach a resolution outside of court.
Nicole Jevtovic is a family lawyer, mediator and principal solicitor at Clarity Family Law Solutions. She is passionate about helping those going through the separation process to resolve their dispute as stress-free as possible and achieve the best result for their family. Her team focuses on positive solutions and simplifying the separation process for clients all over Australia. You can find out more about Clarity Family Law Solutions on their website www.clarityfamilylawsolutions.com.au or follow them on Facebook for up-to-date tips on separation www.facebook.com.au/ClarityFamilyLawSolutions
The information above is not legal advice. You should consult with a lawyer to obtain independent legal advice specific to your circumstances.