Divorce settlement is now one of the most common topics which people consult lawyers about in Australia. This is because although not all divorces are fraught with conflict, it is becoming very common for people to have a number of long term partners in their life. The two major issues which normally arise when a couple decides to get divorces are who is entitled to what share of the assets and how the children of the marriage are to be cared for after the parents have gone their separate ways. The issue of the care of children is particularly difficult when the children are not yet adult and are still substantially dependent on their parents for support.
In relation to property settlement, all of this can be done via negotiation and the legal system encourages parties to attempt to resolve this without resorting to litigation. In general, if a matter can be dealt with by consent, it will be but if this is not possible then the court will apply a series of considerations from the terms of the Family Law Act 1975 (Cth). These are along the lines of the following principles: (1) The assets of the relationship – this includes any property, personal possessions, bank accounts, superannuation, insurance policies and any other aspect of real or personal property in the relationship. (2) Contributions – these are based both on income and on non-financial contributions such as caring for children or doing housework. (3) Future needs of the parties – this is judged based on the age and state of health of each party and the ongoing needs of the parties in terms of expenses as well as future earning capacity. The final consideration is very broad which is called ‘just and equitable considerations’ which allows a court to alter the property settlement based on any consideration that it deems is just and equitable in the circumstances. These are the major considerations which courts use in determining the outcome of a property settlement.
The other major issue which emerges in relation to a divorce settlement is the custody of children. Again, this is largely by agreement between the parties, however, if the parties cannot agree than the court makes an order based on the best interests of the children. It is assumed that equal shared parental responsibility is in the best interests of the children, however, this presumption can be overturned if evidence is given of the unsuitability of one person for the role of parent. The court then can make what are called parenting orders once it is satisfied that these orders are in the best interests of the children.
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