Sunday, 24 November 2013
My ex-partner has a substance abuse problem and/or mental illness, can I apply for full custody of our children?
1. Type and severity of your ex-partner’s mental illness and/or substance abuse problem.
2. Whether your ex-partner is under the care of medical professionals and whether or not s/he is following the care plan, including taking prescribed medication.
3. Whether or not your ex-partner has ever behaved in a violent manner.
4. Whether or not there has been a pattern of negligence or irresponsibility in the way your ex-partner has cared for the children.
5. The age and maturity of the children.
6. The availability and suitability of any relatives or close friends to supervise the time the children spend with your ex-partner.
7. Recommendations by health care professionals.
8. Whether any intervention orders have been made against your ex-partner.
9. Whether your ex-partner has a criminal history.
10. The children’s relationship with your ex-partner.
11. The extent of your partner’s involvement in the children’s lives prior to separation.
12. Whether or not your ex-partner has contravened any previous court orders.
If you have serious concerns about the safety and wellbeing of the children, you should contact a lawyer practising in Family & Relationships Law to get advice on whether you can apply to change the care arrangement for the children. At Nevett Ford, we have two Accredited Specialists in Family Law, Annmarie Farrell and Elizabeth Hall.
In urgent situations, you should contact the emergency services on 000 or the Department of Human Services on 1300 650 172 (for Victorians).
In Australia, you do not need the consent of your husband or wife to obtain a divorce. To obtain a divorce order you need to prove:
1. You and your spouse are married.
2. You and your spouse have been separated for at least 12 months.
3. There are adequate care arrangements in place for any children of the marriage.
4. If you and your spouse were married for less than 2 years at the time of applying for a divorce, that you have a counselling certificate from an approved counsellor or permission of the court to apply for a divorce.
5. If you and your spouse were married overseas, that at least one of you is an Australia citizen or ordinarily lives in Australia and has done so for 12 months immediately before applying for a divorce or regards Australia as your home and intend to live indefinitely in Australia as a citizen or resident.
If you do not have the consent of your husband or wife to apply for a divorce, you can file your own application, also known as Sole Application. Once the Sole Application has been filed at Court, ordinarily you would need to serve it on your spouse at least 28 days prior to the date of the divorce hearing (or 42 days if your spouse was overseas at the time of service).
If you do not know the whereabouts of your spouse and you have made reasonable attempts to contact your spouse at his or her last known address, telephone number or email, then you may apply to the Court to do away with the service requirement. As the application process can be quite technical, we suggest you contact a lawyer who specialises in Family and Relationships Law for specific advice. At Nevett Ford, we have two Accredited Specialists in Family Law, Annmarie Farrell and Elizabeth Hall.
What to do if you’ve repartnered prior to having settled your property matters with your previous spouse.
For a variety of reasons separated spouses often do not fully settle their property matters immediately after separation. Separated spouses frequently remain as joint tenants of the former matrimonial home in an effort minimise the upheaval for their children. Separated spouses also often remain joint debtors on mortgages, credit cards and other loans as they may not have the ability to refinance or discharge the debts.
The impetus to fully separate all aspects of financial matters usually arises when one or both of the separated spouses repartner.
If you and your previous spouse still have financial ties and you are looking to repartner or have already repartnered, we suggest that you look into completing the property settlement with your previous spouse as soon as possible. During the settlement process, you should consider:
· Maintaining a separate bank account to your new partner.
· Avoiding purchasing significant assets with your new partner prior to finalising the property settlement with your previous spouse, where possible.
· If you do decide to purchase assets with your new partner prior to finalising the property settlement with your previous spouse, or you have already purchased property together, then you should maintain a clear record of the capital and non-financial contributions you and your new partner are making towards these assets.
You and your partner need to consult a lawyer about making wills and other estate planning matters as soon as possible. At Nevett Ford, we have lawyers who may assist you in estate planning and family law matters.
Prenuptial agreements are often mentioned when high profile couples marry or separate.
Prenuptial agreements are fairly new to Australia. They are a type of Binding Financial Agreement (BFA), which came into existence in 2010 when the Family Law Act 1975 was amended to allow parties to enter into private agreements about their property matters.
You should consider entering into a BFA with your partner if:
· If there is a significant disparity in wealth between you and your partner.
· If one party is expecting a large inheritance and the other one is not.
Parties can enter into a BFA in contemplation of marriage or entering into a de facto relationship, during a marriage or de facto relationship or even after separation.
In order for a BFA to be binding, both parties to the Agreement must receive independent legal advice. This means that they must each have their own lawyer. Given the complexities involved in drafting and advising on BFAs, it is essential that you consult a lawyer who specialises in Family and Relationships Law.
At Nevett Ford, we have two Accredited Specialists in Family Law, Annmarie Farrell and Elizabeth Hall.
Properties are often registered in the name of one spouse for asset protection or tax reasons. Often, properties owned by one spouse prior to the parties entering into a relationship stays in that spouse’s name and are not transferred into joint names. That spouse may even consider those properties to be theirs only.
The mere fact that a property is registered in the name of one party does not mean it is immune from being divided with the other party at separation. Properties which exist at separation are usually considered part of the common pool of assets to be divided.
If your spouse owns real estate in their sole name or jointly with someone else, it is essential that you lodge a caveat against your spouse’s interests in the property to prevent those interests from being sold or transferred to another person. The process of lodging a caveat is quick and simple.
If your spouse is about to retire, a payment flag may be registered with your spouse’s superannuation fund to prevent your spouse from withdrawing his or her superannuation benefits. A flag may be put in place with your spouse’s agreement or by order of the Court.