1. FAMILY LAW
Owen Hodge Lawyers

2. SEPARATION

3. Things to Consider at
Separation
• Who will pay outstanding bills or debts
• Who will stay in the house
• How will the rent or mortgage be paid
• What will happen to any joint bank, building society or credit
union accounts
• What will happen to the house, car, furniture and other property

4. Have I Separated?
• Intention
• Communication
• Action (NB- under “same roof”)

5. DIVORCE

6. No Fault Divorces in
Australia
APPLICATION FOR DIVORCE
Must be separated for no less than 12 months.
HEARING
If the divorce is not contested and any children are being
properly supported and spending appropriate time with
each parent a Registrar will make the Divorce Order.
DIVORCE ORDER
Marriage is dissolved. This will take effect one
month and one day after the Divorce Order is made.

7. Two Main Areas of Family
Law When Couples
Separate
• Property
• Children

8. PROPERTY

9. De facto vs. Marriage
The main distinguishing factor between de facto relationships
and marriage is the issue of jurisdiction

10. De facto vs Marriage
No strict jurisdictional issues for married couples

11. De facto vs. Marriage
For De-facto, Court must be satisfied:
1) Genuine de-facto relationship
2) Geographical connection
3) The relationship broke down after 1 March 2009
4) One of the following conditions are met:
 The period of the de-facto relationship was at least 2
years
 There is a child of the relationship
 One of the parties made contributions
 The de-facto relationship has been registered

12. What is a Genuine De facto
Relationship?
De-facto Relationships:
 Two adult persons
 Not married
 Not related by family
NB: includes both same and opposite-sex couples

13. Genuine De facto
Relationship
•The duration of their relationship
•The nature and extent of their common residence
•Whether a sexual relationship exists
•The degree of financial dependence or interdependence

14. Genuine De facto
Relationship
•The ownership, use and acquisition of their property
•Their degree of mutual commitment to a shared life
•Whether the relationship has been registered in a State or Territory
with the laws for the registration of relationships
•The care and support of children
•The reputation and public aspects for their relationship

15. When Parties Agree
1) Consent Orders
2) Binding Financial Agreement

16. Property division by way of
consent orders
• A consent order is a binding written agreement that is approved
by a court
• You have to reach an agreement with your spouse prior to
applying for a consent order
• When the consent order is made, it has the same effect as a court
order made by a judicial officer after a court hearing

17. Property division by way of
Binding Financial Agreement
• Agreement made before marriage/de facto relationship
• Agreement made during marriage/de facto relationship
• Agreement made after divorce order is made/after breakdown of
de facto relationship

18. When parties do not agree
Application is made to the Court is a four step process

19. How the Court approaches
property settlements
ONE: Identify and value the property and financial resources

20. Current assets and liabilities
• Full and frank financial disclosure
• All combined assets and liabilities, regardless of whose name the
assets and/or liabilities are in

21. How the Court approaches
property settlements
TWO: Identify and assess the contributions made by each party

22. Contributions
• Financial
• Non-financial
• Domestic

23. Financial
• Direct or indirect contributions? i.e. Did you pay for things, or a
member of your family, such as your father or uncle assist your
relationship financially?
• Who paid the mortgage?
• Who paid the bills?
• Who paid for the groceries?
• Inheritances?
• When was the contribution made?

24. Question of “when”
Pre-marital assets and the erosion principle:
The longer the duration of the marriage, depending on the quality
and extent of the contribution, the more the proportionality of the
original contribution will have eroded. This occurred, not by the
passage of time, but by the offsetting contributions of the other
spouse

25. Non-financial
• Did any party perform renovation work on the home?
• Was one party the ‘money manager’ of the relationship?
A wife’s ability as a money manager and her entrepreneurial expertise as an
investor were held by the Full Court to be clearly significant contributions
which the wife made to the marriage (Brazel and Brazel (1984) FLC 91-568)

26. Domestic contributions
 Who cleaned the home?
 Who mowed the lawn?
 Who did the washing for the parties?
 Who cooked?
 Who cared for the children?

27. How the Court approaches
property settlements
THREE: Identify and assess the future needs of the parties

28. Future need factors
• Age and health
• The income, property and financial resources of each of the
parties
• Care or control of a child of the marriage
• Commitments of each of the parties

29. Future need factors
• The eligibility of either party for a pension, allowance or benefit
• Where the parties have separated or divorced, a standard of living
that in all the circumstances is reasonable
• If either party is cohabitating with another person, the financial
circumstances relating to the cohabitation

30. Future needs
• Whether any child support is being paid
• Any other fact or circumstance which the Court thinks relevant

31. How the Court approaches
property settlements
FOUR: Just and equitable

32. Case study I
• The couple have been married for 20 years
• The husband inherited $100,000 in the first year of marriage
• The husband earns $40,000 more per year than the wife
• The wife has the primary care of a child of the marriage, under 18
years of age

33. Case study II
• The parties have been married for 2 years
• Each party came into the marriage with $50,000 each
• There are no children
• The wife earns more than the husband
• The husband is terminally ill

34. Need Family Law Advice?
Contact the experts…
Owen Hodge Lawyers
Ph: 1800 770 780
Email: ohl@owenhodge.com.au
Sydney Office
3/171 Clarence St
Sydney NSW 2000
Hurstville Office
2/12-14 Ormonde Pde
Hurstville NSW 2220