FAQs

Spousal maintenance is financial support paid by a party to a marriage to their husband or wife (or former husband or wife) in circumstances where they are unable to adequately support themselves. De facto maintenance is financial support paid by a party to a de facto relationship that has broken down to their former de facto partner in circumstances where they are unable to adequately support themselves.

It is paid in addition to child support and any property of the marriage that the financially dependent spouse may receive on the basis of their contributions and future needs – and is often necessary in the interim because such division of property is yet to be determined and transferred or paid to the financially dependent spouse.

A spouse party is not automatically entitled to maintenance from the other following the breakdown of their marriage or de facto relationship; each parties’ circumstances must meet certain criteria such as the need to be maintained i.e. that they cannot adequately support themselves and that the other party has the capacity to pay.

The Court retains significant discretion when determining what amount of maintenance (as well as the type and duration) would be ‘proper’ in the circumstances.

Generally, you cannot move more than 50kms away from the child’s other parent without permission from the other parent or the Court.

After separation, one parent may want to move with the children to another town, State or even country. The other parent may object to this on the basis that the relocation would make it difficult for the children to spend time with them or have an ongoing relationship with them. These can be difficult matters for parents to agree. If the Family Law Courts are asked to decide whether the relocation should proceed, the Court will weigh up all options including the proposals of each parent and then decide what would be in the children’s best interests.

Superannuation is property and is divided between separating couples the same as other property is.

Superannuation is treated as property under the Family Law Act as it is valuable. It is different to other property such as a house because it cannot be mortgaged, sold or otherwise used for benefit today. It is a future “nest egg” known as a “financial resource”.

Superannuation entitlements can be substantial, sometimes running into the hundreds of thousands or millions of dollars. Superannuation is accumulated in Industry Funds and increasing in self-managed Superannuation funds.

In financial cases (that is, cases involving property, maintenance, or child support), parties must make a full and frank disclosure of their financial circumstances. This is known as the “Duty of Disclosure.”

This includes information recorded in a paper document or stored by some other means such as a computer storage device and also includes documents that the other parties may not know about. This duty starts with the pre-action procedure before the case starts and continues until the case is finalised.

As a party, you must continue to provide such information as circumstances change or more documents are created or come into your possession, power or control.

The rule in Rice & Asplund applies primarily to applications to re-open final parenting orders.

The Full Court of the Family Court held in the case of Rice & Asplund (1979) FLC 90-725 that unless a party can establish a significant change in circumstances since an earlier parenting order was made, the matter should not be reopened.

Essentially to commence a further proceeding in relation to parenting orders, a party must show to the Court that a significant change has occurred and due to this change, it is in the child’s best interests for the parenting orders to be changed or amended,

The rule is aimed at preventing a party from re-litigating simply in the hope of obtaining a more favourable exercise of discretion.

The effect of your divorce on any current will is to nullify any gift or reference which your will makes to your former partner. You should make a new will and do not need to wait until you are divorced to update your will.

Whether or not you will be required to split your inheritance depends on the individual circumstances of your case.

If you have already received your inheritance, the short answer is that anything that you receive during the marriage is marital property and divisible within the separation.

Child support payments are not tax-deductible because they are not incurred in gaining or producing assessable income and are private or domestic in nature.

Child support is managed by Services Australia. This department has the authority to enforce child support payments through a variety of methods.

The Department can contact your employer to have them deduct amounts from your pay.

They can intercept tax refunds, as most parents who pay child support also pay tax.

The Department may use a tax refund to pay your child support debt.

The Department has the power to contact your bank and make deductions directly from your bank account if you refuse to pay child support.

If you receive other payments from the Government, they may deduct your outstanding child support amount from these.

For more serious situations in which a person refuses to pay their child support debts, the Department can issue a Departure Prohibition Order.

This prevents the paying parent from travelling overseas – they may even be stopped at the airport before boarding a flight – until they have paid child support.

The Department can also take people to court to enforce the payment of child support.

A Binding Financial Agreement is an agreement under the Family Law Act 1975. It outlines how your and your partner’s assets will be managed if separation occurs. Financial Agreements are also known as ‘BFAs’ or ‘Prenuptial Agreements.’

Couples can enter into a BFA at any time; those who are engaged or planning on getting married, or are currently married, those who are planning on moving in together or starting a de facto relationship, and those who are separated or even divorced can use a Financial Agreement.

An executor is responsible for seeing that the terms of a will are carried out. Executors of a Will are responsible for administering and finalising the estate of a deceased person.

This includes making funeral arrangements, collecting the assets, paying the debt and distributing the estate to the beneficiaries. It may also include obtaining a ‘Grant of Probate’, which is an application to the Court to formally approve the will and the executor’s powers under the will.