We can advise you of your rights in relation to all aspects of a relationship breakdown. We encourage you to discuss your concerns with us so that we may assist you to develop solutions.
Belperio Clark recognises that family law is a specialised area and requires specialised and dedicated practitioners who are experienced in this field. We fully understand the need to be sensitive and to help a family restructure into separate homes. We have a dedicated team of professionals working in the area of family law who can cater for all of your legal requirements at this difficult time.
See our Family Law Brochure
A brief PDF you can download outlining our Family Law Services
In family law it is our philosophy that Court should always be a last resort. For those few cases where parties have no option but to pursue their rights in Court, we can manage all aspects of a Court case on your behalf.
For the vast majority of matters, other forms of dispute resolution are preferable to a Court based approach. At Belperio Clark we can offer other methods to help you in your transition through the Divorce process.
In some cases, all parties require is competent advice about their rights and entitlements. Armed with that advice, they are able to negotiate their own settlement. Where this option is selected, we are also able to assist with the preparation of the documents necessary to formally finalise any agreement that is reached. If the documents are drawn up by another party’s solicitor, we are able to provide advice to ensure that your interests are protected in those documents.
We have two trained and experienced mediators at Belperio Clark who are able to assist in a mediator role should that be required. Mediation is a process whereby both parties attend upon the mediator and the mediator assists the parties to negotiate a settlement.
If we act as a mediator for you we are not able to provide you with legal advice, but we can certainly refer you to other practitioners outside our firm to provide that advice. Alternatively, if you are having mediation elsewhere, our solicitors are able to represent you in that mediation process to ensure that your interests and concerns are addressed.
We are also able to assist by providing detailed advice in relation to your rights and entitlements prior to you entering into mediation, or draft any settlement documents for you to reflect any agreements you may reach at mediation.
Belperio Clark offer a unique fixed price mediation service for divorces and separations. In addition to a unique, mediated approach and fixed costs, this service can also be scheduled to take place during weeknights and weekends, to minimise the disruption to your work and family commitments.
Discover our Fixed Price Mediation Services
Regular and Weekend based Mediation options are available to accommodate all situations.
Some clients prefer that we engage in negotiations on their behalf. We are well experienced in this process and after advising you about your rights and entitlements, we can formulate offers to put to the other parties or their solicitor on your behalf, as well as responding to any offers that may have been submitted to you by them.
Belperio Clark is extremely excited and proud to also be able to offer a Collaborative process. Collaborative Divorce is new in South Australia and Belperio Clark is at the forefront of the promotion of Collaborative practice in our state.
Collaborative practice is a deeper form of dispute resolution and aims to secure durable, long lasting agreements and to preserve relationships between parties into the future. It is for this reason that the Collaborative process commenced in the area of family law in America twenty years ago, and is now used worldwide, in all areas of law, particularly where it is important for people to preserve relationships throughout the dispute resolution process and into the future.
We chair and hold membership on the Law Society Collaborative Law Committee. We also regularly give presentations about Collaborative practice to lawyers, law students, allied professional bodies and the public. Please click here for more information on Collaborative Law. If you are in a community group or body and would be interested in hearing more about Collaborative practice, please contact our office so that we can arrange a free information session for your group.
Children and Family Relationships
We understand the unique nature of family relationships and for this reason we recognise that it is important for solicitors acting in the area of family law to have regard to the welfare of children in families that have separated, and to assist parties to reach solutions that promote the best interests of the children.
How can we help?
At Belperio Clark, we are able to assist you in relation to all aspects of family law including –
There are many options that parents can consider in relation to where their children live. Some families are able to share the residence of their children after separation but for others, shared residence may not be an option due to practicality, distance, violence or for other reasons. Every family is different and has unique considerations that need to be understood to properly formulate the best approach for you and your family in relation to where the children live. The best interests of the children are the primary consideration of a Court, and the best interests of the children should always be the primary consideration of their parents.
How much time children spend with each of their parents
How much time the children spend with the parent with whom they do not live requires careful and considered attention. We are experienced in providing assistance to families so that they are able to reach sensible solutions.
Every family is different and their special needs and concerns need to be taken into consideration in formulating arrangements for the children. Sometimes, the geographical location of a parent's residence, or the relocation of a parent interstate or overseas can complicate what might otherwise be a simple arrangement.
Where families remain intact, the responsibility to make decisions in relation to a child is a joint and several responsibility which means that either or both of a child's parents can make those decisions. These decisions can relate to long term, serious matters such as education, health or religion, or they can also relate to day-to-day matters such as sport or extracurricular activities, or overseas or interstate holidays.
The responsibility remains a joint and several responsibility beyond separation unless the Court intervenes and vests the right to make decisions in relation to a child solely in one parent.
Where one spouse is able to establish a need for spousal support, and where the other spouse has the capacity to meet that need, spousal maintenance may be payable. An application for spousal maintenance must be made within 12 months from the day that a Divorce becomes final. An application for an extension of that timeframe may be made in certain circumstances but if you feel that you have an entitlement, you should not rely on achieving an extension of time. We recommend that you act promptly and within the 12 month time frame.
Child support can be assessed by the Child Support Agency which applies a formula to create an assessment. In certain circumstances, parents can apply to depart from that assessment. Parents can also reach formal or informal agreements that vary the amount of child support payable pursuant to the assessment of the Child Support Agency, or the manner in which child support payments are made. There are advantages and disadvantages in this regard and we would be pleased to discuss these with you.
Adult child support may be payable beyond the age of 18, in limited circumstances. You should seek our advice about adult child support if you have a child with a disability, or who is continuing their education. Adult child support is not the subject of an assessment by an agency and needs to be determined either by an agreement between the parties or by an order of the Court.
Dealing with matrimonial property after separation sometimes requires that decisions be made urgently. It is common for parties to be concerned about a number of matters after separation (or indeed prior to that occurring if the separation is anticipated) for example:
- Who is going to pay the bills?
- What will happen with our mortgage?
- Who is going to live in the matrimonial home?
- Who is going to keep the furniture, the car or our other property?
- Who is going to run the business?
- What's going to happen to our investments?
Long term decisions also need to be made in relation to the distribution of matrimonial property between the parties, including superannuation.
If you are able to reach an agreement in relation to property we highly recommend that the agreement be formalised by way of either a Consent Order or a Binding Financial Agreement in order to provide certainty and finality. Even if you draft your own agreement and sign it, or transfer property between you, this will not finalise your matrimonial property settlement. Agreements need to be properly drafted in a way that accords with the requirements of the Family Law Act 1975, and Binding Financial Agreements must be certified by a solicitor.
It is common for parties to believe they have resolved their property matters between them, only to be served with Court proceedings by their former spouse many years later. If that occurs, it is often more difficult to deal with the property settlement at that stage because the Court considers the value of the assets at the date of hearing, and often assets have been sold, disposed of, intermingled with third party assets, or significantly improved since separation. Timely advice is therefore recommended.
If you are not able to reach an agreement despite using your best endeavors to negotiate in an amicable way either on your own, with the assistance of a lawyer, or through mediation or collaboration, then you can apply to the Family Court which has jurisdiction to deal with matrimonial property.
Sometimes there are issues of urgency that mean an urgent application to the Court is required in order to protect property whilst you are trying to negotiate a final agreement. In some cases it is necessary to make an urgent application to the Court so that interim orders can be made in relation to the use and benefit of certain assets.
Many parties incorrectly believe that the name in which a matrimonial asset is held is of some relevance. In dealing with matrimonial assets we take into consideration assets held in either party’s name whether solely or jointly with other parties, together with any assets or trusts, companies or businesses in which parties have an interest.
Pre-Nuptial and Cohabitation Agreements
It is possible to enter into an agreement in relation to the distribution of property. An agreement can deal with all aspects of your property and financial arrangements and can be entered into:
- before the relationship commences (commonly referred to as a 'pre-nuptial agreement');
- during the relationship (commonly referred to as a 'cohabitation agreement'); or
- after the relationship has broken down.
Married couples can enter into a pre-nuptial or co-agreement under the Family Law Act 1975. Unmarried couples can do so under the Domestic Partners Property Act 1966.
A Divorce is not available until you have been separated for 12 months. Property and children’s issues can be resolved prior to a Divorce being granted.
A Divorce does not automatically resolve other matters that flow from separation. It is merely the formal ending of a marriage itself, and issues with respect to children and property need to be dealt with separately.
The only ground for Divorce in Australia is 12 months separation. There is no need to establish fault and sometimes parties are deemed to have been 'separated' for 12 months despite living together under one roof for some or all of that time.
Free 'Divorce Options' Seminar Info Sheet
Belperio Clark offer a free 'Divorce Options' Seminar to help you decide upon the right course of action. Download the Info Sheet to learn more
Domestic partnership disputes (Formerly Defacto Matters)
The Domestic Partners Property Act 1996 applies where parties have lived together as a couple on a genuine domestic basis. Property adjustment can be made between the parties at the conclusion of that relationship if either party:
- is resident in South Australia when the application is made; and
- was resident in the State for a whole or substantial part of the relationship, and
- the relationship existed for at least 3 years or there is a child of the relationship.
An application for the division of property must be made within one year of the end of the relationship unless the Court extends that time limit. Time is critical when dealing with domestic partnership matters as one cannot assume that an extension of time will be granted.
Children of a domestic partnership are dealt with by the Family Court in exactly the same way as children of a marriage. However, property is dealt with differently and at this stage in South Australia there is no entitlement for a superannuation splitting order or for spousal maintenance under the Domestic Partners Property Act 1996.
Property can be distributed between domestic partners and it is always preferable to negotiate a settlement and only go to Court as a last resort if you cannot reach a settlement through negotiations. If you do reach an agreement, it must be embodied in a certified, properly drafted document in order to be legally binding.
It is sometimes necessary to issue Court proceedings to protect a claim if it is nearing the limitation period, however, it is still preferable to look to try to negotiate a settlement after those Court proceedings have been issued before proceeding to trial.
Relocation issues arise where the parent with whom the child lives with wants to move. The parent may intend to move interstate or overseas, or even to another suburb.
It is understandable that a parent faced with the prospect of their child relocating as a result of a parent moving will be concerned about the impact this may have on their relationship with the child. It will be impossible for the parent to spend the same level of time currently spent when the child (for example) lives in a different state.
It is difficult to advise as to the possible outcomes of relocation cases, particularly because there are different views between judges and different interpretations of the legislation. In addition, each family is unique and the Court will take into account a number of different factors in making a decision about relocation.
In dealing with relocation cases, the Court must look to the Family Law Act in the same way it does when dealing with all other parenting cases. Unless rebutted, there is a presumption of equal shared parental responsibility. If equal shared parental responsibility is ordered, the court must then consider whether it is in the best interests of the child and practicable in the circumstances to spend equal time or substantial and significant time with a parent. It is here that the difficulty lies with relocation matters, as it can be argued that relocation will affect the considerations in respect of whether equal or substantial and significant time should be ordered. Some of those considerations may be minimised on account of the practicability consideration.
The Court must also look at other determining factors to decide the issue, including but not limited to:
- the constitutional right to freedom of movement;
- whether a meaningful relationship can be maintained if a child and parent live in separate states;
- the costs and burden of travel if the child was to relocate; and
- whether the other parent can also relocate.
The importance of the role that grandparents, relatives and members of extended families play in children’s lives is considered by the Family Law Act. Grandparents can be a party to proceedings in respect of the children of separated parties.
When determining what is in the children's best interests, the Court will also consider the relationship that children have with their grandparents. Often grandparents develop a close bond with children as they spend time with the family unit, assist parents with child minding, provide children with an insight into their family history, and/or provide children with support.
When parents separate, the grandparents' relationship may too be affected. The time grandparents spend with their grandchildren may become limited and it may therefore become difficult for them to remain involved in their grandchild/children’s lives.
At Belperio Clark, we understand the high level of emotion that is involved when families separate. You do not need to be alone during this difficult time. Contact us to arrange an appointment with one of our lawyers.