I can’t afford to go to court, so is it worth getting legal advice?
Coming to see a family lawyer about your separation and the issues that follow does not mean you will end up in Court. An initial consultation will allow you to be informed about your options.
Judy Stewart, the director of Stewart Family Law, is a nationally accredited mediator as well as an accredited family law specialist and registered family dispute resolution practitioner. In addition to her legal expertise in family law, she has a background in mediation, counselling and social work. You will see her in the initial consultation and she will talk with you about the number of “non-court” options for resolving matters. Stewart Family Law’s main aim is to resolve your matter as quickly and amicably as possible. We will go through these options during your initial appointment.
Why do I need a lawyer? Can’t I represent myself?
Engaging in the legal process, whether it be property settlement or children’s matters, can be a daunting experience, both emotionally and financially. Consequently, people going through a separation may seek to “do it themselves” rather than engaging a legal representative to assist them through the minefield.
Set out below are two key reasons why engaging a legal representative from our firm is the best way forward for you:
To draw up effective Consent Orders or Agreements
Consent Orders are designed to document (legally) the agreement reached between parties, whether it be property settlement or in relation to the care of children of a relationship.
But beware! If you draft these yourself, it is likely that you will miss something or they will not say what you think they say.
We are highly skilled in drafting agreements by way of consent. We can not only advise you in relation to your entitlements but also draft Consent Orders or a Binding Financial Agreement which properly document your agreement.
Consent Orders in parenting matters should assist parties in ongoing care arrangements for your children and minimise dispute/disagreement in the future, so it is very important that they are drafted correctly. It can be very difficult to go back to Court to have them varied, so our advice is have them prepared correctly the first time.
If your Consent Orders document your property settlement, in most cases they are documenting the division of property that it has taken most of your life to save and create. You don’t want to have Consent Orders that fail to cover the division of those assets in the way you thought they did, or alternatively create more problems in the future. This can all be avoided by using a legal representative from Stewart Family Law.
Representing you at Court
The Court process relies heavily on the documents you have filed on your behalf. Drafting Court documents based on a client’s instructions is something we, as lawyers, do all the time. We are well aware of what issues need to be covered and the best way to present your evidence to the Court to put you (and your case) in the best position possible for Court.
Poorly drafted Court documents may damage your case irrevocably or come back to haunt you in cross-examination. Unfortunately all too often we see self-represented litigants end up in this position. This can be avoided with legal representation.
It is sometimes the case that one party in a relationship is in a position of power over the other. Using our firm to represent you will even any power imbalance. It also obliterates the need for you to communicate directly with your ex-partner/spouse in relation to settlement negotiations, as we step in and communicate on your behalf (with your instructions). This is particularly important in matters where domestic violence has been present during the relationship.
There are so many other excellent reasons for using a legal representative.
How much will Stewart Family Law services cost?
Stewart Family Law offer a fixed fee initial consultation. This gives you certainty about your initial costs and the opportunity to ask questions and discuss your concerns without the anxiety of unknown legal fees. Once we know more about your unique situation we will be able to give you an estimate of ongoing costs. Please allow one to two hours for your initial appointment.
What should I bring to the initial appointment?
It is not necessary for you to bring anything with you. However, to make the most of your time at your initial consultation you can print and complete the Client Instruction Checklist and bring it with you.
For issues with property concerns, it is helpful for you have a list of your assets (including superannuation) and liabilities and the estimated values. You may wish to use our Assets and Liability Schedule.
Do I have to get divorced before I can apply to the court for a property settlement?
Property settlement and divorce are two separate court processes. You can apply for property settlement before or after divorce. However, once you are divorced any application for property settlement (or spousal maintenance) must be filed in the court within 12 months unless you first apply to the court for permission to file such application out of time. There is no guarantee that such permission will be granted.
We have reached an agreement about how to divide our property. How can we make the agreement legal?
To finalise property matters you can either file in the Family Court an Application for Consent Orders together with Minutes of Consent or you can enter into a Binding Financial Agreement. Legal advice is not required for Consent Orders, however, we recommend that you make an initial appointment to consider whether the agreement is just and equitable and to ensure that your paperwork is completed correctly. To be binding, a Financial Agreement requires that both parties receive independent legal advice.
Is the process for property settlement different if I am not married?
De facto couples can attain a property settlement in the same manner as married couples (in most cases). There are some variations to this depending on when the relationship ended. If you were in a de facto relationship but have separated, an application for property settlement (or spousal maintenance) must be filed in the court within two years of your separation, unless you first apply to the court for permission to file such application out of time. Permission is not always granted. We suggest you make an initial appointment to discuss the matter with us so we can determine your options and provide advice in relation to property settlement.
Why would I need to attend family dispute resolution?
Before you can file an application in the Federal Circuit Court or Family Court concerning children’s matters, you need to have first attended a meeting with a registered Family Dispute Resolution Practitioner and obtained a certificate from that practitioner. The Court does allow a few exceptions to this requirement, such as in cases of urgency and/or domestic violence or child abuse, or if your matter concerns Hague Convention orders or child support.
If you are not sure if you meet these requirements, or you want some further advice about your options, then please contact us for an initial appointment.
If you have already arranged dispute resolution, it is worthwhile being informed about your legal options before attending. Stewart Family Law can provide advice prior to your mediation. Alternatively if you want to attend dispute resolution but don’t want to wait for an appointment at a Family Relationship Centre, Judy Stewart is a Registered Dispute Resolution Practitioner who can offer timely assistance.
Should I change my Will and update the beneficiary to my superannuation and life insurance policies if I separate?
It is not uncommon for people to nominate their spouse/partner as the executor/trustee of their Will and the beneficiary of their superannuation and life insurance policies. When you separate it is important that you consider updating your Will to reflect your new circumstances. It is likely that you will want to nominate someone other than your ex-spouse as the executor/trustee of your Will. You should also consider who is the beneficiary of your superannuation and life insurance policies and make any changes to the nomination. It is likely that you have also made a gift to them under your Will which you will want to reconsider.
A copy of your previous Will is not required.
Am I entitled to or liable to pay spousal maintenance?
Spousal maintenance can be payable if one party has a ‘need’ for spousal maintenance, that is their reasonable expenses are greater than their income, and the other has the capacity to pay, that is their income exceeds their reasonable expenses. There are limitation periods in relation to Applications for Spousal Maintenance and we therefore recommend that you seek timely advice.
If you require further information in relation to spousal maintenance please contact our office to make an appointment with one of our family lawyers.
How do I find out more information?
Contact us to arrange an appointment with an experienced and accredited family law specialist.