Advice on Your Rights in Family Law

Do you need advice on your rights in family law?

What are your entitlements upon the breakdown of you relationship? What are your rights? What should you do before you actually separate? Should you remain living under the same roof?

There are many things for you to consider upon, and even before, the breakdown of your relationship. Who pays the mortgage and other debts? Who keeps the house, company, trust, business or holiday home? How do you value the assets? Are there any taxation issues?

Often the stress, anger or other emotions experienced at separation can negatively affect your ability to make the right decisions at this difficult time.

Everybody’s situation is different and unique and therefore it is important that you get advice about your situation from an experienced family lawyer before you take any significant steps that may negatively effect your rights.

Family law affects each and every Australian adult in some form or another.

Generally speaking, parties who have had children or who have lived together as a married couple or in a de facto relationship have rights and obligations that have an impact on their financial, estate and succession planning.

More often than not the parties will have lived together for a significant period of time and their accrued rights may form the basis of the only significant opportunity for a financial settlement in their lifetime.

Family law can be divided into rights and obligations relating to financial matters or children.  For financial matters, rights and obligations may relate to a property settlement, spousal maintenance, child support or child maintenance.  For children matters, rights and obligations extend to paternity, surrogacy, financial support and the care, welfare and development of the children.

If you read the Act governing these areas and family law in general, parties are not able to identify the outcomes that will be appropriate for their particular case.

The main Acts governing family law in Australia are as follows:

  1. Marriage Act 1961 (Cth)
  2. Family Law Act 1975 (Cth) and regulations
  3. Family Law Rules 2004 (Cth)
  4. Family Court Act 1997 (WA) regulations and rules
  5. Child Support (Assessment) Act 1989 (Cth) and regulations
  6. Child Support (Registration and Collection) Act 1988 (Cth) and regulations

The above Acts can be viewed by going to the website of Australasian Legal Information Institute.

The Family Court of Western Australia, Family Court of Australia and the Federal Circuit Court of Australia all publish judgements in relation to family Law online.  All of these are accessible and able to be downloaded.

The problem however with making an assessment of the individual rights and entitlements stems primarily from the fact that every case is different. There are no two sets of factual circumstances that are going to be completely identical.

If you have read our information guides on parenting orders, property settlement, injunctions and spousal maintenance, you will have seen that the key feature that runs throughout is that the family courts have a very broad discretion in making decisions on these issues.

The reason that the family courts have such a large discretion is to ensure that in each and every case that comes before the courts that a fair and just outcome is the result.

It is impossible for legislators to draft legislation that will encompass and provide a formula to resolve each and every situation.  Therefore it is important to obtain independent legal advice from an experienced family lawyer, who has had significant dealings with the family courts and has an intimate knowledge of the way in which the courts approach the determination of family law issues.

To ensure that you receive advice from an experienced family lawyer you should be able to answer positively to each of the following questions:

  1. Does the lawyer practice exclusively in family law?
  2. Does the lawyer appear in the family courts on a regular basis?
  3. Has the lawyer represented a client in similar circumstances?
  4. Has the lawyer explained your rights and obligations clearly?
  5. Has the lawyer explained your options for Alternative Dispute Resolution?
  6. Will your lawyer provide their advice in writing if requested?
  7. Has your lawyer provided you with a realistic estimate of the likely costs?
  8. Has the lawyer identified and advised you about the complex issues in your case?
  9. Has the lawyer identified other professionals to assist you resolve non-family law issues?
  10. Does the lawyer act proactively?
  11. Is the lawyer easily contactable during normal working hours?
  12. Is the lawyer too busy?
  13. Does the lawyer have a plan to resolve your dispute?
  14. Has the lawyer clearly explained the court process?
  15. Does the lawyer promptly return your telephone calls?
  16. Is the lawyer courteous and firm?
  17. Is the lawyer prepared to ask you the ‘hard questions’ about your case?

Often clients have never obtained legal advice from a lawyer before. They may have spent a significant period of time considering whether to see a family lawyer. It is common for clients to say that they were not sure whether they should get advice. Often clients are encouraged to get advice by concerned friends or family. But they should not have delayed. Knowing your rights and where you stand provides you with peace of mind.

A separation or divorce is going to be significant life event with potentially long lasting after-effects emotionally and financially. The benefits of getting advice about your rights in family law far outweigh the possible drawbacks.

We generally advise clients that delay is not in their interests and obtaining advice sooner rather than later is always going to be the best option.

As the saying goes “An ounce of prevention is worth a pound of cure”.

At Beacon Family Law we offer a reduced initial consultation so that you can discuss your rights in family law with an experienced family lawyer.