Peter May McAuliffe Legal practice in legal matters involving divorce, children and parenting matters, property settlements, binding financial agreements, de facto, pre-nuptial agreements, advice and litigation. Our experienced solicitors can provide the professional help you’ve been looking for.
Either party to a marriage (or both together) can make a divorce application once they have been separated from their spouse for a period of not less than 12 months. The basis of seeking a divorce is that the marriage has broken down irretrievably.
In Western Australia, applications for divorce are brought in the Family Court of Western Australia. There is a filing fee payable to the Court when filing an Application for Divorce. In most cases, it usually takes about three months for a divorce to be finalised from the time of filing.
If there are children, the Court must be satisfied that they are being properly cared for, and the arrangements made for the children are satisfactory.
Once granted by the Court, a Divorce Order takes effect, and is therefore final, one month after the Court makes the Divorce Order – unless there are special circumstances to vary this.
Peter May McAuliffe Legal can assist you with your divorce application, or to oppose a divorce application, depending on your circumstances.
Financial Agreements, otherwise known as “Pre-nuptial”, “Cohabitation” or “Separation” Agreements can be made and entered into by couples before, during or after a marriage or de facto relationship.
A Financial Agreement may address issues and cover aspects of the division of assets, property settlement, entitlements to financial resources, superannuation splitting and spousal maintenance. The benefit of entering into a Financial Agreement is to provide certainty, the ability to protect assets and financial resources following a relationship breakdown. They may also help avoid expensive and time consuming court proceedings following separation.
For a Financial Agreement to be binding, the parties must have each had independent advice from a legal practitioner about the effect of the Agreement upon their rights and the advantages and disadvantages of making the Agreement, and a solicitor’s certificate must be contained in the Agreement.
At Peter May McAuliffe Legal, we are seeing an increasing number of Margaret River, Busselton and Bunbury clients entering into Financial Agreements. We can advise you on any proposed Financial Agreements, or we can assist you to prepare one to ensure that it is valid if challenged in the future.
The Family Court has the power to make orders for property settlement. All of the assets of the parties, whether the assets are in joint names or not, are taken into account.
Applications for Property Settlement can be commenced at any time up until 12 months after a divorce becomes final.
Each party has an obligation to fully disclose his or her financial position to the Court and the other party.
The Court is obliged to make orders which are “just and equitable” having regard to:
- the financial contributions of each of the parties;
- the non-financial contributions of each of the parties, particularly in the role of homemaker and parent;
- the future financial position of the parties, including the need to provide for children and the capacity of the parties to provide for those needs.
Peter May McAuliffe Legal has extensive experience dealing with matrimonial property issues for clients in Margaret River, Busselton and Bunbury, including complex financial arrangements with extensive disclosure and is able to advise on the optimum presentation of property applications. We can also advise you on the likely outcome of the case if it proceeds to Court.
Spousal maintenance is a form of financial support and maintenance of one spouse by the other spouse – quite separate from property settlement.
Upon marriage breakdown, spousal maintenance usually takes the form of periodic monetary payments from one spouse to the other, lump sum cash payments, or payment of expenses for a spouse’s daily living costs such as mortgage instalments, payments of rates, utilities, health care costs, and other household expenses.
The concept of spousal maintenance also extends to the payment of maintenance by parties to a defacto relationship. Similar rules apply in determining the obligations of one defacto partner to another.
Spousal maintenance is commonly used to assist a former spouse or former partner during the difficult period between separation and finalisation of the property settlement. Maintenance orders commonly address the needs of the party during this interim period and in appropriate cases can also provide ongoing assistance following the finalisation of the property settlement. At Peter May McAuliffe Legal we have extensive experience in assisting our clients in crafting appropriate orders to assist them during this difficult time.
A person to a marriage is liable to maintain the other person by way of spouse maintenance payments to the extent that the paying person has the capacity to do so AND the person receiving the financial support is unable to support himself or herself adequately by reason of:
- having the care and control of a child of the marriage under the age of 18 years;
- their age or physical or mental incapacity for gainful employment; or
- for any other adequate reason, including such things as family income and resources, commitments to support oneself and children; and
- the standard of living that is reasonable within the context of the family.
Peter May McAuliffe Legal can help you negotiate and prepare a spousal maintenance agreement, or if no agreement can be reached, we can assist you in Court to achieve your desired outcome.
De Facto Law
Recent legislative changes in Western Australia enable parties to de facto relationships (including same sex relationships) to access an equivalent range of remedies in the Family Court with regard to financial matters to those presently available to married couples.
Defacto relationships (including same sex relationships) have equal access to the laws relating to financial property settlements and orders for maintenance.
In addition, the law regarding parenting arrangements and child support is generally applicable to all children in the same manner, irrespective of whether the parents are in a marriage or de facto relationship.