Family Law

Whether you are in a married or de facto relationship the end of a relationship is always a difficult matter to deal with. Sarinas Legal can assist you in resolving all financial matters so that you can move forward in life (and business) again.

 

Every Relationship is Unique

Every relationship is different including the way couples have handled their financial affairs. Sorting through the financial dynamics of the relationship can sometimes be a complex process. The assets and liabilities of the parties may be in joint names or in sole names and sometimes there may be third parties or companies and trusts involved in the ownership of property. We are able to provide advice on superannuation splitting, dealing with inheritance, loans or gifts from parents, and other financial burdens or benefits that have arisen during the course of the relationship.

 

Financial and Non-Financial Analysis

We take the time to properly analyse the financial and non-financial contributions that have been made so that a fair and equitable property settlement can be achieved in a timely manner. In many cases resolution is achieved without going to trial and in that way we are able to limit your legal costs. We possess the skills to effectively negotiate a settlement and our skills extend to providing advice on complex commercial and business matters.

 

Realistic Advice / Clean Break

Effective property settlements are achieved by way of court orders or Binding Financial Agreements. We believe it is essential that you are provided with realistic advice and that all money affairs are finalised so that you have a clean financial break from your partner.

Our Fees

We provide the convenience and certainty of fixed fee billing (as opposed to time costing) and in approved cases our fee can be paid at the conclusion of your case. The benefits of fixed fee billing are stated here

Property Settlement 

Our Mission Statement: Resolve Quickly and Move On….

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

 

 

 

 

 

 

 

 

 

 


 

 

 

 

 

 

 

 

 

 

 

 

 



 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

 

 

 

 

 

 

 

 

 

 

Stage 1

Calculate the Property Pool

  • We work out the value of everything that is owned jointly and separately.

  • Valuations may be needed

  • We work out any liabilities, mortgages, credit card debts, outstanding loans

Stage 3

Future Needs

  • We assess your future needs

  • You may have children to care for

  • Superannuation discrepancies are taken into account

  • Adjustments may need to be made for other financial imbalances such as salary

  • Illness and Health are also factors

Stage 4

Property Division Range

  • We review all of the above in accordance with the provisions of Family Law Act

  • We also research case law and previous decisions of the Court

  • we then provide you with a range of likely outcomes which is used as the framework for negotiations.

Stage 5

Negotiations

  • After analysis of your circumstances, we vigorously pursue negotiations to arrive at an early resolution.

  • We recommend that resolution be formalised by way of “Consent Orders” filed in court. That will end the matter so you can move on.

Stage 7

Return Date and Interim Orders

  • The court will appoint a “Return Date” and we will appear on your behalf on the Return Date.

  • At the return date we may argue for interim orders for your benefit such as:

    • orders requiring your partner to pay their share of the mortgage,

    •  get valuations,

    • disclose documents,

    • selling property.

    • maintenance.

Stage 8

Conciliation Conference

  • The court will usually order the parties to attend a Conciliation Conference before a registrar or mediator

  • the conciliation conference is a compulsory step before proceeding on with court action

  • many disputes settle by the time of the Conciliation Conference or within a short period after.

  • If the matter does not settle then the court will appoint a Trial Date

Stage 9

The Trial Date

  • The court will order all parties to file all relevant material including you affidavits, evidence from witnesses, and valuations

  • there is a considerable amount of preparation for trial

  • we may need to cross-examine the other party and their witnesses

  • similarly you and your witnesses may be required for cross examination by the other side

  • the judge then makes his decision which is final unless there is an appeal.

Stage 10

Costs

  • Usually each party bears their own legal costs

  • However if the conduct of one party has been obstructive or unreasonable then there are grounds for a court to award costs against that party

  • Even when costs are awarded, not all of your costs are covered. Sometimes a court makes a party pay “indemnity costs” which is meant to cover all or most of your costs

  • The award of costs however is discretionary and entirely up to the judge.

Stage 6

Starting Court Action

  • However if negotiations fail or if the other side have exaggerated their claims or overestimated their case, the next step is to proceed with court action/litigation.

  • We will prepare and file in court:

  • an application for property division

  • your affidavit in support

  • your statement of financial circumstances

Stage 2

Contributions

  • We gather evidence of financial and non-financial contributions

  • There are obligations at law on both sides to disclose financial documents such as income tax returns, payslips, interests in businesses, shares superannuation and other property. We analyse this information.

  • We work out if one of you came into the relationship with more property than the other and take this into account

  • There may be gifts from parents or a house deposit from one side

  • One party may have contributed more in a non-financial sense such as homemaker and parent or maintaining property.

 
 
 
 

Children’s Issues

Our Mission: Arrangements that are in the best interests of your children

 

Paramount Considerations:

  • The paramount consideration is what is best for the children. This is enshrined in the Family Law Act.

  • Its always best if you can come to an agreement with your children because it will have the least negative impact upon them.

  • Sometimes agreement is not possible for example:

    •  threats are made to limit your access

    • a parent wants to leave town and start a new life elsewhere away from family

    • children may have expressed a preference

    • there may be medical issues

    • a parent “poisoned the mind of” the child and manipulates them

  • its best to keep arguments to a minimum and focus on the:

    • where they will reside

    • how contact and shared parenting can be arranged

 

Dispute Resolution:

  • parties are expected to engage in family dispute resolution prior to applying to the court for parenting orders.

  • Family Relationship centres are available to assist parents reaching agreement about children’s living arrangements.

  • Attending dispute resolution is a necessary precursor before going to court.

  • In many cases the matter is resolved.

  • before you go to court will try everything to help you find a solution that best for you and the children

  • there are two options:

    • Parenting Plans

    • Consent Orders

 

Parenting Plan:

a parenting plan will set out the arrangements that will apply however it is not enforceable in a court. If proceedings are instituted the court may consider the terms of the parenting plan in determining what parenting arrangements are in the best interests of the children

  • Consent Orders

  • many parents prefer the certainty of having a formal Consent Orders in place to prevent any further issues.

  • there can be severe penalties for breaching a Consent Order including going to jail Parenting Orders

  • if agreement can’t be reached on the matter can proceed to court

  • in the majority of cases the court assumes that it is in the best interests of children for both of their parents to share parental responsibility.

  • This means both parents should jointly make decisions about:

    • School

    • religion

    • health needs.

  • The court will then consider what practical living arrangements should be made in their best interests with the following priority:

    • spending equal time with each parent it on a weekly basis or a combination of say four days in one week and three days in the next

    • the child living with one parent but spending substantial and significant time with the other parent including holidays

 

Defacto & Same Sex Relationships

Generally the principles is in the Family Law Act apply whether:

  • you are married or

  •  in a de facto relationship or

  • a same sex couple.

 

Before the Court can determine your financial dispute, you must satisfy the Court of all of the following:

  • you were in a genuine de facto relationship with your former partner which has broken down

  • you meet one of the following four gateway criteria

    1. That the period for the de facto relationship is at least 2 years

    2. That there is a child in the de facto relationship

    3. That the relationship is or was registered under a prescribed law of a State or Territory

    4. When assessing property or custodial claims in cases of a breakdown of a relationship, it is recognised that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice

  • you have a geographical connection to a participating jurisdiction

  • your relationship broke down after 1 March 2009 (or after 1 July 2010 if you have a geographical connection to South Australia only); although you may be able to apply to the courts if your relationship broke down prior to the date applicable to your state.

 

You should obtain legal advice about whether your circumstances satisfy the criteria before filing an application.

 

 Contact us to find out more or to arrange a consultation.

© Sarinas Legal