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Spouse maintenance If one party of the marriage is unable to support themselves due to caring for a child of the marriage, their age, their mental or physical incapacity for employment or for any other adequate reason then an order for spouse maintenance may be made. In considering whether to make an order for spouse maintenance the court takes into consideration Such an order can only applied for within 12 months of a divorce being granted. Often an entitlement to spouse maintenance will be included as a lump sum in the final property settlement. Most people (about 95%) are able to resolve their property matters without having to have a judge decide who gets what. If it is necessary for such a judicial decision it may take at least 2 years to get to a hearing date due to the waiting lists in the Family Court. A property settlement may involve the adjustment of all the property you had at the time of separation (and sometimes including changes made in the value of the property since separation) including:
In making a division of the property the Family Court would take into consideration:
We can provide specific advice to you, after obtaining all the relevant information from you, of the best property settlement for you and the best way to try and achieve such a settlement. Since 28th December 2002 Superannuation is considered to be property in a Family Law settlement. This means that often the present day value of that superannuation needs to be assessed. It is also now possible that a final property settlement can include orders which split the parties superannuation either now or in the future. Sometimes it is necessary to seek a Family Court order stopping one party selling or otherwise disposing of assets of the marriage before a final settlement is reached. If you believe that there is a risk of assets being sold or otherwise disposed you should urgently seek our advice. Unfortunately sometimes the end of a relationship can see one party being violent, abusive or harassing to the other party. Under state law, an intervention order can be obtained in the state magistrates court if it can be established that their has been assault, harassment, intimidation or threats and that such behavior is likely to occur again in the future. What about de facto relationships
If you and your partner were living together in a marriage like relationship, but not legally married the applicable laws for your family law matters are a little different to married couples. This is the same under Victorian law whether you were a man and a woman living together or a same sex couple. Any disputes regarding the children of a couple who were not married are still governed by the Family Law Act. However property matters come under state legislation, which has some different considerations and different time limits. If you were in a de facto relationship we urge that you get specific advice form us regarding your position as soon as possible. When you have separated you should make a new will as your circumstances have changed. Under Victorian law, a divorce will make any bequest to your former spouse void. If you own property, including your home with your former spouse as joint tenants your will does not deal with your interest in the property, rather if you were to die your interest passes directly to your spouse. If there are current family law proceedings on foot at the time of your death, your estate can continue them. In your will you can nominate who you wish to look after your children but this nomination is not binding on the Family Court. If an application after your death was made to the Family Court regarding where your children are to live, the court will decide based on the best interest of the children and your wishes are only one of the many factors taken into consideration. FOR FURTHER INFORMATION ABOUT FAMILY LAW PLEASE CONTACT ACCREDITED FAMILY LAW SPECIALIST MARIKA McMAHON OR EXPERIENCED FAMILY LAW PRACTITIONER LAURIE O’FARRELL.
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