Separating from your partner and relocating with your child: how does the law work?

Moving to a new city or State can be an exciting prospect in terms of employment, proximity to loved ones – or simply for a fresh start. However, after separating from a partner with whom you share children, relocation becomes more complicated. Our team of Family Lawyers here in Melbourne explain the laws around relocating with children so you can understand what to consider and what to expect. This information is relevant whether you are planning on relocating with your child or children following a separation, or whether your ex-partner would like to relocate.

The basics of Family Law

The laws and protocols around families and children is contained within the Family Law Act 1975. When it comes to issues concerning children, all matters are governed by one guiding principle. That is that the Court will always make its decision based on the best interests of the child. This includes any case involving relocating with children.

As a parent, you know what is best for your child. In the eyes of the law, the best interests of children are met by:

• allowing children the benefit of both parents having a meaningful involvement in their lives (children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development)
• protecting children from physical or psychological harm
• ensuring children receive proper parenting
• ensuring parents fulfil their responsibilities in regards to the care of their children.

These points are assumed to the maximum extent consistent with the best interests of the child.

Parenting arrangements/orders

Upon separating, ex-partners will come to some kind of arrangement – whether that be verbal, written or put in place by a formal court order – about how the children of the relationship will be cared for. This includes how much time the children will spend with each parent. Parenting arrangements or orders are important within the context of relocation, as these arrangements will likely no longer be practical if the move goes ahead. This is important to remember through the next steps in the process.

If you and your ex-partner agree

Coming to an agreement on your own terms is the most desirable outcome. For example, a common arrangement is that the parent who is not relocating will look after the children on school holidays, to make up for time missed.

If you and your ex-partner have come to a mutual agreement around relocation and relevant parenting arrangements, then you should formalise this arrangement either by consent orders or an official parenting plan. You should seek legal advice before entering either.

Formally documenting your arrangement is important so that each party understand exactly what they are agreeing to, and to avoid disputes in the future.

If you and your ex-partner cannot agree

If you and your ex-partner would like to agree but need help to reach a final agreement, you can undergo dispute resolution with the help of Family Law experts.

If this is not possible, then you will need to apply to the Court asking for an official order which allows you to relocate with your children.

Similarly, if you would like to stop your ex-partner from relocating with your children, you can also ask the Court to make an order to prohibit them doing so. This court order could include parameters such as the child’s residence being within a certain metropolitan area, or a defined distance from their current school.

The Court will consider whether the move is in the children’s best interests, with consideration given to an adult’s freedom to relocate if they wish.

What if there was a relocation without consent?

Relocating with a child without the consent of the other parent, or without a court order, is known as ‘unilateral relocation’. If there is a unilateral relocation, the Court will likely order that the child is returned.

If there is a court order in place and the unilateral relocation means that this agreement can’t be followed, this is a considered a breach. Breaching your court orders can have serious implications, including fines and even imprisonment in some cases.

If you have relocated without the consent of the other parent of your children, or vice versa, you should seek legal advice.

What about the wellbeing of parents?

As mentioned – the paramount decision in court matters involving children is the wellbeing of the children. That doesn’t mean; however, that the needs and wellbeing of the parents aren’t considered as well.  

For example, the court will consider the location of the proposed move, and whether (or whether not) that location will improve the mental health of the relocating parent. This could come in the form of increased family or social support, for example. Another factor is whether the relocation is to an environment that supports the parent and child’s culture and religion.

Financial circumstances are also considered in the court proceedings. If the relocating parent will have improved job prospects or their financial situation will improve, or if they have had financial hardship in their present location this will also be taken into consideration.

As you can see, these factors are related to the wellbeing of the parent, but ultimately consider how they effect the parent’s ability to undertake their parental responsibilities.

What if my ex-partner is uncontactable or isn’t in the child’s life?

Each child relocation case is different and will be treated as such; however, if the parent who is not relocating spends little or no time with the child, this will be considered by the Courts, again, through a lens of the child’s best interests.

Furthermore, if one parent has a history of abuse or neglect, then it’s likely that it will be in the child’s best interest to relocate.

In this situation, we recommend engaging the services of Family Law experts to ensure that your decision to relocate will be upheld by law.

A short (but important) note on international travel

If you are separated from your partner and would like to take your child overseas on holiday, you’ll need written consent from the other parent.

While parenting orders are in place, it’s a criminal offence to take or send the child overseas without consent, unless there is a particular and specific order in place allowing that to happen.

Finding the best outcome with Family Law experts

Le Brun and Associates is a leading Melbourne family law firm that can give expert guidance around separation, child residence, and relocation. Our team is ready to support you and understand your unique situation. Contact us today for a complimentary 30-minute consultation.

This post was originally published on https://www.lebrun.com.au/le-brun-associates/

How is Inheritance Treated in a Separation?

Is your ex-partner making claim to your inheritance? Contact one
of our expert family lawyers for advice today.

In today’s society, separation and divorce are much more commonplace, but this doesn’t make dividing your property or assets any easier. There are several things to consider when separating from your partner. Deciding who gets what and whether someone is entitled to the other’s personal effects can be extremely tricky business.

Everyone has the right to protect their own interests, for example, you may have a property you wish to keep which was inherited during your marriage. However, you need to know where you stand legally when it comes to inheritance as every case is different.

To give you some insight on your personal situation, here we have outlined some common concerns when it comes to inheritance and separation:

Is My ex-partner Entitled to my Inheritance after we’ve Separated?

In some cases, your ex-partner might be entitled to your inheritance after you’ve separated but this depends on whether your inheritance qualifies as part of your marital assets. Marital assets refer to all property during the course of the marriage regardless of ownership or who holds the title of it. This is up to certain nuances within your relationship including:

• The timing you received the inheritance (whether it was received early on or right before you separated from your partner);
• Whether the assets from inheritance were shared e.g. a car or a lump sum of money which was placed into a joint bank account;
• Whether some of the inherited assets or funds were used during the relationship (e.g. whether they were used for a family business or home improvements); and
• The size of the inheritance (in comparison to the total pool of joint assets before the inheritance was received).

How are Marital Assets Divided? 

If you and your ex-partner cannot come to an agreement with how your marital assets should be divided including any inheritance, then normally you will need to attend family dispute resolution before any Court proceedings. The is the best way to avoid additional emotional and financial stress within your relationship.

If you cannot come to an agreement with your former spouse or de facto partner, then you will need to apply for property orders through the Courts. You should be aware that there is no guarantee with how assets will be determined and divided by a judge in Court. They will make their decision based on what evidence of your inheritance is presented in Court and on your individual circumstances with your partner, both personally and financially.

Get Professional Advice from an Expert Lawyer

Protecting your inheritance isn’t always straightforward. It’s always best to seek professional legal advice as early as possible so you can assess all your options and understand where you stand.

At Le Brun & Associates, we understand that separating from your partner is an extremely stressful and emotional time, that’s why we provide a free 30-minute consultation to assess your needs and inform you of your options. 

Contact our team of family and divorce lawyers today for advice and ongoing support.

Why you should consider a Prenuptial Agreement

Deciding to get married should be a momentous and happy time for all couples. While marriage is a big and exciting stepping stone in life, when planning your future together with your significant other you also need to consider all possibilities. This is where a prenuptial agreement comes in.

What is a Prenuptial Agreement (Prenup)?
A prenuptial agreement is an American concept and as the name implies, it’s an arrangement which is specifically determined before you get married. In Australia, a prenuptial agreement is referred by the Family Law Act as a Binding Financial Agreement (BFA).

A Binding Financial Agreement (BFA) is a
cautionary arrangement you can put together
in the event of divorcing
 or separating from your partner.

The agreement records what assets and debts each person brings to the relationship and separation or divorce, and how your collective and individual finances will be divided. While it’s never a nice thought thinking about what would happen if your relationship breaks down, it’s better to establish an agreement while you’re happy with your partner as it could save you a lot of time and money in the long run – just in case! Usually, it’s used to specify that both sides will keep everything they each brought to the relationship but anything taken on board together is dealt with separately, which is where things can get complicated.

Why do I need a Binding Financial Agreement (BFA)?
Everyone has different circumstances but there are several reasons why you should consider a BFA, especially if:

• You have more money, property or assets than your partner
• Your partner has a large amount of debt
• One or both of you have been married before
• You own a business

What are the Benefits of having a BFA?

There are several benefits from getting a BFA in your relationship. The main advantage of having a BFA in place is ensuring you’re financially protected if your relationship ends. If the circumstance does arise, a BFA can also help you by:

• Facilitating a swift and smooth separation process
• Minimising legal costs
• Providing clarity and certainty of your entitlements

What does arranging a BFA involve?
Arranging a BFA can be a complex matter. It must comply with the strict legal guidelines as outlined in the Family Law Act (1975), and each person in the relationship needs to have received independent legal advice before making a commitment and signing. You should also be aware when putting together a BFA that in some circumstances which involve any future children, unreasonable pressure from a partner and incomplete disclosure of your assets then the agreement may not always be enforceable.

At Le Brun & Associates, our family lawyers regularly advise on and prepare Binding Financial Agreements, whilst always ensuring our clients are comprehensively protected and fully informed at all times about their individual situation.
If you’d like to know more about how a BFA applies to your circumstances, we offer a FREE 30 minute consultation with one of our fully qualified and professional lawyers. Contact us today to find out more.

Things to Consider when Separating from your Partner

There are many reasons for a marriage to break down… Separating from your partner is not easy and can get complicated, so understanding the requirements and processes can be helpful during this highly emotional and stressful time.

Separation officially begins when you stop living together as a couple. Although, it is also possible to break up and still live together under the same roof. If you’re thinking about or have recently separated from your partner and are not sure where to start or what to do next, here we have outlined some common questions and considerations:

Do we need to agree to a separation?

The short answer is no, your partner does not have to agree to a separation. However, they do need to know you think the relationship is over – whether this is done in person or writing may depend on the circumstances of the relationship, and is completely up to you.

Who do I need to inform about my relationship status?

There’s no legal document or paperwork required to establish or prove your separation, however, it’s a good idea to contact the following agencies as soon as your living arrangement and relationships status changes:

• Centrelink – if you are receiving benefits or need financial assistance
  
  
• Child Support Agency – if you have children living with you, you may be entitled to child support from your partner
  
  
• Medicare – to update your card and contact details
  
  
• Your banking institution, superannuation and insurance providers – to sort out your finances and entitlements
  
  

Do we have to file for divorce?

If you're unsure how separation will affect your personal
and financial situation, seek professional advice from
an experienced family lawyer.

Getting a divorce is only necessary if you want to remarry, but it’s important to know that staying married can affect your rights and obligations – particularly when it comes to financial matters, wills and estates. Notifying any relevant agencies (as mentioned above) will help to prove your separation, if you plan to file for divorce. To apply for a divorce, you must be physically and emotionally separated for a minimum of 12-months.

How do we decide who leaves our home?

In most cases, you and your ex-partner can decide who will leave and who will continue to live in the family home. If you can’t agree, you will need to apply for a sole use and occupation order from a judge – forcing one person to leave. Keep in mind that this order is only ever made in very special circumstances.

Before you choose to go to court, it’s best to ask a lawyer for advice and assistance. Going to court can be time-consuming and costly, so you want to carefully consider your options before any application is made.

What happens to our children?

If your children are under 18, it’s important to communicate with your ex-partner to reach a mutual decision.  Working out your new living arrangements, financial support and how much time is spent with the children is best done out of court, if possible.

If you can’t come to an agreement, attending a family dispute mediation session may help resolve issues in a less formal way, saving you time, money, and the emotional stress of going to court and leaving the decision in the hands of a judge. The court will often make an order based on the best interest of the child, which may not always be in your favour.

If you do reach an agreement about your children outside of court, the details can be set out in a parenting plan and a lawyer can help you create a consent order of negotiations – both have the same legal effect as any decision made in a court hearing.

When should we seek legal advice?

It’s always best to seek professional legal advice as early as possible so you can understand and explore all of your options. At Le Brun & Associates, our lawyers will concentrate on addressing your individual needs and concerns, whether your dispute relates to children, finances, property or all three, our family and divorce lawyers will provide comprehensive, timely and relevant advice and support designed to achieve the best possible outcome for you.

We understand that separating from your partner is an extremely stressful and emotional time, that’s why we provide a free 30-minute consultation to assess your needs and inform you of your options. Contact our team of family and divorce lawyers today for advice and ongoing support.