Family Law Guide

Family
Law Guide

A SIMPLE TO UNDERSTAND GUIDE

This book is designed to summarise family law
and answer your important questions, with straight
forward and easy to understand answers.

A law firm for families

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About us

We are an award winning family law firm. We practice exclusively in
family law, including child custody, property settlement and divorce.
We provide high level legal advice, negotiation, court representation
and legal document drafting.
We have a team of family law solicitors of varying family law
experience available to represent you in your family law matter.
We believe in providing honest, fair and practical legal advice.
Whether you are going through a divorce or contemplating
separation, our family lawyers have the experience and knowledge
to see you through.

Why we created this book

We understand how overwhelming and confusing the law can be,
let alone when you are facing a separation. This book is aimed to
empower you to understand how family law operates and most
importantly how it might impact you and your family.

About this book

This book is a commentary online and not intended to give you
specific legal advice. We hope that it helps to guide you through
the family law system. However, if you would like advice please
call us on 1300 283 667.

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Contents

0 2S E PA R AT I O N C H E C K L I S T � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
0 6F I N A N C I A L S E PA R AT I O N � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
1 1CO N S E N T O R D E R S � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
1 5B I N D I N G F I N A N C I A L AG R E E M E N T S � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
1 9PA R E N T I N G � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2 2PA R E N T I N G C H E C K L I S T � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
2 6C H I L D S U P P O R T AG R E E M E N T S � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3 0D I V O R C E � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3 4F R E S H S TA R T A D V I C E � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
3 7J U S T I N C A S E P L A N N I N G � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4 2W H AT H A P P E N S W I T H O U T A W I L L ? � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4 4C H OO S I N G T H E R I G H T L AW Y E R � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
4 7S TA F F P R O F I L E S � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �
6 4CO N TAC T U S � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �

Separation
Checklist

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Separation Checklist

Which way forward?

Consult your lawyer regarding major decisions (i.e: selling property
or agreeing to any parenting or financial offers by consent).
Consult your lawyer regarding options relating to divorce or separation
including mediation or the court process.

Financial

Establish a pool of money that only you can access.
Bank accounts - Open a bank account in your name only and have your
pay and benefits paid into this account.
Joint accounts - Think about closing off joint bank accounts.
Credit cards - Consider cancelling joint credit cards.
PIN and password - Consider changing your PIN and online banking password
Budget - Work out your income and expenses using a budget planner
(include all debts you are responsible for).
Government payments - Talk to the Department of Human Services
to find out what payments and services you are entitled to.
Child support payments - Contact the Department of Human Services
to talk about what child support you are entitled to.
Debt - If you are finding it hard to keep up with your bills,
let creditors know you are experiencing financial hardship.
Redraw – If you have a redraw option on your mortgage consider
asking the bank to require joint signatures for any withdrawals.
Joint loans and guarantees - Seek legal advice about where you stand.

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Separation Checklist

Living arrangements

Staying? Work out a plan to cover mortgage repayments or rent during
the property settlement.
Moving out? If you are renting and are moving out, contact your
real estate agent, or landlord, to take your name off the lease.
U tility bills - If you are staying, put all utility bills (phone, internet,
electricity, gas) in your name only. If you are moving out, take your
name off all utility bills.

Documents and information

R ecord your separation date – note important time limits for applying for a
property settlement; if you are de facto you have 24 months after separation
and if you are married you have 12 months after divorce.
Collect important documents - your marriage certificate, birth certificates,
passports, bank and super statements, insurance policies, tax returns,
car registration papers, any other important documents.
List your assets - Create a list of your assets and debts to help with
your property settlement.
Safe storage of your documents - Set up a new email address or change
the password on your existing email account and consider setting up a
PO Box if you need a secure location for your mail.
Update your passwords and pins – for all online services you think
your ex might have access to.

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Separation Checklist

Children

Parenting plan – If you and your ex have discussed parenting arrangements,
document these arrangements with a parenting plan. Discuss with your
lawyer whether you should formalise this with consent orders.
Child support payments - Contact the Department of Human Services to
talk about your child support or speak to your lawyer about a private
child support agreement.
School contacts and costs - Let your child's school know that you have
separated and update your contact details. Give them a copy of any
parenting agreement or order. Ensure you work out a plan to cover
school expenses.

Wills, insurance and super

Will - Update your will as being separated does not cancel your existing
will, and divorce will affect your will differently depending on which
state you live in.
Life insurance - Update your life insurance policies so you have
the right cover and check if the beneficiaries need to change.
Super - Update your superannuation to make sure the payout
goes to who you want.
Powers of attorney - Consider updating any powers of attorney you
have given as these may not be cancelled when you divorce or separate.

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An overview
of Financial
Separation

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An overview
of Financial Separation

A financial separation is a necessity for all separating couples.
While it can be emotional, parties need to understand what is
equitable and fair to come to a fast and amicable solution.

What is a financial separation?

A financial separation is the formal end to your financial ties. It is separate
and distinct to divorce. A financial separation is the legal division of assets
between two parties often described in percentages, for example 50/50
or 60/40.

Who is eligible for a financial separation?

All couples whether married, divorced, or defacto may be eligible for
a financial separation.

How is a financial separation formalised amicably?

For a financial separation to be formalised amicably, couples have
two options, they can enter into a:

B inding Financial Agreement; or
Consent Orders.

What if we can’t amicably agree?

You have many options including negotiation, mediation, arbitration
and finally, as a last resort, court.

How long does it take to do a financial separation?

It depends firstly on how long you take to come to an agreement with
your former partner or spouse as to the percentage split. Once you have
agreed, depending on whether you choose to enter into Consent Orders
or a Binding Financial Agreement, you can complete the process in less
than 3-6 months.

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An overview of Financial Separation continued

How long do you have to formalise a financial separation?

You can do a financial separation any time after separation.
However, to formalise your financial separation you often need
Consent Orders which can only be obtained:

F or married couples - any time after married couples separate but only
up to 12 months after divorce.
F or de facto couples – up to two years after separation.
If you are close to or outside of these time limits, you may have other
options, however we suggest getting legal advice immediately.

What about property obtained after the date of separation
or divorce?

Property obtained after separation may be included in the property pool.

What about property that has been disposed of after divorce
or separation?

If a party sells a property after separation, funds received may be added
back into the pool. Therefore, it is best to determine a property settlement
with your former partner/spouse as close to the time of separation as
possible and before either party purchases or disposes of any property.

What are you entitled to in a financial separation?

Many separated parties simply assume that whatever they own jointly
is fair and should be shared equally. However, this approach, while
convenient, is not how the law approaches it. The best course of action
is to split assets equitably, not equally.

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An overview of Financial Separation continued

What does the law consider an equitable split in a
financial separation?

The family court uses what is known as the 4 step approach
when determining what is equitable.

STEP 1 What is the property pool?

“Property pool” means the assets and liabilities of the parties
and includes assets and liabilities in sole and joint names.
Examples of assets include real property (house/townhouse
/unit, block of land, investment property), a business,
motor vehicle/motorbike, caravan/camper trailer/boat,
bank account, bitcoin, shares or superannuation.
Examples of liabilities include loans (mortgage, personal loan,
business loan), credit card, debt to Centrelink or debt to the
Australia Taxation Office.

STEP 2 What were the contributions of each party?

Once the property pool is determined, the next step is to
determine the financial and non-financial contributions of each party.
Financial contributions that each party made to the acquisition,
conservation and improvement of property, including:

Initial contributions (i.e. what each party brought to the
relationship);
C ontributions during the relationship (i.e. earnings of the parties
during the relationship, contributions of each party to mortgage
repayments and living expenses); and
Contributions made post-separation (i.e. what each party
has paid for since the date of separation, such as mortgage
repayments, credit card repayments and school fees).

continued over page >>

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An overview of Financial Separation

STEP 2 What were the contributions of each party?

Non-financial contributions are contributions made which have
increased the size of the property pool, they are not given a
specific dollar value but are considered by the court in deciding
whether there should be a percentage adjustment to either
party in dividing the asset pool.
Non-financial contributions can be:

Repainting the home, landscaping, or renovations;
Raising children of the relationship (known as the homemaker
contribution); or
G ifts from parents and relatives.

STEP 3 Should there be any adjustments for future needs?

The next step is to assess the “future needs” of each party.
Future needs include age, health, income earning capacity and
care of children. If the age, health, income earning capacity and
care of children is the same for each party, then adjustments for
future needs may not be appropriate.

STEP 4 Overall, is it practical + just and equitable to
effect the proposed property settlement?

Finally, the court will consider the practical effect of the proposed
property settlement and whether it is just and equitable for a
property settlement to occur.

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Consent
Orders

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Consent Orders

PROPERTY AND PARENTING

A Consent Order is the most common agreement to formalise
matters in a separation. Almost every separating couple enters
a Consent Order to finalise their relationship. Why? Because
a Consent Order is an enforceable order of the court obtained
without going to court. It provides finality and clarity without
the price tag of expensive family court litigation.

Consent Orders

Can include property, parenting and superannuation arrangements.
Formally end the joint financial obligations not ended by divorce.
Are legally enforceable (unlike parenting plans.)

ADVANTAGES DISADVANTAGES

Avoid costly and time-consuming Parties must make full financial
family court proceedings. disclosure. Assets cannot be
excluded from their application.

No requirement for parties to obtain You cannot enter into an agreement
independent legal advice. more or less advantageous than
what the court would determine
as a fair outcome.

Provide a high-level of certainty Parties are only able to apply
and are enforceable in court. for Consent Orders following
separation. Unlike a Binding
Financial Agreement which you
can enter into any time before,
during or after the relationship has

commenced or ended.

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Consent PROPERTY &
Orders continued PARENTING

ADVANTAGES DISADVANTAGES
Can easily transfer property to There are time limits for applying
each other and avoid certain for Consent Orders for both married
and de facto couples. You have
government taxes. 2 years from the date of separation
Consent Orders are final and
can only be varied in limited for de facto couples and
circumstances or by agreement. 1 year from the date of divorce.

date for divorced couples.
It can take between 4 to 10 weeks

to process an application
for Consent Orders.

TIP Did you know that whilst a parenting plan is helpful to provide clarity,
they are not enforceable or formal?
TIP Did you know that assets and debts acquired after separation can all be
included in the final property pool, right up until you have signed Consent
Orders or a Binding Financial Agreement?

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Consent Orders PROPERTY &
PARENTING

Our No Hassle Consent Order Process

If you are looking to finalise your separation and have decided Consent
Orders are the best way, Cudmore Legal can help. We can get your
Consent Orders agreed, completed, signed and approved by the
courts, quickly and hassle-free.*

We meet with you and discuss the proposed agreements,
providing you with advice on the likelihood of the agreements
being accepted by the court.
W e write down the nuts and bolts of the agreement and send
it to your former partner for approval.
W e negotiate with your former spouse or partner if required.
We begin the disclosure process to make sure we do not
miss anything.
W e draft the ‘Minutes of Consent’ and ‘Application for Consent Orders’.
We write to superannuation funds putting them on notice of the split.
We meet with you to sign the ‘Minutes of Consent’ and ‘Application
for Consent Orders’, answering any further questions you have.
W e file the Consent Orders with the court and deal with any
requisitions you may have.
W e advise the superannuation companies once the order is approved
to move superannuation.
We provide you and your former partner with a final sealed copy
of the Consent Orders.

* Every Consent Order is different, and the process we go through may change.
The exact inclusions of your Consent Order are listed in your Client Service Agreement.

Call us on 1300 283 667 for more information on Consent Orders.

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Binding
Financial
Agreements

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Binding Financial
Agreements

Binding Financial Agreements are legal agreements made
between parties before, during, or after a relationship has
ended that deals with the parties’ financial separation.

What is a Binding Financial Agreement used for?

A Binding Financial Agreement covers:
F inancial arrangements after the breakdown of a marriage or a de facto
relationship;
F inancial support (maintenance) of one party by the other after the
breakdown of a relationship; or
Any incidental issues.

BINDING FINANCIAL AGREEMENTS & NEW RELATIONSHIPS

In a new relationship, a Binding Financial Agreement might suit people
who want reassurance that they will receive equitable treatment
financially if the relationship comes to an end.
Binding Financial Agreements create peace of mind, especially if one
party has children or assets that they wish to protect in the case of a
relationship breakdown.
When done properly, a Binding Financial Agreement can create a high
level of certainty to the financial outcome should a relationship
breakdown.

TIP A prenup is simply a Binding Financial Agreement entered into
before couples separate.

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Binding Financial Agreements continued

BINDING FINANCIAL AGREEMENTS AFTER SEPARATION

A Binding Financial Agreement will suit people who have already
separated when consent orders aren’t a good option.
Binding Financial Agreement might be right for you when:

C onsent orders require there to be a just and equitable split,
sometimes in the cases of large assets, one person might be okay
with receiving less than their fair share;
Property is structured in a way that doesn’t meet the requirements
for consent orders;
Spousal maintenance needs to be included in the final arrangement; or
You have reached the time limit to apply for consent orders.

Can you terminate a Binding Financial Agreement?

Yes, people can terminate an agreement if they both agree to terminate
it in writing in the proper form, often called a ‘Termination Agreement’.

Can a Binding Financial Agreement be set aside?

A court can declare the agreement invalid and set it aside. The situation
in which that is possible is mostly in instances of fraud but also for the
following reasons:

T he agreement is void, for example, if it isn’t signed correctly or there
was no independent legal advice given;
T here was unconscionable conduct;
The party’s circumstances have changed since the agreement was entered
into, for example, if the parties have since had children; or
The agreement covers at least one superannuation interest that can’t be split.

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Binding Financial Agreements continued

ADVANTAGES DISADVANTAGES
Being able to transfer property to L egal fees can be high as both
each other and avoid certain parties require independent
government taxes. legal advice.
Being able to agree to leave an C an be overturned in
asset out of a property pool certain circumstances.
upon separation. In circumstances where parties
aren’t separated, they need to
Safeguarding inheritances and frequently review and update
personal assets without needing the agreement.
the courts consent. May not be just and equitable
F or prenuptial agreements, for the parties.
it creates certainty of the outcome
if the relationship is to end.

Call us on 1300 283 667 for more information on Binding Financial Agreements.

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Family Law
and Parenting

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Family Law and Parenting

Children from separated families can develop and flourish just as
well as other children, especially if they continue to have supportive
and caring relationships with parents and other significant people
in their lives, like grandparents and other relatives.

Best Interests of the Child
When making parenting agreements or going to court, the paramount
consideration is always to choose what is in the best interest of the child.
When considering the best interest of the child, parents should take into
consideration the following

The benefit to the child in having a meaningful relationship with
both parents.
The need to protect the child from risk.
Any wishes expressed by the child and any factors (such as the child’s
maturity or level of understanding) that the court thinks are relevant to
the weight it should give to the child’s wishes.
The nature of the child’s relationship with each parent and other persons.
The likely effect of any change in the child’s circumstances including
the likely effect on the child of any separation from either of his or her
parents or any other person with whom he or she has been living.

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Family Law and Parenting continued

The practical difficulty and expense of a child having contact with a parent
and whether that difficulty or expense will substantially affect the child’s
right to maintain personal relations and direct contact with both parents
on a regular basis.
T he capacity of each parent, or of any other person, to provide for the
needs of the child, including emotional and intellectual needs.
T he child’s maturity, sex, background (including any need to maintain a
connection with the lifestyle, culture and traditions of Aboriginal peoples
or Torres Strait Islanders) and any other characteristics of the child that
the court thinks relevant.
T he need to protect the child from physical or psychological harm caused,
or that may be caused, by being subjected or exposed to abuse,
ill-treatment, violence or other behaviour or by being directly or
indirectly exposed to abuse, ill-treatment, violence or other behaviour
that is directed towards, or may affect, another person.
T he attitude to the child, and to the responsibilities of parenthood,
demonstrated by each of the child’s parents.
Any family violence involving the child or a member of the child’s family.
A ny family violence order that applies to the child or a member of the
child’s family.
Whether it would be preferable to make the order that would be
least likely to lead to the institution of further proceedings in relation
to the child.
A ny other fact or circumstance that the court thinks relevant.

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Family law
and parenting continued

If parents agree to parenting arrangements

If parents agree to parenting arrangements, they can document
it in a parenting plan or consent order.

DOES IT NEED TO PARENTING PLAN CONSENT ORDER
BE APPROVED BY No Yes
THE COURT?

ARE THERE ANY No, unless a mediator/ Yes, a fee is payable
COURT FEES lawyer is drafting the to the court.
INVOLVED?
parenting plan.

IS IT LEGALLY No, unless there is Yes
ENFORCEABLE? an existing parenting

order made by the
court, in which case any
subsequent parenting plan
can vary or supersede

previous orders

CAN IT BE CHANGED Yes Varying a consent
ONCE AGREED UPON? order is possible in
some circumstances.

If parents can’t agree to parenting arrangements

If parents can’t agree to parenting arrangements, going to court is
the last resort. Parents should try negotiation and mediation before
applying to the court.

Call us on 1300 283 667 for more information on parenting matters.

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Family Law
and Parenting CHECKLIST

Parenting Agreement Checklist

Living Arrangements

Where will the child/ren reside?
When will each parent have access to the child/ren?
W hen and how will the child/ren be transported between
each house?

Caregivers

If one parent can’t care for the child/ren in their time together,
who can be the caregiver in that time?

Communication

How will the child/ren communicate with each parent
and extended family and friends?

Education

What school should the child/ren attend?
Who is the preliminary decision maker regarding school
related decisions?
Who can pick up the child/ren from school if the parents
are unable to?
Who has access to the child/ren’s school and
attendance records?

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Family Law
and Parenting CHECKLIST

Parenting Agreement Checklist continued

Healthcare

Who is the primary doctor for the child/ren?
Who are the other healthcare professionals involved with
your child/ren?
Do you equally make decisions regarding the child/ren’s health?
Does the child/ren have special needs?
If so, what do the special needs entail?
Who has access to the child/ren’s health records?

Decision making & dispute resolution

Are decisions regarding the child/ren given to a primary
decision-maker, or are they shared?
When and how is each parent informed of decisions?
What is the process if a dispute arises?

Vacations/Travel

When will each parent have vacation time with the child/ren?
How much notice is required for vacations?
Will each parent grant the other permission for taking the child
out of the country?

CUDMORE LEGAL | FAMILY LAWYERS 23

Family Law
and Parenting CHECKLIST

Parenting Agreement Checklist continued

Birthdays and Special Days

Are there particular days where a parent should have access to a
child/ren regardless of where it falls within the parenting schedule?
These could be religious days, Christmas, Easter, Father’s Day,
Mother’s Day and Birthday’s.

Belongings

Where will the child/ren keep belongings?
Can the child/ren bring belongings between homes?

Extra-Curricular Activities

What extra-curricular activities is the child/ren involved in?
Who handles transportation to and from them?

Transport

How does the child/ren travel between homes?
How does the child/ren get to and from school or care?
Who will drive the child/ren to social activities?

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Private
Child Support

Agreements

CUDMORE LEGAL | FAMILY LAWYERS 25

Private Child Support
Agreements

Parents can enter into private negotiations for how and when
child support payments should be made, which can be
formalised into an agreement or trust.

Why a child support agreement?

A Child Support Agreement (“CSA”) allows parents to determine child
support payments privately by agreement.

How many types of binding child support agreements are there?

There are two types of CSA’s, Binding (“BCSA’s”) and Limited (“LCSA’s”).

BINDING CHILD SUPPORT LIMITED CHILD SUPPORT
AGREEMENTS AGREEMENTS

Do not require a notional M ust have a child support
assessment by the child assessment in place.
support agency.

They can be entered into with or T he amount payable under the
without a child support assessment LCSA must be equal to or more
having taken place. than the amount payable under
the agreement.

They also offer more flexibility to The amount payable under the
the parents, as payable amounts LCSA must be equal to or more
can be NIL up to whatever the than the amount payable under
parents agree. the agreement.
Are more certain than limited child M ay be terminated by a wide
support agreements. range of circumstances.

CUDMORE LEGAL | FAMILY LAWYERS 26

Private Child Support Agreements continued

How can child support be paid under Child Support Agreements?

Generally, payments are made in lump sums, or periodically, pursuant to
the terms of the agreement. If a parent fails to pay child support on time,
or in full under that agreement, a parent may ask the child support agency
to collect child support payable under the agreement on their behalf.

How do I start?

Child support agreements require the consent of both parents in order
to be made. Your solicitor will be able to advise you whether you should
pursue a BCSA or a LCSA and help you with negotiating the terms of
the agreement before finally drafting the agreement on your behalf.

Do you need legal advice?

BCSA’s require both parties to obtain independent legal advice prior
to signature, however LCSA’s do not. We recommend seeking legal
advice prior to signing any legal document.

What are the benefits of entering into a private child
support agreement?

Child support agreements in their various forms give parties autonomy
to agree upon the terms for payment of child support that suit them,
rather than relying on the child support agency.

CUDMORE LEGAL | FAMILY LAWYERS 27

Private Child
Support Agreements

CHILD SUPPORT TRUSTS

Another option might be a Child Support Trust. A Child Support Trust
is set up to provide support for children, where there is an obligation
to provide support for the child. This allows payments to be made in
a tax-effective manner, it is useful for:

S egregating cash or assets into a trust separate from the parents to
provide ongoing support for the children;
T rust assets are protected from external creditors;
Income tax, which is saved by the trust, can accumulate within the
trust until the child reaches a certain “vesting age”;
The funds settled on the trust can be borrowed, provided the capital
is ultimately repaid and will benefit the children;
The creation of this sort of trust requires consent from both parents
of the child. This is most advantageous when the contributing parent
is receiving a minimum taxable income of $80,000 per year and has
other significant assets; or
The initial property settling having a value of at least $200,000,
while ideally more.

Call us on 1300 283 667 for more information about Child Support Agreements.

CUDMORE LEGAL | FAMILY LAWYERS 28

Getting
a Divorce

CUDMORE LEGAL | FAMILY LAWYERS 29

Getting a Divorce

Divorce is the formal legal ending of a marriage.
It’s separate and distinct from property settlement
and parenting arrangements.

A divorce can be a highly stressful and emotional experience for
everyone involved. However, it’s only part of the separation process.
A divorce simply unmarries a couple, it doesn’t deal with property
or parenting agreements or arrangements.

COMMON QUESTIONS

What happens if we don’t get divorced?

If you don’t get divorced:
Y ou legally won’t be able to remarry; and
I f one of you dies, the other party may automatically get superannuation
and life insurance interests or make claims on your estate.

What about property?

Property between couples is not dealt with in a divorce. It is dealt with
separately under what is often called a property settlement. One of the
benefits and cautions of divorce is that once your divorce is finalised,
you only have 12 months to apply for a property settlement.

What is the eligibility criteria for divorce?

To apply for a divorce, it is required that you and your former spouse
be separated for twelve months.

What if we have been married for less than two years?

If you and your spouse have been married less than two years,
then it is required that you both first attend a mediation session
and obtain a certificate from your counsellor.

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Getting a Divorce continued

What happens with the children and property?

A divorce does not deal with any issues relating to the children or the
properties of the relationship. Arrangements surrounding these issues
must be made separately and are usually settled via Consent Orders
or a Binding Financial Agreement.

What if my spouse does not want a divorce?

You can apply for a divorce on your own, this is called a Sole Divorce
Application. You are not required to attend court for a Joint Divorce
Application.

Will I need to attend court?

You (or your lawyer on your behalf) will be required to attend court
for the hearing of a Sole Divorce Application should you have a child
who is under 18.

Should I do a financial settlement before or after my divorce?

You can commence a financial settlement at any time after the separation.
However, it is required to be completed within twelve months from the date
of your formal divorce. For this reason, most people wait until the financial
settlement is finalised before doing a divorce application.

How long will a divorce take?

Once you have qualified for a divorce, a divorce application itself
(remembering this does not include parenting or property arrangements)
typically takes a minimum of four months.

What if we have been living together for the separation period?

Yes, it is still possible to get a divorce. You may be required to provide
evidence that you and your former spouse have separated. Examples
of this include ceasing sexual activity, living in separate rooms, having
separate bank accounts, cooking your own meals and being open about
your split to friends, family and even neighbours.

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Getting a Divorce continued

Am I able to remarry immediately after divorce?

Once your divorce has been granted, your divorce order or ‘divorce
certificate’ and new marital status will not be considered final for another
one month and one day. You cannot remarry until your divorce is final
and has taken effect.

Do I have to wait until after a divorce to use my maiden name?

You can revert to your maiden name before, during or after your divorce.
If you wish to change your children’s name, it is a requirement for both
parents to give consent.

If I got married overseas, can I get a divorce in Australia?

If you live in Australia and are either a citizen or resident, you may
be able to apply for a divorce in Australia. To apply for the divorce,
you will need to provide a copy of your marriage certificate and an
approved translation certificate.

What is the difference between a joint and sole application
for divorce?

JOINT APPLICATION FOR DIVORCE:
A joint application is completed by both yourself and your spouse.
When completing this application, you will be required to file your marriage
certificate and pay the relevant filing fee. With joint applications, there is
no need for you or your spouse to attend court. The divorce will generally
be granted around two months from the filing date.

Note Joint applications are preferable.

SOLE APPLICATION FOR DIVORCE:
On the other hand, you can file a Sole Divorce Application for divorce.
However, this type of application is more complicated.
You may need to apply for a Sole Divorce Application because:

Y our spouse does not want to get a divorce;
Y ou are unable to work with your spouse on a joint application; or
Y ou cannot locate your spouse.

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Fresh
Start Advice

INITIAL CONSULT

CUDMORE LEGAL | FAMILY LAWYERS 33

If you’re feeling overwhelmed by
separation, we can provide you with
legal advice on how to best proceed.

What our advice session includes

1-2 hours with a qualified family lawyer.
Customised approach to your unique situation.
Tailored answers to the questions you have.
R eal actionable legal advice.
cD oigmeestbioancktimif ey.oGuowaiswha. y, think about our advice if you want,
fC uormthpelrimqeunetsatiroynfso. llow-up phone meeting answering any

What our fresh start advice doesn’t include

A sales pitch “Free” legal advice False promises

Ddooccuummeennttsd. rWafetiwngil,l we are here to talk and advise – not to draft
review current orders, agreements or plans
and advise on them generally but we can’t advise on complex legal
documents in depth (contact us for that).

CUDMORE LEGAL | FAMILY LAWYERS 34

What you can expect

IF YOU’RE CONCERNED ABOUT THE FINANCIAL SIDE OF
THINGS, WE CAN ADVISE YOU ON THE FOLLOWING:

A fair financial split percentage.
The best way to negotiate about getting that fair financial split
percentage.
Y our options for you once negotiations have finalised.
T he total cost of your legal matter to the negotiation stage.

TIP It is okay if you don’t know your assets and liabilities in
detail. We can gauge this by asking some questions about
your lifestyle, employment and other factors.

IF YOU ARE CONCERNED ABOUT PARENTING WE CAN PROVIDE
YOU WITH ADVICE ON YOUR CURRENT SITUATION AND WHAT
WE CAN DO TO IMPROVE OR PROTECT IT.

We provide advice on negotiating parenting arrangements, formalising
parenting arrangements and protecting current arrangements that are
already in place.
W e will discuss any likely actions we might take, for example, writing
to the other side and proposing formalising a current arrangement
or asking them to consider changing the current arrangements.
I f you have an upcoming mediation date, we will discuss with you what
to propose and how to propose it in mediation. If you wish, we will
even discuss how we might represent you at the mediation.
If you have an upcoming court date or you think you might end up in
court, we can discuss your case, the likely outcome and the costs of
pursuing it with our representation.

Call us on 1300 283 667 for more information about our Initial Fresh Start consultation.

CUDMORE LEGAL | FAMILY LAWYERS 35

Just in case
planning

CUDMORE LEGAL | FAMILY LAWYERS 36

Just in
case planning

Just in case planning is planning for what would happen
should you die or become incapacitated. It’s like insurance
for your loved ones.

Just in case planning typically includes
W ill

The legal document that expresses how you want your
property to be distributed after your death and which person
you want to manage this property until its final distribution.

E n during power of attorney

The document you need when alive but have lost capacity to
act (for example, you are in a car accident or have fallen
severely ill). This document gives an attorney the power to
act on your behalf, for example pay your bills, manage your
finances or make decisions as if they were you.

General power of attorney

The document you need if you want to give someone power
over your decisions even if you are able to act (for example,
if you go overseas). This can be done in the same document
as the enduring power of attorney.

CUDMORE LEGAL | FAMILY LAWYERS 37

Just in
case planning continued

Just in case planning typically includes
A dvanced health directive

An advanced health directive is a document that states
out precisely the types of medical treatments you would
or would not like to receive. For example, whether you would
want to be resuscitated or tube-fed. You can also state that
you do not want to be resuscitated if you have a terminal
illness or suffer from irreversible brain damage or injury
that you may never recover from.

S uperannuation binding nomination

A binding death benefit nomination is a legal document
that allows you to advise your superannuation of your
intended beneficiary. Depending on your superannuation
policy, you would need to update your binding death
benefit nomination every 2-3 years.

Life insurance nomination

A life insurance benefit nomination is a legal document
that allows you to advise your life insurance company
of your life insurance’s intended beneficiary.

CUDMORE LEGAL | FAMILY LAWYERS 38

Just in case planning continued

Will Preparation

When considering your Will you need to consider several things.

Executors

An executor is someone who would be responsible for the collection and
distribution of your estate according to your Will. Anyone who is over the
age of 18 can be your executor. If you cannot decide on an executor you
can choose to appoint two or more executors to act.

Property

All of the property you own is included in your estate. The following
is not included in your estate and can’t be dealt with in your Will.
JOINTLY OWNED ASSETS Any properties you own with another
person as a joint tenant will not be included in the estate, the
property passes automatically to the surviving joint tenant.
DISCRETIONARY TRUSTS, UNIT TRUSTS AND COMPANIES
These often don’t fall into an estate - it depends on how they
are structured.
LIFE INSURANCE You must nominate a beneficiary for your life
insurance as it does not go to your estate.
SUPERANNUATION You must nominate a beneficiary for your
superannuation as it does not go to your estate.

Specific gifts

Typically, when someone passes usually all their property is sold and the
value of it passes onto their chosen beneficiaries in percentage shares.
For example a Will might say “my estate goes to my children and my
partner in equal shares”. However, if you have valuable things you don’t
want to be sold or want to leave a specific amount of money to someone,
you can do what is called a ‘specific gift’. For example, you can say “leave my

wedding ring to my first child and $10,000 to my niece but sell and split the rest of my assets
between my children and my partner.” The wedding ring and the $10,000 are what is called a
‘specific gift’, it’s a specific amount or specific object to a specific beneficiary.

TIP You don’t need to include specific gifts and it is typically better if you don’t.
Remember if the specific gifts don’t exist when you pass then you are creating an
unnecessary complication on your estate. You are also required to review your
Will more often considering specific gifts.

CUDMORE LEGAL | FAMILY LAWYERS 39

Just in case planning continued

Beneficiaries

Typically, this will be your partner, or children. You should think about
how you want your estate divided up and at what age you want your
children to inherit.

TIP If you leave your child/ren out of your Will, you should seek advice
on whether they could successfully make a claim against your estate.
In some states, like Queensland, leaving a child out of your Will
significantly complicates your estate, but it can be done.

Guardianship

If you have children under 18 you should consider who you would want
to care for them if you passed away.

Call us on 1300 283 667 to learn more about our Wills packages.

CUDMORE LEGAL | FAMILY LAWYERS 40

Without
a will

CUDMORE LEGAL | FAMILY LAWYERS 41

What happens if someone
passes away without a will?

If you die without making a will or an existing will is deemed invalid,
you are said to have died ‘intestate’. Your assets will then be distributed
according to the intestacy rules of your state. In Queensland, your
marital status and whether you have children or not play an important
role in which family members get anything and if so, how much.

Married or defacto With Children = spouse receives first
$150,000.00 + all household chattels, then the balance of
estate is divided equally amongst spouse and children.
Married or defacto, No Children = spouse gets everything.
Single, no Children, parents alive = parents get everything.
If one parent has passed, then the surviving parent gets everything.
Single, no children, no parents = siblings get everything in equal
shares. If one of your siblings dies before you and they had
children, that siblings share will go to their children.
Single, no children, no parents, no nieces or nephews =
divided between your relatives on your mums and dad’s side.
Single with Children = children get everything in equal shares.
If one of your children has predeceased you and they have children,
then that child’s share will pass to their children (your grandchildren).

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Tips for choosing
the right lawyer

CUDMORE LEGAL | FAMILY LAWYERS 43

Tips for choosing
the right lawyer

If you decide to work with a lawyer here are our tips on how
to choose the right one.

Look at reviews

Legitimate reviews are a great way to see whether a lawyer or firm is the
right fit for you.
Note: Read the reviews – are they related to family law? Some law firms
practice in many areas, make sure the good reviews are from clients
they have helped with family law.

Consider Experience

Looking for an experienced family lawyer is going to provide you with
confidence in the advice they give you.
Note: While experience counts it is also worth considering the experience
of the firm as whole. The most experienced family lawyer is nothing without
an experienced team. Equally a novice family lawyer part of an experienced
team can be just as good as an experienced lawyer.

Personality

It is true that you just won’t ‘vibe’ with everyone. The same goes with your
lawyer. Choose a lawyer you like, otherwise it will be harder to trust the
advice they give you.
Note: Don’t be fooled. If you like a lawyer too much you might not pay
attention to the quality of work or the advice you are given.

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Tips for choosing
the right lawyer continued

Outcome

Ask a lawyer about the proposed outcome they expect to get for you.
Ask them what would happen in the worst case and the best case.
Note: Be careful of lawyers who promise great fairy tale outcomes.
If it sounds too good to be true it probably is.

Costs

Read your Client Service Agreement carefully. If it’s fixed fee, ask them
if they will account for their time. If it’s a range of costs, make sure you
understand the hourly rates.
Note: Don’t go for a firm just because it is the cheapest or the most
expensive. Neither of those things account for the value you are getting.

Contingency Plans

Ask the lawyer what would happen if they got sick, went on holidays
or were unable to do your matter for some reason.
Note: Be careful of firms with small family law teams or sole practices.
It is best to choose a lawyer that has a clear plan as to what would
happen to your matter in cases where they can’t help you.

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GET TO KNOW THE TEAM

Staff
Profiles

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I am the father of two young
children and I understand the
asymmetric joy a parent and child
can provide to one another and

the need to protect them.
I feel passionate about family law
and guiding our clients through a

system which has its flaws.

Luke Cudmore

ABOUT I am compassionate, caring and understanding.
My experiences as a father contextualise my family law
work and I recognise the anguish felt by some parents in
high conflict custody disputes having worked side by side
with them on numerous family law matters. Whilst you might
be feeling the emotional strain, I promise to be the rock you
can turn to for advice in the most difficult situations.
I pride myself on giving no-nonsense, straightforward
and sensible family law advice (and sometimes the advice
you might not want to hear). I promise to always be
honest with you about where your matter is at.
I believe litigation should be a last resort and only used
when all other avenues have failed. I pride myself on
helping my clients and opening the door for them to
continue the next leg of their life journey.  

QUALIFICATIONS Family Law, Legal Volunteering, Succession and
Employment Law
Bachelor of Laws – Queensland University of Technology 
Graduate Diploma in Legal Practice – Queensland University
of Technology   

AREAS OF

INTEREST Family law | Domestic Violence
ADMISSION Queensland Supreme Court   | High Court of Australia

I feel passionate about family law

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