Family Law Frequently Asked Questions
I've received a letter from my ex's lawyer, what now?
When you receive a letter from your ex’s lawyer we recommend that you seek expert family law advice about your situation.
Usually, these letters will contain a date to respond to them by. If this date is before you can get in to see a lawyer, send them a short email advising them you are seeing a lawyer on your appointment date and you or your lawyer will get back to them after this date.
At your appointment, an experienced family lawyer should be able to give you preliminary advice about your matter and your options going forward, including how to respond to the letter.
I've received a court document from my ex, what now?
When you receive court documents from your ex we recommend that you seek expert family law advice about these immediately. Don’t leave seeking advice to the last minute as this can impact on how you present at Court.
You will need to file documents in response to these documents. The time you need to do this will depend upon whether the proceedings have been filed in the Family Court of Australia or the Federal Circuit Court of Australia (this is where most family law matters are dealt with). If one or both of the parties reside in WA, the application may have been file in the Family Court of Western Australia. An experienced family lawyer can advise you when documents need to be filed, what documents need to be filed and prepare responding documents (or assist you to do so).
An experience family lawyer can advise you about the likely outcomes, options and strategies, strengths and weaknesses of your matter.
Knocked back for a loan to take over the mortgage/loan.
You and your ex have reached an agreement about your property settlement or at least part of it and you are going to “pay out” your ex and refinance the home loan and transfer the property into your name. You have applied for finance and you have been knocked back, what now?
Scenario 1 – Orders made by Court after hearing
The orders made by the Court will usually have default orders in the event this situation arises, usually requiring the sale of the property and for it to be listed for sale or auction within a period of time. If you really want to retain the property you could try negotiating with the other party about the matter, but usually if you have been to a hearing communications between the parties have broken down and they might not be amenable to such negotiations. Sometimes, the court may have given the parties liberty to apply with regards to the implementation of the orders, this may be an opportunity for you.
Scenario 2 – Orders made by Consent of the parties
These orders may contain default provisions regarding the sale of the property. If you really want to retain the property you could try renegotiating with the other party about the matter, whether it is for an alternate breakup of assets and liabilities or more time to obtain finance.
If there are no default provisions, the orders might have become frustrated and it may be they can be set aside. Alternatively, your ex may commencement enforcement proceedings including orders for the sale of the property.
Scenario 3 – Binding Financial Agreement
As these agreements have been prepared by lawyers, they likely contain default provisions. If you really want to retain the property you could try renegotiating with the other party about the matter, whether it is for an alternate breakup of assets and liabilities or more time to obtain finance.
Scenario 4 – Handshake deal
Where you and you ex have made a deal and have not formalised that agreement, there is nothing they can enforce. This can allow you more time to obtain finance. However, as there is nothing binding, your ex could file Court proceedings or refuse to comply with the handshake deal.
Generally with handshake deals parties are on more amicable terms and therefore may be open to exploring options, including more time to obtain finance.
Experienced family lawyers are seasoned negotiators. Most family law matters will settle with negotiations rather than orders made by a judge after hearing. As such, experienced family lawyers can advise you on your options, engage in negotiations on your behalf and represent you in court if necessary.
Family Law Tips- Legal Advice from Bennett Carroll Solicitors
In this series we will present you with free legal advice and tips when dealing with your family law matters.
Episode 1- When to see a lawyer? What next? First Appointment?
Episode 2- Consent Orders and Binding Financial Agreements
Episode 3- What if the other parent relocated and moves, particularly parents relocating and taking children with them?
Episode 4- Divorce Limitations