Separation: Parenting and property arrangements
It is important to note that there is some difference in how Family Law deals with married couples and de facto couples. While the rules for financial and parenting plans generally have similar effect, there are some differences that may mean some differences in process and approach to managing separation depending if you are married or have left a de facto relationship. With de facto couples, some "gateway" provisions may influence whether your matter is dealt with as a family law matter or under other civil law legislation.
Financial and Property arrangements
Family Law property settlements in NSW follow a 4-step process:
- Identity and value assets and liabilities from global pool of property.
- Assess each partner’s contributions to family assets including non-financial contributions (homemaking and caring for kids) and each contribution is given an equivalent dollar value.
- Consideration of parties future needs and resources. Typical considerations include the parties' age, state of health, standard of living and the ages of children from the relationship. This is where the dollar values from step 2 are adjusted. It is at this step that consideration of paying or receiving maintenance is also considered.
- The distribution is checked for overall fairness in the light of the unique circumstances.
The Family Law Act sets out some basic principles or fundamental rights that the court should regard when making parenting orders. However, in instances of family violence and abuse, or simply sometimes where it is very impractical to give effect to these principles, these rights as they pertain to the caregivers of children, may be diminished or even removed: These are:
- Right for children to be cared for by both parents regardless of marital or relationship status:
- Right for children to spend regular time with and in communication with both parents and other significant persons in their lives (e.g. grandparents). Note that this principle says nothing about equal time being a right.
- Parents to share responsibilities of taking care of children.
- Parents should agree about future parenting.
- Right to enjoy culture.