Hi there. If a marriage or de facto relationship has broken down, the parties will usually need to decide how their shared property and finances (including superannuation) are to be divided. There are three ways this can be done.

1. Financial agreement

If you and your former partner can agree on the division of property (including superannuation), you can put these terms into a formal written agreement (called a ‘financial agreement’). For a financial agreement to be legally enforceable, you must each obtain independent legal advice about the contents of the document. A lawyer must sign a certificate confirming that independent legal advice has been given.

2. Consent orders

If you and your former partner can agree on the division of property (including superannuation), you can seek consent orders from the court. To obtain these orders: (a) you must complete a Superannuation Information Kit, which guides you through obtaining a valuation of your superannuation; (b) you must file an Initiating Application together with a Financial Statement and Affidavit; and (c) your former partner must file a Response to Initiating Application plus their own Financial Statement and Affidavit. These documents are available from the Family Court website (www.familycourt.gov.au). Although consent orders are available without obtaining legal advice, it is strongly recommended that you speak to a lawyer to ensure you understand the implications of splitting your superannuation or other property.

3. Court orders

If you and your former partner cannot reach an agreement on the division of property (including superannuation), you can apply to court for a determination on how your property is to be divided. The court requires parties to first undergo a dispute resolution process, in an attempt to resolve the matter without ending up in court. If the parties still cannot reach an agreement, one party may file an Initiating Application with the court to obtain orders for the division of property.

Suggested way forward

Your options for splitting property (including superannuation) are set out above. Although independent legal advice is only required in relation to the preparation of a 'financial agreement', speaking to a lawyer about your situation and the best way to protect your interests is strongly advisable in all cases. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. Australia has strict laws around issuing passports to children and the parental consent needed for a child’s passport to be issued. The laws are designed to prevent children from being taken overseas by one parent against the wishes or knowledge of the other parent.

The law states that a passport for a child can only be issued if each person who has parental responsibility for the child has provided written consent for the child to have a passport. Generally, people with parental responsibility are the parents named on the child’s full birth certificate. Written consent must be provided in accordance with the instructions on the passport application form and must be witnessed by an appropriate person.

Obtaining written consent from both parents may not always be possible. The law recognises this and allows a child’s passport application to be considered under the ‘special circumstances’ provisions in the relevant passports legislation. ‘Special circumstances’ include, but are not limited to:

• where the non-consenting parent has not been contactable for a reasonable period of time;
• where a family violence order exists against the non-consenting parent; or
• where the non-consenting parent is medically incapable of providing consent.

If you are unable to obtain the consent of the other parent and believe you satisfy one of the special circumstances, you must complete form ‘B9 – Child without full parental consent’ (available from www.passports.gov.au) in support of the child’s passport application. The Department of Foreign Affairs and Trade, which is responsible for issuing passports, will assess your application and determine whether special circumstances exist. The delegate assessing the application may issue the passport, deny the application because special circumstances do not exist, or refuse to make a decision because it should be dealt with by a court.

Instead of applying to the Department of Foreign Affairs and Trade, you have the option of applying directly to court for a passport to be issued to a child. You would need to prepare and lodge formal legal documents with the Federal Circuit Court, which may require professional assistance from a lawyer.

Suggested way forward

From the information you provided, you may have special circumstances on the grounds that your child’s father is medically incapable of providing consent. You need to submit form B9 together with your child’s passport application and provide evidence of the special circumstances. Alternatively, you may want to consider speaking to a lawyer who can advise you of your legal options, including the option of applying directly to court for the issue of a passport for your child. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.

Hi there. If you son and his wife separate, they may need to decide how to divide their assets and debts. There are various ways this can be done. Your son and his wife can negotiate an agreement as to how they divide their shared property, without involving the court. If they reach an agreement, they can choose to formalise the agreement by applying for ‘consent orders’ from the Family Court. This simply means that the agreement is legally binding and both parties must follow its terms.

If your son and his wife cannot agree on how to divide their property, they can apply to court for ‘financial orders’. These are court-made orders that determine how the couple’s property is to be divided. There is no set formula used to divide property. A court will make its decision after hearing evidence from both parties as to the property they own and any contributions that have been made to the relationship since it began. When making financial orders, a court will take into account:

(a) direct financial contributions of each party to the marriage (e.g. wages) as well as indirect financial contributions (e.g. inheritance);

(b) non-financial contributions to the marriage (e.g. property maintenance, homemaking, caring for children); and

(c) future financial needs of either spouse based on age, health, financial resources and ability to earn a wage.

It is difficult to determine exactly what a court would order if your son and his wife applied for financial orders to divide their property. Based on the information you provided, it is likely that your son would have a claim to a share of the house if he contributed to the mortgage repayments and spent his own labour and money maintaining and improving the value of the property.