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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 4517
Experience:  Dip Law LPAB - Sydney based lawyer
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Hi, myself and my wife have just recently sepparated

Resolved Question:

Hi, myself and my wife have just recently sepparated, we have two children a 3 year old boy and a 5 year old girl who has started school, I stopped working about 10 months ago so my wife who is a doctor could work full time and so that I could be a stay at home dad full time to look after the children which I agreed to and enjoy doing, about 2 months ago we sold our house and bought a larger house that cost $975,000 so we have about an $800,000 mortgage, I think my wife or ex wife is paying about $900 a week towards the mortgage. She earns about $300,000 before tax a year as an accident and emegency consultant at the Modbury hospital in South Australia, she has just recently told me she has been having an affair for six months with another man and is going to move out with him, and our kids are happy to stay here with me in our new house, and I would be looking after them full time except the odd weekend when my ex wife has agreed to have them. Can you please inform me what to do from here, we haven't seeked any legal or professional advice yet but we both know we should, we are both being sensible about this and are getting on quite well as friends. I think we would both like to keep the house. She admits this break up is her fault and thinks I am an amazing father and loves me as a best friend, she says I have done nothing wrong to deserve this, she just fell out of love with me and fell in love with another doctor that she works with and he has agreed to leave his wife and two children. Where do we go from here? Kind Regards, XXXXX XXXXX

Submitted: 10 months ago.
Category: Australia Law
Expert:  Patrick H. replied 10 months ago.
Have you made any decisions about living arrangements, by which I mean is she moving out of its the plan for you to move out? Is there an agreement as to sharing custody of the kids?
Customer: replied 10 months ago.
She is the one moving out, and probably we will agree on sharing custody of the kids, she is the one that wants to move out and is happy for me and the kids to live in our current house.
Expert:  replied 10 months ago.
If things are amicable then for the present it is likely that you don't need to take any legal action at this stage. If you later cannot agree on custody arrangements you would generally need to attempt formal mediation before the matter could be referred to the courts, and you arrange formal mediation through organisations such as relationships Australia:

http://www.relationships.org.au/

As to divorce you and your wife can apply for a divorce once you have been separated for 12 full months, and you should not need a lawyer as you can use the divorce kit which is especially designed for people to do without the need for a lawyer, and if you are both cooperating in the process it is really quite simple:

http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Forms/Divorce+forms+and+kits/

Getting a divorce kit only resolves your marital status and you will still need to resolve your property arrangements at some point.

Although you have only noted the family home as a significant asset, under the Family Law Act all assets owned by either party, at the time that property orders are made are available for distribution, and this also includes the parties superannuation, which may be a significant asset which the parties are not particularly aware of.

Under the law each party is essentially entitled to a fair share having regard to:

1. the parties respective financial and non financial contributions througout the relationship; and

2. adjusting for special factors, such as where one party will have the primary care of children or where one party has health issues which will impact on their ability to provide for themselves.

Where the net asset pool is not particularly large (say only a few hundred thousand dollars), and the children are young, then it may be that care of the children may be the dominant factor and in such cases the main carer of the children may receive the bulk of the available assets to ensure they have sufficient means to support and accommodate the children. Also, in cases such as yours where it appears one party has a very high income level, spousal maintenance may be appropriate.

Because assessing your actual entitlement will depend on a detailed examination of your family history and both you and your wife's current financial circumstances, only a fully briefed lawyer can give you firm advice as to your actual entitlement, but what I can say, based on the limited information provided, is that if you are likely to be the primary carer of the children, you will probably receive most of the existing assets.

Finally, you may be entitled to child support, which you can read about here:

http://www.humanservices.gov.au/customer/information/child-support-website

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Thank you and good luck.

Patrick

Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 4517
Experience: Dip Law LPAB - Sydney based lawyer
Patrick H. and 2 other Australia Law Specialists are ready to help you

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