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Can You DIY Your Prenup?

In an effort to save money on their property settlement, some couples have sought to DIY their prenup. But is it a good idea?

The Family Law Act states that for a prenup to be valid and enforceable, one requirement is that both parties need to obtain independent legal advice. This legal advice has three components:

  1. Firstly, the legal advice must be given before signing the agreement and must cover the effect of the agreement on the rights of that spouse and about the advantages and disadvantages of the agreement.
  2. Secondly, either before or after signing the agreement, each spouse must be provided with a signed statement by the legal practitioner stating that the advice was provided to that party.
  3. Thirdly, a copy of the statement must be provided to the other spouse or legal practitioner for the other party.

Take for instance the scenario of Mark and Sally. Mark and Sally would both like a prenup before they marry next year to protect their respective financial interests. According to Australian law, both Mark and Sally must seek separate legal advice. That is, two separate lawyers that are independent of each other need to be engaged in the process. Prior to signing the agreement, Lawyer A gives their advice to Mark, while Lawyer B gives their advice to Sally. Before or after signing the prenup, Mark’s lawyer needs to provide a signed statement that declares the said legal advice was given to Mark. Then, a copy of that statement needs to be given to Sally or her lawyer. Sally also needs to do the same.

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Child Custody Laws and Independent Children’s Lawyers

An independent children’s lawyer, also known as an ICL, is a Court-appointed lawyer who acts independently to represent the child’s interests in family law proceedings regarding child custody laws. The child, an organization concerned with the welfare of the child or any other person may apply for an ICL to be appointed. The Court may then make an order to appoint an ICL who will attempt to find out what the views of the child are.

The Full Court in Re K [1994] FamCA 21 provided some guidance on what the court might consider when appointing an ICL in matters involving child custody laws, including:

  • Alleged child abuse
  • Unsuitability of either parent
  • Parental conflict
  • Proposal to relocate the child far away
  • Alienation from a parent
  • A parent’s sexual preferences
  • Special medical procedure for the child

Role of the ICL

The role of the ICL is not to take instructions from the child, but rather, to represent the child’s best interests. The ICL should form an independent view of what is in the child’s best interests according to the evidence, act in the child’s best interests and make submissions to the Court regarding the child’s best interests. The child’s best interests must be distinguished, however, from the child’s wishes. An ICL is not obliged to follow the child’s wishes and may disclose information about the child against their wishes if necessary.

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Divorce Lawyer Advice for when you can’t locate your ex-partner to serve divorce papers

Service is the sending or giving of filed court documents to the opposing party. Proof of service of the divorce application is one of the procedural requirements asserted by the court that must be complied with in order for the court to grant the divorce.

What options exist if you cannot serve the divorce application on your former spouse?

Once you have made all reasonable attempts to serve the divorce application, you make seek the assistance of a divorce lawyer who can apply to the court for either substituted service or dispensation of service.

Substituted service allows you to serve the documents on a third party who the Court is satisfied will bring those documents the attention of your former spouse.

Dispensation of service is where the Court is satisfied that you have made all reasonable attempts to locate  your spouse in attempt to serve the divorce application, and as a result the Court says that you do not need to serve the documents.

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Why a divorce lawyer considers arrangements for children when completing your divorce application

The Family Law Act provides that a divorce order will not be ordered unless the court is satisfied that, amongst other things, that proper arrangements in all the circumstances have been made in relation to the welfare of any children of the marriage who have not yet obtained the age of 18 years old.  Where the Court has concerns as to the arrangements for any children involved, it is able to adjourn the divorce proceedings until the Court is satisfied proper arrangements have been put in force. This concern of the Court may be met by obtaining a report from a family consultant appointed by the Court. It may be the case that where there are children under 18 years involved, the parties will have already commenced parenting proceedings with the Court. If so, the Court may find that is sufficient enough to determine that proper arrangements are in the process of being made or could make an “alternate declaration”. An alternate declaration means that although the Court has found the arrangements for the care of the children are not proper, in all the circumstances of the case there are grounds still to proceed with the divorce. However, this will not always necessarily be the case and as such you should seek advice from a divorce lawyer.

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How a Divorce Lawyer can assist when you have been married for less than two years but seek a divorce

A divorce lawyer will be unable to lodge your application for divorce orders if you have been married for less than two years unless you satisfy the counselling requirement. Parties married for less than two years must provide a counselling certificate with their divorce application in order for it to be considered by the Court.

What is a counselling certificate?

A counselling certificate must be signed by an approved counsellor. This certificate sets out that the parties with the counsellor’s help have considered reconciliation without success.

Exceptions to the counselling requirement

The requirement for a counselling certificate can be waived if the Court is satisfied that special circumstances exist that warrant the divorce application to continue regardless.

It is not clear what scenarios will fall into the category of special circumstances affording dispensation. In the case of Nuell and Nuewll (1976), Justice Fogarty held that it was enough that both parties were not interested in attempting counselling. Contrastingly, in other cases such as Philippe and Philippe (1978) and Malyszko and Malyszko (1979), the Judges have held that special circumstances are facts that are peculiar and depart from the norm.

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Divorce Lawyer Explains Resumption of Cohabitation

Once a divorce lawyer has proved that you and your former partner have separated, your divorce lawyer must then prove to the court that there is no likelihood that your cohabitation will resume. Resumption of cohabitation involves the re-establishment of the relationship to the point that it reverses the separation.

What happens to the 12 months separation if you and your ex-partner try to make things work again?

The Family Law Act promotes reconciliation where possible. For this reason, Section 50 of the Family Law Act permit couples to resume cohabitation during their 12 months separation however it must only be for one intervening period of less than 3 months for it not to “re-start” the 12 month separation period.

For example, a couple who  have been separated for 2 months, then attempt to reconcile for a period of less than 3 months. After the 2 months of reconciliation, one or both of the spouses decides that the marriage is still not working out. In this case, the original date of separation will stand and the parties will be able to continue the remaining months left to satisfy the required 12 month separation with it only being extended by the attempted reconciliation period of 2 months.

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Domestic Violence and Family Law

Domestic Violence can affect people of all ages, socioeconomic and demographic groups and unfortunately can often go unreported particularly when it occurs during a relationship with a spouse or partner. However it is not uncommon for historical and current domestic violence to come to light particularly in circumstances of a family law separation. In June 2012, the definition of family violence was amended to include other behaviours that constitute family violence.

The Family Law Act defines Family Violence as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful”. The legislation includes behaviours such as stalking, repeated derogatory taunts, intentionally damaging property, causing death or injury to an animal and unreasonably denying a family member of their financial autonomy. With respect to children, the legislation also states that “a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence”.

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Who Can Access My Family Court Records?

Like other family law lawyers, I am often asked whether non-parties (persons that are not directly involved in the family law litigation) are able to access the Court records relating to the case.

Documents filed in a family law case (and other documents relating to the case) are held in a Family Court case file.  This information is protected under the Family Law Act 1975 and the Family Law Rules 2004.  For example:

  • Rule 24.13 of the Family Law Rules 2004 limits those who are allowed to access the Court’s records in family law cases;
  • Section 121 of the Family Law Act 1975 limits the publication of reports of family law proceedings and of lists of cases. There are exceptions to this;
  • Family Law Judgments are reported by the Court in a de-identified form (for example, with pseudonyms replacing the parties’ real names).

There are also exceptions to the restrictions to a Court file, including research (Regulation 24.13(1)(d) Family Law Rules 2004) or by the Australian Taxation Office (Commissioner of Taxation & Darling (2014) FLC 93-583).

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