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To Be or Not to Be – Our Family Law Lawyers Explain the Requirements of De Facto

Our Family Law Lawyers know the importance of obtaining instructions about the nature of your relationship and whether it meets the legal requirements of a defacto relationship.

In the recent case of Bava & Chaudry [2021], the parties had a relationship of about 2 and a half years. They were not married.

The Applicant’s family law lawyers filed an application seeking property orders on the basis that she believed the parties were in a de facto relationship. The Respondent, on the other hand, argued that the parties were never in a de facto relationship, despite the relationship spanning over 2 years.

The question that the Court was required to consider was whether a de facto relationship existed at all. That is, whether having regard to all the circumstances of their relationship they had a relationship as a couple living together on a genuine domestic basis.

The Court considered the following factors put forward by the family law lawyers:
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What You Need to Show the Court to Obtain a Divorce

In order to obtain a divorce, there are certain requirements depending on whether you have children under the age of 18 years. If you do have children under the age of 18 years, your divorce lawyer will need to demonstrate to the Court that:

  1. Proper arrangements in all the circumstances have been made for the care, welfare and development of the children, or
  2. That there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made.

There is a positive obligation on the Court not to allow divorce orders to take effect unless proper arrangements have been made for the children. Your divorce lawyer will consider the following factors when advising you: whether any child support is being paid, whether both parents are spending time with the children, the health of the children and whether they are attending and progressing in school.
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The Family Court Merger – Our Family Law Lawyers Outline What You Need to Know

By Chloe Elkerton, Family Law Solicitor

Last week the Morrison Government passed a Bill that will undoubtedly result in the biggest overhaul of Australia’s Family Court system since 1975.

Under our current Family Law structure, family law lawyers will tell you that matters proceed to hearing in one of either two Courts:

  1. The Family Court of Australia – which deals with complex family law matters, and
  2. The Federal Circuit Court of Australia – which deals with less complex family law matters and also other areas of law including migration, bankruptcy, human rights, industrial law and more.

The Family Court of Australia was established in 1976 as a stand-alone specialist Court. It recognised that many family law matters are complex and require specialised Judges and staff to support vulnerable Australian families.

The Federal Circuit Court was then established in 1999 to alleviate the workload of the Family Court by dealing with less-complex family matters. Approximately 90% of the matters in this Court are family law matters.
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Prenuptial Agreements and the importance of complying with the Family Law Act

By Dylan Williams, Family Law Solicitor.

A prenuptial agreement, known as a ‘binding financial agreement’ under the the Family Law Act, is an agreement  with your partner to  predetermine how your assets will be distributed in the event of the breakdown of your relationship.

It is important that you speak with one of our prenuptial agreement lawyers to ensure the agreement complies with the Family Law Act so as to ensure that there can be no challenge to the enforceability of the agreement.

You and your partner can enter into a binding financial agreement prior to the commencement of the marriage / de facto relationship, throughout the marriage / de facto relationship, or after you have separated and or divorced..

A prenuptial agreement lawyer can advise you that the benefit of a binding financial agreement is it can deal with all assets including  superannuation, inheritances, trusts, businesses, investments, shares, debts and other liabilities. If you would like to look further into the benefits of a prenuptial agreement, please click here for further information.
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Spousal Maintenance – Divorce Lawyers Explain How Much Is Reasonable

By Chloe Elkerton, Family Law Solicitor.

Divorce lawyers are often asked about rights to spouse maintenance. Spouse maintenance is financial support paid by a party to a marriage or de facto relationship to their former spouse after the relationship has broken down. The Court has the power to make an Oder for one party to pay spousal maintenance in circumstances where:

  1. One party is unable to support themselves and has an adequate reason for being unable to do so; and
  2. The other party is reasonably able to pay.

A question Divorce lawyers are often faced with, is, how much will I be required to pay?

In the recent case of Simpkin & Simpkin [2020], the trial Judge considered an application for spousal maintenance by a Wife who was in receipt of a disability support pension and was unable to work. On the other hand, the Husband was in a managerial position earning an annual salary of $240,000.
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Can I get a divorce in Australia if we were married overseas?

Posted by Dylan Williams, Family Law Solicitor. 

If you and your spouse were married overseas, are you eligible to get a divorce in Australia? A divorce lawyer Parramatta examines whether the Court can grant a divorce in those circumstances.

You may be able to get a divorce in the Federal Circuit Court provided you satisfy the following elements:-

  1. Is the marriage valid under Australian law?
  2. Does the Court have jurisdiction?
  3. Have you complied with service?
  4. Has the marriage broken down irretrievably?
  5. If there are children of the marriage under the age of 18 years, what are the arrangements for their care, welfare and development and is it acceptable?

Focusing on  items 1 and 2 above. If you would like a further discussion of divorces, please click here to access another paper that explores divorces generally.

Is the marriage valid under Australian law?

Before the Court is able to grant a divorce, the marriage needs to be legally recognised as valid in Australia. Part VA of the Marriage Act 1961 enables us to examine whether the marriage is valid.
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Innovations in the Family Court to help respond to domestic violence

One of the positives to arise from 2020 is the implementation of the Lighthouse Project, an initiative by the Family Court and Federal Circuit Court that seeks to improve the Court’s capacity to respond and assist in the protection of vulnerable parties and children in family law proceedings. Your Domestic Violence lawyer can provide some guidance as to the new project.

In summary, the implementation of the Lighthouse Project arose from a need for the Courts to assist vulnerable victims, including children, to leave an abusive environment  quickly and safely.

The Lighthouse Project is being piloted at the Adelaide, Brisbane and Parramatta Courts.

To be eligible for screening, the Initiating Application / Response filed with the Court must only relate to your child/ren. The Application must be filed at one of the three aforementioned Registries.

Once an application or response is filed, you will receive a link to complete a risk screen known as ‘the Family DOORS Triage’. This will enable the Court to process and consider information provided by you that is specifically developed for the Courts.
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The significance of domestic violence within the Family Courts and the legal impact it has upon separation

Domestic violence extends beyond just physical abuse; it can comprise sexual, emotional, financial and psychological abuse. Unfortunately, for some people who have been exposed to this type of behaviour over an extended period, they don’t appreciate that such behaviour is not the norm.

Domestic Violence lawyers can assist in identifying this type of behaviour.

Within the family law context, the Family Law Act describes this conduct as ‘family violence’ and defines it as follows:-

“… family violence means 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” (s.4AB(1)).

The legislation also provides examples, which are not exhaustive, of behaviour that may constitute family violence.

Subsection (2). includes some brief examples such as

  • withholding access to finances,
  • preventing contact with family and friends,
  • assault,
  • sexual assault,
  • derogatory behaviour, and
  • destruction of property.

If you feel that you are in a relationship where it is one of domestic violence or family violence, please contact one of our expert domestic violence lawyers who can assist you in your family law matter.
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