Others

What is a Gett? 1024 683 Dorter

What is a Gett?

When a couple who practise their Jewish faith separate and wish to “divorce”, there are only two ways to end their status as a married couple – by death or the grant of a Gett.  The issuing of the Gett effects the divorce between the Jewish couple according to Jewish Law.

Pursuant to Jewish law (“Halakha”), a “divorce” can be accomplished only by the parties. It is effected by the formal delivery by the husband and the acceptance of the wife of the bill of divorcement (“Gett”) under the supervision of the Rabbinical Court, namely the Beth Din. The parties are divorced and free to marry again once the Gett has been delivered and accepted.

However, outside of Israel, the Beth Din lacks judicial power, therefore, should one spouse seek a Gett and the other refuse, the Beth Din in Australia is unable to assist them. They may however apply to the Family Court for assistance.  

What happens if I do not get a Gett?

Without a Gett, a woman will be unable to remarry under Halakha and for a man it is extremely difficult to do so.

Without a Gett, a woman is termed “agunah”, literally meaning one who is “chained” to a man from whom she is unable to procure a Gett. Any child or children born to an “agunah” will bear the stigma and burdens of being illegitimate. It may have consequences that flow through the descendants who forever may be unable to rectify their situation.

Requirements of a Gett

Halakha requires the following specific formalities to be complied with in order for a Gett to be considered valid:

  1. A divorce document must be written; this is usually done by a professional religious scribe (“sofer”).
  2. It must have been written on the explicit instruction and with the free-willed approval of the husband, with the specific intention that it is to be used by the man and the wife to that marriage.
  3. It cannot be initially written with “blanks” to be filled in later.
  4. It must be delivered to the wife, whose physical acceptance of the Gett is required to complete and validate the “divorce” process.

Can the Family Court of Australia order my ex-partner to grant me a Gett?

The Family Court must consider two factors in determining whether an order should be made.

Firstly, it must be consonant with the requirements of the Jewish Law or otherwise a Gett may be void (for unlawful duress) and the Court’s actions therefore futile.

Secondly, from a public policy perspective, if not a constitutional one, civil courts should not be seen to become involved in religious matters.

Where does this leave us?

The Family Court of Australia has been hesitant to assist separating Jewish Parties obtain a Gett.

The Court has entertained applications in relation to Getts in some circumstances but is yet to make a finding that on a final basis that the court has the power to Order parties to attend a Beth Din and do “all acts and things necessary” to obtain a Gett.   

For many Jewish Couples who separate it is important to obtain a Gett following the breakdown of a marriage. If securing a Gett is important to you, we can assist you by:

  • Negotiating this element or ‘limb’ of your final settlement through mediation or a round table conference outside of court proceedings and document the agreement reached as a consent order; or
  • Seeking Orders from the court, to the effect that you and your ex-partner are to attend “when called upon” and declare that such order “not be construed as in any way inhibiting, directing, influencing, or controlling any deliberation, decision, order, decree, direction or recommendation of the said Religious court or in any way inhibiting the Respondent or Applicant in making any application”.

If you would like any assistance with the above, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact us on (02) 9929 8840.

Rebekah Dorter
Principal

Maeve Cooper
Solicitor

This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

Your Pet as Property: The Property Pet Predicament 1024 683 Dorter

Your Pet as Property: The Property Pet Predicament

With the increase of pet adoption and purchases during times of COVID-19, you may want to know how the Family Court would currently treat our furry friends in a family law dispute, should it eventuate.

While most pet-lovers easily consider their pets and other furry-friends honorary family members and life-time companions, figuring out who keeps the fur baby can often be distressing as pet “custody” disputes remain unclear in the realm of Family Law. We understand that separating pets from children and their owners can be stressful and difficult, adding another layer of tension during an already difficult time and, as a result, it is important to know how the Court deals with pet custody disputes.

Pets are Property

There is currently little to no legislation to assist with navigating pet custody. As a result, the Courts often approach pets in conjunction with personal property or other assets under s 79(1) of the Family Law Act, applying principles that would be applied to other personal assets including furniture or clothing.

The Court has a duty to finalise all financial relationships between the parties and to ensure that their financial ties are severed with finality. As pets are considered property, this means the Court in the Family Court jurisdiction is unlikely to grant orders for shared ‘pet custody’ so to speak.

Similar to treating any other asset of a property dispute, the Court will consider a number of factors to determine who will be able to retain their pet companion, including:

  1. Who the pet resided with prior to, during and following separation;
  2. The relationship each of the parties have with the pet;
  3. Who has been responsible for the financial expenses associated with owning the pet;
  4. Who has the most suitable place for the pet to live; and
  5. Who the pet is registered to.

Every matter differs on a case by case basis and the weight on each factor will also depend on the circumstances of the case.

This is often unsatisfactory and fails to recognise the emotional relationship built with your companion. As a result, alternative options may be required to determine the care arrangements for your companion. There are a number of different options that may assist you when dealing with separation when it comes to you beloved family pets

Negotiation

As with any other parent, it is always best to resolve any differences by negotiating the living arrangements between the parents.  We understand that negotiation can be hard during difficult times, such as separation and as a result, we are here to help. This may be done by assisting you in articulating suitable arrangements through an exchanging of letters or face-to-face, during mediation, to determine what arrangements would be best suited for each party.

It is important to note however that agreements reached by negotiation are not legally binding and can be subject to change. Although the benefit is flexibility, agreements are not enforceable under the Family Law Act unless they are considered Binding Financial Agreements, or are Orders of the Court.

A “Pre-Nup” or in this case a “Pet-Nup”

One alternative to formalise pet custody arrangements is in the form of a Binding Financial Agreements (BFA). A BFA is an enforceable contract and you can include clauses detailing pet care arrangements in the event of separation.  BFAs prior to marriage (otherwise known as pre-nuptial agreements) refer to agreements entered into between the parties which establish how financial affairs and property will be addressed in the event of a relationship breakdown. You can also enter into a BFA after separation.

BFA’s do need to satisfy a number of legal requirements to be binding. However, it may be an effective way of amicably laying out custody arrangements of your beloved pet without requiring the intervention of the Court.

Find more about Binding Financial Agreements here.

Consent Orders

Much like Negotiations, Consent Orders are made with the consent between the parties. Consent Orders refers to a written agreement that is approved by the Court and may encompass a range of issues including management of your fur-baby.

The advantage of these Orders are that they usually legally binding and therefore enforceable upon both parties, ensuring that any agreement that is reached will continue in accordance with the Orders of the Court. However, in the context of pet custody, there is much debate whether Orders made for ‘spend time’ arrangements or ‘shared’ care for your pets are enforceable Orders. This is because pets are considered ‘property’ and the Court has a duty to finalise and determine all financial relationships between the parties.

However, there has been circumstances where the Court was prepared to make Orders for shared ‘custody’ of the pets ordering the pet to remain with children and to travel between residences on the same schedule as the children.

Dorter Family Lawyers and Mediators offer specialist family law advice in McMahons Point on Sydney’s Lower North Shore, and are available to assist you with any questions you may have about your pet predicament.  Please get in touch with us on (02) 9929 8840 or mail@dorterfamilylawyers.com.

Julie Cheung

Associate

Rebekah Dorter

Principal

This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

When being at home may not be the safest place… 1024 495 Dorter

When being at home may not be the safest place…

When being at home may not be the safest place …

As Australia and the world are working tirelessly towards stopping the spread of the Coronavirus by imposing several restrictions on the movements of citizens, those restrictions together with social isolation and economic pressure create a petri dish for an increase in domestic and family violence.

It has been reported that Google searches on domestic violence have surged by up to 75 percent since the first recorded Coronavirus case. In these difficult times it is important to raise awareness about domestic violence and the support available for victims.

If you are feeling unsafe at home, there is help available for you – from police, counsellors and lawyers.

What is domestic violence and family violence?

Domestic and family violence is an abusive behaviour in which one person seeks to control and coerce another person in a family or domestic relationship.

It can take many forms and can include:

  • Sexual violence;
  • Psychological violence including intimidation, gaslighting, threatening, verbal abuse;
  • Coercive and controlling behaviour;
  • Social violence such as controlling or limiting social activities, isolating a partner from family or friends;
  • Financial and economic abuse;
  • Abuse based on spiritual views.

What relationships are considered “domestic”?

  • Intimate relationships: husband and wife, de facto partners, boyfriend and girlfriend, same sex relationships;
  • Family relationships: older parents and their children, other family members including step-parents; and
  • Other relationships: such as person with a disability and their carer.

How can you be protected – what is an Apprehended Domestic Violence Order?

An Apprehended Domestic Violence Order (ADVO) is an order made by the Court against a person (referred as defendant) in order to protect you from future abuse. An ADVO can be adapted to your particular circumstances to provide you with the best possible protection from violence and also extends to other persons with whom you have a domestic relationship, such as your children or a new partner. If a defendant disobeys the orders in an ADVO it can lead to criminal charges.

How can I apply for an ADVO?

  1. Police can apply for an ADVO on your behalf. Many police stations have designated Domestic Violence Liaison Officers who can assist you with the application;
  2. A lawyer can apply for an ADVO on your behalf; and
  3. You can also make an application at your local court.

What if you need immediate protection?

If you need immediate protection the police can apply for a provisional or interim ADVO for your protection which will last until it is revoked or until an interim or final order is made.

Importance of safety planning

If you are experiencing domestic violence or family violence it is crucial that you have a safety plan in place. It is helpful to seek help from a professional such as a counsellor in preparing your safety plan. Safety planning is about taking control over your life and taking proactive steps towards living life without fearing for your and your children’s safety.

Some things to consider when preparing your safety plan

  1. Identify a ‘safe room’ in your home where you can wait for the arrival of the police. If the room cannot be locked, consider installing a lock to make it more secure.
  2. The most dangerous rooms at your home are the rooms where the person who is violent has access to weapons such as the kitchen or the bathroom. If you sense that your partner could become violent remove yourself from the ‘dangerous areas’.
  3. Prepare an escape plan and an ‘escape bag’ with a few essential belongings and the most important documents and hide it in a safe place.
  4. Have a second phone (if possible) hidden and fully charged and ensure that your safe room has sufficient phone coverage.
  5. Teach your children how to call the police and how to give their full name and address.
  6. Have a ‘code word’ you can use on the phone without attracting attention and let your friends and family know that the word means that you are feeling unsafe.
  7. Keep your friends and family informed about your circumstances.

Domestic Violence and Family Violence Services

For more help and support please visit:

  • Rape & Domestic Violence Services Australia.
  • Domestic Violence Line (Ph 1800 656 463).
  • No to Violence.
  • Relationships Australia.
  • Women’s Legal Services NSW.
  • LawAccess NSW.
  • Legal Aid.

We understand that it takes courage to seek help from family and domestic violence and it can be very difficult. If you require assistance, please contact Dorter Family Lawyers and Mediators, family lawyers based in North Sydney and McMahons Point, on (02) 9929 8840 or mail@inst1045122-8984.ozhosting.com for a confidential discussion.

Tim Russell

Solicitor

Rebekah Dorter 

Principal

 

This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.

Are you considering surrogacy? If so, you will need a Surrogacy Agreement 1024 683 Dorter

Are you considering surrogacy? If so, you will need a Surrogacy Agreement

If you and your partner want to have a child but are unable to conceive naturally, you may be considering the solution of surrogacy.

It is important to understand the legal process of surrogacy, and the parental repercussions of surrogacy before making this decision.

What is surrogacy?

Surrogacy is when a woman carries and gives birth to a baby (the surrogate mother) for another person or couple who want to have a child.

Under section 6 of the Surrogacy Act 2010 (NSW), the surrogate mother is defined as “the woman who agrees to become pregnant or to try to become pregnant with a child, or is pregnant with a child, under the surrogacy agreement.

The surrogate mother becomes pregnant through assisted reproductive technology (“ART”), most commonly, IVF.

Is surrogacy legal?

Altruistic surrogacy, which occurs without financial benefit to the surrogate mother, is legal in Australia.  It is usual for a surrogate’s medical bills and out of pocket expenses to be met by the intended parents, and this can be captured in a surrogacy agreement between the parties as ‘reasonable costs’.

Reasonable costs of the surrogate mother include:

  1. Reasonable medical, travel and accommodation costs;
  2. Health, disability or life insurance premiums that would not have been obtained but for the entering into of a surrogacy agreement;
  3. Any reasonable costs incurred in respect of the child, including medical costs, and
  4. Loss of earnings for a period of not more than 2 months during which the birth happened or was expected to happen and any other period during the pregnancy when the birth mother was unable to work on medical grounds.

Reasonable costs associated with entering into and giving effect to a surrogacy agreement include:

  1. Receiving counseling in relation to the surrogacy arrangement (mandatory requirement);
  2. Receiving legal advice in relation to the surrogacy arrangement or a parentage order arising out of a surrogacy arrangement, and
  3. Being a party to proceedings in relation to a parenting order, including reasonable travel and accommodation costs.

Commercial surrogacy, where payment is made to the surrogate mother for carrying the unborn child, is illegal in Australia.

What happens once the child is born?

Once born, the child will be registered as the child of the surrogate mother, even though she is not genetically related to the child.

The intended parents must establish the child’s ‘legal parentage’ to become the intended legal parents of the child. The intended parents will need to apply to the Supreme Court for a Parentage Order in the state where they live.  This application must be made not less than 28 days and not more than 6 months after the birth of the child. The Parentage Order transfers parentage from the surrogate mother to the intended parents.  Once a Parentage Order is made, the birth certificate is reissued with the new parents listed, replacing the surrogate mother.

How is a parentage order made?

To be eligible for a parentage order, the following preconditions must be met (however some preconditions are mandatory and others can be waived in exceptional circumstances):

  1. The order must be in the best interests of the child;
  2. The surrogacy arrangement must have been altruistic (not commercial);
  3. The surrogacy arrangement must be made pre-conception;
  4. The intended parent must be a single person or, if there are two intended parents, they must be a couple at the time of entering the arrangements;
  5. The child must be under 18 years at the time the order is made;
  6. The surrogate mother must be at least 25 years old when entering into the arrangement;
  7. The intended parents must be at least 18 years of age when entering into the arrangement;
  8. There must be a medical or social need for a surrogacy arrangement such as that the intended parent is unable to conceive a child, unlikely to be able to carry a pregnancy for medical reasons, unlikely to survive a pregnancy, that conceiving a child would likely result in a child with a genetic disorder;
  9. All affected parties must consent to the making of the order;
  10. The intended parents must be living in NSW at the time the application is heard;
  11. The child must be living with the intended parents at the time the application is heard;
  12. Surrogacy arrangement must be in writing and signed by the surrogate mother, her partner (if any) and the intended parents;
  13. All of the parties must have received counselling prior to signing the Surrogacy Agreement;
  14. Specified information must be provided for inclusion to the Director-General of the Department of Health, for entry in the central register (with information kept under Division 3 of Part 3 of the Assisted Reproductive Technology Act (2007);
  15. The birth of the child must be registered;
  16. All parties involved in the surrogacy arrangements must have obtained independent legal advice from an Australian legal practitioner about the surrogacy arrangement and its implications before entering into the Surrogacy Agreement, with the surrogate mother (and her partner if any) having received advice independent of that of the intended parents.

If you are considering being involved in a surrogacy pregnancy, or need advice following the birth of a child via surrogacy, please contact Dorter Family Lawyers and Mediators on (02) 9929 8840 or hello@inst1045122-8984.ozhosting.com.  Dorter Family Lawyers and Mediators offer specialist family law advice in McMahons Point on Sydney’s Lower North Shore.

Bronwyn O’Loan
Senior Associate

This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.