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    What is a Prenuptial Agreement and When Should You Get One? 1024 683 Dorter

    What is a Prenuptial Agreement and When Should You Get One?

    A prenuptial agreement is a valuable resource for couples contemplating marriage or a de facto relationship. In the modern landscape of relationships, it’s essential to have a clear understanding of how financial matters will be handled in the event of a separation or divorce.

    Prenuptial agreements, also known as Binding Financial Agreements (BFAs), offer a legal framework that can bring certainty, protection, and peace of mind to couples entering into a life together.

    Prenups may seem unromantic at first glance, but they serve as a strategic tool to safeguard your financial interests, preserve your assets, and outline the division of property and liabilities should the unfortunate need for separation arise.

    By establishing a prenup, you take control of your financial future, ensuring that your wishes are respected during both the highs and lows of your relationship.

    In this article, we will discuss all things prenuptial agreements, including what can be covered by one, when they are a good option and how to know when you need one.

    There are various reasons why a couple may want to enter into a prenuptial agreement. Whether you’re a couple with substantial assets, own a family business, have children from previous relationships, or simply want to clarify your financial expectations, a prenuptial agreement may provide the desired outcome.

    What is a prenuptial agreement?

    A prenuptial agreement, within the Australian family law framework, is referred to as a Binding Financial Agreement (BFA). This legal document is crafted between couples before their marriage or before they commence living together as a de facto couple.

    The primary objective of this agreement is to establish a clear roadmap for the division of assets and property in the unfortunate event of a separation or divorce. By setting out these provisions in advance, the parties involved can safeguard their financial interests and retain the ability to make decisions about their future without resorting to court intervention.

    This legally binding agreement encompasses a comprehensive understanding of each individual’s assets, property, and potential liabilities. It outlines the rights and entitlements of each party concerning these aspects following the marriage. Essentially, the BFA is a written contract that not only delineates the financial standing of both individuals but also delineates how financial matters will be handled should the relationship come to an end.

    It’s important to note that the term “prenuptial agreement” is commonly used interchangeably with “Binding Financial Agreement.” However, in the Australian legal context, the latter is the accurate and legally recognised terminology.

    Who is eligible to enter into a prenuptial agreement within the Australian family law system?

    To participate in a prenuptial agreement under the Australian family law framework, individuals must be legal adults, (18 years of age).

    This arrangement is open to couples intending to marry or embark on a de facto relationship, including both heterosexual and same-sex couples alike.

    What does a prenuptial agreement encompass within the context of Australian family law?

    A prenuptial agreement can encompass a diverse array of subject matters under the purview of Australian family law and extends to assets acquired prior to the relationship’s commencement, as well as those procured during its course.

    Among the assets that may be included in a prenuptial agreement are:

    • Money: Financial holdings and currency.
    • Real Estate and Property: Ownership interests in land and properties.
    • Businesses: Stake in business ventures or enterprises.
    • Inheritances: Assets bequeathed from family members or other sources.
    • Investments: Monetary ventures designed for potential growth or profit.
    • Superannuation: Retirement funds and pensions.

    Beyond the realm of property and assets, a prenuptial agreement may address other vital considerations such as provisions for spousal maintenance, delineating responsibilities for the settlement of debts and liabilities, as well as outlining the entitlements of both present and future children.

    Is a prenuptial agreement enforceable in Australia?

    Yes, prenuptial agreements are generally legally binding under Australian law, as long as they meet the requirements specified in the Family Law Act 1975.

    One essential requirement is that both parties must have received independent legal advice. This advice serves to inform the parties about the effect of the agreement on their rights, the advantages and disadvantages of entering into it, and the overall fairness and equitability of its provisions.

    However, there are instances where courts can set aside a prenuptial agreement if it is found not to comply with the legal prerequisites or if specific conditions are met. To learn more about when a prenuptial agreement or binding financial agreement can be set aside, read this.

    What are the pros and cons of prenups?

    Prenuptial agreements have their advantages and drawbacks, including but not necessarily limited to:

    Pros of Prenuptial Agreements:

    Transparency and Clarity

    Prenups provide transparency by outlining each party’s assets and their distribution. This clarity may reduce confusion and potential disputes later on.

    Wealth Protection

    Prenups can safeguard individual wealth brought into the marriage and assets acquired during the marriage. They may help designate separate and shared property, protecting financial interests.

    Security and Planning

    Prenups can prepare couples for potential divorce risks, ensuring financial security for both parties regardless of the marriage’s outcome.

    Prevent Disputes

    By establishing asset division and financial expectations upfront, prenups can prevent future disputes and arguments over property distribution.

    Protection for Children

    Prenups can protect assets for children from previous marriages and establish provisions for inheritance, ensuring their financial well-being.

    Business Protection

    Prenups can safeguard business interests and succession planning, ensuring business assets remain unaffected in the event of a divorce.

    Cons of Prenuptial Agreements:

    Lack of Romance

    Prenups introduce practical discussions about asset division and divorce before marriage, potentially dampening the romantic atmosphere associated with weddings.

    Uncertainty

    Prenups are not always foolproof. If assets are hidden or not disclosed fully, the agreement may not hold up in court. This uncertainty can lead to legal challenges.

    Not Always Enforceable

    A poorly drafted prenup may not be enforceable in court, potentially rendering its terms ineffective and providing no protection.

    Potential for Conflict

    Discussing and negotiating a prenup could strain the relationship, leading to disagreements or conflicts between partners.

    Questioning Commitment

    The presence of a prenup might raise doubts for a couple about the long-term commitment and confidence in the relationship’s success.

    Legal assistance for prenuptial agreements in Australia

    If you require guidance or assistance with a prenuptial agreement in Australia, or concerned with its validity, you can discuss your situation with our family lawyers here at Dorter Family Lawyers and Mediators. We are experienced in a wide variety of family law and financial matters, including advising on prenuptial agreements in Australia.

    Discuss your situation with us today in a no obligation consultation. Get in touch with us by calling us on 02 5566 2998 or booking online here.

    Parental Responsibilities and the Rights of a Child 611 373 Dorter

    Parental Responsibilities and the Rights of a Child

    Parenting is rewarding but it is rarely easy. It can be made even more challenging when you and your child’s other parent are not in a relationship.

    Whether you’ve recently separated from your child’s other parent, or you were never in a long-term relationship with them, chances are that as parents you’ve had disputes arise between you.

    When it comes to parenting after separation, disputes regarding living arrangements and being able to spend time with your children are common. There is also a common misconception that as a parent you have certain rights by law to be able to control these aspects, however, the family law system, governed by the Family Law Act 1975, affords rights to children and responsibilities for the parents to children.

    What does this mean for you as a parent? In this article, we’ll discuss the concept of parental responsibility in Australian family law. We’ll also discuss the rights of the child and how this impacts your responsibility as a parent.

    Parents rights, responsibilities, and the law

    The Family Law Act 1975 is the main legislation of the Australian Family Law system and includes information about the various matters that may arise for families in Australia and how they should be handled, especially when disputes arise.

    When parents of a child separate, they are often concerned about their rights, usually in relation to being able to see and spend time with their child. While the family law system in Australia certainly encourages meaningful relationships between parents and children, the parents do not have dominant rights in the legislation.

    In parenting matters, children have rights and parents have responsibilities, these responsibilities are known as parental responsibility. Parental responsibility involves parents having the duty, responsibility, and authority to make major decisions for their children, such as those relating to the child’s health, education and living arrangements. The aim is that the parent’s responsibility to make these decisions is to ensure the child benefits from them rather than the parent.

    What are the rights of a child?

    Children have numerous rights in Australia with the aim being to ensure the child’s wellbeing – their physical, emotional and psychological wellbeing – is protected.

    When matters impact a child, according to the Australian family law system, a decision should be made with the best interests of the child in mind. Two key primary considerations and a number of other considerations help to guide parents and lawmakers when making decisions that are in the best interests of the child.

    The primary considerations are:

    • The benefit of the child of having a worthwhile and meaningful relationship with both of their parents.
    • The need to protect a child from the risk that they may suffer any harm, whether physical or psychological. This includes the need to protect them from being subjected to or exposed to any form of abuse, neglect or family violence.

    While the family law system encourages the relationship and presence of both parents in a child’s life, of these two primary considerations, the second one is given more weight.

    Other considerations of the best interests of the child include:

    • The child’s views (depending on age, maturity and understanding of the situation)
    • How the child relates to their parents and other important persons.
    • The willingness and ability of the parents to facilitate their child’s relationship with the other parent.
    • The effect of any change in circumstances of the child.
    • Each parent’s ability to look after the child’s needs.
    • Each parent’s attitude to the child and their parental responsibilities.
    • Any domestic violence incidences or orders involving either the child or a family member.

    What exactly is parental responsibility?

    Parental responsibilities are the powers, responsibilities, and authority that a parent has in relation to the child by law. Protecting the child’s wellbeing is the main goal of parental responsibility and involves parents having a say in the major decisions that will have a long-term effect on the child and ultimately coming to a decision together.

    Major long-term issues are those that may have a long-term or lasting impact on your child’s care, welfare and development. It may include decisions about religion, their name, living arrangements, education, and their health.

    Unless there is an Order stating otherwise, both parents have parental responsibility and can have a say on these major decisions, even if the parents are separated. This is known as equal shared parental responsibility.

    This means that even though you and your child’s other parent may no longer be in a relationship, you cannot make a major long-term decision for your child without the agreement of the other parent. If you’re unable to make a decision, you may be able to apply to Court to have the Court decide for you.

    While there is the presumption of equal shared parental responsibility, sometimes, it’s not in best interests of the child for both parents to have parental responsibility and one parent may be designated sole parental responsibility. This may occur where abuse, negligence and/or family violence exists.

    Sole parental responsibility is sometimes referred to as sole custody, however, the correct legal term to use is sole parental responsibility and this means that the duties, responsibilities and powers of making long term decisions for the child rests with one parent.

    Who can have parental responsibility?

    As families can be created in a number of different ways, you may be wondering who can have parental responsibility. The Family Law Act notes that birth parents, adoptive parents, and those who have become parents through surrogacy and artificial conception all have parental responsibility.

    It also doesn’t matter whether the parents of the child were married, in a de facto relationship or even in a relationship at all for parental responsibility to apply.

    Other important persons in the child’s life, such as family members who help to raise a child may be able to be designated parental responsibility, however they will not automatically have it just because they help to raise a child – it will need be to be granted by the Court and could be designated to Grandparents for example.

    Another important fact to note is that while stepparents may take on the role and responsibilities of raising their partner’s child, they are not automatically granted parental responsibility, even when they marry the child’s parent. A stepparent can make an application for parental responsibility.

    Equal shared parental responsibility vs sole parental responsibility – which is better?

    While the family law system in Australia has the presumption of equal shared parental responsibility, as we mentioned earlier, it may not always be the right option in your situation.

    The child’s welfare is of great importance and should be the key factor in deciding whether it’s appropriate for both parents or only one parent to have parental responsibility for a child.

    If you’re concerned about the role of your child’s other parent in your child’s life and are considering applying for sole parental responsibility, it is highly recommended that you seek legal advice. Designating parental responsibility to one parent can have significant long-term consequences for all parties and many factors need to be considered. You can talk to our experienced family lawyers to learn more about parental responsibility.

    Equal Parental Responsibility and Equal Time

    It’s common for parents to assume that equal shared parental responsibility for a child also means that each parent is entitled to equal time with their child. This is not the case.

    The amount of time each parent spends with their child can be decided by the parents, through private agreements, negotiation or mediation, or it may be decided by the Court and is heavily dependent on the unique factors of your situation.

    Factors such as the work demands of each parent, where each parent lives, where the child goes to school, and the ability of each parent to provide for a child will all have an impact on this. These are only some of the practical factors that could impact this. The most important factor in working how much time the child will spend with each parent is whether its in the child’s best interest to spend an equal amount of time with each parent.

    Parenting arrangements, plans and orders can also be discussed with experienced family lawyers.

    Resolving parenting matters in Australia

    If you’re experiencing disputes related to parenting matters and you need help, here at Dorter Family Lawyers and Mediators we can help you. Our family law team is highly experienced in a vast range of family law matters, including parenting and children’s matters. Discuss your situation with our team today. You can get in touch with us by calling 02 5566 2998 or booking a consultation online here.

    definition of debt in a dictionary.
    Debt and the End of a Relationship: Everything You Need to Know 1024 683 Dorter

    Debt and the End of a Relationship: Everything You Need to Know

    Ending a relationship is such an incredibly challenging process to go through, both financially and emotionally. Add debts to the mix and the process can be even more complicated and stressful.

    If you find yourself in a situation where you’ve ended your relationship and are separating, being informed as to what constitutes a “loan, liability or debt” for family law purposes is important so you obtain your correct and fair entitlements in a property division after separation. Here’s a guide on how debts are treated you’re your relationship or marriage ends and what you can do to protect yourself in the process.

    What is marital or joint debt in a separation?

    Marital or joint debt refers to any debt that was incurred by either spouse during the relationship. This can include various types of debt, such as:

    • credit card debt
    • mortgage loans
    • car loans
    • personal loans
    • student loans
    • business loans
    • taxation liabilities
    • other financial obligations

    During divorce and separation proceedings, the division of debt is often an important aspect of the overall property settlement. The court aims to ensure a just and equitable division of both assets and debts between the separating spouses.

    However, the specific rules and guidelines for debt division may vary depending on the jurisdiction and the individual circumstances of the case.

    Is a spouse responsible for their spouse’s debt?

    Each spouse is generally responsible for their separate debts incurred before the marriage or relationship, assuming the debt is incurred in their own name. This does not however mean that the debt is excluded from the balance sheet.

    When it comes to debts accumulated during the relationship or marriage both spouses are typically considered equally responsible in the eyes of the law. Regardless of which spouse incurred the debt, who benefited from the debt, or whether the debts were accumulated individually or jointly. The debt ordinarily would appear on the balance sheet and treated as though it was incurred by both parties.

    However, if there is evidence of “waste” for example where actions have been taken by a spouse to intentionally reduce the value of assets or increase liabilities, then that spouse can be held responsible for the resulting debt.

    Examples of waste could include:

    • incurring gambling debts or losses;
    • alcohol or drug addiction; and
    • or selling an asset from the shared pool and spending the money without justification.

    Keep in mind that only actions that are deemed excessive or reckless will be treated as wastage and that reasonable expenses are not considered wasteful behaviour by the Court.

    Do couples split debt in a separation?

    In many cases, couples are responsible for splitting the debt accumulated during the relationship as part of the separation process. The division of debt can be approached in a couple of ways:

    Agreement between the spouses

    In an amicable divorce/separation where both parties can agree, they have the option to negotiate and determine how to divide the debt. This may involve assigning specific debts to each spouse or agreeing to pay off certain debts jointly.

    Negotiation and Mediation

    If you’re unable to come to an agreement, you can try to resolve your dispute by engaging in negotiation and/or mediation. Legal professionals, like family lawyers, can help you in these processes to devise a strategy and desired outcome and advocate for you to achieve this.

    Court determination

    If the spouses are unable to reach an agreement on the division of debt, the Court will make the decision based on factors such as the financial circumstances of each spouse, their ability to repay the debt, and the overall division of assets and liabilities.

    How is debt divided in a separation?

    The division of debt can vary depending on the specific circumstances of the case. When making that decision, the court will consider various factors:

    • the financial situation of each spouse
    • their earning capacity
    • contributions to the marriage
    • and other relevant factors

    How do I protect myself from my partner’s debt?

    Protecting yourself from your partner’s debt can be a concern during the separation or even while you’re still in the relationship. While specific strategies may vary depending on your individual circumstances, below are a few general steps you can take.

    Prenuptial or Postnuptial Agreement

    Consider entering into a legally binding financial agreement with your partner, either before marriage (prenuptial agreement) or during the marriage (postnuptial agreement). These agreements can outline how debts and assets will be divided in the event of a divorce or relationship breakdown, providing clarity and protection for both parties.

    Separate Finances

    Maintain separate bank accounts and credit cards instead of joint accounts. By keeping your finances separate, you can reduce the risk of being held liable for your partner’s debts. However, this may not completely protect you if debts were incurred jointly. These debts may still be taken into account in assessing the overall outcome of a property settlement.

    Monitor and Document

    Keep a record of your financial transactions and debts to establish your own separate financial identity. Regularly monitor your credit reports to ensure there are no unknown or unauthorised debts in your name.

    Consider Debt Liability

    Be cautious about taking on joint debts, co-signing or guaranteeing loans with your partner. Understand the potential risks and implications before agreeing to be responsible for someone else’s debt.

    Seek Legal Advice

    Consult with a lawyer to understand the law and your obligations before signing any legal document. We can guide you on how to protect yourself and navigate the complexities of debt division in the unfortunate event of separation.

    How we can help you

    Managing your debts can be incredibly challenging, especially during a separation. If you choose to work with us during this difficult time here’s what you can expect from us:

    • We’ll provide legal advice, explain your rights and obligations regarding asset and debt division.
    • We will assess all the assets and debts involved in your marital property pool, including properties, bank accounts, investments, and outstanding debts.
    • We will assist you in negotiating with your spouse to reach a fair settlement. If needed, we can represent you in court proceedings, prepare your case and advocate for a fair division of assets and debts.
    • We will help you with the preparation of legal documents, such as financial statements and settlement agreements, accurately reflecting your agreed-upon terms.
    • After the division is finalised, we will guide you through ensuring compliance with Court orders or agreements, and if necessary, help you enforce the orders.

    Throughout the process, we will provide personalised advice, support, and representation, ensuring that your best interests are protected.

    Speak with a family lawyer today.

    woman looking at her mobile phone.
    Are You Sharing Too Much? The Consequences of Social Media in Family Law  1024 683 Dorter

    Are You Sharing Too Much? The Consequences of Social Media in Family Law 


    Social media has become a powerful tool in our daily lives, shaping the way we communicate, share experiences, and connect with others. However, it’s important to understand that what we post on social media can have far-reaching consequences, especially when it comes to legal matters, such as divorce and family law disputes.

    The rise of social media has also brought about a significant shift in how evidence is gathered and presented in courtrooms. More and more judges and legal professionals are turning to social media posts, comments, and photos as valuable sources of evidence. This means that what you share online can potentially be used against you or in your favour.

    In this article, we will discuss how social media can affect legal matters, what the law says about social media and offer guidance on avoiding pitfalls. With this knowledge, you can make informed decisions about your online presence and minimise any negative outcomes from posting on social media.

    Types of Posts That Can Cause Issues

    Inappropriate social media posts can have significant repercussions in family law matters. It’s crucial to be aware of the types of posts that can cause issues and potentially harm your case. Here are some examples:

    • Sharing private information: Posting personal or sensitive details about your spouse or child can violate their privacy and may negatively impact your legal proceedings.
    • Negative comments: Making derogatory or disparaging remarks about your ex-spouse or their character can reflect poorly on your own credibility and may affect custody or parenting arrangements.
    • Provocative or explicit images: Sharing provocative or explicit images that could be deemed inappropriate or offensive may not only damage your reputation but also impact child custody determinations.
    • Displays of a lavish lifestyle: Posting pictures or boasting about an extravagant lifestyle, such as expensive vacations or luxury purchases, can create an impression of financial resources that may influence spousal support or property division decisions.
    • Anti-social behaviours or criminal activity: Documenting or bragging about engaging in anti-social behaviours or participating in criminal activities can have severe repercussions in family law cases, including potential impact on child custody arrangements.
    • Screenshots of private messages: Sharing screenshots of private messages, especially those containing sensitive or damaging information, can violate privacy rights and potentially be used as evidence against you in legal proceedings.
    • Threats of violence: Making threats of violence or engaging in aggressive behaviour online can not only harm your case but may also have legal implications, including potential restraining orders or criminal charges.
    • Employment history and legal proceedings details: Revealing information about your employment history or discussing specific details of ongoing legal proceedings on social media can compromise confidentiality and potentially influence outcomes in your case. It may be treated as an offence to publish or reveal details of family law proceedings on social media. It is best practice to refrain from posting anything in relation to family law proceedings.

    Social Media as Evidence in Family Law

    Social media has become a significant source of evidence in family law cases, with courts increasingly presented with posts, comments, and tagged content as valuable evidence. Here are some examples of how social media evidence can impact family law matters:

    Derogatory Posts

    Negative or disparaging comments about your ex-partner on social media can be used as evidence against you, potentially affecting decisions related to child custody, visitation rights, and spousal support.

    References to Legal Proceedings

    Any mentions or discussions about ongoing legal proceedings on social media can be discovered and presented as evidence in court, potentially influencing the outcome of your case or resulting in penalties.

    Screenshots of Private Messages

    Private messages shared on social media platforms can be captured and used as evidence in family law disputes, revealing conversations that may impact issues such as child custody arrangements or allegations of misconduct.

    Photos Showing Drug or Alcohol Use

    Images depicting drug or alcohol use can be detrimental to your case, as they may suggest a lack of responsibility or a potentially unsafe environment for children.

    Displays of an Extravagant Lifestyle

    Social media posts showcasing an extravagant lifestyle, such as expensive purchases or luxurious vacations, can be used to argue against financial need or support claims, potentially affecting decisions regarding spousal maintenance or child support.

    Impact on Divorce Cases

    Social media posts can have a significant impact on various aspects of divorce cases, including parenting orders and decisions related to spousal or child maintenance. Here are some ways in which social media can influence divorce proceedings:

    • Parenting Orders and Maintenance Decisions: Social media posts can play a role in determining parenting orders and decisions regarding spousal or child maintenance. Negative or inappropriate content shared on social media platforms can be used as evidence against a party, potentially influencing the court’s perception of their suitability as a parent or their financial circumstances.
    • Influence on Parental Responsibility: Evidence of drug or alcohol use posted on social media can have a direct impact on the determination of parental responsibility. Such evidence may raise concerns about a parent’s ability to provide a safe and stable environment for their children, potentially affecting custody arrangements and visitation rights.
    • Establishing Length of a De Facto Relationship: Social media evidence can be utilised to establish the duration of a de facto relationship. Posts, photos, or check-ins on social media platforms can serve as a record of a couple’s activities and public acknowledgment of their relationship, aiding in determining the length of the relationship for legal purposes.

    Understanding Section 121 of the Family Law Act

    Section 121 of the Family Law Act is a provision in Australian family law that deals with the protection of privacy and confidentiality in family law proceedings. It sets out restrictions on the publication and disclosure of certain information that may identify parties involved in family law cases. The purpose of Section 121 is to safeguard the privacy, well-being, and fair trial rights of individuals involved in family law disputes.

    Under Section 121, it is prohibited to publish or disseminate information that may lead to the identification of parties in family law proceedings. This includes not only names but also other identifying details such as addresses, physical descriptions, employment information, recreational interests, and property ownership. The restriction applies to various forms of communication, including social media posts, public discussions, media reports, and other means of disclosure.

    Consequences of Inappropriate Social Media Use

    Inappropriate use of social media in the context of family law matters can have serious repercussions. It is important to be aware of the potential consequences that can arise from sharing sensitive information, such as:

    Adverse Impact on Legal Proceedings

    Inappropriate social media behaviour can provide evidence against you and adversely affect the outcome of your family law case. Posts, comments, photos, or messages that are derogatory, incriminating, or inconsistent with your claims can be used by the other party to challenge your credibility, parenting abilities, or financial position.

    Criminal Prosecution

    Breaching Section 121 can lead to criminal prosecution by the Australian Federal Police. If found guilty, individuals can face penalties, including fines and imprisonment for up to 12 months.

    Impact on Parenting Arrangements

    Inappropriate social media use can influence parenting arrangements and custody decisions. Posts or photos depicting irresponsible behaviour, substance abuse, or a lack of commitment to parenting responsibilities can diminish your chances of obtaining favourable custody or visitation arrangements.

    Financial Implications

    Social media activity revealing a lavish lifestyle, extravagant spending, or undisclosed assets can impact property settlements and financial support decisions. Inappropriate posts that contradict financial claims or demonstrate hidden income or assets can undermine your credibility and affect the division of assets or spousal/child maintenance awards.

    Reputation and Relationships

    Inappropriate social media use during family law matters can harm your reputation and relationships. Negative or offensive posts about your ex-partner, the legal process, or others involved can damage your public image, strain relationships with family and friends, and complicate future interactions.

    The Power of Discretion: Mitigating Legal Consequences in Social Media Use

    To safeguard yourself and prevent legal consequences, it is essential to exercise caution regarding what you post on social media. Remember that anything you put out online can be used as evidence, so it is important to think before you post and consider how it may be interpreted in a legal context.

    If you find yourself facing family law matters, it is highly recommended to seek professional legal advice. Our expert team of family lawyers and mediators at Dorter Family Lawyers can provide guidance tailored to your specific situation and help you navigate the complexities of social media use during legal proceedings.

    Married Overseas, Divorce in Australia: A Complete Guide 2023 1024 700 Dorter

    Married Overseas, Divorce in Australia: A Complete Guide 2023

    Getting a divorce can be a challenging and emotional process, and if you were married overseas, you may have the added stress of not knowing if you can end the marriage in Australia. Understanding the essential steps involved in a divorce can help you to gain clarity during this difficult time.

    In this article, we will guide you through the necessary steps to get divorced in Australia if you were married abroad and ensure a clear and straightforward path to legal separation.

    Am I considered legally married in Australia if I married overseas?

    In Australia, if you married overseas, your marriage is generally recognised as valid as long as it was valid in the country where the marriage took place. However, there are certain circumstances where a foreign marriage may not be recognised in Australia.

    Here are some examples:

    • If you or your former partner were already married to someone else at the time of the foreign marriage, your second marriage may be considered invalid in Australia.
    • If you or your former partner were underage according to Australian law at the time of the foreign marriage (below 18 years old).
    • If the marriage ceremony did not meet the legal requirements of the country where it took place

    While your marriage may be legally recognised, it does not automatically mean that you can immediately apply for a divorce in Australia. You must meet certain criteria and satisfy the jurisdictional requirements of Australian family law to start the divorce proceedings.

    How to get a divorce in Australia if married overseas

    To get divorced in Australia when you married overseas, you need to meet certain requirements and follow the divorce process outlined in the Australian Family Law Act.

    Here are the key requirements:

    a. Either you or your former partner is an Australian citizen.

    b. Either you or your former partner regards Australia as your permanent home and intends to live in Australia indefinitely.

    c. Either you or your former partner has lived in Australia for at least 12 months before you apply for a divorce.

    Other Requirements for Getting Divorced in Australia if Married Overseas

    Marriage Certificate

    You must provide a copy of your marriage certificate as proof of your marriage. If your marriage certificate is not in English, you must provide an authorised translation along with the original document.

    Separation

    You must demonstrate that your marriage has irretrievably broken down, which is typically established by a period of separation.

    In Australia, the requirement is that you and your former partner have lived separately for at least 12 months before you apply for a divorce. It is possible to be separated while still living under the same roof, but you need to provide evidence to support that separation has occurred.

    No Reconciliation

    You must confirm that there is no reasonable likelihood of reconciliation between you and your former partner. This means that you have made genuine efforts to reconcile but have been unsuccessful.

    Once these requirements are met, you can file an Application for Divorce with the Family Law Courts. If the court is satisfied with the application, a divorce order will be granted, officially ending your marriage.

    No-fault divorce in Australia

    To obtain a divorce order, you do not have to prove the fault or wrongdoing of a party.

    In Australia, the only ground for divorce is the irretrievable breakdown of the marriage, which is demonstrated by a period of separation of at least 12 months. This means that neither party needs to prove fault, such as adultery or domestic violence, to obtain a divorce.

    This approach to divorce is similar to the laws in many other countries that have adopted a no-fault divorce system. There are some countries, however, that still require specific grounds or reasons for divorce, such as adultery, abandonment, or cruelty.

    In those countries, the parties may need to provide evidence or prove fault to obtain a divorce.

    The Divorce Process in Australia for People Married Overseas

    Here’s a simplified overview of the process that you may go through if you’re married overseas and want to get divorced in Australia.

    1. Gathering the documents

    You must obtain your marriage certificate and any relevant documents related to your marriage, separation, and children. As we mentioned earlier, if the marriage certificate is not in English, it will need to be translated.

    2. Divorce application

    Fill out the divorce application form with all necessary information about yourself, your former partner, your marriage, and any children.

    3. Lodge the Application

    Submit the completed divorce application form to the Federal Circuit and Family Law Court of Australia, either online or in person, and pay the required filing fee. You can access up-to-date filing fees here.

    4. Serve the Application

    Serve a copy of the filed divorce application on your former partner, following the specific rules and guidelines for service. This step is only required if you’re making a sole application for divorce – which we will explain in more detail below.

    5. Wait for a Response

    Your former partner has a specified timeframe to respond or contest the divorce. If there is no response, an uncontested divorce may proceed.

    6. Divorce Hearing

    If there are issues to resolve or your former partner contests the making of a divorce order, a court hearing may be necessary. Otherwise, a court hearing is not ordinarily required.

    7. Divorce Order

    If all requirements are met, the court will grant a divorce order, officially ending your marriage. Once made, an order becomes final after one month and one day at which time the court issues the sealed order.

    Joint application vs sole application in divorce

    There are two ways you can apply for a divorce: sole and joint application. Here’s how they differ from each other.

    Joint application

    A joint application for divorce is filed when both you and your spouse agree to the divorce and are willing to cooperate throughout the process. This means that both parties work together to complete and sign the Application for Divorce form. It is a joint declaration stating that you both consent to the divorce.

    In a joint application, both parties are considered joint applicants, and both need to sign the application form. This option is generally more straightforward and can often lead to a faster and smoother divorce process as there is no requirement of service.

    Sole Application

    A sole application for divorce is filed when only one spouse wishes to initiate the divorce. In this case, you will be the sole applicant, and your spouse will be the respondent. You will need to complete the Application for Divorce form on your own, without your spouse’s signature.

    A sole application is appropriate when there is a breakdown in the relationship, and both parties are not in agreement or are unable to cooperate. It is also used when your spouse cannot be located or refuses to participate in the divorce process.

    A sole application can also occur even when both parties agree to get divorced. In this case, the divorce papers will still need to be served to the party that did not apply for divorce.

    What if I don’t know the location of my former spouse?

    If you do not know the location of your partner, there are steps you can take to proceed with the divorce process.

    Reasonable Efforts

    You must demonstrate to the court that you have made reasonable efforts to locate your spouse. This typically involves attempts to contact them through various means such as phone calls, emails, letters, or mutual acquaintances. These attempts must be then recorded in an Affidavit, explained below.

    Don’t forget to keep a record of your attempts to locate your spouse, including any responses or lack thereof.

    Notice of Divorce

    Once you have made reasonable efforts to locate your spouse without success, you can seek the court’s permission to proceed with the divorce by serving them with a Notice of Divorce by way of substituted service.

    Substituted service means serving the documents through an alternative method approved by the Family Court. For example this may be through means such as by publication in a newspaper or through a social media platform.

    Affidavit

    Along with the Notice of Divorce, you will need to file an Affidavit outlining the steps you have taken to locate your spouse and why you believe they cannot be located. The Affidavit should provide as much information as possible about your attempts to find them and give notice of your application.

    Court Consideration

    The Court will review your application, the supporting documents, and your Affidavit. If the Court is satisfied that you have made reasonable efforts to locate your partner and that it is appropriate to proceed without their participation, they may grant permission for the divorce to proceed.

    Divorce Order

    If the Court is satisfied with your application and there are no other complications, a divorce order may be granted, effectively ending your marriage. The court will specify the method of service and the date from which the divorce becomes final.

    What if there are children involved?

    When addressing matters related to children, the Court prioritises their welfare and aims to ensure their ongoing care and support.

    Both parents are encouraged to maintain a meaningful relationship with the children unless there are circumstances such as abuse or violence that warrant restrictions.

    In divorce proceedings, you and your spouse will be required to outline to the Court what arrangements have been made for the care of the children.

    The court will then assess whether there are proper arrangements for the care, welfare and development of the children. If the court is not satisfied that proper arrangements have been made for the care of children, the court could decline to make the order. This occurs rarely notwithstanding that it is common that a parent may contend that arrangements may not be proper or in the best interests. The Court does not hear parenting disputes in the course of making a divorce order. Parenting custody or access disputes require a separate application.

    Do I need to divorce in Australia if married overseas?

    While the specific laws and requirements can vary depending on your circumstances, here are a few reasons why getting a divorce in Australia may be necessary:

    Legal Recognition

    By obtaining a divorce in Australia, you ensure that your divorce is recognised and valid under Australian law. This can have implications for various legal matters, such as property division, financial settlements, and child custody arrangements.

    Future Relationships

    In some cases, future legal requirements or benefits may depend on having an official divorce order from Australia. For example, if you wish to remarry in Australia or claim certain government benefits, having an Australian divorce can be important.

    Is overseas divorce valid in Australia?

    In Australia, the validity of an overseas divorce depends on several factors. Generally, if you obtained a divorce overseas according to the laws of that country, your divorce will be recognised as valid in Australia.

    However, there are certain circumstances where an overseas divorce may not be recognized. Here are some key considerations:

    Jurisdiction

    The jurisdiction refers to the legal authority of a court to hear and decide a case. In the context of an overseas divorce, it means that the foreign court that granted the divorce must have had the appropriate legal authority over the matter. If the court had jurisdiction based on your or your former partner’s residency or domicile in that country, the Australian courts are more likely to recognise the divorce.

    Legal Requirements

    Each country has its own specific legal requirements for obtaining a divorce. For an overseas divorce to be recognised in Australia, it must have met the legal requirements of the country where it was granted. This typically includes fulfilling residency requirements, following the proper procedures, and obtaining a legally valid divorce order, decree or certificate.

    Compliance with Australian Law

    While an overseas divorce may be recognised in Australia, it must also comply with Australian law, particularly if there are related matters such as property division or financial settlements.

    For example, if the overseas divorce did not address or adhere to Australian family law principles regarding property settlement, you may need to initiate separate legal proceedings in Australia to resolve those issues.

    How we can help you

    Even if you were married overseas, we can assist you with your divorce process.

    The first step is to determine if your marriage is recognised under Australian law. If it is, we can proceed and apply for a divorce. We will guide you through the necessary paperwork and documentation, ensuring all legal requirements are met.

    If your marriage is not recognised, we will explore alternative legal options to dissolve your relationship. Throughout the process, we will provide you with expert advice on your rights, obligations, and entitlements under Australian family law.

    We will advocate for your interests during negotiations regarding property division, spousal maintenance, and child custody matters if applicable.

    Ultimately, our goal is to help you navigate the divorce process efficiently and help you achieve a fair resolution, while prioritising your best interests and emotional well-being.

    Contact us for an initial consultation.

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    Consent Orders in Australia: Everything You Need to Know 1024 664 Dorter

    Consent Orders in Australia: Everything You Need to Know

    Separation or divorce can be a stressful and emotionally challenging experience for couples, especially when they have to make decisions about property division and parenting arrangements. One way to formalise these agreements and make them legally binding is through a consent order.

    Consent orders are a legal tool that separated couples can use to protect themselves and their families. This article will answer some common questions about consent orders in Australia, including how to obtain them, what they can be used for, and their advantages and limitations.

    What is a Consent Order?

    When a couple separates, they must make decisions about property and parenting arrangements. These decisions can be made privately between the parties by agreement, or through the court. Informal agreements are not legally binding, which means that the parties may have no legal recourse if one of them does not comply with the agreement or changes their mind later.

    A consent order is a legal document that formalises the agreement reached between the parties. This makes the agreement legally binding, meaning that both parties have legal protection if either of them does not comply with the terms of the agreement.

    What Are Consent Orders For?

    Consent orders can be made for parenting and property settlement matters, which are typically the most common issues that separated couples need to resolve.

    Parenting arrangements can include custody, access or ‘time with’ arrangements, and communication, while property settlement consent orders can cover the division of assets, such as real estate, investments, and personal property, as well as superannuation and spousal maintenance.

    It’s important to note that consent orders can only be made for matters falling under the jurisdiction of the Family Law legislation. Consent Orders require the approval of the Court before the agreement is enforceable as an Order. The Court requires that the agreement reached between the parties is fair and equitable (in accordance with the legislation and case law) before approving a consent order.

    Other legal matters, such as child support or divorce, require separate applications, and seeking legal advice from an expert family lawyer can ensure that your rights and interests are protected.

    How to Obtain a Consent Order

    Here are the step-by-step instructions for obtaining a consent order in Australia:

    1. Reach an agreement: Before applying for a consent order, the parties must first reach an agreement on certain issues. This can be done through negotiation, mediation, or other dispute-resolution methods.
    2. Prepare the application: Once an agreement is reached, the parties must prepare an Application for Consent Orders. This application includes proposed consent orders, being the terms of the agreement, and supporting information that are required by the Court to assess the reasonableness of the agreement.
    3. Lodge the application: The application must be lodged with the Federal Circuit and Family Court of Australia. The Court will then review the application and assess the agreement to ensure that it is fair and equitable.
    4. Decision by Court: If the Court is satisfied with the agreement, the Court will generally make the consent orders.
    5. Receive the order: Once the consent orders are made, both parties will receive a copy of the orders. The orders become legally binding and enforceable at this time.

    The process of obtaining a consent order normally takes a few weeks and in some rare cases months, depending on the complexity of the agreement and the Court’s workload.

    Can an Application for a Consent Order be Rejected?

    In some cases, the Court may reject an application for consent orders. This could happen if the agreement reached between the parties is not deemed fair or reasonable, or if it’s not in the best interests of any children involved. Additionally, if the documents filed are incomplete or incorrect, the court may reject or requisition the application.

    If an application is rejected, parties can work to revise the agreement and re-apply for a consent order. However, it’s always best to ensure that the agreement reached is fair and reasonable before submitting an application to the court. Seeking the advice of a family law professional can help ensure that the application is submitted correctly, increase the likelihood of its approval, and reduce the risk of any delay.

    Does a Consent Order Expire?

    A consent order does not have an expiry date, which means it remains legally enforceable until it is varied or set aside by the Court. However, it’s important to note that there are limited circumstances in which a consent order can be altered or set aside. Some examples include if there has been a significant change in circumstances, fraud, or duress.

    . If you believe there has been a significant change in circumstances, fraud, duress, or some other reason that warrants a variation or termination of a consent order, you should seek legal advice.

    What Happens if a Consent Order is Breached?

    If a party breaches a consent order, the other party can take legal action to enforce the order. Breaching a consent order can result in serious legal consequences such as fines, or other penalties. In extreme cases, a person found to have breached an Order can be ordered to serve a term of imprisonment.

    If you suspect that a consent order has been breached, you should seek legal advice immediately to determine the best course of action. In some cases, it may be appropriate to negotiate with the other party to resolve the issue. In other cases, legal action may be necessary to enforce the order or seek compensation for any losses incurred.

    If there are changes in circumstances that make it difficult for you to comply with the terms of the consent order, it’s highly recommended that you seek legal advice before applying to make any changes to the order or breaching the Order. This can prevent potential legal consequences and ensure that the agreement remains fair and reasonable for all parties involved.

    How Can a Lawyer Help with Consent Orders?

    Applying for consent orders can be a complex and sometimes daunting process. Seeking the help of an expert family lawyer can ensure that the process is as smooth as possible. A family lawyer can offer legal advice on the agreement, ensuring that it is fair and equitable, and help clients to understand their legal rights and obligations.

    Lawyers can also assist in the preparation of the necessary documents and filing of the application with the Court. They can communicate with the Court on behalf of their client, and if needed, represent their client in Court proceedings.

    In addition, if a consent order has been breached, a lawyer can advise on the available legal remedies and represent their client in court proceedings to enforce the order or seek variations. A lawyer can also assist in negotiating a new agreement or variation to a consent order.

    Consent Orders: Move Forward with Confidence

    Separation and divorce can be emotionally challenging, but consent orders provide a practical and beneficial way for parties to reach agreements on parenting and property settlement matters. Although obtaining a consent order is not mandatory in Australia, it is strongly recommended because it offers legal protection and enforceability of the terms of the agreement, providing peace of mind for both parties.

    In addition to offering legal protection, seeking legal advice can help ensure that the agreement is fair and reasonable, and that the necessary paperwork is correctly prepared and submitted, and will be approved by the Court. With the assistance of a family lawyer, clients can navigate the process of applying for a consent order and move forward with confidence.

    Ultimately, consent orders provide a useful tool for resolving disputes in separation and divorce. By obtaining consent orders, parties can ensure that their agreement is legally binding and enforceable, providing them with greater certainty and security for the future.

    If you need legal advice regarding an agreement with a former partner, you can contact us at Dorter Family Lawyers & Mediators. Our firm is well-versed in negotiating and preparing consent orders and various agreements that may need to be made as part of a separation.

    Call us today on 02 9929 8840 or book a consultation online here.

    Separated Under One Roof? What You Need to Know 1024 688 Dorter

    Separated Under One Roof? What You Need to Know

    Highlights:

    • Separated couples may choose to live together due to financial, convenience, co-parenting, lack of alternative housing, emotional attachment, or cultural and religious reasons.
    • It’s possible to be legally separated while living together. However, you may need to prove that you and your partner have already separated and representing to other and to third parties that this is the case.
    • Evidence of separation, such as affidavits, witness statements, financial records, utility bills, photos or videos, and other evidence, may be required to get a divorce while living together.
    • Seeking legal advice before filing for divorce or making financial decisions is recommended to ensure that the requirements are met.

    For many people, when they end a relationship they move out and this signifies the beginning of their separation. However, this is not always the way it goes. There are separated couples who choose to live under one roof due to financial constraints, convenience, or even cultural and social aspects or religious reasons.

    But no matter what the reason is, separation and living under one roof also has its financial and legal effects on the lives of a separated couple, especially in certain aspects like government payments and divorce proceedings.

    In this piece, we’re going to help you understand the legal side of things if you’re still living with your former partner. But first, let’s understand why couples live together even after separation.

    6 Reasons Why Separation Under One Roof Happens

    Living together after separation is not the best option for everyone. It can be challenging emotionally and practically and may not be suitable for those who need more distance or space from their ex-partner.

    However, there are several common reasons why separated couples may choose to continue living together, including:

    1. Financial reasons

    Living together can be a more affordable option than living separately, especially if one or both partners cannot afford to move out on their own. Sharing expenses such as rent or mortgage payments, utilities, and groceries can help both partners save money.

    2. Co-parenting

    If the couple has children, living together can make it easier to co-parent and provide stability for the children. It may also allow for more flexible care arrangements.

    3. Convenience

    Living in the same home together can be more convenient than finding separate residences, especially if the couple has shared pets or household responsibilities. It can also be easier to divide household chores and responsibilities when living in the same space.

    4. Lack of alternative housing

    In some cases, one or both partners may not have a viable alternative housing option. This could be due to financial constraints, lack of availability of suitable housing, personal or family crisis or other factors.

    5. Emotional attachment

    Even after separating, some couples may still have a strong emotional attachment to one another. Living together may allow them to maintain that connection while they work through their issues and decide what their future holds.

    6. Cultural or religious reasons

    In some cultures or religions, it may be frowned upon or forbidden to separate or divorce. Living together under these circumstances may be seen as a compromise or a way to maintain appearances.

    Can you be legally separated and live together?

    Technically, there are no legal requirements or certifications for separation. So yes, you can be separated and still be living under one roof.

    However, you may need to alert certain institutions like Centrelink (Services Australia), banks, insurance companies, or the court system (if you are applying for divorce) and prove to them that you and your partner have already separated even though you’re still living together. This can be proven in a variety of ways.

    Will your living arrangement affect your divorce proceedings?

    They could, however it is possible to get a divorce in Australia while still living together, as the legal requirement for divorce is that the parties have been separated for at least 12 months.

    It is important to understand that while it’s common to live separately when you separate from your partner, a separation is much more than just living in separate residences – there must be a clear intention to end the relationship from one party and evidence of separation.

    How to prove separation under one roof for divorce

    If you and your spouse are still living separated under one roof during the separation period, you will need to provide evidence to the court that you have been living separately under one roof, meaning that you have not been living together as a married couple. This can include evidence such as:

    Affidavits

    You and your former partner can prepare written statements called affidavits that describe relationship details, the living arrangements and other factors to confirm that separation has occurred. These affidavits must be sworn or affirmed before an authorised person, such as a lawyer or justice of the peace.

    Witness statements

    You can ask other people who know about your living arrangements or sexual relationship to provide statements to the court. This could include family members, friends, neighbours, or professionals such as doctors or counsellors.

    Financial records

    If you and your former partner have separate finances, you can provide bank accounts, statements, bills, and other financial records to demonstrate that you are living separately.

    Utility bills

    You can provide utility bills or other documents that show that you have separate accounts for gas, electricity, water, and other utilities.

    Photos or videos

    You can provide photos or videos that show your separate living arrangements, such as separate bedrooms or living areas.

    Other evidence

    You can provide any other evidence that confirms separation, such as emails, text messages, or social media posts that demonstrate that you have separated.

    It is recommended that you seek legal advice before filing for divorce to ensure that you meet the requirements and that the divorce proceedings will not be impacted by your living arrangement.

    We can guide you on how to prove separation under one roof and any other legal considerations that may apply in your specific circumstances.

    When to seek legal help

    Ideally, the moment that you and your partner decide to have separate lives, under one roof or not, is the best time to approach a family lawyer so you would know your options.

    We can also advise you on what living and financial arrangements that you must maintain so you can prove to the court that you’re already separated and living together.

    For expert and compassionate legal advice, contact us today!

    Getting a Divorce in Australia: What You Need to Know 1024 713 Dorter

    Getting a Divorce in Australia: What You Need to Know

    Deciding to end a marriage is a difficult choice that often involves making emotional and complicated decisions.

    Although the process of getting a divorce is relatively simple, the challenges arise due to the additional issues such as asset division and child custody that can make finalising the divorce and ending the relationship a daunting process.

    If you are in the midst of a divorce or contemplating one, you might have queries regarding divorce, including your legal alternatives, rights, and obligations. In this article, we will answer 8 of the questions we’re asked as family lawyers about getting divorced in Australia.

    1.   How do you get divorced in Australia?

    The process of getting divorced in Australia is relatively simple. To be granted a divorce, you must meet the requirements for divorce, and fill out a divorce application form. This form can either be submitted jointly with your spouse, known as a joint application, or alone, known as a sole application.

    The divorce application form will require additional documentation, such as a marriage certificate, and if not in English, a translated copy. Once completed, the form and documents are uploaded to and lodged with the Commonwealth Courts Portal.

    It’s worth noting that a divorce order is a formal and legal recognition of the end of the marriage, and it’s separate from property settlement and parenting matters. These issues must be resolved either formally or informally, but they don’t need to be finalised before you lodge your application for divorce.

    If you and your partner reach an agreement about finances and children, it can be informal and not enforceable by the court. However, if you want to formalise the agreement, you can apply for consent orders. In most circumstances, it is recommended that agreements be formalised.

    If you’re unable to agree, you may need the help of a legal professional or the Court to reach an agreement on the division of property. It’s important to apply for this settlement within 12 months of the divorce being approved.

    Another important point to note is that the divorce process is the same for same-sex couples too.

    2.   What are the criteria need to apply for divorce?

    Before applying for divorce in Australia, there are certain criteria that must be met by the couple. These requirements include:

    • At least one of the spouses must be an Australian citizen, have been born in Australia, or have lived lawfully in Australia for a minimum of 12 months.
    • The validity of the marriage must be proven. i.e. confirmed by producing a copy of the marriage certificate.
    • The couple must have been separated for a minimum of 12 months and one day. During this period, they may either live apart or continue living together without being a couple, which is known as separated under the same roof.
    • The breakdown of the marriage must be irretrievable (i.e. there is no chance of a reconciliation) , which is typically demonstrated by the 12-month separation period.
    • If the marriage has lasted less than 2 years, the couple must provide a certificate from a counsellor who confirms that they have attempted to reconcile. However, in cases where domestic violence has occurred, counselling may not be mandatory.

    It’s important to note that divorce in Australia is “no-fault” which means that you don’t need to prove that your spouse is responsible for any wrongdoing or the downfall of the relationship. The “no-fault” divorce system was introduced to help to make the process of divorce less hostile.

    3.   Is court attendance needed when you get divorced?

    It’s not always necessary. As mentioned previously, for the divorce application, there are specific situations where you may be obligated to appear in court. One example is if you file for a sole divorce application and have children under 18. The attendance at court is usually limited to appearing by telephone/video conference and often the hearing takes no more than 10 minutes.

    You may also be required to attend court if you and your spouse cannot reach an agreement regarding property settlements or parenting arrangements.

    4.   How long does it take to get divorced?

    There is no expedited process for divorce, nor is there an option for an immediate divorce.

    To be eligible to apply for divorce, you and your spouse must have been apart for a minimum of 12 months. Once you have submitted your divorce application, you can anticipate being granted a divorce order within 3 to 4 months.

    The 12-month separation period is intended to give both parties ample time to contemplate whether divorce is the ultimate decision.

    5.   Can you get divorced if you’re partner doesn’t want to?

    In Australia, you do not need to file for divorce jointly with your spouse. A sole divorce application can be submitted, and it is not mandatory for your spouse to sign the application before you can lodge it.

    The Court will approve a divorce order if they are satisfied that the marital relationship has broken down beyond repair, and there is little possibility of reconciliation.

    If you apply for a sole divorce, you must serve your spouse with the divorce application. This is to ensure that they are informed of the impending divorce application.

    It is necessary to attend court if you are applying for a sole divorce and you have children.

    If you are considering filing for divorce alone, we recommend that you consult a family lawyer. We can assist you in understanding the process and guide you in completing it swiftly.

    6.   What’s the difference between an annulment and a divorce?

    When ending a marriage, spouses may seek legal orders in the form of a divorce or an annulment.

    A divorce involves the termination of a valid marriage, while an annulment declares that a marriage was never valid. An annulment can only be granted under certain circumstances, including:

    • If the marriage was not legally performed
    • If one party was underage at the time of marriage
    • If one party was coerced into the marriage
    • If one party was incapable of consenting to the marriage due to a mental disability
    • If one party was already married when entering into the marriage
    • If the parties to the marriage are close relatives which is prohibited

    The process of obtaining an annulment is typically more complex than that of a divorce, as the court must investigate the circumstances surrounding the marriage to determine if an annulment is appropriate. An annulment is also referred to as a declaration of nullity.


    7. Is getting a divorce required after separation?

    If you and your spouse decide to separate, you are not legally required to obtain a divorce. However, staying married can have an impact on your financial obligations and rights. It also may have an impact on your estate planning. Thus, it is recommended to seek legal advice.

    If you intend to remarry, you must first obtain a divorce. Often when marrying for second time, you may be asked to provide proof of divorce and will need to produced the Divorce Order with the Court’s seal.

    8.   Do I need a lawyer to get divorced?

    It is not mandatory to hire a lawyer to get divorced. In recent years the Court has made the process easier for people to apply without the assistance of lawyers and the process can be completed online. However, many individuals opt to work with a lawyer due to the complexities that arise during a divorce such as property settlements and parenting matters.

    As each situation is unique and family law can be intricate, understanding your rights and obligations is not always straightforward. A divorce lawyer can assist you throughout the entire process, including the online application, and ensure that you understand your rights and responsibilities and that all necessary documentation is provided. This can make the entire process more manageable and efficient.

    Do you need a divorce lawyer?

    If you are in Australia and contemplating a divorce while seeking legal guidance, a family lawyer can provide assistance.

    Family and divorce lawyers possess extensive qualifications and expertise in guiding couples through the divorce process and attaining resolutions that enable them to progress with their lives.

    Divorce can be a difficult and emotional period, but you need not face it alone. You can have a no-obligation consultation with family lawyers to discuss your situation at no cost.

    Discuss your situation with the team here at Dorter Family Lawyers. Based in North Sydney, our team is well-versed and highly experienced in all kinds of family law matters, including divorce and separation.

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    What if my ex-partner won’t comply with Court Orders? 1024 725 Dorter

    What if my ex-partner won’t comply with Court Orders?

    So, the Court has made Orders, or you’ve got a binding agreement. You’ve spent a lot of money on litigation or having a lawyer negotiate and prepare a formal agreement setting out your respective legal rights and obligations. You want to move on with your life, but your ex won’t let you.

    Unfortunately, this scenario is somewhat common in Australia. However, while it is common, it’s not impossible to overcome. In this article, we’re going to help you understand Court Orders, including what may happen when you or the other party don’t comply with them and how you can enforce them.

    The family law system in Australia is complex and often overwhelming for those involved in a legal matter, so before we dive into how you can have Court Orders enforced, let’s talk about Court Orders generally.

    Table of Contents:

    What is a Court Order?

    A court order is a decision that helps to resolve a legal matter and is made by a judge or judicial officer.

    Essentially, a Court Order is a set of rules or decision that is legally binding and provides clarity of the legal relationship (obligations and rights) between the people (parties) involved in the legal matter.

    Court Orders can be made in a few different ways. A Court Order may be made after two parties have made a private agreement regarding a matter, such as how they plan to parent after a separation, and they wish to make it legally binding – this is known as a consent order. Court Orders are also often made after a hearing or trial.

    When Court Orders are made for family law matters in Australia, they are usually about parenting or financial issues.

    Are there different types of Court Orders?

    There are a few different types of Court Orders, including:

    Final Orders

    These orders are the orders that resolve a legal matter and bring it to an end.

    Interlocutory Orders

    An interlocutory or interim order is commonly made in situations where the matter is urgent or a decision is needed before a final trial. This type of order is temporary and usually put in place until final orders can be made.

    Consent Orders

    For many family law matters you have the option to resolve the matter privately, outside of the courts. However, if you don’t formalise the agreement make it legally binding, the parties are relying on each other to uphold their end of the agreement. A consent order is an order that makes a private agreement between parties legally binding.

    What kinds of matters can court orders be made for?

    As we touched on above, in a family law context, Court Orders are usually made for parenting concerns or financial matters.

    Parenting Orders

    These kinds of orders are made about parenting matters such as communication and/or spending time between parents and their children, where the child/ren may live, and other welfare related arrangements for children.

    Parenting orders can be applied for by any person who is concerned with the care, welfare, and development of a child, which may include the child’s parents, grandparents and relatives.

    When the Court is making a decision regarding a parenting order, the best interests of the child are the paramount consideration. The Court needs to consider two key factors – the benefit to the child of having a meaningful relationship and bond with both parents and the need to protect the child from harm (including psychological and physical harm).

    Parenting orders can be applied for at any time, including before, after or during a separation or divorce.

    Financial Orders

    Financial orders are usually made to resolve matters such as the division of property and assets or providing financial support after the breakdown of a relationship (spousal maintenance).

    As part of making the Orders, the Court will need to ensure that the arrangements set out are “just and equitable” for each party, and often they will require detailed information from each party to ensure that this is the case.

    There are time limits which apply to persons seeking to apply for financial orders. For couples who were married, they have 12 months after a divorce order has been granted to apply for financial orders. For de facto relationships, financial order applications need to be made within two years of the relationship ending.

    What happens when you don’t comply with a Court Order?

    Non-compliance with a Court Order, also referred to as breaching a Court Order, means that a party has not followed the rules or regulations that have been provided as part of their Court Order.

    However, while it may be frustrating that a person isn’t following a legally binding order, they are not going to be immediately arrested for this. Rather, for there to be any consequences for the non-compliance of the Order, the other party involved will need to file a Contravention Application or an enforcement application.

    Contraventions

    This application essentially alerts the Courts to the non-compliance of the Order and can result in the person who has not been compliant facing serious consequences. They could face penalties such as having to participate in counselling, performing community service, paying a fine, paying compensation to the other party, or in particularly serious circumstances, they could face imprisonment.

    Before filing a Contravention Application an attempt to resolve the matter through a means such as Family Dispute Resolution must occur, in most circumstances. If you have attempted to obtain Family Dispute Resolution or have been ruled as exempt from this requirement, you can then apply for the Contravention Application.

    To make your Contravention Application you will need to submit an affidavit providing information of how the accused party has contravened the Orders, and either the Family Dispute Resolution Certificate or proof of your exemption.

    It’s important to be aware that a breach of Court Orders can happen in a variety of different ways. It must also be considered whether the breaching party had what is known as a “reasonable excuse” for not complying with the order.

    Reasonable excuses that may be accepted by the Court include:

    • The party that breached the Order believed that their actions were required to protect the health and safety of a person or child; or
    • The actions of the party causing the breach did not continue longer than was necessary to protect the health and safety of the person. 

    If someone has breached an Order, what should you do?

    If you find yourself in a situation where the other party to your agreement, your ex for example, is not complying with an Order, it’s important to take a step back and consider the circumstances of the situation. Below, we’ve included some things to think about if a breach of an Order occurs:

    Non-compliance with Parenting Orders

    Has the other parent breached or contravened your parenting Orders? A party may file a Contravention Application if another party has breached Court Orders. Before taking any action, the aggrieved party must consider two questions;

    1. Did the other parent have a reasonable excuse? and
    2. What do I want to achieve by going to Court?

    If the answer to question 1 is yes, then you should reconsider before hastily filing an application in Court. 

    So, what do you wish to achieve?  If the answer to that question is that you hope to seek to change the Orders, you may wish to consider making an interim application or a new final orders application. If the breached Orders are final, there will need to have been a significant change in circumstances. The change in circumstances could be the breach of the Orders, but it depends on the circumstances of the breach.

    Non-compliance with Financial Orders

    Unfortunately, from time-to-time parties are unable to fulfil their obligations for various reasons. There are times where a party may also try to evade their obligations. Below are some examples of common breaches that occur with property orders:

    1. Has your ex-partner refused to sign a document? – The Court can order a Registrar to sign a document on their behalf.
    2. Has your ex-partner refused to make a payment? – You could Consider making an application for Third Party Debt Notice. A Third Party Debt Notice is the Family Court version of a garnishee order. It allows the Court to order that a payment be made from a party’s source of income/capital e.g. salary or savings.
    3. Has your ex-partner refused to make a payment and have no cash or income? – You can consider making an application for the sale of their property so that you may receive your entitlement.

    Interest may be payable under the Court Rules if the Court makes an order for payment and the payment is made late.

    Plan for the worst

    It may be cynical, but as the saying goes, it is always better to be safe than sorry. When you are negotiating your agreement, consider what will happen if a payment is not made or your ex-partner skips the country. In most circumstances, there might be an appropriate alternate outcome if a party defaults or form of security that can be offered if that a party fails to comply. 

    It’s also important to consider seeking legal advice from an experienced family lawyer. A family lawyer can help you understand your options and obligations so that you can make informed decisions for your future.

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

    Multiple Jurisdictions 1024 683 Dorter

    Multiple Jurisdictions

    Litigation of issues across multiple jurisdictions involving the same subject matter and parties is becoming increasingly common, particularly in family law. It will often involve a careful analysis of which jurisdiction or Court is preferred and consideration of whether the issues or proceedings can be transferred or consolidated.

    In a family law context it is becoming more common to see third parties, such as Mum or Dad or grandparents, seek repayment of monies they may have advanced to one or both parties or an argument that real estate is held “on trust” for a third party following separation. In these situations a third party may assert certain legal rights to pursue repayment of monies or declarations that the third party is the beneficial owner (real owner) of real estate. What follows is that multiple jurisdictions (or Courts) may have the jurisdiction to decide the issue e.g. Federal Circuit and Family Court of Australia and Supreme Court of New South Wales. Our previous article on “Accrued Jurisdiction” provides an overview on such jurisdiction existing between different Courts and can be found here – What is Jurisdiction and Accrued Jurisdiction?.

    In these circumstances it is necessary to seek specialist advice about:

      1. Which jurisdiction (or Court) may be preferred to determine the issue;

      2. Whether the issue can be cross-vested, or transferred, between jurisdictions (or Courts);

      3. When and how to apply for a transfer of proceedings;

      4. How to deal with different Judicial Officers in different Courts; and

      5. What to do if the transfer does not succeed.

    Dorter Family Lawyers and Mediators specialises in family law disputes that involve multiple areas of jurisdiction and/or multiple Courts. If you require any assistance with the above we can assist.

    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 on (02) 9929 8840.

    Andrew Johnson
    Partner

    Rebekah Dorter
    Principal