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    Divorce & Family Law Australia

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    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.

    Getting a Gett

    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.   

    Gett Assistance

    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.

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    Financial Abuse 1024 683 Dorter

    Financial Abuse

    When it comes to domestic and family violence verbal and physical abuse usually come to mind. However a further widespread form of domestic and family abuse is ‘financial or economic abuse’.

    WHAT IS FINANCIAL ABUSE?

    Financial abuse occurs when one party uses money to control, coerce or to restrict the other person in a domestic relationship and frequently comes hand in hand with other forms of abuse such as physical or emotional abuse.

    Am I Being Financially Abused?

    It can be difficult to recognise financial abuse. Perpetrators may often ‘excuse’ their behaviour as a consequence of the victim’s financial illiteracy or being due to “traditional roles” in the family.  A pattern of behaviour is usually exhibited and unfortunately the abuse may escalate over time.

    Financially abusive behaviour can include but it is not limited to:

    • taking control of someone else’s finances (e.g. being in charge of all the household income and paying the other person an allowance);
    • controlling how all of the household income is spent;
    • forcing a family member to claim social security benefits like Centrelink;
    • insisting that a family member apply for a second credit card;
    • preventing a family member from working;
    • preventing a family member from studying;
    • refusing to give access to bank accounts;
    • denying a family member access to money so they cannot afford basic expenses such as food or medicine.

    EFFECT OF FINANCIAL ABUSE

    The effect of financial abuse can be far reaching and usually includes suffering from emotional trauma and homelessness. Financial abuse affects the victim’s financial independence preventing them from accessing education, healthcare and in some cases basic personal items which can leave them with no alternative but to remain in the abusive relationship.

    In many cases financial abuse continues post-separation. This includes perpetrators engaging in prolonged litigation, hiding assets or defaulting on financial responsibility such as a mortgage leaving the victim with poor credit score, thus exacerbating their financial stress and vulnerability.

    FINANCIAL ABUSE SUPPORT

    Any form of abuse is unacceptable. We all have a right to live life without fear of abuse or violence. Support services are available on both state and federal levels and can assist you if you are experiencing domestic or family violence, including financial abuse.

    Some support services which are available include:

    • Financial Abuse Legal Service (Redfern Legal Centre)
    • NSW Domestic Violence Helpline;
    • Women’s Legal Services NSW;
    • Domestic Violence NSW;
    • Legal Aid;
    • 1800Respect;
    • National Aboriginal and Torres Strait Islander Legal Services.

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

    Rebekah Dorter
    Principal

    Tim Russell
    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.

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    The Duty of Disclosure 1024 575 Dorter

    The Duty of Disclosure

    Do I have to Disclose?

    The answer is… Yes!

    We are often asked by our clients what they must disclose in their family law matter after they have separated from their partner and what their former partner is obligated to disclose.

    Both parties to a marriage or de-facto relationship are required to provide full and frank disclosure of information relevant to their financial circumstances. This means parties must provide each other with all information relevant to an issue in their case, including information recorded in a paper document or stored by some other means such as a computer storage device and also includes documents that the other party may not know about.

    This duty of disclosure is a positive duty imposed by the Family Law Rules and the Federal Circuit Court Rules and is quite different to the obligations parties may have in a commercial dispute.

    What does disclosure involve?

    As part of your disclosure obligations, common documents required are those that evidence the following: –

    1. All income or earnings (whether paid directly to the party or not);
    2. Any interests in any ‘property’ or entity fully or partially owned or controlled by the party;
    3. All financial resources, including interests in a trust;
    4. Any disposal by the party that may affect, defeat or deplete a party’s claim; and
    5. All liabilities of the party or of any relevant entity.

    ‘Property’ for the purpose of a family law settlement is not just real property but is a much broader concept and means all assets, including superannuation.

    When does your duty to disclose begin?

    Your duty to disclose begins once you separate (with the pre-action procedures) which means before a case starts, and this duty continues until the case is finished. The duty of disclosure is an ongoing obligation and extends to all documents in your possession, power or control.

    Your duty to disclose continues until your matter is finalised which means that you must continue to provide such information as your circumstances change or more documents are created or come into your possession, power or control.

    What happens if a party to a case does not disclose?

    There are a number of consequences which may follow if a party to a case fails to disclose, including but not limited to cost orders, and if a matter has been finalised the settlement may be re-opened if the non-disclosure resulted in a detriment to the other party.

    It is important to provide disclosure in a timely matter, and to be honest and forthcoming with your disclosure documents. Non-disclosure contributes to significant delays in resolving a family law matter and significantly increases costs.

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

    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.

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    Declaration of Nullity and Divorce 800 533 Dorter

    Declaration of Nullity and Divorce

    “Is a Declaration of Nullity the Same as a Divorce?”

    After married couples have been separated for a period of twelve (12) months they may wish to apply to the Family Court or the Federal Circuit Court for Divorce. Some clients, however, ask if they can obtain a Nullity rather than a Divorce order.

    What is a Nullity?

    A Declaration of Nullity is a finding by the Family Court of Australia that, although a marriage ceremony may have taken place, the marriage between the parties is void and not legal. As a result, the outcome is that the parties to the void marriage do not become divorced, but rather it is as though they were never married in the first place.

    How to Declare Nullity

    The Court is able to make such a declaration in accordance with the Family Law Act however, there are very specific grounds upon which a Declaration of Nullity may be sought. A Declaration of Nullity may be made on the following grounds:

    1. At the time of the parties’ marriage, one of the parties remained married to someone else (a previous relationship where no divorce occurred);
    2. The parties are in a prohibited relationship;
    3. The parties did not comply with the laws of the marriage in the country they were married;
    4. Either party was not of a legal age to marry and did not hold the relevant approvals; or
    5. Either of the parties did not give their real consent to the marriage because:-
      • consent was obtained by duress or fraud;
      • one party was mistaken as to the identity of who they were marrying or the nature of the ceremony; or
      • one party was mentally incapable of understanding the nature and the effect of the marriage ceremony.

    When do you want to seek a Declaration of ‘Nullity’ and not a ‘Divorce’?

    The purpose of a Declaration of Nullity is to find a marriage “void”, meaning “of no effect”. The primary reason a Declaration of Nullity is sought is when one of the parties is already married. This is often the case when: –

    1. A party is unaware that their previous marriage was formally registered; or
    2. A party is unaware that no Divorce Order has been granted in relation to their earlier marriage.

    A recent Family Court Decision dealt with this issue whereby an Application for Nullity was sought. In this case, the Wife had not obtained a Divorce Order from her previous Husband. The Wife had been separated from her former Husband for approximately 12 years prior to the second marriage, however, she was not aware that a Divorce Order had not been granted from her first marriage.

    In this matter, there were three (3) steps that needed to be completed: –

    1. Apply to the Family Court for a Declaration of Nullity;
    2. Obtain a divorce from her first Husband; and
    3. Legally re-marry.

    When is a Marriage Recognised?

    The ­­­­­­­­­­­­­­­­­­­­Marriage Act 1961, defines a marriage as “The union of 2 people to the exclusion of all others, voluntarily entered into for life.”

    The criteria to be legally married in Australia, requires that you must: –

    1. Not be married to another person;
    2. Not be marrying a parent, grandparent, child, grandchild, brother, or sister;
    3. Be at least 18 years old, unless a court has approved a marriage where one party is aged between 16 and 18 years old;
    4. Understand what marriage means and freely consent to becoming husband and wife;
    5. Use specific words during the ceremony; and
    6. Give written notice of the intention to marry to their authorised celebrant, within the required time frame.

    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) 99298840.

    Luke Meehan
    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.

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    Understanding Child Support 1024 683 Dorter

    Understanding Child Support

    What is Child Support?

    In Australia the Federal Government, through Services Australia, administers the assessment and collection of Child Support to ensure children receive an appropriate level of financial support from their parents after they separate or divorce. Services Australia provides services to parents and carers, assisting them by issuing assessments, reviewing those assessments and facilitating the collection of child support.

    How do I apply for child support?

    A parent can apply to the Child Support Agency (‘the Agency’) for an assessment to be made, for the other parent to pay them child support to assist with payment of expenses incurred for the benefit of the children of the relationship. 

    When a parent makes an application for child support, that application means that both they and the other parent will be assessed in respect of the costs of the children. This assessment is made by comparing the respective income of the parents, coupled with the nights per calendar year each child spends with the parents.

    When there is more than one child of the relationship, an application must be made for each child.  This application can be done online and requires the applicant to provide the following details of both parties:

    1. Contact details;
    2. Reference numbers;
    3. Income;
    4. Bank account; and
    5. Relationship details.

    Can I Change the Rate of Child Support Payable?

    There may be several reasons how the amount of child support that you have been assessed to pay can change, including

    a. Application to change the assessment

    Once your annual rate of child support has been assessed, both you and your ex-partner may be able to apply to the Agency to change the assessment. The Agency is only able to change the assessment if they are satisfied there are special circumstances and the change would be fair to both parents and the child.

    There are 10 reasons to apply for a change of assessment, including:

    1. The costs of raising the child are significantly affected by the high costs of spending time or communicating with the child.
    2. The costs of raising the child are significantly affected because of their special needs.
    3. The costs of raising the child are significantly affected because the child is being cared for, educated or trained in the way both parents intended.
    4. The child support assessment is unfair because of the child’s income, earning capacity, property or financial resources.
    5. The child support assessment is unfair because you have paid or transferred money, goods or property to your child, the receiving parent or a third party, for the child’s benefit.
    6. The costs of raising the child are significantly affected by the parent or non-parent carer’s child care costs, and the child is under 12 years of age.
    7. Your necessary expenses significantly reduce your capacity to support the child.
    8. The child support assessment is unfair because of the income, earning capacity, property or financial resources of one or both parents.
    9. Your capacity to support the child is significantly reduced because of:
      a. your duty to maintain another person or child;
      b. the special needs of that person or child; and
      c. the costs of spending time with or communicating with that person or child.
    10. Your responsibility to support a resident child significantly reduces your capacity to support another child.

    The Agency is required to notify both you and your ex-partner in writing when an application to change a child support assessment is accepted.

    By entering into a Child Support Agreement

    You and your ex-partner can agree to provide regular payments and/or payments for your children’s expenses that differ from what was assessed by the Agency and enter into a private agreement.

    A child support agreement allows payments to be made in a number of ways including periodic payments, lump sum payments and payments for certain expenses (such as private school fees, extra-curricular activities and private health insurance), which are known as non-periodic payments. Further, both you and your partner can agree to enter into a binding agreement that provides for neither party to pay child support at all.

    Depending upon the terms of the agreement, non-periodic child support may be made instead of the regular periodic payments or in addition to the regular periodic payments.

    There are two types of child support agreements that you and your ex-partner may enter into, namely:

    1. A Binding Child Support Agreement (‘BCSA’); or
    2. A Limited child support agreement (‘LCSA’).

    BCSA
    BCSAs are intended to provide a high level of certainty and finality about child support arrangements. As such, the terms of an agreement are usually unable to be varied once the agreement is signed and the agreement is much more difficult to have terminated or set aside by a Court.

    LCSA
    In comparison, LCSAs are designed to consider changing circumstances and may be brought to an end after three (3) years if either party desires, or sooner if certain changes occur or the Court decides that the child support to be paid pursuant to the agreement is not proper or adequate. 

    Dorter Family Lawyers and Mediators offer specialist family law advice in Milsons Point on Sydney’s Lower North Shore, and are available to assist you with any questions you may have about child support.  Please get in touch with us on (02) 9929 8840 or rebekah@inst1045122-8984.ozhosting.com.

    Maeve Cooper
    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.