This Firm's goal is to assist you and provide the best legal advice to navigate through the process during the finalization of a separations and the Family Law associated with that process.
The court that deals with Family Law in Australia is known as the
Federal Circuit and Family Court of Australia ('
FCFCOA').
These courts were previously known by two separate names being the
Federal Circuit Court of Australia and the
Family Court of Australia.
The FCFCOA is a federal court under federal legislation and accordingly does not sit specifically under New South Wales law. There is however a caveat where some smaller matters can be dealt with by the Local Court of New South Wales. This firm will provide legal advice accordingly.
The
Family Law Act 1975 ('
FLA') is the primary legislation considered in this jurisdiction of the law.
These Links go directly to specific sections.
Divorce Orders
What Are The Grounds for Divorce
Overseas Marriages
Financial Settlements
Children(s) Settlements
De facto Relationships
Same Sex Relationships
Divorce Orders
1. A divorce does not take effect until the Court has made a declaration in accordance with section 55A of the Family Law Act 1975 ('
FLA').
This includes with regards to the proper arrangements for the care of any children of a marriage.
2. Children are defined as offspring from the relationship who are under the age of 18 years.
3. Parties to a divorce or separation should seek legal advice before divorcing.
Our clients have literally saved millions of dollars and avoided massive financial losses.
There are important considerations that change once a divorce takes effect. These changes may have
dramatic consequences which include impacting parties
financial capacity and their legal rights under Family Law.
This includes where the Court effectively imposes a
statute of limitation on divorced parties with regards to Family Law and financial settlements.
4. A divorce order does not take effect until 1 month after the Court hearing date or the date that the Court makes the order in accordance with section 55A of the FLA, whichever is the later.
What Are The Grounds for Divorce
There is a requirement that there be a period of separation of 12 months prior to filing the Application for Divorce.
There is a further requirement that parties be married for a period of 24 months before applying for a divorce.
Parties of a marriage must satisfy the Court that the marriage has broken down irretrievably and this is achieved by the separation period of 12 months immediately prior to the application for divorce.
Overseas Marriages
Legal advice must be sought in relation to overseas marriages when one is considering divorce.
Overseas marriages are not recognized in Australia if the marriage between the couple are not authorized to be married pursuant to Australian law.
An example is where a couple are married in another country in accordance with other jurisdictional considerations but those are counter Australian legislation.
This may be where a husband or wife has been married at the same time to multiple spouses.
This type of purported marriage, though recognized elsewhere, will not be recognized in Australia and accordingly the parties will not be eligible to be divorced.
Financial Settlments
The Court, when considering a financial settlement, will considers 4 key factors:
1. The
Net Asset Pool ('
NAP') must be determined including what the parties within the relationship have acquired.
The NAP is the total value of all the assets owned by either or both parties.
The NAP includes all things acquired
before,
during and even
after the relationship. The assets acquired after separation are included because parties are not allowed to waist assets before they are distributed between the parties.
2. The
Contributions must be determined by the Court, in accordance with Section 79(4) of the FLA, and they include by each party where the following are considered:
(i) Financial Contribution
(ii) Non Financial Contributions
(iii) Contributions as Home Maker and Parent
(iv) Equitable Consideration
These considerations are used to level the playing field where parties see may have filled or played different roles during the relationship including as primary care giver for children of a relationship and also the role of primary financial contributor to the relationship.
The Court applies a weight to these considerations.
3. The
Future Needs will be determined by the Court of both parties in accordance with section 75(2) of the FLA including but not limited to:
(i) Age and Health status of each party to a proceedings
(ii) Income, Financial and Mental Health status of each party
(iii) Either parties care and control of children of the relationship
(iv) Various commitments that each party may have including to the care of themselves or children of the relationship or others
(v) Eligibility of parties to receive pensions of payments
(vi) Overseas funds including pensions or superannuation or property
4: The
Just and Equitable Considerations will be considered by the Court in making an order in relation to a financial settlement.
The lawyers here at
Camden Solicitors and Conveyancers are experienced in achieving the maximum outcome for clients and advocating for the best possible outcomes.
Children(s) Settlements
The Court, when considering a settlement for children, will considers what is in the best interest of the child.
The lawyers here at
Camden Solicitors and Conveyancers will assist in preparing material to best achieve the outcomes you are seeking. This includes preparation of affidavit where skill and experience count in preparing for the best outcome desired.
De facto Relationships
In relation to a de facto relationship the Court may consider:
- the duration of the relationship;
- the nature and extent of common residence;
- whether a sexual relationship exists;
- the degree of financial dependence or interdependence and arrangements for financial support;
- the ownership, use and acquisition of their property;
- the decree of mutual commitment to a shared life;
- whether the relationship is or was registered under a prescribed law of a State/Territory;
- the care and support of children; and
- the reputation and public aspects of the relationship
The Family Law Act recognizes that a people can be in simultaneous multiple de facto relationships. Further, this includes that a person may be married and can also be a party to de facto relationship.
This includes that a person may involved in a property proceedings while married or in a de facto relationship with someone else.
Same Sex Relationships
In relation to a same sex relationship the Court typically treat these in the same way as heterosexual relationships and as outlined above.
This firm has many years experience representing parties within same sex relationships that have broken down. This has included where there are children of the relationship both married and also in de facto situations.
The FLA has been amended and new sections have been added in consideration of same sex relationships.
Advice is advised where lawyers from
Camden Solicitors and Conveyancers have over a 10 years experience in property and children(s) matter who can advise you accordingly.
