Transcript

Hi, I’m Vanessa Mathews from Byron Bay Family Law & Mediation Specialists. Today I want to discuss a number of issues related to divorce.

I want to stress that these issues are best handled by a lawyer. I would encourage you to talk with a lawyer and to read more about these issues on our website before you take any steps on your own.

Divorce, according to Australian law, is the end of a legal marriage. That is, it’s a change in status for those in the couple. From a legal angle, it only involves those two people, not their children, not their property or the financial obligations they might have.

While all of those factors are affected by divorce, divorce itself is a fairly straightforward matter in Australia. Also, at least for now in Australia, legal divorce can only happen between a man and a woman. That’s because marriage in Australia is only legally recognised between a man and a woman.

Other couples, like same sex couples or couples who had been living together for a long time but chose not to get married, may be recognised as what’s called de facto couples. They may have many of the same rights as a married couple. But, if they choose to end their relationship they do not have to go through the process of divorce.

Divorce in Australia is no fault. This means that there doesn’t have to be a reason given for the divorce. If even one person wants to end the marriage, to get a divorce they have the legal right to end it.

There are, however, a number of conditions that need to be met before a couple can get divorced. You must be separated from each other for at least 12 months and 1 day. The court may even ask for proof that you were separated for this period of time before granting the divorce.

While generally separation means living apart from one another there are cases where a couple is considered separated even though they live in the same home. But, in this case the burden of proof is even greater, and there are a number of conditions that must be met.

So, if you are separated but living together in the same house, make sure you meet those other requirements. They include not having sexual relations, living in separate rooms, not attending social functions together, and not providing household services to each other like cooking and laundry. This shows the court that you really have ended your relationship. You can read more about this on our website.

Once you’re separated for a year and one day you can fill out an application for divorce. The application mostly asks about personal details like name, addresses, details about children, and the marriage and separation date. But, it also asks if there are other outstanding family issues in the court like property division, and this information needs to be listed.

The application must be signed in front of a lawyer, or justice of the peace, or someone else who can witness a document. Then, it’s filed with the court along with two copies and a copy of your marriage certificate. There is also a fee that you’ll need to pay when you file the application.

If you both wanted the divorce and both filled out the application then you’ll each get a copy from the court and wait for a hearing date. If only you filed the application then you have to serve the application on your spouse which means that your spouse has to get a copy of the application. Generally, a spouse is served by sending by registered mail. Your spouse can receive the application personally by hand, but you may not bring it to him or her. Someone else over the age of 18 has to serve him or her by hand.

Now, again, Australia has no fault divorce, so if one person wants the divorce there isn’t much the other spouse can do to prevent it. But, once the other spouse has the application he or she can fight the divorce by filing what’s called a response to divorce and claiming there wasn’t a separation of 12 months and 1 day or by arguing that the particular court doesn’t have the right to hear this case. Then, the case will have to be heard by the court.

But, assuming the other partner doesn’t fight the application, you will have a hearing at the court to just verify the facts of the case. The law doesn’t require everyone to attend the hearing, but you do have to go to court if you have children under 18 and only one of you apply for the divorce. If you filed a response to divorce you should probably go to the court since the judge will want to hear from you.

Now, I want to talk a bit about what happens in court. This is often scary for people, partly because just the idea of being in court is frightening and also because of the emotional side of divorce. But, it’s just a formal procedure where the judge or the registrar reviews the application. He checks that everything written is correct. The judge might ask you or your spouse some questions, too. If you have children, the judge will also want to know that everything is arranged for them, things like where they’ll live and how they’ll be supported.

Once everything is clear to the court they’ll announce that the divorce is complete and the marriage has ended. You’ll get a divorce order from the court through the mail, and this is proof of the divorce. The divorce is actually final only one month and one day from the date of the hearing. Only at that point, one month and one day, can you remarry.

You can find the application for divorce on the Internet, but we recommend you speak to a lawyer to be sure you haven’t missed out anything and to make sure you know all of your rights. You may also like to visit our online divorce service, onlinedivorce.com.au.

Thank you for watching this video. I’m Vanessa Mathews from Byron Bay Family Law & Mediation Specialists.

 Transcript

Hi, I’m Vanessa Mathews for Byron Bay Family Law & Mediation Specialists, and I’m going to be talking about property distribution today. Property distribution is about how the assets and liabilities of the marriage or de facto relationship are divided.

Assets are the things of value that you own, like, a home, a car, a bank account, investments, savings, superannuation, and furniture. Liabilities are the things you owe to others, like, a mortgage or a loan or even credit card debt.

For the most part, when it comes to questions of property and property division, de facto couples have the same rights and obligations as married couples. But some of the laws are different for de facto couples, depending on the state or territory they’re living. So you should always get professional legal advice to be sure how the law applies to your particular situation.

When a couple splits up, if they are married or if they’re in a de facto relationship, all of their property, both the assets and the liabilities, have to be divided between them. That is, they have to decide who owns what and who owes what.

When people come to me for help, I often hear things, like, ‘I don’t have to give him anything. I earn all the money, so it’s all mine.’ Or ‘She spent so much of our money over the years, she doesn’t deserve anything.’ Well, the law doesn’t work on emotions, but instead on the assumption that both people contributed to the marriage, perhaps in different ways, but both worked for the benefit of the shared union.

Now, some couples divide their property by themselves or with help from friends or professionals. If you choose to work it out just between the two of you, you can decide to split your property however you like. Generally, if you work with lawyers or through mediation, you have to follow the same four step process the court uses, which I’ll discuss later on.

You can also do this property division at any time, before you’re married and this is called a prenuptial agreement or even after you are married or when you’re in the process of divorcing.

Once you come to an agreement and sign this document, you can submit it to the court by applying for a Consent Order, if you want to, but you don’t have to. The court will allow you to make your own decisions, but will want to know that each of you had professional advice when you made the agreement, so that one side is not being duped or misunderstood something.

A Consent Order means your agreement has the strength of a court decision. So if one side breaches or goes against the agreement, you can take action against them immediately, without having to first sue, and get a court verdict.

If you can’t work out the property issues on your own, you can go to the court and let a judge decide for you. The law has a very logical approach to dividing up the property, which is the four step process I mentioned earlier. The first step is to figure out what actually are the martial assets and debts. You can start out by putting everything together, the house, cars, mortgage, loan, furniture, and calling that your property. If the couple has been together for only a short time, the court might remove certain things from the pile of matrimonial property. These are things that belonged to each individual before they married or started their de facto relationship.
So if you brought a car or a house to the marriage, and then you got divorced, the car would be yours. In the same way, if you came with a mortgage to the marriage, that debt is still yours if you get divorced.

But if you’re married for say, 10 or 15 or 20 years, a court, if it goes to court, will probably consider most of your joint marital property. And despite the rules in other countries, even property one partner may have inherited during the marriage or de facto relationship, is still considered joint martial property.

The second step of this four step process is to consider the contributions each side made to the marriage. There are two types of contributions partners can make. One is clear financial contributions, like, salaries, other types of income, inheritance, actual money or some type of physical property. But there are also non-financial contributions. For example, if one parent stayed home to take care of the children, they’ve contributed by saving money on daycare and enabling the other spouse to develop professionally and earn more. And by simply helping the family unit develop.

The next step is to consider the future needs of each partner. If the couple is older, and one partner never worked outside the home, the court will take into consideration that he or she may need more of the joint property, since they are less able to now go out and find a job. On the other hand, the court will also note that there are no small children, the mortgage is paid off, and there are no large expenses to be paid. So the financial needs are smaller than they once were.

If both people are young professionals with a good future outlook, the court will take that into consideration too. Also, does one partner still have to stay home to care for the children for an extended period of time, leaving them with less income? The court will also look at the health of each person. The one thing the court does not consider is whose fault is it, that the marriage or de facto relationship ended.

Australia has a no-fault divorce, meaning there does not have to be a reason or cause for the divorce, other than one side asking for it. So blame has no impact on property.

The fourth and final step is for the court to take all of this into consideration and make a just and equitable division of the property. That is, the court will split up the assets and the liabilities in a way that gives each partner what he or she needs and deserves. Just and equitable doesn’t mean everything will be split evenly and each person gets 50 percent. When the court decides who gets what and who pays what, the court will explain how this process will work.

So if the superannuation needs to be split, but the side can only get money in ten years, the judge will need to decide what happens in ten years or if there is a house and its value needs to be split between the two sides, the judge will decide if it should be sold, and the money from the sale divided or if one person will pay the other person his or her share, or if one person keeps the house and the other gets some other property of equal value.

A few suggestions I would make, when you begin thinking about dividing your property, make sure that as you create a list of your assets and liabilities, you don’t overlook anything significant. For example, people often forget superannuation or other retirement plans.

If you’re thinking about separating or if you’re in the process, and the need to be plain for how you’re going to deal with your property, start gathering documents, like, financial statements, tax returns, mutual fund statements, bank statements, check account statements. Make copies if you can, and keep them in a safe place.

If you have questions about property distribution or any of the issues related to divorce and separation, please visit our website, and feel free to call me to set up an appointment. I’m Vanessa Mathews from Byron Bay Family Law & Mediation Specialists.

Hi, I’m Vanessa Mathews from Byron Bay Family Law & Mediation Specialists. Today’s topic is children and parental responsibility. I’m going to provide you with some of the basic information you should have before you begin discussing child custody with your spouse or partner.

I also suggest you read the information provided on our website at mathewsfamilylaw.com.au and I highly recommend that you speak with a lawyer before signing anything or filing any court documents.

Often I find that people forget the most important part of their parenting dispute, which is of course, their children. Unless one parent is a physical or emotional danger to the children, most children are better off in the long run maintaining a close and meaningful relationship with both parents. The less fighting between you, the better it is for your children.

Before you begin discussing the children with your partner or spouse, there are a few important terms to remember. First, there’s equal shared parental responsibility. Australian law changed a few years ago and today, parents are generally given equal shared parental responsibility for their children. This doesn’t necessarily mean that the children live in both homes equally, but rather that both parents have the same rights in making major decisions for the children.

The other important term is custody which means who the children live with. There is primary custody where the children live more with one parent than the other, then there’s shared care, where the parents have more shared time with the children. You and your partner can also come up with your own parenting agreement, which is an arrangement for taking care of your children.

A good parenting agreement should be as detailed as possible. It should include where the children will be on each days of the week and during the school holidays, how major decisions for the children will be made, such as the religion they have to be raised in and the schools they will attend. The agreement should also look towards the future. For example, by anticipating the changes from primarily to secondary school, extra- curricular activities and healthy expenses such as orthodontics.

A good parenting agreement will also have a way for resolving disputes. So, when there is a disagreement, there is a clear way to solve the problem. For example, some couples require that they first sit down and talk to each other to come to a compromise. Others might decide that it’s best to turn to a mediator or family dispute resolution practitioner.

You can submit this agreement to the court for approval, which makes it binding on both sides this is called a consent parenting order or you can opt for a parenting plan, which is not binding on either of you. If you can not agree between yourselves, you can bring the dispute to the court and a judge will decide for you.

We believe it’s always better for parents, and not the judge, to decide about children as it is you who knows what’s best for them. The co-parenting calendar on the Byron Bay Family Law & Mediation Specialists website will help you and your spouse or partner to plan your children’s living arrangements. I’m Vanessa Mathews at Byron Bay Family Law & Mediation Specialists.

If you fear violence, you should seek advice immediately.

You cannot be forced to leave just because the property is not in your name. If you do have to move out, it will not affect your property entitlement. Your rights continue even if you leave.

Sometimes one party may seek a sole occupancy order which requires the other party to leave. This allows the remaining spouse to live in the house until the property is divided. This order will usually only be made in exceptional situations where there is domestic violence, threats are being made or if the house has been adjusted because somebody has a disability.

It may be possible to negotiate a settlement with the applicant by writing a letter or attending family dispute resolution.

Where there is family violence or risk of harm to the child negotiation is not advisable.

The Court will only hear child related proceedings if an applicant has attended family dispute resolution and obtained a certificate. A certificate is not required where child abuse or family violence is involved.

As a starting point it is presumed that it is in the best interests of a child for parents to have equal shared parental responsibility for the child. This presumption is dropped if a parent has engaged in family violence.

If there has been violence in the relationship, this can affect the division of property. This is due to the possibility that the effects of violence may have limited the ability of a party to contribute.

Alternatively, violence or other conduct may have resulted in long term effects to the party’s health and therefore could be a factor to consider under the ‘additional factors’.

Couples who have a dispute about parenting arrangements are required to attend Family Dispute Resolution and make a genuine effort to resolve their dispute before they can make an application to a Court for orders in relation to their children.

This requirement does not apply in certain circumstances, such as where there is urgency or in cases involving child abuse or family violence.

An application may be made to the Court to either change the conditions of or remove the Apprehended Violence Order. This application may be made by the protected person, the defendant, a police officer or a person acting on behalf of the protected person.

It is a criminal offence to knowingly breach an interim or final Apprehended Violence Order. The maximum penalty on conviction is a $5,500 fine or two years imprisonment or both. Where the breach itself is an act of violence and the defendant is at least 18 years of age, the defendant will likely be sentenced to a gaol term.