Family Law

i. Family Law in Australia

Family law in Australia is governed by the Family Law Act 1975 (Cth). This is a commonwealth (federal) law, unlike most of the other laws which are different in each of the states, Family law is same throughout Australia.
Family law in Australia is simple and complex at the same time. Family law is simple as the only reason required for separation is that the marriage has been broken down irretrievably i.e. no-fault divorce. And it is complex because of its non-adversarial nature, which means it is not too heavily depended on the legislation, and each case is assessed on its own merits.

ii. Divorce and Separation

Divorce is a legal breakdown of the marriage. Separation is the first step to be eligible for divorce. In Australia, there is a no-fault divorce rule, which means that the only reason required is marriage to be broken irretrievably.
Separation can be proven when a couple has lived separately for a continuous period of 12 months immediately before filing the application for a divorce. In absence of any specific date, starting date of separation can be found out from other linked factors. For example, it is also possible to live in the same property, and still be considered as separated. Furthermore, it is not required for both parties to be considered separated as essentially a couple can be considered separated even if one of the parties had an intention to terminate the relationship.
Please contact Singh Ausin Lawyers to assist you with Family Law based on your individual situation.

iii. Divorce Vs Property Settlement / Child Support / Spousal Maintenance:

Unlike a common belief, divorce is a sperate process as compared to other important agreements such as property settlement, child support or spousal maintenance.
The legal requirement for the minimum period of separation before an application can be initiated is only applicable for divorce. For all other agreements, it is recommended, once the decision to separate is final, to initiate the process, and agreement is reached before going to Court. 

For example, if the divorce involves division of the property (property settlement), which could be a very time-consuming process, as it may even involve sale of the property. Sale of the property takes time as it requires appointing a real estate agent, having lawyers prepare your contract and vendors statement, finding the buyers with desired sale price etc.
It is in the best interest to reach an agreement, and initiate the process as early as possible.
Please contact Singh Ausin Lawyers to assist you with Family Law based on your individual situation.

iii.Frequently Asked Questions: Legal Issues

In Australia, divorce can be applied by an Australian citizen, a person of Australian domicile, or a resident in Australia who has been living in Australia for at least one year.

The above condition is not required to be met by both partners. It is deemed satisfied even if one of the persons meet the above conditions.

Please contact Singh Ausin Lawyers to assist you with Family Law based on your individual situation.

If a marriage is for less than two years, counselling is mandatory. An application for divorce requires a certificate from a marriage counsellor.

The decision to breakdown the marriage is a serious step in one’s life, and the Court wants to make sure that the newlyweds’ (marriage less than 2 years) decision is not taken in haste. The Court further wants to assure that the reasons for separation are genuine, and are different from the daily issues faced by almost all the married couples. Hence, the counsellor assesses your situation and tries to provide advice to save the relationship. 

If you are not able to attend, or it is not safe for you to attend, the Court’s permission can be sought in order to have this condition waived off.

There are few exceptions to this rule. Please contact Singh Ausin Lawyers to assist you with Family Law based on your individual situation. 

If both the parties come to an informal agreement with regard to all the important elements of their separation, they may apply to Court to enforce their agreement. The Court would review the agreement, and issue a Consent Order if the terms of the agreement are found just and equitable. Once the consent orders are issued, they are legally binding.

If you fear violence during your separation, you can seek an intervention order from Court which would ensure your safety. The intervention orders are issued directing the other party with the guidelines or terms to follow. Depending on an individual situation, the orders may be issued for the other party either to do something or refrain from doing something.
A common example is not allowing defended to visit within 200 meters of the plaintiff’s residence or to restrain the defendant from selling a particular property.
Although the intervention order is not a criminal charge on the defendant, but it is a criminal office to not follow the order in totality.

If there are children involved, the important matter to consider is about their custody during the breakdown of the marriage. The question may arise, which of the two parents gets their custody, and for how long.
Our legal system believes that equal shared parental responsibility is the best solution, and children should have the benefit of both of their parent’s involvement in their lives until they turn 18 years old. The Court always gives the highest weightage to the arrangement which is in the best interests of the child, and the decision is made accordingly. However, factors like individual income, job, availability etc. also play a major role when the decision is made.
Both parties are encouraged to resolve the custody issue by reaching an agreement.
The formal order (either with consent or otherwise) issued by Court is called the Parenting order, which is binding on all the parties.

Spousal maintenance is the financial benefits, either ongoing periodic or lumpsum, given by one spouse to the other.
In Australia, there is no automatic right to have spousal maintenance, which is in contrast to what is shown in American serials, as a norm. In Australia, spousal maintenance is only allowed if one spouse is able to claim and establish the financial hardships from separation. Financial hardship doesn’t necessarily mean not earning or having the same lifestyle as was there before the separation, it means the income or lifestyle after separation would be below the reasonable living expenses or standards.
The decision also involves closing assessing other important factors such as the custody of children, job prospects, age etc.

There may be a division of personal and common belongings involved during the breakdown of the marriage. The most complicated, and financially important, distribution is the division of the property.

Division of property can be reached by an agreement during the early stages of separation. As unlike the minimum separation period requirement for divorce, there is no waiting period on initiating the property settlement.

Sale of the property takes time as it requires appointing a real estate agent, having lawyers prepare your contract and vendors statement, finding the buyers with desired sale price etc.

It is in the best interest to reach an agreement, and initiate the process as early as possible.

Property is not in my name:

It is also important to understand that, unlike the common belief, it doesn’t matter much even if a property is in the name of only one of the partners.

During the divorce, the distribution of all the assets and liabilities are generally considered by putting them all in a common pool and then dividing them as per the agreement.

There is no fixed formula, however, there are lot of factors such as duration of the marriage, individual income, contribution towards particular assets etc. which are considered.

Please contact Singh Ausin Lawyers to assist you with Family Law based on your individual situation.

v. How can we help:

Relationship breakdowns are very distressing and emotional. If children are involved, it could be more distressing and confusing. During the family breakup, it is important to take care of the interests of the children and look after your own wellbeing at the same time. We aim to resolve family disputes in a professional manner. It is important to have someone knowledgeable working for you to avoid the frustration and anxiety.

Separation

Separation is a big step in life. You need help and information if you have decided to separate from your partner. This is the time when you feel worst and lonely in your life. You might be feeling angry, shocked, sad or depressed due to the breakup of your relationship. There are number of factors you need to consider, some of those are:

• Living arrangements for you and your children
• Taking care of the children
• Looking after the best interests of the children
• Arrangements for the payments of your outstanding debts
• Distribution of property
• Who will keep the family home
• Who will pay the mortgage

If you have decided to take this step, we will assist you to resolve these issues. We will work closely with you to ensure that you understand each and every step of the process.

Please contact Singh Ausin Lawyers to assist you with Family Law based on your individual situation.