Family Law

When someone goes through a nasty divorce it occasionally happens that one partner takes the children and won’t allow the other to see them at all. Unless there is violence involved, this is not legal. Courts these days recognise the rights of both parents to see their children so long as there is no threat to them physically or emotionally.

The parents must agree to go and meet with a Family Dispute Resolution Practitioner to see if mediation can resolve the conflict. It an agreement is reached a parenting agreement should be drafted out and made into Court Orders to ensure it is legally binding. If an agreement cannot be reached even after mediation, the matter must go to court. The parents will have been given a Certificate to confirm that mediation has been tried.

It is a sad fact of life that unless there is abuse, the children suffer most after a divorce. No matter what the parents feel about each other, the children they raised together up to this point still love them both.

Children can get a real guilt complex, thinking the divorce was caused by something they did or said. Having to choose which parent to live with only makes things worse, because they will feel guilty about possibly hurting the one they don’t choose. The thing is, in Western Australia, a child cannot choose which parent to live with, even though they can make their wishes known to parents and possibly, the court.

Unfortunately, one of the most contentious aspects of divorce in which family lawyers are invariably asked by their clients to advise them on, is access and visitation of children. We say unfortunate, because, regardless of how strongly each parent feels that they are in the right, it is the children who will suffer most from any prolonged bitterness between their divorced parents regarding visitation and access Parents have obligations with regards to complying with any court order in relation to the children visiting their other parent. Denying access is a practice that should not be pursued even if they feel they are justified in doing so.

One area of family law in which there can often be a degree of confusion, and where family lawyers are often asked for advice, is de facto relationships. That confusion ranges from someone not knowing whether they are in a de facto relationship, to needing to know what their rights are should the relationship end. We'll start with that basic understanding of a de facto relationship and as it stands in Australian family law, a de facto relationship is regarded in almost the same way as a marriage and the rights of each individual in a de facto relationship are effectively the same. However, where some people become confused is that they think merely being in a sexual relationship and living with someone means they are in a de facto relationship. It does not. The Family Law Act states that a de facto relationship is one between two people who are not legally married, nor are they related to each other as family. Finally, and this is what differentiates de facto and non de facto relationships, the couple must have been living together on a 'genuine domestic basis'.

First, you can get divorced without a lawyer representing you by creating your own divorce application. As for the grounds for divorce, family law has one remarkably simple principle and that is 'no-fault'. In other words, the legal system in Australia, unlike many other jurisdictions around the world, doesn't really care if someone was a “good” husband or wife or if there has been infidelity for example. The main requirement that the court wishes to see established in order for a divorce to proceed is that the marriage has broken down irretrievably. There are many ways in which an irretrievable breakdown might be established but the simplest, and the one which the court will most readily accept is that the two parties to the divorce have lived apart for a period of at least 12 months. In addition, it must be shown that there is absolutely no possibility of the couple reconciling.

When it comes to getting a divorce, other than deciding upon what is in the best interests of the children, the next most important matter is the financial settlement. The first thing to understand when it comes to a relationship ending, is exactly what is regarded as property. In effect, it is everything that can be designated as an asset or a debt. Assets can include property, vehicles, jewellery, investments, shares, ownership of a business, cash in the bank, insurance policies, superannuation, and inheritances. As for debts, mortgages, bank loans, credit cards, and other debts such as credit agreements for vehicles or any other household or personal purchases are included. Ideally, it is best if both parties can come to an agreement between themselves as to how all the assets and debts are to be split or allocated. This can be achieved without a lawyer, although without legal advice you could agree to something which is not actually in your best interests.

Whilst family lawyers are often asked for advice by their clients when a marriage is ending and heading for divorce, they can also play a role before the couple each says, 'I do'. We are talking about prenuptial agreements, which you have no doubt read about in newspaper and magazine articles, especially when a mega-rich couple is heading for divorce. At face value, a prenuptial agreement might seem a perfect way to ensure that, should the couple ultimately divorce, there will not be huge argument s and months of legal wrangling over how the property is split. We say, 'at face value' because although prenuptial agreements have many merits, they are not perfect. First, due to prenuptial agreements being in the celebrity headlines, and often depicted in Hollywood movies, you should be aware that the LA, New York, or London versions of prenuptial agreements, are different from the ones which we have in Australia.
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