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SeniorLaw Services - Family Law

Before seeking a divorce the first fact to be checked will be the validity of your marriage. Situations do occur where the marriage is not legally binding, for example if your spouse was already married at the time of marrying you, or fraud or mistaken identity prevented any real consent being given. If this is the case then the marriage may not be legally binding and you will require advice about having the marriage declared null and void.

However usually the marriage is valid and to bring this legally to an end you must apply for a divorce.

The only ground for divorce is the irretrievable breakdown of the marriage. Under Australian family law there is no issue of fault or blame.

Separation of spouses must be for a period of at least 12 months to establish irretrievable breakdown of the marriage. Clearly separation occurs once one person moves out of the home. However it is also possible to have separation under the one roof but this is more difficult to establish. You must no longer be regarded as a couple and sleeping/household/financial arrangements must be maintained separately.

In a number of family law situations agreement will have been reached on the division of property, or the divorce itself will be a joint application. We take instructions and protect your rights in this amicable situation.

However if mediation does not succeed you may be faced with a dispute. In this instance you will need someone to look after your interests and our solicitors will engage in robust litigation on your behalf.

Property Settlement

You do not have to wait for a divorce to become absolute before you can enter into a property settlement. However once you have been divorced you have a time limit to commence proceedings within 12 months of the date of the decree absolute. The Family Court may consider an application for property settlement out of time in special circumstances.

Property settlement involves more than real estate. Property can also include items of furniture, loans by in-laws, businesses and superannuation for example. It can also include lottery winnings obtained after separation but prior to the divorce or an inheritance left to one party in a Will.

If you and your partner have reached agreement then this should be put into writing and the written agreement approved by the Family Court as Consent Orders. This offers you security knowing the agreement is final. It also enables real estate to be transferred to the other party in accordance with the Court Order without incurring additional stamp duty.

It is desirable to keep negotiations open and try to reach an amicable agreement for the division of property. Failing this application will be required to be made to the Court for determination. This can be prolonged and costly.

For a fair and equitable division of property the Family Court will consider:

all the assets of the parties and values  
financial and non-financial contributions made to the assets and the marriage 
future financial position and needs of each of the parties 

For de facto couples property settlement is made in accordance with the Property (Relationships) Act and NSW common law.

There are time limits for making a claim after the breakdown of the relationship. Property dispute laws are different for de facto couples. Essentially the Court will look at the financial contributions made by the parties during the relationship and not consider the future needs of the parties.

Please contact us if we can be of assistance to you in any property negotiations. Our legal team can offer you helpful and experienced representation.

Grandparents Rights

Grandparents may face legal issues in two main areas of family life:

1. Separation from grandchild following divorce of parents

When children become pingpong balls in the contest between parents this can also have serious flow-on effects when it comes to grandparents. In certain cases of family conflict the separation or divorce of the parents may involve the grandparents of the non-custodial parent being denied access to their grandchildren.

2. 'Parenthood' second time around

An increasing number of grandparents are taking on the role of full time carer of their grandchildren.

Serious problems are having a huge impact on the family unit. Grandparents may find themselves called upon in a new role due to mental illness and child abuse or the death of a sole parent. Drug problems such as heroin addiction can result in a child's life being shattered. Grandparents may try to offer some stability to their grandchildren even though financially they may be stretched on limited retirement income.

Grandparents may make application to the Family Court for custody of grandchildren. However in a dispute with parents the Court will need sound evidence to take away parents' rights.

For legal help in determining your rights as grandparents please do not hesitate to contact us.

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SeniorLaw Sydney (ABN: 33 560 807 269)
Level 5, Castlereagh Chambers
64 Castlereagh Street
Sydney NSW 2000

Tel. (02) 9235 3160
Fax. (02) 9235 2733

© 2006 SeniorLaw Sydney