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.
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.
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
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.
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.
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:
the assets of the parties and values
and non-financial contributions made to the assets and the
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.
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.
us if we can be of assistance to you in any property negotiations.
Our legal team can offer you helpful and experienced representation.
may face legal issues in two main areas of family life:
Separation from grandchild following divorce of parents
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.
'Parenthood' second time around
number of grandparents are taking on the role of full time carer
of their grandchildren.
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
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.
help in determining your rights as grandparents please do not
hesitate to contact us.