Category: My Rights

From December 2017, same sex marriage was declared legal in Australia. However, if you are in a same sex relationship and not married, you are considered to be in a de facto relationship and will share a lot of the same rights as a married couple.

De facto relationships are between two people who live together as a couple but aren’t married. Whether you are homosexual or heterosexual in a de facto relationship, the same laws will apply.

De facto couples are able to register their relationship in Queensland. Registering relationships provides legal recognition to a relationship that is not a marriage. You may also like to register your relationship as a sign of commitment to your partner.

The same sex law reform package was passed through parliament in 2008 which removed discrimination to same sex de facto couples across a range of areas including child support, family assistance, superannuation, taxation, health, immigration, domestic violence orders, social security, workers’ compensation and veterans’ entitlements. The change of such laws meant that same sex couples received benefits that they did not previously receive.

As a result of changes to social security and family assistance legislation, all couples are recognised in the eyes of the law, regardless of gender. This means that same sex couple receive the same entitlements and are assessed in the same manner, and have the same obligations as heterosexual couples.

If you are in a same sex relationship in Queensland you are also entitled to legal rights such as dividing property in the event of a separation. You will also have the same rights as married couples when it comes to disputes about children. This may include parenting arrangements, adoption, parenting orders or family dispute resolution.

If you are in a male-male or female-female relationship and are unsure about your rights, No Lawyers’ Family Law Resources can help you understand your entitlements.

Going through a separation or a divorce is often one of the most emotional and difficult times in our lives. You may be feeling confusion, despair, anger, or possibly even relief, depending on the circumstances of the separation. It is normal to go through a rollercoaster of different emotions, as going through a separation can drastically change your life.

Not only must you accept the loss of your partner after a separation, you may also lose common friendship groups, relationships with your ex-partner’s family members, there may be financial loss involved, or loss of routine and dreams about the future.

Individuals who have just experienced a separation may have trouble sleeping, a loss of appetite, or withdrawal from everyday life. These side effects are common when a separation is fresh, and they will begin to fade in time. Eventually, a new normal will exist where you can feel at peace with your life post-separation.

This article will explore the top tips to help you move on after a separation.

Forgive yourself & let go of regrets

You may believe that it is your fault your relationship ended, in which case you may be torturing yourself and wondering how you could have acted differently to save the relationship. This is an unhealthy way of thinking. Forgive yourself for any mistakes made during the relationship, because each decision has led you to where you are now, and you are right where you need to be.

Focus on the present

The separation happened for a reason, and instead of thinking about the past, you can take the lessons learnt from that relationship and apply them to future situations. This way, you are thinking of the positives, rather than the negatives. The past cannot be changed, so you shouldn’t dwell on it. Instead, focus on the present and the future and how you can be the best version of yourself.

Lean on others for support

Think of your friends, family, colleagues that surround you. Think of those people who are there for you right now, and how you can lean on them for support. Even if it’s only one person, having a solid support system is a great way to work through your feelings with others who understand and want the best for you.

Remember why the relationship ended

Often after separations it can be easy to only remember the good times, and romanticise the experience of being in a relationship. You may have feelings of longing for your ex-partner, and the fear of being alone may creep back in. it is important to view your relationship as a whole, for both the good and bad parts. Both parties in a relationship have faults, so you should acknowledge that the separation may be the best thing for you in the long run.

Don’t look back on your relationship as a waste of time

Each time you experience a separation, you will take away key lessons. For this reason alone, your relationship was not a waste of time. Think of the fun experiences you encountered during your relationship, you may have broadened your horizons and gained critical life experiences. There are positives you can take away from the separation, such as achieving a sense of self growth and critical reflection.

If you have just gone through a separation and you are looking for guidance, No Lawyers’ Family Law Resources can help you make well informed decisions that make the most of your current situation and positively benefit your future.

 

First a bit of encouraging news: When we think of divorce proceedings and custody arrangements, it can be easy to fall prey to horror scenarios (we’ve all seen Kramer vs. Kramer after all).

The thought of long, ugly custody battles, unnecessary suffering for the children… as if ending a relationship wasn’t hard enough.

However, very few divorces and separations actually get that nasty. In fact, only 3% of Australian parents go through the court system to reach a childcare agreement post-separation. One in five sets of separating parents prefer to go with a family dispute resolution service or use their solicitors to finalise their custody arrangements; however, three out of five custody arrangements are simply agreed upon by the parents and then finalised during the separation or divorce settlement.

Mothers’ Rights vs. Fathers’ Rights – No longer a thing

The idea of one parent’s rights overruling the other’s is no longer really applicable. Since the Australian Family Law Act 1975 the most important concern when it comes to custody settlements is the best interests of the child/ren. As a rule, the Court believes that the child/ren have a right to a meaningful relationship and contact with both parents post separation. If a custody dispute ends up before the courts, the court will make decisions not based on the parents’ gender but on their ability to care for their child/ren.

There are a number of factors taken into consideration during this process:

  • Any history of domestic violence of either parent
  • How much a parent works; i.e. how much time they have to care for their children
  • Which parent’s accommodation is best suited to housing the children
  • Any history of alcohol and/or substance abuse of either parent

It is increasingly rare that children themselves are required to give evidence or statements in court, as the aim is to minimise any trauma associated with the separation/divorce process. However, once children are over the age of 13, they can demand to have their say in the proceedings and be part of the decision making process.

Parental Responsibility vs. Custody

Since 2006 Australian courts operate under the assumption of shared parental responsibility (Family Law Act (Shared Parental Responsibility) 2006); which means that each parent is responsible for the child’s welfare in equal parts.

However, this does not mean the child/ren will automatically be required to spend equal amounts of time with each parent. The physical custody agreement will still be worked out depending on each family’s individual circumstances.

Shared parental responsibility means both parents

  • Are responsible to make long-term decisions regarding the child/ren (i.e. which school they attend, their place of residence, medical treatment, religious education)
  • Are required to support the child/ren financially within their individual means
  • Are being held responsible for the child/ren’s physical and emotional welfare

Equal parental responsibility even applies in cases when one parent has very little physical contact with the child/ren; i.e. if they live in a different state or country. Big decisions regarding the children have to be made by both parents, unless the courts have awarded sole parental responsibility to one party.

Rights and Responsibilities

According to Australian Family Law, children have two main rights when it comes to separations and divorce. The first is the right to benefit from a meaningful relationship with both parents, and the second is the right to be protected from physical, emotional, mental and sexual harm.

The tenets override all other consideration in divorce proceedings and custody disputes.

Parental Rights

Parents’ rights are very similar. Each parent has the right to a meaningful relationship with their child/ren, in a capacity and context that works for the family. However, each parent also has the right to be protected from harm; which means that in cases involving domestic abuse, domestic violence or substance abuse, the court can withdraw one parent’s parental responsibility and prevent them from contact with their child/ren and former partner if they see fit.

Child Support Payments

In most separation/divorce cases, the shared parental responsibility is maintained; which means both parents are responsible for the child/ren’s welfare. This can take many shapes, as no two family’s are the same, however, it most often means that the parent with less physical custody is required to pay some form of child support to the parent caring for the child/ren the majority of the time. Child support payments are designed to help pay for essentials required by the child/ren and relieve financial stress on the primary carer, who is likely to be at a disadvantage when it comes to earning potential – basically, looking after the kids takes time and pays not-at-all, so whoever works more and makes more money has to chip in. The amounts of child support can vary dramatically, depending on the income of each parent.

Relocation

If shared parental responsibility remains post separation, neither parent is allowed to relocate with the child without consent from their co-parent. This doesn’t mean you can’t move house within your general area, of course, but it does mean that interstate or overseas moves have to be discussed and agreed upon with your former partner. Each parent is entitled to veto a long-distance relocation if it would mean their contact with the child is severely diminished; however, very few disputes about relocation are brought before the courts.

If a parent relocates the child without their co-parent’s consent, the parent left behind can apply for Recovery Orders and demand the child be returned to accommodation closer to their own or be transferred into their custody. Again, this sounds dramatic and scary, but it is only necessary in extreme cases and very few families have to endure this sort of trauma.

 

A prenuptial agreement is a binding financial agreement between two individuals that records their assets, liabilities and financial resources prior to marriage. The agreement states how these assets will be divided between the two parties in the event of a divorce.

Suggesting a prenup can be an awkward conversation with your partner, but creating a prenuptial agreement ensures the assets and resources you have worked hard for are protected if you divorce, and ensures your future self and those dependent on you are provided for and protected.

For a prenup to be legally enforceable, certain strict criteria must be met. These include:

  • The agreement must be signed by both parties in the presence of a suitable witness, usually the parties’ legal representative;
  • Both parties must have independent legal advice prior to entering into the agreement. Parties cannot share a lawyer or get advice from the same lawyer under any circumstance;
  • Those providing independent legal advice must sign a declaration that they have done so;
  • The parties must have entered into the agreement without duress, coercion or undue influence;
  • The agreement should detail a complete disclosure of both parties’ financial positions; and
  • The agreement must be fair for both parties.

If any of these circumstances exist, the prenuptial agreement can be challenged in the Family Court and rendered unenforceable.

You can only challenge or change your prenuptial agreement if you prove one of the following:

  • The prenuptial agreement was signed under fraudulent circumstances;
  • The prenuptial agreement isn’t practical or convenient to fulfil; or
  • One party was unfair or unethical when creating the prenuptial agreement.

It is important to sign your prenup well ahead of your wedding ceremony. This will reduce the chance of the court finding one party to have entered the agreement under duress, coercion or undue influence. Signing the agreement as far away from your wedding ceremony as possible is best (recommended no less than 60 days before the ceremony). By signing early, both parties also have more time to consider the details of the prenup before getting married.

If you are considering whether or not to create a prenuptial agreement, No Lawyers’ Family Law Resources can give you the confidence to make decisions that are right for you.

 

No relationship is without rough patches. Life has its ups and downs and as our relationships are part of life, they are subject to the same fluctuations.
It would be completely unrealistic to expect a marriage to continue on through the decades free of conflicts and disagreements; but what if it feels as if the conflicts and disagreements are taking over? What if thoughts of separation and divorce arise? What if those thoughts are spoke aloud and linger in the air like an impending storm?

No one ends a marriage lightly – divorces are way too much work to be undertaken on a whim – but once you have started wondering whether divorce might be the best option, it can be hard to stop these thoughts from spiraling. When you’re in the middle of a rocky patch in your relationship, it can be hard to tell whether this is a momentary upset in the dynamic or a fundamental relationship break-down.

If you feel like your marriage might be in trouble, it is important to take a step back and deliberately assess the situation. It’s equally important to bear in mind that there is nothing wrong with getting a divorce; it doesn’t constitute failure and it doesn’t need to get ugly. On the other hand, it’s good to remember that not every crisis will inevitably lead to divorce.

Deciding the fate of your marriage is not an easy task; however, considering the following questions and answering them honestly, might help you make the decision that is right for you.

Is this an abusive relationship? Do you feel safe with your spouse?
If your spouse is physically, mentally, emotionally or even financially abusive towards you or your children, leaving is your best option. Unless the abusive spouse is willing to undergo extensive therapy – while you are living separately – your relationship is unlikely to improve.
The same goes for alcohol and/or substance abuse.  If your spouse misuses alcohol or another addictive substance, the relationship is bound to suffer and it is in your best interest to get out. Again, if your spouse recognizes their destructive behaviour, seeks professional help and proves to you that they are committed to recovery, bridges might be mended in the future. Until such time, however, you must prioritise your safety and sanity above all else.

What is your motivation to stay married?
If you are unhappy in your marriage, yet unable or unwilling to call it quits, it’s time to get real about your reasons to stay. If you are motivated by

  • guilt – What will my spouse do without me?
  • fear – I’ll never make it on my own
  • a sense of duty to others – We’ll stay together for the children
  • shame – I can’t divorce – I’m not one of those people

it might be time to re-evaluate.

Do you still enjoy each other’s company?
Does the thought of spending time with your spouse still appeal to you, or would you rather be anywhere else with anyone else? If you feel every moment spent with your spouse is an effort or you can’t be yourself around them, divorce could be the smartest option (for both of you).
However, if there are still flashes of brilliance in amid the drudgery of every-day living together – because, let’s admit it, family life, working life, mortgage life…it can be dull sometimes – perhaps it’s worth the effort to try and reconnect.

Do you share major lifegoals?
You know when celebrities divorce and their PA’s put out notices citing “irreconcilable differences” as the reason? This is the sort of thing they are talking about. If you and your spouse have fundamentally different ideas of how you wish your lives to turn out and are unwilling to negotiate your terms, it could be best for you to stop being married. Some classic examples are

  • One spouse wants children, the other absolutely does not
  • One spouse wants to get a mortgage and buy a house, the other is categorically opposed
  • One spouse wants an open relationship, the other considers non-monogamy a deal breaker

What else is happening right now?
When your marriage is getting rocky, it can be useful to take a look at what else is happening in your or your spouse’s life at this time. Is there

  • Unusual financial stress – i.e. temporary unemployment
  • Excessive stress at work – i.e. a massive project coming to a close and deadlines looming large
  • Emotional stress outside the marriage – i.e. deaths in the family, health issue

Higher than normal stress levels often translate into more inter-marital conflict. You and/or your spouse might have shorter fuses and less patience than usual, due to something completely unrelated to the quality of your marriage, and your relationship might regain its equilibrium once this storm has passed.
Note: this question is not about making excuses for unacceptable behaviour; if your spouse is acting abusively or aggressively, leave as soon as you can.

Ending a relationship is a difficult time in anyone’s life, whether you are married or in a de facto relationship.

A de facto relationship involves two people (including same-sex) who aren’t married but have lived together as a couple for at least two years without separation.

In order to be in a de facto relationship, there must be evidence of a ‘genuine domestic relationship’. Some factors that indicate this exists are the degree of financial dependency, whether a sexual relationship exists, the degree of commitment to sharing your lives, ownership of your property and caring for children if any exist.

Once these factors are determined, the court can make orders regarding the division of property and assets.

De facto couples are granted many of the same legal rights as married couples. Under the Family Law Act 1975, de facto couples are entitled to make prenuptial agreements about their property. De facto couples are also able to apply to the court for property settlement, however the application must be made within two years of the date of separation.

You also have the right to apply for spousal maintenance from your de facto partner if you feel you cannot adequately support yourself. The outcome will also depend on your partner’s ability to provide financial support, your age and your ability to work.

If you are ending a de facto relationship, it is always beneficial to seek legal aid, particularly if children and joint property or assets are involved.

To end a de facto relationship, you do not have to un-register your relationship or receive a separation certificate, there must simply be an intention to separate communicated to the other party. Similar to married couples, this can then be actioned by one party moving out, or remaining separated under the same roof.

It is not uncommon for arguments or disagreements to arise during the separation process. If you and your partner are struggling to come to terms with your de facto separation, it can be helpful to seek legal assistance.

No Lawyers’ Family Legal Resources aim to guide you through the process of ending your de facto relationship and provide tips on how to transition to the next chapter of your life.

Going to court can be an overwhelming experience, especially if it is your first time. All cases are different and your options will depend on the specific circumstances of your case.

There are a variety of disputes that can arise in the Family Court, such as parenting orders, property settlement, child support or spousal maintenance.

Often, couples can resolve these disputes by not going to court and instead seeking out other methods such as mediation, where couples discuss their issues with a third party.

However, some couples will be unable to reach a mutual agreement without consulting the court.

Many individuals wonder if taking their case to court will result in justice. Unfortunately, court cases do not always end up with an outcome that satisfies both parties. Taking your case to court will result in a decision being made or a dispute being resolved, which does not always appear to have delivered justice.

You are able to represent yourself in a Queensland court, however you may wish to contact a lawyer to discuss the more complex legal matters that you may find difficult to navigate without legal training or experience. If you choose to represent yourself, you must have knowledge about the law and the court process.

Some individuals choose to represent themselves rather than seeking legal advice if they cannot afford the fees, do not qualify for a grant of legal aid, do not want to engage a lawyer, or believe they can handle the process on their own.

The cost of legal representation will depend on your individual situation. For example, for some cases, only one court appearance is required, however for other matters, more than one court appearance is required, rendering the process more expensive. However, engaging a lawyer and allowing a professional to take control of your case can often remove a lot of stress involved in the court process.

There are both advantages and disadvantages of going to court. Advantages include finding closure with the court’s decisions, having legally enforceable orders that can result in consequences if breached, utilising the powers and methods of the court, reaching a final outcome, and the urgency that can be brought to your case if needed.

Disadvantages include the possibility for court cases to be delayed or extended, the cost of legal fees, the risk of the situation becoming emotionally draining, and the possibility of parties not agreeing with or being content with final orders made in court.

The decision you make should be based on your individual circumstance and whether or not you and your partner can come to mutual decisions without the court’s help.

One Lawyers’ Family Law Resources can help you consider what is the best decision for you to achieve the outcome to suit your situation and specific needs.

Separation can be a stressful and emotional experience, particularly depending on the living circumstances of each person after the break up.

After separating from your partner, you may decide to move out and live somewhere else, or you may choose to remain separated under one roof. This article will help you understand how your situation might be affected by living with your partner once you have separated.

Being separated under one roof means you and your partner are still living at the same residential address despite no longer being in a relationship.

In 2019, almost 39,000 people were registered with Centrelink as being separated under one roof in Australia, so it’s likely more common than you think.

There are various reasons a couple may wish to do this, for example, if they are waiting to finalise their divorce or financial settlement.

Couples may also wish to save money by remaining in the one house, or live together for the sake of the children.

Whatever the reason you have for being separated under one roof; it is important to seek legal advice so you are well informed on the legal implications this living arrangement may incur.

The legal date of the separation is important if you are going through a divorce, and being separated under one roof may make it difficult to determine the specific date.

In order for a divorce to be granted, a couple must have remained separated for twelve months and one day.

The separation date is also important for de facto couples who have two years from the date of separation to apply for a division of property.

If you have been separated under one roof, you must prove to the court that you have made your partner aware of your intent to remain separated.

You should move out of the bedroom you previously shared, alert your friends and family to your changed circumstances, and undertake certain activities on your own.

It is also important to keep track of any relevant documents or changes you have made to convince the court of your separation.

The court will consider all of these elements, such as changing your finances, holiday arrangements or social activities to determine if you really have remained separated despite living under one roof.

This is known as establishing a ‘consortium vitae’ and is essential to begin the division of assets and liabilities and to finalise the divorce.

If you have just gone through a separation and are feeling stressed or anxious about living under the same roof as your partner, the legal firms listing in the No Lawyers Support Services can help. They can explain the implications of the law to your individual situation and provide expert advice so you can feel confident in your decisions and actions moving forward.

 

 

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