Category: Your 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.

 

Protection orders (also known as domestic violence orders) aim to prevent future incidents of domestic or family violence. They also aim to hold those responsible for domestic violence accountable.

Protection orders limit the behaviour of the individual responsible for the domestic violence (the respondent). There are two types of domestic violence orders: protection orders and temporary protection orders.

Protection orders are produced by a magistrate in court to protect individuals in domestic or family violence situations. Protection orders usually last for five years, however they can be extended or reduced based on the time period the court deems appropriate.

Temporary protection orders are made if you are in urgent, immediate danger. These orders only last for only a short time and protect those experiencing violence until their next hearing where the magistrate will decide on a full protection order.

In order to obtain a protection order, you must make an application to the court. This application can be made by:

  • The individual who wishes to be protected (the aggrieved);
  • A police officer;
  • A solicitor;
  • An individual authorised by aggrieved to make the application on their behalf; or
  • The aggrieved guardian or attorney under enduring power of attorney.

Protection orders protect individuals who have been in these types of relationships:

  • Intimate personal relationships (such as married, de facto, registered relationship, engaged, or a couple);
  • Family relationships (parent of a child, your relative); and
  • Informal care relationships (when one individual is dependent on another individual to undertake daily activities such as dressing and cooking).

Any individual named in the protection order (such as the respondent or the aggrieved) can apply to change the order. These elements of the order can be changed:

  • The conditions of the order;
  • The individuals named in the order; and
  • The length of the order (so it ends sooner or gets extended).

When considering whether or not to change an order, the court will consider:

  • The wishes of the individual applying to change the order;
  • Whether or not any individual named in the order was pressured;
  • The safety, wellbeing and protection of any individual named in the order; and
  • That the change to the order would not adversely affect any individual named in the order.

Breaching a protection order is an offence in Queensland. It carries a maximum penalty of three years imprisonment or a fine of almost $15,000.

If the respondent has already been convicted for breaching a protection order in the previous five years, the penalty increases to five years imprisonment and a fine of almost $30,000.

If you are considering applying for a protection order, No Lawyers’ Family Law Resources can supply the information you need to be confident that your decision will be legally sound.

Family violence issues can commonly arise in family law matters, in particular cases that go through the Family Court.

People generally understand that family violence can impact parenting matters, but are often unsure of the impact it can have on property settlement. This article will help you understand the ways in which family violence can affect your property settlement.

Court proceedings that involve family violence related to property matters are often more complex than those involving parenting issues. This is because family violence can have considerable impact on parenting matters to safeguard the interests of children and other parties, however rarely are property entitlements adjusted due to arguments relating to family violence.

When dealing with matters where family violence has an impact on property settlements, the court looks to the precedent of Kennon and Kennon (1997). In this case, the wife claimed her husband had physically assaulted her throughout their relationship which entitled her to a larger amount of their assets. Therefore, the court will consider evidence of family violence when allocating assets, likely working in favour of the impacted party.

As a result of Kennon and Kennon (1997), three elements emerged that the court will consider when assessing a case:

  1. A violent course of conduct occurred during the marriage or relationship;
  2. Proof exists of an impact on the individual’s ability to make contributions to the marriage or relationship; and
  3. The argument and the resulting effect of the argument on entitlements will only apply in ‘exceptional circumstances’ to a ‘narrow band of cases’.

While Kennon and Kennon (1997) shone light on the issue of family violence in property cases, it did not adequately outline what would be considered proof of an impact on an individual’s ability to make contributions to the marriage or relationship, or what would be considered a violent course of conduct.

If you are struggling with family violence, No Lawyers’ Family Law Resources can help you make well informed decisions moving forward.

  1. Be Settlement Aware
    As the name suggests, Property Settlement is all about settling, rather than getting your way. If you would like to make it through this process without a lengthy and costly involvement of the Court, you have to be prepared to make some concessions in order to arrive at an outcome.
  2. Establish the Property Pool
    In order to work out a fair and equitable division of property after a divorce or separation, you must establish a detailed property pool – which includes all valuable assets (including property, vehicles, , superannuation, art, bonds and savings) owned at the time of settlement. The No Lawyers platform will assist you in adding all of your assets, debts and superannuation accounts.
  3. Consider Your Contributions
    During the course of a relationship both parties contribute to their joint wealth and these contributions are taken into consideration during property settlement. There are financial contributions (i.e. income or pre-existent assets) and non-financial contributions (i.e. renovations increasing property values or parenting contributions allowing the other party to work/earn more).
  4. Estimate Your Future Needs
    Post-divorce/separation each party is likely to have different needs. Depending on parenting agreements, professional status, age, health and financial situation, the Court will decide who gets what based on their specific needs. As a rule, it will be a matter of equity over equality in order to ensure a reasonably comfortable situation for both parties.
  5. Get Court Approval
    Once both parties have worked out what they consider to be a fair division of property, you must submit all the data you’ve gathered to the Court with your Consent Order Application, which is easily created using No Lawyers. The Court will assess it in terms of justice, equity and compliance with Family Law, before returning it to you as a Sealed Consent Order, which is a legally binding document.


And don’t forget these deadlines

Matrimonial Property Settlements must be submitted within 12 months of the Divorce Order.

De Facto Property Settlements must be submitted within two years of the date of formal separation. 

 

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.

We’re often asked “Is it legal to record phone conversations and can they be used as evidence in Court?”.

With technology advancing at a rapid pace, the ways we interact are always evolving.

As some separations take an emotional toll on those involved, many individuals may want to record conversations with the other party on the phone without asking for their consent in order to collect evidence that may support their case if presented before a court.

This article will help you understand if recording phone conversations is legal and if it can be used as evidence in court.

Regulations regarding the recording of phone conversations vary across states. According to The Surveillance Devices Act 2007 (NSW) it is illegal to record a private conversation on the phone without obtaining the consent of the other individual, unless it is reasonably necessary to protect the interests of the individual who recorded the conversation.

If an individual wishes to use a recorded conversation as evidence in court, the court must decide if the recording has been obtained legally by considering if the individual who made the recording sought the consent of the other party, or if the conversation was recorded without consent, if this was done by the individual to protect their lawful interests.

Section 69ZT(2) of the Family Law Act states that if the court does decide to admit the recording into evidence, the court may determine the weight applied to the evidence ‘as it thinks fit’. This is due to the fact that some elements of the Evidence Act (1995) do not apply to matters concerning children.

There have been several cases where the court found it acceptable to enter a recorded phone call into evidence as it provided information crucial to determining the best interest of a child involved, which outweighed the undesirability of accepting such a recording as evidence. The decisions of the court will ultimately depend on the individual circumstances of your case.

If you’re struggling with a separation and you need legal assistance, No Lawyers’ Family Law resources can help you travel down the right path towards moving on with your life.

 

Separation and divorce will introduce you to a whole new world of rules and regulations – there are laws dealing with the separation of property and assets, and stringent guidelines to follow when working out custody agreements.

While this can be overwhelming at first, it is also genuinely helpful – because in a stressful and emotional time like this, it can be quite comforting to know that at the very least there are rules to follow and forms to fill in to make sure the settlement is as fair as possible.

In regards to possessions and shared children, the law is reasonably straightforward; but what about shared pets? How do you determine who gets to keep the dog, the cat, the snakes…any pet acquired during the relationship?

If you can, work it out privately.

Even though you might love your pet as you would love a child, all pets are classified as property when it comes to the law.

Regular family pets – cats, dogs, guinea pigs etc – are not considered valuable assets and the courts will generally frown up any disputes concerning such pets. There are exceptions, of course. If an animal has a genuine monetary value, like a race horse or a pedigree dog sought after by breeders, the courts will take this into consideration and include such an animal in the property settlement. The same goes for animals that generate a substantial income, such as cattle.

As a general rule, the courts encourage separating partners to work out care arrangements for their pets without getting lawyers involved; so it might be worth having a sit down (or at the very least a civil phone conversation) and try to find a solution.

If you can’t – here are your options:

If you absolutely cannot agree on who will keep the dog – and are unwilling or unable to share doggy custody – you can get the courts involved. Remember, this is not a matter of custody, it’s a matter of property settlement.

If you apply for a property settlement, you are going to have to participate in Family Dispute Resolution (FDR); it’s basically mediation that will hopefully lead to the matter being settled out of court.

However, if there is simply no working it out, the matter will go to family court as part of your property settlement, where some of these points may be considered:

  • Who paid for the pet?
  • Is the pet registered in one party’s name?
  • Was one party the main caregiver of the pet?
  • Who has the accommodation best suited for the pet?

If your pet becomes part of the property settlement process, it is up to the court what happens next – that means the court can theoretically order the pet to be sold so you can split the proceeds, the same way it might with a house or a car.

If you have shared human children, the court might decide that the pet should stay with the children, meaning that it will travel with them between the parents’ houses depending on custody arrangement; or alternatively order the dog to stay with the parent who sees the children less to decrease their stress and solitude.

Keep in mind, once the court has signed orders, it is very hard to appeal the decision, so it’s often in everyone’s best interests to settle pet matters privately.

 

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