Archive for the ‘News – Family Law’ Category

The Family Court and de facto relationships

Over the last decade an increasing number of Australians are living in de facto relationships, while marriage rates have fallen.  Reflecting this societal change, the law was changed in 2009 (2002 in Western Australia) so that the same law now applies to separating de facto couples as applies to separating married couples.  That is, any financial dispute arising from the breakdown of a de facto relationship is decided by the Family Court and the Family Law Act (the Family Court Act in WA), rather than State law and the States’ Courts.

 

What is a de facto relationship?

The basic test is whether the parties, of the same or opposite sex, lived together as a couple on a genuine domestic basis.  In applying that test, the Court will consider factors including:

  • the length of the relationship
  • how and for how long they lived together
  • any sexual relationship
  • the financial arrangements, particularly whether the parties intermingled their finances or if one person financially supported the other
  • any joint purchase of property
  • whether there were children of the relationship and how they were cared for
  • the public reputation of the relationship and the degree of the parties’ commitment to a shared life
  • any registration of the relationship.

If a party wishes to apply to the Court for property settlement following a de facto relationship breakdown, one or more of the following criteria must also be met:

  • the parties lived together for a total of at least two years
  • there were children of the relationship
  • the applicant made substantial contributions to the other party’s property.

A de facto relationship can exist even if one or both parties were, at that time, in a relationship or living with or married to someone else.  Indeed, a mistress may satisfy the definition of having been in a de facto relationship with her married partner.

 

Registering a de facto relationship

Just as the State governments maintain a register of births, deaths and marriages, they also maintain a register of de facto relationships.  While it is compulsory to register a birth, death or marriage, de facto relationship registration is voluntary.  The registration regimes differ from one State to another, however they are similar.  Registration requires both partners to complete an application form, provide identification documents, sign a Statutory Declaration stating that they are in a relationship with the other person and pay the relevant fee.

Registration should limit or avoid disputes as to whether there was a de facto relationship should that relationship end.

If the relationship does break down, there is a relatively straightforward process by which to revoke registration of the relationship.

 

De facto property settlement

The laws that now determine a property settlement between a separating de facto couple are the same laws as apply to a separating married couple.

In general terms, if the Court determines that there should be a property division between the parties, the first step is to work out what is in the pool of net assets to be divided.  That pool includes all the assets and liabilities in each person’s name and in the parties’ joint names, as well as each person’s share of an asset owned jointly with another person.

Next, the Court must consider what contributions each partner made and consider their respective future needs, in order to work out the percentages of the net assets they will each receive.  Contributions include financial contributions – i.e. who earnt what, who brought what lump sums into the relationship, who bought and paid for what – and non-financial contributions – such as being a homemaker and parent, physically renovating a home or landscaping a garden, managing the parties’ financial affairs, etc.  Future needs are things like income, earning capacity, financial resources, ongoing care of children, age, health, etc.

 

De facto spouse maintenance

Following the breakdown of a de facto relationship, as is the case following the end of a marriage, one party may be entitled to “spouse” maintenance from the other party, although usually only for a limited period of time.  Such maintenance will only be ordered if:

  • the applicant cannot support her or himself because of childcare responsibilities or if she or he cannot work due to health, age or other incapacity, and
  • the other party has the capacity to pay such maintenance once he or she has met his or her financial obligations to any children and his or her own reasonable living expenses.

 

Conclusion

De facto relationships are an increasingly common part of modern life in Australia.

There are a range of factors of which the Court must be satisfied to find that someone was in a de facto relationship, although it is possible to register your de facto relationship to reduce any uncertainty.  When such relationships end, the same law regarding property settlement and spouse maintenance applies as applies to separating married couples.  Arrangements for children are also decided in the same way, regardless of whether their parents were married, in a de facto relationship or not even living together.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6372 3388 or email richard@richardwisesolicitor.com.au.

Immunisation and Family Law

 

Some Australian parents have recently begun to question whether to immunise their children, expressing concerns about possible side-effects risks associated with childhood vaccinations.  But what happens if parents are separated and can’t agree?

 

Background

Childhood vaccines, introduced in 1932, are said to have greatly reduced illness and deaths from diseases such as whooping cough, polio, measles and mumps.  However, in recent years immunisation rates have fallen amid some parents’ fears about the safety of vaccines, whether vaccines have been adequately tested and concerns about vaccines’ links to conditions such as autism, sudden infant death syndrome and multiple sclerosis.

 

Approximately 92% of Australian 5 year olds are fully immunised; however, in some areas the figure is lower than that.  Some diseases, whooping cough for example, previously thought to be “extinct”, seem to again be on the rise.

 

The Australian government maintains a register of the vaccinations received by children under 7 years of age.  Parental eligibility for some family payments is now linked to children’s immunisation status, and in some circumstances unimmunised children may not remain at school or daycare if there is an outbreak of a particular disease.  Exemptions can be obtained if there are approved medical reasons why the child is not immunised.

 

Who gets to decide?

It is hoped that parents would agree on whether or not to vaccinate their children, perhaps after discussing any concerns with their family doctor.  But what if they can’t agree?  Who gets to decide?

 

Equal parental responsibility

In the absence of a Court order, both parents, whether separated or not, have equal parental responsibility for their children.  In addition, except in unusual situations, the Court normally orders that both separated parents have equal shared parental responsibility.

 


 

What is equal shared parental responsibility?

Equal shared parental responsibility means that the parents both have the right to consult with each other, hopefully agree on and then implement decisions about their children’s long-term care, welfare and development.  Those long-term issues include decisions such as a child’s name and religion, schooling and major health decisions.  Major health decisions are things like an operation, treating a broken bone, commencing certain medication such as Ritalin, or arranging for a child to see a psychologist.  Whether or not to vaccinate a child probably also constitutes a major health decision.

 

In other words, where parents have equal shared parental responsibility, they share the right to be consulted about and hopefully agree on whether or not to vaccinate their children.  Neither parent has the right to make that decision without consulting with and obtaining the other parent’s consent.

 

What if we cant agree?

For some parents, the immunisation debate can become emotionally charged, as they may approach the decision from different lifestyle, wellness and health care philosophies.  One parent may also be concerned not to lose government benefits if the children are not fully vaccinated.

 

In such circumstances, no matter how much the parents consult with one another, they may never be able to reach agreement.  In addition, the immunisation debate is quite “black and white” – it would not be easy to reach a compromise or middle ground. The parent who opposes vaccination is not likely to agree for the children to receive half their vaccinations, for example; just as the other parent would probably equally strongly believe that the children should get all, not half, their necessary jabs.

 

Can we go to Court?

If parents cannot agree about how to exercise their equal shared parental responsibility, they may have to ask the Court to decide for them.  Before going to Court, they must first try to resolve their issue through mediation with a family dispute resolution practitioner.

 

If the parents still can’t agree, going to Court and asking a Judge to decide may be the only option.  The Court generally prefers not to make these sorts of decisions for parents, but if the parents really cannot reach an agreement, then a Judge would ultimately impose his or her decision about whether or not the children should be vaccinated.

 

Summary

Although childhood vaccines against a range of diseases have been in use for many decades, in some parts of Australia today there is strenuous debate about the need for and safety of immunisation programs.  This debate could be a source of conflict for separated parents.

 

In most situations, parents have equal shared parental responsibility, meaning that parents share the right to consult with one another and hopefully agree on issues relating to their children’s long-term welfare, which would include decisions about vaccinating their children.  However, if they cannot agree, the Court can be asked to decide for them.

 

To find out more about your rights regarding the immunisation of your children, call us on 02 6372 3388 or email richard@richardwisesolicitor.com.au.

Can you be separated and live under the same roof?

Before a person can apply for a divorce they have to be able to establish to the Family Court that their marriage has irretrievably broken down. This can be established if the Court is satisfied that the parties to the marriage have separated and have lived separately and apart for a continuous period of not less than twelve months prior to the filing of the Divorce application.

The twelve month period commences from the date of communication of an intention to separate.

Separated but living under the one roof explained

Being separated and living under the one roof is when a husband and wife separate but continue to live in the same home. It may be for any length of time – a few days, weeks, months or years following separation.

If the husband and wife lived in the same home during part or all of the required 12 months separation period, they need to provide additional details to the Court before they can apply for a divorce.

Two practical examples of how it works:

  1. The parties have been separated for 18 months. They have lived in the same home for the first 8 months after separation. They need to provide additional details about living under the one roof for two of the last months to the Court.
  2. Husband and wife have been separated for 4 years. They lived in the same home for 2.5 years after separation but for the past 1.5 years have lived in different homes. Here they do not need to provide extra information to the Court

Additional proof required

The additional details are provided through an affidavit (which is a document sworn or affirmed by the party). The affidavit needs to establish evidence before the Court that there has been a change in the marriage, gradual or sudden, showing that the parties have separated. If the parties are making a joint application each must file a separate Affidavit.

If the Application for Divorce, relying on separation under one roof, is made by one party alone then there must be an additional Affidavit from someone else corroborating the evidence – and this could be a relative, close friend, or family member over the age of 18 years.

The Affidavit should contain the details that show the ending of the marital relationship and this usually includes the following:

  • Not sleeping in the same bed
  • Separation of financial affairs such as separate bank accounts
  • Separating household tasks
  • Reduction in or cessation of shared activities
  • Not representing that you are still in a relationship, such as no longer socialising together
  • Communicating to family and friends that you have separated
  • Notifying Government Departments that you have separated if you receive Centrelink benefits or Child Support and attach any correspondence showing this

It is easier to prove separation under one roof if you can show there were good reasons why they had to continue or resume sharing the same accommodation (such as for the sake of the children or one party could not find or afford separate accommodation) and that husband and wife intend to live apart in the near future.

Household services still being done can be explained

The Court understands that sometimes following a separation, husband and wife may still have to share the same accommodation and one party may still perform some household services for the other, such as washing or ironing, for example, where it is necessary for the running of the home and the convenience of others who live there. This does not adversely affect the application.

Attendance at Court

If there are children under 18 years (whether relying on separation under one roof or not), the Applicant and/or their legal representative must also attend Court for the Divorce hearing. However, the party seeking to rely on separation under one roof and/or their lawyer must attend court.

In cases where there is a joint application and both parties are relying on separation under one roof and there is Affidavit material from both, then there is no need to attend.

In all other cases the Applicant and/or their legal representative need not attend so long as the Court has sufficient detail about the circumstances of your separation in your Application and Affidavit.

Conclusion

If you know someone who may need family law assistance, particularly if they are thinking of divorcing and continue to live under the one roof they should seek legal help from a lawyer experienced in family law. As you can see more details need to be placed before the Court to explain the circumstances.

For any help call us on 02 6372 3388 or email richard@richardwisesolicitor.com.au.