Judge Salvatore Vasta of the Federal Circuit Court sentenced a man to a maximum of 12 months in jail for contempt of court.

The man was involved in a property dispute with his former wife. They were both self-represented.

The couple, known by the pseudonyms Mr and Ms Stradford, have two children, aged five and nine.

Judge Vasta alleged that Mr Stradford had not presented his full financial records to the court on time.

The judge imprisoned Mr Stradford on 6 December last year.

Mr Stradford was held on suicide watch in a maximum-security prison for six days.

Ms Stradford had told the court several times that she did not want her former husband imprisoned, especially since they have young children.

“This will affect the children for the rest of their lives,” she told the court.

Mr Stradford was released after six days to await the outcome of an appeal to the Full Court of the Family Court. He sought orders for his sentence to be overturned.

His appeal was heard by Justices Peter Murphy, Michael Kent and Steven Strickland.

The three judges were highly critical of Judge Vasta’s decision to imprison the man.

They said that Judge Vasta had no legal power to make the order for imprisonment and that to leave them in place would be “an affront to justice.”

The order had no “factual foundation” and was a “gross miscarriage of justice.”

Even if it did, and if it were a proven case of contempt of court, jail time as a penalty would still be a last resort.

Justices Murphy, Kent and Strickland believed that Judge Vasta’s decision constituted a denial of procedural fairness and a miscarriage of justice.

The Full Court of the Family Court overturned the decision to imprison Mr Stradford.

This controversy comes in the middle of the even greater debate about the future of the Family Court.

In a merger announced in May 2018, the Family Court and the Federal Circuit Court will be combined to form one single court.

The Federal Circuit Court’s jurisdiction currently includes family law, administrative law, copyright, migration, privacy and other areas.

This extensive change aims to streamline the court process for people in family law disputes, as cases in the Family Court can suffer serious delays. Because family law can be dealt with in the two courts, many families have found themselves being shunted between court systems.

However, for some law professionals, the merger is not a solution.

Judge Vasta’s decision and Mr Stradford’s appeal typify the problems that a combined Family Court and Federal Circuit Court may cause, according to the Law Council of Australia.

A lack of a specialised Family Court could result in more problematic decisions like Judge Vasta’s order to imprison Mr Stradford.

The Australian Law Reform Commission is carrying out a review of the current Family Court and Federal Circuit Court system. The review will be released in March.

The post “Miscarriage Of Justice” in Federal Circuit Court appeared first on Justice Family Lawyers.

The family law court system is often known for being exceptionally slow, in extreme cases taking up to two years to process an application and resolve a family dispute.

To make things go as smoothly as possible for yourself and your family, it is important to have your information ready, complete and file your documents on time, attend your hearings and behave in a timely manner.

But there is a legal term to answer the question of how to speed up family law cases.

It is called expedition.

Expedition: How To Speed Up Family Law Cases

To expedite a case is to hurry it along, giving it priority over other concurrent cases so that it can be heard and resolved faster.

Expedited cases are often allowed by the court in circumstances where the current court orders are causing harm, especially to a child.

Not every case can be expedited.

The applicant who wishes their case to be heard sooner must file an application in a case that sets out their grounds for expedition.

There are no criteria for reasoning that an applicant must address in any family law legislation.

The laws about how to speed up family law cases are related to the court’s decision process and are found in the Family Law Rules 2004.

Family Law Rules 2004 – Rule 12.10A

When determining whether an order for expedition will be made in the applicant’s favour, the court may consider the following:

• Whether the applicant has acted reasonably and without delay in the conduct of the case
• Whether the application has been made without delay
• Any prejudice to the respondent
• Whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases

The Rules then specify what constitutes “relevant circumstances”:

• Whether the age, physical or mental health, or other circumstance (such as moving interstate or overseas) affecting a party or witness would affect their availability or competence
• Whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of the case
• Whether the applicant is suffering financial hardship
• Whether the continuation of interim orders is causing the applicant or a child hardship
• Whether the purpose of the case will be lost if not heard quickly
• Whether the case involves allegations of child sexual abuse or other abuse
• Whether an expedited trial would avoid serious emotional or psychological trauma to a party or a child who is the subject of or affected by the case

These are all important in considering how to speed up family law cases.

Sandwell & Sandwell 2018

Sandwell & Sandwell 2018 is a recent case study on how to speed up family law cases.

In December 2018, the Family Court at Sydney heard this application for expedition.

The mother and father, Mr and Ms Sandwell had separated in October 2017 and had two young children, born in 2016 and 2017.

They were up to their fifth set of interim orders in 11 months.

The father sought to expedite his appeal against the most recent interim orders. These orders had substantially changed the parenting arrangements.

The mother opposed expedition.

An independent children’s lawyer appointed to the case supported the appeal for expedition.

Since their parents’ separation, the older child had been living with the father and spending time with the mother, while the younger child had been living with the mother and spending time with the father.

Under the new interim orders, both children were living with the mother and spending supervised time with the father.

This was a significant change for the older child, who was now living with a different primary carer.

These orders also restricted the time the children could spend with their paternal grandparents and their father’s new partner.

The father maintained that the current interim orders were having a negative impact on the older child.

The judge considered the expedition legislation in the Family Law Rules 2004.

The judge believed that the applicant had acted reasonably and in a timely manner and that the application had been made without delay.

The point regarding whether the case should be given priority over other cases – and possibly to the detriment of other cases – was carefully considered.

The judge found the relevant circumstances most applicable were the hardship caused by the interim orders to the older child and avoiding psychological and emotional trauma to the child by expediting the appeal.

The applicant father emphasised that the children were very young, that their welfare was affected by the current order and that the older child had experienced a significant change in primary care.

The judge determined that this ultimately tipped the balance in favour of expedition.

The judge ordered that the hearing of the father’s appeal be expedited, solving the problem of how to speed up family law cases for the applicant.

The post How To Speed Up Family Law Cases appeared first on Justice Family Lawyers.

The primary carer is the person with whom the child spends the most time. Most often, this is a parent.

The primary carer may have sole parental responsibility and the child may spend little to no time with their other parent, however, a primary carer can also share custody and have equal shared parental responsibility with the other parent.

Parent responsibility refers to the authority and decision-making responsibility a parent has over their child.

Changing the child’s primary carer can result in a big upheaval – for both the child and the parent.

Often, for the sake of the child, the court will not choose to change a child’s daily life so drastically. However, this is only if maintaining the status quo is in the child’s best interests.

The Best Interests Of The Child

The best interests of the child are the court’s most important consideration in parenting disputes.

Sometimes, changing the child’s primary carer is necessary to uphold the child’s best interests and keep them as safe and secure as possible.

The main considerations in determining a child’s best interests are:

• The benefit to the child of having a meaningful relationship with both of their parents
• The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

This is found in Section 60CC of the Family Law Act 1975.

Of these two main considerations, the second one is accorded greater importance than the first.

Therefore, although changing the child’s primary carer means changing the relationship they will have with one or both of their parents, it is always done to protect the child from physical and psychological harm.

Although having a meaningful relationship with both parents is ideal, the court works first and foremost to keep children safe.

There are additional factors taken into consideration when determining the child’s best interests and deciding whether changing the child’s primary carer is the best option. These include:

• The child’s own views
• The nature of the relationship between the child and each parent
• The likely effect of any changes to the child’s circumstances
• The capacity of each parent to provide for the child’s physical, emotional and intellectual needs
• The child’s right to enjoy Aboriginal or Torres Strait Islander culture if the child is of Aboriginal or Torres Strait Islander descent
• The extent to which each parent has fulfilled, or failed to fulfil their obligations to maintain the child
• Any other fact or circumstance that the court thinks is relevant

The consideration of the child’s views is dependent upon their age, maturity and level of understanding of the events.

The court may appoint an independent children’s lawyer to represent the best interests of the child in court. The independent children’s lawyer (ICL) may offer recommendations, however, the court is not obliged to follow these.

When Is Changing The Child’s Primary Carer A Good Idea?

Ryder & Donaldson 2018

A case heard in the Family Court in Brisbane last month was an appeal against changing the primary carer of a five-year-old child.

In 2017, the trial judge had determined that the child should now live with the father after the mother had custody since the parents’ separation in 2014.

The mother’s appeal against this decision was dismissed as the appellate judge found that changing the child’s primary carer was in his best interests.

Details Of The Case

The mother, Ms Ryder, and the father, Mr Donaldson, were in a relationship for a short period of time before separating in August 2014. Their son was then just over one year old.

Ms Ryder and Mr Donaldson agreed that the mother would be the primary carer, but the mother soon began refusing to let the father see their child.

From October 2014 to June 2015, the father did not see the child at all.

After this period, orders were made by consent to allow Mr Donaldson to spend time with his son, while Ms Ryder remained the primary carer.

However, Ms Ryder did not comply with these consent orders.

The mother alleged that the father had sexually abused the child and that he was at continued risk of sexual abuse in the father’s presence.

In 2016, the mother made audio recordings of the child and kept notes. She said that the child displayed excessive fear, panic and trauma behaviours at night time.

The trial judge did not find that the child had been sexually abused by the father, nor was she satisfied that the child was at risk of being abused.

The judge cited insufficient evidence.

If the child stayed in the care of the mother, the judge said, he will grow up believing that he had been molested by his father and will have no relationship with the father at all.

In this initial hearing, the independent children’s lawyer argued against changing the child’s primary carer.

The family report writer stated that changing the child’s primary carer would at first be traumatic for him, but that he would recover without permanent risk to his emotional and psychological development.

The trial judge made orders for the child to live with the father, who would also have sole parental responsibility.

The mother’s time with the child began as supervised time for six months, before unsupervised time which will eventually extend to regular weekends, Wednesday afternoons and half of each school holidays, beginning this year.

The mother appealed against these orders, however, the judge in December 2018 dismissed this appeal.

The change in primary carer was considered to be in the child’s best interests as it allowed him to benefit from a relationship with both parents while protecting him from harm.

The primary judge found the risk to the child’s relationship with his father to be too great, should he stay in the mother’s care, and the appellate judge upheld this decision.

The post Changing The Child’s Primary Carer appeared first on Justice Family Lawyers.

Marriages end at different times and in different places, and each short marriage has its own specific circumstances and individual aspects to take into consideration.

However, there are some similarities that property settlement proceedings for short marriages have in common.

How Short Is A Short Marriage?

In terms of family law, a short marriage is one that has lasted less than five years.

Whether a marriage is viewed as a short one in court can also depend on how long the couple lived together before getting married.

The length of a marriage can and does often have an effect on the way a property settlement is carried out.

What Happens In A Property Settlement?

A property settlement or financial settlement is a type of financial order made under family law that divides a couple’s assets and liabilities.

A divisible pool of assets comprises the assets to be shared between the parties.

Property settlements are determined on the basis that the decided property split is just and equitable for both parties.

This does not always mean 50 per cent for one and 50 per cent for the other.

Property settlements are adjusted depending on the contributions each party has made to the marriage.

These contributions can be financial, such as income earning for the family, or non-financial, such as caring for children or maintaining the family home.

Financial and non-financial contributions are generally regarded as equally valuable.

Adjustments are also made depending on the future needs of each party.

The court has the authority to decide how much weight is placed on these considerations.

How Does This Apply To A Short Marriage Property Settlement?

The length of a marriage affects the way the court assesses the contributions of each party to the relationship.

The principle that non-financial domestic contributions are roughly equal to financial contributions may not apply to short marriages.

A closer examination of the financial contributions of both parties is more likely in a short marriage property settlement, especially if the couple has no children.

The court will also concentrate on initial contributions to the marriage. These are the assets, such as considerable savings, an inheritance or a property, that each party brought to the relationship at the very beginning.

Initial contributions tend to be quite significant in short marriages because they still have a substantial effect. On the other hand, initial contributions may not be particularly relevant when conducting a financial settlement at the end of a long marriage.

As such, for short marriage property settlements, the court may decide to exclude a party’s initial contributions from the property pool.

If one party’s initial contributions are included in the pool of assets, adjustments may be made in favour of the other party.

The court may place an equal value on non-financial and financial contributions if the domestic duties were particularly difficult.

If there are children and one party is now their primary carer, adjustments may be made in this party’s favour.

The parties may have conducted their financial affairs separately, and this also has an effect on the way the property settlement is determined.

Asset-By-Asset vs Global Approach

There are two ways to establish the divisible pool of assets.

An asset-by-asset approach means different pools are created for different types of assets. The contributions to each pool and the way each pool is divided are then determined separately.

A global approach, on the other hand, looks at the property as a whole and places it in one pool only.

The court decides on which approach to take according to how just and equitable it would be for both parties.

Hemiro & Ramos & Ors (2018)

A short marriage property settlement was recently heard in Melbourne.

It was between Mr Hemiro and Ms Ramos, who married in 2010 and separated in 2016. As they did not cohabit before getting married, theirs counts as a short marriage.

Ms Ramos owned a house known as Property A, which Mr Hemiro wanted to be sold. He sought orders to use the resulting proceeds to pay mortgages and credit card bills, dividing the rest of the money 70-30 in favour of Ms Ramos.

Ms Ramos wanted to keep Property A and wanted Mr Hemiro solely responsible for his credit card and business loans.

The husband and wife had kept their financial affairs largely separate.

The court took an asset-by-asset approach to this short marriage property settlement, creating different pools for assets, liabilities and superannuation.

Ms Ramos was ordered to pay a cash adjustment of $48,275 to her ex-husband. She kept Property A, while Mr Hemiro kept the assets of his business.

The post What Is A Short Marriage Property Settlement? appeared first on Justice Family Lawyers.

Earlier this week, three women from Taree, Newcastle and Townsville were charged with conspiring to defeat justice.

Two men from Grafton, one from Townsville and a woman from Perth were charged with the same offence last month.

This comes after a two-year investigation by the Australian Federal Police into a parental child abduction syndicate that has allegedly been operating across the country for the past 10 years.

The group assisted women who wanted to abduct and hide their own children in contravention of orders from the Family Court.

The Child Abduction Ring

The nationwide syndicate allegedly operated on a word-of-mouth basis among “like-minded” people.

The AFP had been investigating the cases of 10 missing children, now all recovered safely. Five of the children had reportedly gone missing as part of the child abduction ring.

The police allege that the group mainly supported and financed women who wanted to hide their children in breach of court orders, providing accommodation, transport and resources.

The children were moved around the country and sometimes overseas, as the group reportedly has international links.

The police examined a yacht worth $140,000 and moored at Fremantle.

The yacht was allegedly used by the group to transport the abducted children to Tasmania, before they were then moved to New Zealand and South Africa.

In order to help the mothers abduct their own children and evade law enforcement, the children often had their hair dyed, their names changed and the records of their dates of birth altered.

According to police allegations, the child abduction group did not go by any name and its members communicated via encrypted phone applications.

It is alleged that some of the people involved were unaware that they were participating in criminal activity, providing food, transport and accommodation to the mothers and their children without knowing they were involved in child abduction.

What Are The Charges?

Seven people from different cities around the country have been charged in relation to the parental child abduction syndicate.

Dr William Pridgeon, a GP from Grafton, is allegedly the main organiser of the group.

He has been charged with conspiring to defeat justice and with dealing in the proceeds of crime worth $100,000 or more.

Another man from Grafton, Patrick O’Dea, was allegedly the co-organiser.

He reportedly made claims on social media that the fathers of the abducted children were abusive. The AFP has stated that these allegations are unsubstantiated.

Dr Pridgeon and Mr O’Dea were refused bail at Grafton Local Court. They faced the Brisbane Magistrate’s Court in October.

A man from Townsville and a woman from Perth were also charged in October.

Along with Dr Pridgeon and Mr O’Dea, they were charged for allegedly assisting two different women to abduct their own children.

The three children involved were located by the AFP and are safe.

At the beginning of November, three more people were charged with conspiring to defeat justice.

A 46-year-old Townsville woman, a 68-year-old Newcastle woman and a 75-year-old woman from Taree were all charged for allegedly helping the same two mothers abduct the three children.

The women from Newcastle and Townsville are each charged with one count of child stealing.

Like the four people charged in October, these three women allegedly provided support, accommodation and transport to the two women who violated family law court orders by abducting their children.

They will appear in court in December this year.

The police have also searched four premises in New South Wales, Victoria and Queensland.

The post Investigating A Nationwide Child Abduction Ring appeared first on Justice Family Lawyers.

This is a tough issue for many couples as they face making decisions about the division of property and custody of their children.

Many people have strong attachments to their pets and do not view the family dog as part of the furniture – more like part of the family. The law, however, sees the situation a little differently.

In Australian family law, pets come under property. Determining who gets pet custody is nowhere near the same as determining custody of children, which is viewed as one of the most important issues in divorce proceedings.

Some former couples choose to share their pet on, for example, a two weeks on, two weeks off basis. Others might find that one partner solely looking after the pet works best.

Pet custody can be decided in a verbal agreement between the two former spouses, although there are a few more formal options available.

Binding Financial Agreement

Although a person might not think about their dear old dog or cat as a piece of property, pets can be the subject of binding financial agreements.

Binding financial agreements set out the way a couple wants their assets to be divided in the event of a relationship breakdown.

This means such agreements can include arrangements for pet custody and provisions for the family pet, like how vet bills are paid and what happens when one person goes on holiday.

Consent Orders

A consent order is a way to make agreements official after a divorce or de facto break-up.

It is a court order, but rather than going to court and having a judge determine the fairest and most equitable option, a consent order is made when the parties have worked out a solution between themselves.

If two people can decide on arrangements for pet custody, they can then apply for consent orders to formalise it.

However, it is important to check your eligibility before applying for consent orders. De facto couples must apply within two years of the breakdown of their relationship and married couples must apply within one year of their divorce being finalised.

Pet Custody Worldwide

Two American states have recently amended their family law legislation to take into consideration the welfare of animals when determining who the pet stays with and whether the pet is shared.

This gives beloved family pets a higher status than just household furniture.

According to surveys, 85 per cent of American pet owners view their pet as part of the family.

In January 2017, Alaska was the first state to take this into consideration. Rather than including pets in the distribution of property and assets, courts now take the animals’ welfare into greater consideration.

California has followed, with their new law set to start in January 2019.

Although these laws still recognise pets as being on a different level from children, issues like pet safety and wellbeing are now recognised as important.

Giving the courts greater authority hopefully stops pets from becoming a pawn in the dispute between two ex-spouses.

The Alaskan and Californian courts will consider points such as:

• Who mainly looks after the pet
• Who takes them to the vet
• Who usually gives the pet food and water
• Whether the pet is more attached to one owner
• Who can best provide them with safe and comfortable shelter

Pet custody, visitation and financial support can be determined by the court in these two American states. We’ll wait and see if Australia might follow.

The post Pet Custody: How Does It Work? appeared first on Justice Family Lawyers.

Should divorce be illegal? There are two countries in the world where it is illegal to get a divorce.

In the Philippines and the Vatican City, people are prohibited from filing for divorce.

This group of countries used to include Malta, until the Mediterranean island legalised divorce by referendum in 2011.

For several years, people in the Philippines have been asking the question, ‘Should divorce be illegal?’

Divorce has been against the law since 1949, when the Civil Code was enacted.

Before 1949, divorce was legal at different times during the United States’ and the Japanese occupations of the southeast Asian archipelago.

A survey conducted back in 2011 revealed that 50 per cent of the population was in favour of legalising divorce.

At least 90 per cent of the Filipino population identifies as Catholic, similar to the Catholic city-state of the Vatican.

Should Divorce Be Illegal?

The strongest arguments for making divorce legal are based on the high rates of domestic violence.

One in four married Filipino women has been assaulted by their husband, and spousal abuse is the most common type of violence experienced by women aged 15 to 49.

In March this year, a bill to legalise divorce was passed in the Lower House of Congress. This bill would give the court the power to end marriages deemed “irremediably broken” and allow divorcees to remarry members of the opposite sex.

However, the bill is not yet law.

There is one legal process in the Philippines that allows people to end their marriages, but it usually takes a long time and is very expensive. It is inaccessible to many people.

It is called an annulment, which is a civil procedure that declares a marriage as never validly existing in the first place.

Marriages can be annulled by proving the “psychological incapacity” of either spouse. That phrase can be interpreted in a variety of ways.

In Australia, divorce was essentially illegal up until the 1860s. In 1857, the British parliament passed the English Divorce Act, which made divorce legal. This meant that similar legislation could then be passed in the colonies.

After federation in 1901, Australia had control over its own marriage and divorce laws.

The Family Law Act 1975 established no-fault divorce. This meant that spouses did not have to prove grounds for divorce when they filed their application, only that the marriage had irretrievably broken down.

One year later, in 1976, there was a record number of divorces.

By making divorce legal and widely accessible in the Philippines, a similar phenomenon might happen there.

The post Should Divorce Be Illegal? appeared first on Justice Family Lawyers.

The study by UK website Divorce Online found that, since the beginning of the year, 200 people have listed the online video game as a reason when filing for divorce.

The game is extremely popular among teenagers and adults – to the detriment of several marriages.

Fortnite was first released in 2017 and is distributed in two game modes, one in a shooter-survival format and the other a battle royale game.

This year, Fortnite has been nominated for ten awards, of which it has won three.

However, the evidence shows that when it comes to relationships, online video games can sometimes do more harm than good.

Divorce Online conducted this study by looking at the 4,665 divorce applications they have managed in the United Kingdom since January 2018.

The 200 divorces affected by Fortnite equates to about 5 per cent of that total.

These numbers may fluctuate as different games win and lose popularity and as Divorce Online handles more couples filing divorce until the end of the year, but the statistics do indicate a wider pattern.

The issue with Fortnite and similar games in marriages is addiction. It is widely known as an incredibly addictive game.

Addictions of all types have caused and continue to cause a variety of problems, not least for the person affected, but also between partners in a relationship.

In June this year, the World Health Organisation (WHO) classified “gaming disorder” as a mental health condition.

For gaming disorder to be diagnosed, the person must be so intent on gaming that video games take priority over other interests and usual daily activities for at least 12 months.

The WHO describes gaming disorder as a condition resulting in “significant impairment in personal, family, social, educational, occupational or other important areas of functioning.”

For the people who take their eyes away from the screen to find that their marriage is failing, this may be a serious wake-up call.

The post Fortnite Behind 5% Of Divorces appeared first on Justice Family Lawyers.

Getting married used to be the usual thing, done without question, but today far more couples are together in de facto relationships.

“De facto” is a Latin term meaning “of fact” and although it can be used to refer to many other things, it mostly describes a relationship.

It distinguishes unmarried relationships from married ones in terms of legal status: in the way a de facto couple behaves – shared finances, emotional support, long-term commitment, living together, having children – they are essentially the same as any married couple.

The only difference is the lack of a marriage certificate, which creates a “de jure,” or legally recognised, union.

In the day to day life of a couple, the presence or absence of an official marriage certificate does not make a huge difference.

When it comes to separation, however, matters can become a little more complicated.

What Is The Definition Of A De Facto Relationship?

Before explaining de facto rights, we need to look at the definition of a de facto relationship in Australian family law.

The legal meaning of a de facto relationship is one in which two adults are:

• Neither married to each other nor related by family and
• Living together as a couple on a genuine domestic basis

A person can be in a de facto relationship with a partner of the same sex.

It is possible to be in a de facto relationship if the couple is not living together full-time, as well as if one party is legally married to or in a registered relationship with somebody else.

Proving The Existence Of A De Facto Relationship

As the main distinguishing factor between a de facto relationship and a marriage is formal documentation, de facto rights can be a little bit different seeing as there is no written “proof” of the existence of a relationship between the two people.

In order to apply for orders in court, the separating de facto couple must agree that they were in fact in a de facto relationship.

If one party contests the existence of a de facto relationship, the other is then obliged to satisfy the court that there was a de facto relationship according to the family law definition.

This party can only claim entitlements such as property adjustments after the court has determined that the parties were a genuine de facto couple.

This is a major difference between married couples’ rights and de facto rights.

The court will look at many different factors in order to determine whether a de facto relationship existed.

These matters include:

• The duration of the relationship, including any previous periods of separation
• The nature of the couple’s shared household
• The degree of financial interdependence and any arrangements for financial support
• The existence of a sexual relationship
• The acquisition and ownership of property and assets
• The degree of commitment to a shared future together
• Whether the relationship was registered in a state or territory
• The care of any children of the relationship
• The reputation of the relationship (for example if they were considered by friends and family to be a committed couple)

These factors are also known as the threshold criteria as it is necessary to establish the existence of a de facto relationship before further agreements or court orders can be made.

It is usually not necessary to establish all of these matters individually.

Registered De Facto Relationships

De facto rights include a couple’s ability to register their relationship with the Registry of Births, Deaths and Marriages in their state or territory.

This is not the same as marriage, but it does provide recognition of the relationship and can be used as part of the evidence of a de facto relationship in court in the event of separation.

In New South Wales, a couple can register their relationship as long as one of them is an NSW resident.

To be eligible to apply, both parties must be over the age of 18, not related by family, not in a registered relationship in another state or territory and not married to or in a relationship with someone else.

Both parties must then make statutory declarations stating that they wish to register their relationship, signed by an authorised witness.

There is a fee to both apply for and to revoke a registered relationship with the NSW Registry of Births, Deaths and Marriages.

One or both parties can apply to end the registration, but if only one party applies, they must show proof that they have served notice to the other party.

Revoking a registered relationship is not the same as a married couple getting a divorce or a de facto couple applying for any sort of orders in court.

It is an administrative rather than a legal procedure.

De Facto Rights: Property Settlement

Since March 2009, de facto rights regarding property settlements and financial orders have been the same as married couples’ rights.

Separating de facto couples go through the same process as divorcing couples: both can seek entitlements and both can apply in court.

There are four gateway criteria before applications can be made in court.

The couple must satisfy the court that at least one of the four following points applies to them:

• They were in a de facto relationship for at least two years
• The de facto relationship was registered in a state of territory
• There is a child of the de facto relationship
• In the assessment of property and assets, significant contributions were made on the part of one party and it would, therefore, be a serious injustice to them if an order were not issued

Upon the establishment of at least one of these criteria, the couple must satisfy the court that:

• They were in a genuine de facto relationship and this relationship has broken down and
• They have a geographical connection to the jurisdiction (e.g. New South Wales)

After this, de facto rights in property settlements mirror the rights of couples who were married.

The separating de facto couple will go through the same procedure as any divorcing couple.

Mediation will be required before the case can proceed to court.

Here, the couple may be able to work out a solution by agreement between them.

If the property case goes to court, the court will look carefully at the assets and contributions of each person to determine their entitlements and come to a fair result.

This involves considering in detail:

• The parties’ assets before the relationship (although the relevance of this will depend on the length of the de facto relationship)
• The total value of the divisible pool of assets, including property, shares, superannuation, cars and jewellery
• The contributions made by each party to the relationship, both financial (such as salary, gifts or inheritances) and non-financial (such as caring for children and running the household)
• The future needs of each party depending on their age, health, financial resources, income earning capacity and whether they will become the main parent any children will live with

The court then adjusts the property settlement to achieve an equitable result for both people involved.

Child Support And Spousal Maintenance

A divorcee can claim child support and spousal maintenance from their former spouse.

The same applies to de facto rights.

In settling finances, de facto couples can apply for child support and spousal maintenance depending on their requirements, and the court will determine the outcome in the same way as for a divorced couple.

Binding Financial Agreements

Like a married couple making a prenuptial agreement, a de facto couple can make a binding financial agreement as part of de facto rights.

This agreement would then serve the same purpose as a prenuptial agreement in the event of a relationship breakdown.

The binding financial agreement would specify the division of assets and liabilities, including superannuation and the provision of spousal maintenance, if the de facto couple were to separate.

De Facto Rights: Parenting Orders

As in the case of married couples who have children together, de facto couples must make formal agreements about the parenting arrangements for their children.

The children are considered as dependents of both parties, regardless of the sex or gender of the people in the de facto relationship.

Therefore, both parties must take part in determining parenting matters.

The agreements on parenting can be made either outside of or in court.

Participating in family dispute resolution is required before going to court for parenting orders.

The parties will need to work out:

• Who the children will live with and where
• Who they will spend time with and how this will be arranged
• Who they will communicate with
• Who will have parental responsibility for them, meaning who can make major long-term decisions about the children’s upbringing and life

If the parties agree, they can apply for consent orders in court to make this parenting agreement official.

If they do not agree, the court will determine parenting matters by working to promote the best interests of the children.

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Inheritance and divorce do not always work particularly well together and can cause much conflict.

There are many aspects to consider, and the result of every situation is determined on a case by case basis.

You may have received an inheritance from one or both of your parents or another family member, and you feel therefore that in the property settlement, the entirety of the inheritance should be returned to you.

Your ex-spouse may view this differently, thinking instead that the inheritance is an asset that benefited your whole family or both of you as a couple.

They may feel that excluding the inheritance from the divisible pool of assets will not give them their fair entitlements in the property settlement.

A key difficulty of property settlements and inheritance is that there is no clear-cut way to decide how the asset pool is managed and who gets what.

It is almost impossible to predict the resolution of your unique situation, but there are some relevant points that will give you an idea.

Consent Orders

Firstly, the easiest and by far the most stress-free way is for two former spouses to make a concerted effort to come to an agreement themselves about the property settlements and inheritance.

This will most likely involve negotiation and compromise in a family dispute resolution process, and, if the parties can agree, this is a better way to divide the assets.

If you can come to an amicable agreement, the parties can apply to the family court for consent orders to make this agreement official.

After trying to negotiate, if the parties are unable to come to a consensus about the division of assets, the case will go to the family court.

The court will then decide what will and will not be included in the divisible pool of assets, each spouse’s entitlements in the property settlement and whether any adjustments need to be made in one party’s favour.

How Does The Court Manage Inheritance and Divorce?

It is then up to the court what will happen to the inheritance.

A variety of factors are considered to determine whether the inheritance should be kept among the assets to be divided between the two parties or whether the person who received it in the first place keeps it in their sole possession.

Who Received The Inheritance?

This is an important question in property settlements and inheritance.

In the vast majority of cases, only one party in a couple is the recipient of the inheritance.

It is possible that the testator bequeathing the inheritance specified in their will that it was to be given to both spouses as a couple.

Therefore, in a case such as this, the inheritance is a shared asset and a contribution that both parties have made to the relationship.

It will be included in the divisible pool of assets, but only if the wishes of the testator are very clear.

When Was The Inheritance Received?

Inheritances are treated differently in property settlements depending on when they were received in the course of the marriage or de facto relationship.

Inheritances received either very early in the relationship, before the relationship began or before the couple began living together are more likely to be treated as an initial contribution to the marriage on the part of the beneficiary of the inheritance.

Particularly for long relationships, an inheritance contributed at the very beginning can have little no impact on the beneficiary party’s entitlements in the property settlement.

Other contributions the party has made may decrease the impact of the inheritance.

All of this means that when considering property settlements and inheritance, the earlier the inheritance was received, the more likely it is to be included in the pool of assets to be shared between the two parties in the event of divorce.

If the inheritance was received during the relationship, it is highly likely that it was used for the benefit of both spouses, for example for holidays, buying or renovating a home or other bills and household expenses.

Therefore, in this case, the inheritance would generally be treated as a monetary contribution to the couple’s shared assets.

If it is clear that the inheritance was not used for the benefit of the couple together, the court may take a different approach.

Some people may become beneficiaries of an inheritance quite late in their relationship with their spouse, or even after separation and before the divorce proceedings.

Here, it is harder to say how the court will treat the inheritance.

However, because the opportunity to use the inheritance as a contribution to the relationship is diminished, the court is more likely to exclude the inheritance from the pool of assets divided between both parties.

As always, with property settlements and inheritance, the use of the inheritance – for example for the mutual benefit of the beneficiary and their spouse – affects the way it will be considered as a contribution and an asset.

Value Of The Inheritance

The problem of including or dividing an inheritance in a divorce can change depending on the inheritance’s value.

For some couples working out a property settlement, the inheritance one of them received is a very significant asset compared to the rest of the assets compiled in the divisible pool to be shared according to their entitlements.

This means that if the beneficiary were to retain the inheritance entirely for themselves, their ex-spouse would not receive a just and equitable result from the division of property as their contributions and entitlements would be not sufficiently recognised.

Therefore, when the divisible asset pool is substantially smaller than the inheritance, the latter may well be included to ensure a fair outcome for both people.

Relationship With The Testator

Determining the inclusion or exclusion of the inheritance in the property pool may be complicated by exceptional circumstances, such as the relationship between the parties and the testator.

Though the testator may leave an inheritance to one spouse in the relationship, the other spouse may also have had an important relationship with them.

The testator may have lived with or been cared for by both parties, especially if they were a parent.

Notwithstanding the intentions of the testator as recorded in their will, this may have an effect on the court’s consideration of the inheritance in the divorce proceedings

Case Studies

Granger & Granger (2018)
In the case of Granger & Granger heard in Armidale in January this year, Mr and Ms Granger were in court to divide the property of their 40-year marriage.

Each party had inherited money from one of their parents: Mr Granger inherited $176,750 in 2005 and Ms Granger inherited $700,000 in 2011.

Ms Granger’s substantial inheritance came just 18 months before the marriage ended in early 2013.

Ms Granger wanted her inheritance excluded from the divisible marital assets, however, the court found that this would not provide adequate recognition of Mr Granger’s contributions to the marriage.

He had lost the majority of his inheritance in a failed investment, and his inheritance was treated as part of the divisible asset pool.

Ms Granger’s inheritance was also a significant proportion of the $1.5 million asset pool.

In the interest of not undervaluing the husband’s contributions, the court chose to include Ms Granger’s inheritance in the pool of assets shared between the parties.

The court determined their entitlements as 60 per cent to Ms Granger and 40 per cent to Mr Granger.

 
Figgins & Figgins (2002)
In this unique case of inheritance and divorce from 2002, the wife appealed against property orders from the previous year that had awarded her $1,100,000 but refused her spousal maintenance.

The couple were in a relationship from 1987.

They married in 1994, separated in 1997 and divorced in December 2000. They had one child together, at the time aged six.

Prior to and at the very beginning of their marriage, they earned relatively similar, modest incomes and made equal contributions to the relationship.

Just over two weeks after their wedding, the husband’s father and step-mother died in a helicopter accident.

The husband and his sister inherited estates worth $28,000,000.

At the time of divorce, this inheritance represented almost all of the couple’s marital assets.

In the appeal, it was found that the trial judge was mistaken in her treatment of the inheritance and that the wife’s contributions were undervalued.

The appellate judge stressed that if it were not for the considerable inheritance, the husband and wife would have made relatively equal contributions.

The wife was the primary carer of the couple’s child, both during and after the marriage.

The judge allowed the appeal in part, ordering the husband to pay the wife $2,300,000, however, the wife was again refused spousal maintenance.

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