Family law in Australia is governed by the Family Law Act 1975, which applies to all states or territories in the country except for Western Australia. Family law in Australia encompasses the legal principles and regulations that govern family relationships, particularly in contexts such as divorce, child custody, property settlements, and parenting arrangements.
Understanding family law is essential for anyone, especially for those facing separation, as it clarifies rights and responsibilities and ensures the well-being of all parties involved, particularly children. From divorce and child custody to property settlement and spousal support, family law covers the critical aspects that arise when relationships change. These issues are addressed through legal processes such as mediation, negotiation, and litigation, with the aim of resolving disputes.
In this blog, you will gain an understanding of every aspect of family law, offering clarity, support, and actionable insights to help you navigate your legal journey with confidence.
Key Areas of Family Law
Divorce
In Australia, divorce operates under a no-fault system, where the only ground for divorce is the unrecoverable dissolution of the marriage, typically evidenced by a 12-month separation period.
This also means you don’t need to prove someone did wrong; being separated for at least one year is enough. Contrary to common misconceptions, couples don’t necessarily need to live separately during this period; they can still be considered separated while residing under the same roof.
The process begins with either one or both parties filing an application with the Federal Circuit and Family Court of Australia. The application process involves submitting affidavits and necessary documentation.
- In a sole divorce application, the applicant must submit proof of separation along with an affidavit.
- In a joint application, both parties need to file affidavits, but no third-party affidavit is required.
One spouse filing for divorce alone must serve the other spouse with the divorce papers at least 28 days prior to the court date (or 42 days if the spouse is out of the country), allowing them to respond and attend a court hearing if necessary.
The application can be submitted online or in hard copy, accompanied by necessary documentation and a fee. If children are involved, proper arrangements must be made for them before the divorce can be granted. After the divorce is approved, there is generally a waiting time of one month and one day before getting married again.
Children and Parenting
When parents split up in Australia, the Australian family law prioritises the well-being of children under 18. This means both parents ideally stay involved in their children’s lives as long as it benefits the child (known as the “best interests of the child“).
This law aims to ensure that children benefit from the meaningful involvement of both parents in their lives to the maximum extent consistent with their best interests. The best interest of the child principle guides courts and parents in the decision-making of:
Parental Responsibility
This refers to who will make long-term decisions for the child and how the child’s time will be shared between parents. Unless a court orders otherwise, both parents have equal shared parental responsibility for the child, even if they are no longer together. Parents remain responsible for the child’s care, well-being, and financial support.
Parenting Order
If parents can’t agree on arrangements for children after separation and require a legally enforceable arrangement, a parenting order is needed. A judge in a family law court will make the decision based on the best interests of the child. Here are key topics that can be covered by parenting order:
- Parental responsibility: Deciding how important decisions about the child will be made and whether joint or sole parental responsibility will be granted.
- Living arrangements: Determining when and with whom the child will live.
- Special occasions: Planning how the child will spend time with each parent during holidays, birthdays, etc.
- Changeovers: Establishing how the child will transition between parents’ care.
- Communication: Setting guidelines for how the child will communicate with both parents.
- Extended family: Addressing the child’s relationship with grandparents or other family members.
- Behaviour: Establishing expectations for parents’ conduct towards the child and each other.
- Travel: Outlining rules for interstate or international travel with the child.
- Medical care: Addressing health-related matters and decision-making.
- Education and activities: Determining school attendance, involvement, and participation in extracurricular activities.
Additionally, the law guarantees the child’s continued financial assistance. According to serviceaustralia.gov.au a child support assessment is conducted to determine how much child support should be paid.
In child support, you’ll either pay or receive payments based on your share of care and income. If you have less care but more income, you’ll likely pay support. Conversely, if you have more care and less income, you’ll probably receive support. Each parent’s income is equally considered in assessments, excluding income from non-parent carers.
Facing family law challenges? Reach out to QM Lawyers for personalised support and advocacy to safeguard your rights.
Financial and Property Issues
Separation, whether from marriage or a de facto relationship, brings complex financial issues. In divorce settlements, financial and property issues encompass the division of assets and debts accumulated during the marriage and the superannuation of spouses.
In Australia, property and financial outcomes after divorce or a spouse’s death are determined based on an equitable distribution principle, not a strict 50/50 split. Courts consider various factors to decide what is “just and equitable,” with outcomes typically favouring the economically weaker spouse, often resulting in a 55-65% division in their favour. This process can take up to 2-4 years, depending on the complexity of the case.
The Family Law Act outlines a four-step process for property settlement, focusing on:
- Asset assessment
- Contribution evaluation
- Consideration of future needs factors
- Ensuring a fair outcome
Spousal Support
Spousal support, also known as alimony, is an ongoing financial payment made by one spouse to the other after separation or divorce. It’s considered part of the financial obligations determined during the settlement process. Spousal maintenance allows a party to apply for financial support from the other based on demonstrated needs and the other party’s capacity to pay.
Couples can opt out of the court process by creating a Binding Financial Agreement that outlines property division and spousal support beforehand. However, for this agreement to be valid, both parties need independent legal advice.
Cohabitation and De facto Relationships
Since 2009, Australia has recognised both opposite or same-sex living together in a committed relationship as de facto couples, with some legal rights applying nationwide (except in Western Australia).
Normally, you need to live together for at least two years for family law to apply in a de facto separation. But there are exceptions:
- If you have a child together, even a short cohabitation period qualifies.
- You can officially register your de facto relationship, which eliminates the two-year wait.
- If you’ve made significant contributions to the relationship financially or otherwise, the two-year rule might not apply.
Can a defacto partner claim for property?
Under the Family Law Act, de facto partners, like married couples, have the right to seek fair property division and financial orders related to spousal maintenance, child support, and other financial matters. Applications regarding property and maintenance issues must be filed within two years of the relationship ending, while those related to children can be made at any time.
Certain conditions must be met to apply to the Court, such as the duration of the relationship, having a child together, making substantial contributions to the partner’s property or finances, or having the relationship registered under State or Territory law.
Same-Sex Marriage
In Australia, same-sex marriage was legally recognised in December 2017. Same-sex marriage falls under the jurisdiction of family law, and the law plays a crucial role in ensuring that same-sex couples receive fair and equal treatment in all aspects of their relationships and legal proceedings.
Additionally, family lawyers can advocate for the rights of same-sex couples in cases of discrimination or inequality, helping them navigate legal challenges and assert their rights within the family law system.
The recognition of same-sex marriage has had several significant impacts on family law processes in Australia. It ensures that all couples, regardless of their gender or sexual orientation, have equal rights and access to marriage. Separation, property division, and child custody arrangements for same-sex couples now follow the same procedures as for opposite-sex couples.
Family Violence
Family violence refers to violent, threatening, or controlling behaviour by a person towards a family member, causing fear or coercion. It includes various forms such as physical assault, sexual violence, emotional abuse, financial abuse, and preventing connections with family or culture.
Family violence can occur before, during, and after separation, affecting individuals’ ability to engage in legal proceedings and court events. The court prioritises safety for all individuals, especially children, and recognises the pervasive impact. The legal framework ensures protection for victims, influences parenting orders, and necessitates that the court considers the presence and effects of family violence when making determinations about family matters.
Family Dispute Resolution
In Australia, family law matters are primarily addressed through Family Dispute Resolution (FDR), especially when it comes to separation and divorce. It is included in the category of extrajudicial dispute resolution, along with negotiation and mediation.
The aim of FDR is to reach a fair and sustainable agreement that works for both parties, especially when children are involved. While not compulsory in all cases, FDR is usually a requirement before applying to the court for parenting orders. This family dispute resolution offers benefits like:
- Cost-effective compared to court proceedings.
- Quicker resolution than litigation.
- Less stressful and adversarial than court.
- More control over the outcome compared to a court decision.
What are the steps in family dispute resolution?
In FDR, a neutral and qualified Family Dispute Resolution Practitioner (FDRP) facilitates conversations between separated couples. The steps in FDR include:
- Pre-Mediation: Parties attend separate pre-mediation sessions with the FDRP to discuss their concerns and understand the process.
- Mediation Session: The FDRP facilitates the mediation session, during which both parties express their needs and desired outcomes on issues.
- Negotiation and Agreement: Parties work towards reaching agreements on the issues, guided by the FDRP’s assistance.
- Legal Review and Formalisation: If necessary, FDRP may review agreements and formalise them into legally binding documents.
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How Does Family Law Work in Australia?
In Australia, family law operates to address various aspects of family relationships and resolve issues that arise within them:
For Spouses
- When a marriage or de facto relationship ends, family law provides a framework for a smoother transition. It offers a legal path to end a marriage through no-fault divorce formally.
- The Family Law Act guides property disputes of separated families to ensure a fair sharing of assets and debts. It considers financial and non-financial contributions, future needs, and children’s welfare.
- Spousal maintenance provides financial help to spouses after divorce, considering their financial situation and ongoing needs.
For Children
Australian family law prioritises children’s best interests, encouraging parental agreements for custody and support. Courts intervene when necessary, issuing orders with the child’s welfare as top priority, alongside the child support system ensuring financial contributions from both parents.
For Victims
The court has the power to impose protection orders, such as restraining orders and injunctions, to keep victims and their children safe. Family law enables victims to seek support and take action to create a safer environment for themselves and their families by providing legal options for protection.
Superannuation Splitting
Under family law, retirement funds, or superannuation, are regarded as marital property. If legal actions were taken prior to the party’s death, the funds may be divided between the spouses, and orders for post-death spousal maintenance or property settlement can be issued.
How can a family lawyer help you with your legal matters?
Family law matters can be some of the most emotionally charged legal issues people face. A qualified family lawyer like “QM Lawyers” acts as more than just someone who knows the law; they become a trusted guide and advocate during a challenging time. Here’s how a family lawyer can assist you:
- A family lawyer with knowledge and experience will explain things clearly and help you understand your rights and responsibilities.
- A family lawyer will provide you with objective advice, taking into account your situation and emotions, to help you make informed decisions.
- A family lawyer will be your advocate, representing your interests during negotiations or in court. They will fight for your rights and make sure your voice is heard.
- Many family issues can be resolved through negotiation and settlement. A family lawyer can help you with these discussions, working towards fair agreements that protect your interests.
- A family lawyer will develop a plan tailored to your specific circumstances, considering both short-term and long-term implications, to help you achieve the best possible outcome.
Family Lawyers Fees and Hourly Rates
When it comes to fee structures for family lawyers, it’s important to note that there can be variations among different law firms and regions. While the traditional hourly billing method is common, there are other fee structures you may encounter.
- Hourly Rates: Under the hourly rate structure, family lawyers charge a set fee for each hour they work on your case. Rates vary based on the lawyer’s experience and expertise.
- Fixed Fees: Some family lawyers may offer fixed fees for specific services or stages of your case. For example, they might provide a set fee for initial consultations, drafting documents, or representing you in court for uncontested matters. Fixed fees provide clarity and allow you to budget more accurately.
It’s advisable to obtain quotes from multiple family lawyers to ensure transparency and make an informed decision. During consultations, discuss your case, the fee structure, and any potential additional costs.
Which Court deals with family law?
In Australia, family law matters are primarily dealt with by the Federal Circuit and Family Court of Australia, which was established by merging the Family Court of Australia and the Federal Circuit Court of Australia. This court has jurisdiction over a wide range of family law issues and is the only court with jurisdiction to handle purely family law-related matters, except in Western Australia.
What factors does the court consider when making decisions?
In family law cases, courts prioritise the best interests of the child, considering factors like their safety, stability, and emotional well-being. They may also take into account the child’s views, parental capacity, financial circumstances, and the contributions of each party to the family. These elements guide the court in making decisions that promote the child’s welfare while addressing the circumstances of the parents involved.
Conclusion
Understanding family law in Australia is not merely a matter of legal knowledge; it’s a vital tool for protecting your family’s well-being and securing your future. From the intricacies of divorce to the complexities of child custody arrangements, being informed empowers you to make decisions with clarity and confidence.
Remember, each family’s situation is unique, and seeking professional advice tailored to your circumstances is key. At QM Lawyers, our experienced family law lawyers understand the emotional and legal challenges of family issues. With expert advice, strong advocacy, and compassionate support throughout the entire process, we will ensure that your family’s best interests are always at the forefront. Contact us today and schedule a consultation.