My divorce from my previous marriage isn’t finalised. Can I marry my new partner in the meantime?
Marriage laws in Australia require that if you’ve been married in the past, you must produce documents that show that you’re no longer married. This will be a divorce order issued by a Court, or if your previous spouse passed away, a death certificate.
In most cases, you can’t marry again until you’ve provided this evidence to the Australian Government. If you can’t locate these documents, contact us for a no obligation first interview and we will help you sort it out.
I was married overseas. Is my marriage valid in Australia?
Usually, foreign marriages will be valid in Australia if they satisfy two criteria:
- Proper celebration of the marriage according to the laws of the other country; and
- They must not offend Australian marriage laws, meaning that both parties must be of the legal age, they must have freely consented to the marriage, neither one is married to anyone else, and their relationship isn’t prohibited (for example, intending to marry a sibling or other close family member)
I married my same-sex spouse overseas before marriage equality laws came into effect. Is my marriage valid in Australia.
If you were married in accordance with the laws of another country, your marriage would probably be valid under Australian law. However, you will need to check that other legal documents are valid if you made them before the new marriage laws. For example, Wills, binding death nominations (for superannuation), insurance beneficiary nominations and other nominations.
You and your spouse should seek legal advice about this as soon as possible.
What happens if my marriage doesn’t meet Australian legal requirements?
Whether you were married in Australia or overseas, if your marriage doesn’t meet Australian legal requirements, annulment is possible. An annulment is a court order declaring the marriage invalid, and either party is free to marry again. But if you need orders about property or children, we can help you apply to a court for those orders.
Either party can ask a court to annul a marriage. The applicant must prove that the marriage offended Australian marriage laws, for example, they were forced into the marriage, they were too young to marry, the celebrant wasn’t properly registered, one of the parties was already married, or the couple was in a prohibited relationship.
If you are faced with the possibility of an annulment, you should seek legal advice from an experienced marriage annulment lawyer.
How long does a parenting order last?
Parenting orders remain until the child turns 18 years old, they are adopted, marry, or commence a de facto relationship. The orders don’t change unless a party applies to a court for a variation.
Can a parenting order be changed?
Courts are usually reluctant to vary orders unless both parents consent, so there must be an excellent reason. This may include changes, or proposed changes, to family circumstances which make the Orders unworkable or that place the child at risk of harm. But if one party isn’t complying with the orders, the other party can apply to the court for enforcement.
Parenting orders are a highly complex and sensitive area of family law. We appreciate the difficulties of the process and the need for sensitivity and understanding. We’re also experts in parenting orders. Contact us to find out more and to arrange your obligation free first interview.
Do I need permission to relocate with my children?
If you’re planning to relocate, try and discuss the issue with your former partner. You may be able to reach an agreement and then consent to vary any court orders.
Relocation is a significant change in the lives of your children, whether it’s across the city, to a regional area, interstate or abroad.
If there are parenting orders in place, you will need to seek permission from the other parent (or the court if they refuse) to relocate. If the relocation is likely to cause significant disruption to the amount or quality of time that the other parent can spend with the children, the court may not allow you to relocate.
Relocation is often a complicated issue. It’s best to seek legal advice to work out your options and how to approach it with your former partner.
How do I stop my former partner from taking my child overseas?
We can help you apply to a court for an order that prevents a passport being issued to your child, or that prevents your child from being taken out of the country.
If your former partner wants to take your children overseas, you may be reluctant to agree, especially if there’s a risk or suspicion that the children won’t return. Some jurisdictions may not enforce Australian court orders, which can also cause concern. If you’re worried about your children being taken overseas without your permission, you’ll need urgent legal advice. We can help you apply to a court for an order that prevents a passport being issued to your child, or that prevents your child from being taken out of the country.
How do I ensure that I can spend Christmas and school holidays with my children?
The summer school holidays are an important time of year for children, especially school children. The extended break is an opportunity to spend more quality time with parents, especially after separation or divorce. It’s no coincidence that the summer holidays can attract more conflict than any other time of year.’
If you have a parenting plan in place but no consent orders, it’s worth considering applying for orders to ensure you get adequate time with your children over the summer. The lead-up to Christmas is the busiest time of year for courts making these orders, so you’ll need to consult with us at least a few months in advance.
Does my child need an Independent Children’s Lawyer?
Most of the time, it’s not necessary to appoint an Independent Children’s Lawyer (ICL). However, a court will make an appointment in some situations.
These include:
- Where there may be abuse or neglect
- Where there is significant conflict between the parents
- Where older children have indicated how they want to divide their time between the parents
- Where there may have been family violence
- Any party can apply to a court to appoint an ICL. And even if the parties don’t apply, a court can appoint an ICL if it thinks the children (and the court) would benefit from an honest broker.
The primary role of the ICL is to ensure the child’s best interests are represented and taken into account. As part of our family law team, we have a highly experienced Independent Children’s Lawyer who can provide you with further information about the role of ICLs.
What are my de facto relationship entitlements?
Provided that you lived with your former partner for at least two years on a genuine domestic basis or otherwise qualify as a de facto relationship under the Family Law Act 1975, your entitlements to the property of the relationship will be worked out using a four-stage test established by the Court. We are experts in implementing this test to provide you advice on your entitlements which are assessed on a case-by-case basis. Contact us to find out more.
Will I get to keep my pet?
You may love your pet like one of your children, but family law treats pets as personal property. There are no custody or visitation rights.
They will form part of a property settlement, just like jewellery and other valuables. We can help you settle any pet issues with your former partner.
Will my inheritance form part of the property settlement?
If you inherit money or assets before separation, the law may consider this a financial contribution by you to the relationship.
If you inherit after separation, you may have a convincing argument that you should be able to keep the whole inheritance.
Inheritance laws will apply. How those laws will affect your situation will depend on whether you’re married or in a de facto relationship. If it’s likely that you or your former partner will inherit from a deceased estate, it’s worth getting legal advice to work out where you stand.
How long does it take?
Your family law mediation can be held within days of your first enquiry if that is convenient for all parties. Your family law mediation can be arranged for a half day, a full day, or several sessions, depending on the number and complexity of the issues in dispute.
Do I have to be in the same room as my partner?
If you are uncomfortable or feel unsafe we will ensure that you do not need to be in the same room as your partner. This can include by arranging “shuttle mediations” which allow you to resolve your dispute without coming into contact with your partner or electronic court hearings so you do not need to be present in person.
While there are some occasions where the Court may Order you to be present in person in the same Court room as your partner we will ensure safety plans are in place for you and that these occasions are minimal.
Are there any circumstances when a minimum time requirement for cohabitation won’t apply?
In some circumstances, a court may waive minimum time thresholds, including:
- The parties have a child or children together
- One party has made significant financial or non-financial contributions, and they would suffer a serious injustice if the time limit were not waived
We’ll help you work through these concerns regardless of how long you were living together.
What is a post-nuptial agreement?
Post-nuptial agreements are BFAs that a couple makes during marriage. They’re not as common as pre-nuptial agreements and are often used because the financial position of one or both parties has changed significantly since marrying.
They may also:
- Protect one partner from debts and other liabilities if the other partner is starting a business
- Ensure a share of the business for one partner
- Separate an inheritance or another financial windfall from the assets of the relationship
- Protect the interests of one partner if they have used separate property to buy the marital home.
Can a BFA be terminated?
If both parties agree and in specific circumstances, a BFA can be terminated. However, it must be done in writing through a Termination Agreement or a new BFA. We can help and guide your through this process.
The Family Court will terminate or set aside BFA consent orders only in limited circumstances. For example:
- If one party fails to disclose assets or business interests
- If the needs of a child of the relationship have changed significantly, causing hardship for one of the parties.
- If one party was forced to enter into the agreement
- If one or both parties didn’t receive independent legal advice before agreeing
- If there are no consent orders, contract law will apply. The parties can agree to terminate the BFA. Failing that, principles of fraud, duress, or mistake may apply.
If you believe there’s an issue with your BFA, you’ll need to speak to a family lawyer as soon as possible.
How can I update my BFA?
If your BFA needs to be updated, for example, if spousal maintenance is increased or decreased, a new BFA must be made after termination of the existing BFA.
Both parties must agree. The parties must receive independent legal advice before termination.
Is it always the man who pays Spousal Maintenance?
It doesn’t matter whether the person making the payments is male or female.
Spousal maintenance is designed to help with necessary living expenses. It’s for people who don’t or can’t meet these expenses without help from their former partner.
It will only be awarded to one party if the other party can afford to pay it, considering their child support obligations as well as any property settlement agreement.
Is it essential to be able to prove the date of separation?
If you and your former partner can’t agree on the date of separation, you’ll need proof. There may be documents that will assist with this, for example, utility accounts and bank accounts being changed to separate names, signing a lease for rental accommodation, or any witnesses to you or your partner moving out of the home.
Can the amount of Spousal Maintenance be changed if my circumstances change?
A spousal maintenance order can be changed if there is a change in your financial circumstances. Speak to us as soon as possible if you experience a significant life change; for example, you lose your job and are struggling to find new work, or if you’re diagnosed with a serious illness.
What happens if I start a new relationship?
A new relationship can impact a parties entitlement for property settlement and spousal maintenance. For instance, the Court may reassess maintenance payments if either party remarries or establishes a de facto relationship with another partner.
Often, this means that spousal maintenance payments will cease. In some rare circumstances, if your financial situation becomes worse when you re-partner or re-marry, the Court may order a continuation of spousal maintenance. We encourage you to always seek advice if you are planning to start a serious relationship but especially if you have not yet completed your financial settlement from a previous relationship.
When does spousal maintenance end?
A Family Court spousal maintenance order will usually cease payments in one of the following circumstances:
- When there’s an event (for example, the person receiving payments gets a regular income)
- By a certain date
- At the end of hearings in the Family Court for property settlement, financial agreement, child support or another issue
- When one party dies
- When one party remarries or starts a new de facto relationship
If you’re concerned about your payments coming to an end, or any aspect of your obligations to pay spousal maintenance, contact us for advice.
What happens if the other party doesn’t comply with our Court Orders?
If one party isn’t complying with the Orders, the other party can apply to the Court for enforcement. Whether that enforcement application will be successful and the penalty the Court may impose will depend on the type and severity of the breach and whether, for parenting orders, there was a reasonable excuse for a breach.
Enforcing Orders is a complex area of family law. We appreciate the difficulties of the process and the need for sensitivity and understanding. Contact us to find out more.