Family Law and De Facto Relationships

1. Marriage breaking down?

Separation and Divorce

There is only one ground for a Divorce in Australian Law. That is that your relationship has broken down irretrievably. You must have been separated for at least 12 months and have no reasonable likelihood of reconciling.

In order to be separated, one or both of the spouses must:

  1. Form an intention to end the relationship;
  2. Communicate that intention to the other party; and
  3. Act on that intention.

In a recent case the Court considered this issue. The husband had moved out of their joint home more than 12 months before the Divorce application. However the couple had maintained a sexual relationship and a joint bank account; and had socialised together as a couple. The Court found they were not separated even though living in separate houses.

On the other hand, separation can occur while living under the same roof, as long as the spouses have ceased to live together as a couple. Where a couple separates and reconciles, and separates again, the date of their final separation will depend upon the length of each earlier separation.

Couples do not need to be divorced to start proceedings about their children or finances. But once divorced, time limits do apply.

2. De facto and personal relationships?

The Family Court has always dealt with children’s matters, whether the parents of the child are married or not. Since March 2009, the Family Court also has jurisdiction to deal with financial issues between separated defacto spouses.

Defacto Relationships are very different from marriages. Marriage can, currently, only be entered into by one man and one woman. Defacto relationships can be between same-sex couples, and a person can be in more than one at any one time. A person can also be married and in a defacto relationship with someone else.

What makes a relationship a defacto relationship is that there is some intention to share life as a couple; and

  • the couple have lived together as a couple, for 2 years, or for various periods totalling two years; or
  • the couple has a child; or
  • one party has made a significant financial contribution which would make it in-equitable not to recognise the relationship and deal with the property.

If there is any doubt or dispute, a Declaration can be sought as to the existence of such a relationship. This may be very important for a party who wants to bring property or spousal maintenance proceedings.

In QLD you can now register a relationship which will also provide later proof of its existence.

3. What about the children?

The Family Law Act replaced the terms "custody” and "access” initially with "residence” and "contact” and more recently with, "live with” and "spend time and/or communicate with”. This was done to focus on the concept that in most cases, both parents want to, and should, remain actively involved in the raising of their children, even when separated.

Children have the right to be loved and cared for by each of their parents, in a way which is in their best interests. Of course, many parents have different views about how to achieve this.

There is a presumption in the Family Law that it is in children’s best interests that parents share Parental Responsibility. This requires parents to consult, and to reach agreement about, decisions which affect a child’s long term welfare.

Like all presumptions, this one can be rebutted, and is, if there has been family violence or abuse. Even where it applies, the Court can decide it is not in a child’s best interests to make the Order.

Equal Shared Parental Responsibility however, does NOT mean that a child should spend equal time with each parent.

Property principles

Property is divided between separated couples according to the contributions each has made, and each of their future financial circumstances. Contributions can be financial and non-financial, direct and indirect, and also made to the welfare of the family. Each contribution is as important as another.

Contributions which are brought into a relationship can have significant impact. However the length of the relationship, and other factors occurring during the relationship, can affect this.

Lump sum payments, such as a gift or inheritance, will be seen as a contribution by the person receiving it. However, the value of such payment can be affected depending upon when, in the relationship, the lump sum was received.

Property is all of those assets which existed at the start, and have accumulated during the course of, a relationship, by one or both parties. It does not matter whose name the property is held in.

Superannuation is treated in the same way other assets are. Policies can be split or alternatively, might be offset by other assets of the relationship. Any major difference in earning capacity can have an important impact on the overall settlement, which, at the end of the day, must be just and equitable to both parties.

Your family law specialists

So if you are separated or thinking of separating from your married or de-facto spouse the only Accredited Family Law Specialist in Gladstone can provide advice in relation to:

  • What constitutes Separation
  • Divorce proceedings
  • Parenting arrangements for your children including such things as:
    • What time they should spend with each parent;
    • Long term decision making;
    • Relocation issues;
    • Adoption
  • Property settlement entitlements
  • Consent Orders
  • Binding Financial Agreements
  • Spousal maintenance
  • Child support
  • Family violence issues
  • Mediation