20 January 2025 - Goldman Law

20 January 2025in Family Law

Court Determines Validity of De Facto Cohabitation Agreement Where No Certificate of Independent Legal Advice Produced

The case of Franklin v Ennis [2015] FCCA 2099 (6 August 2015) was an application to the Federal Circuit Court of Australia for settlement of financial matters between an estranged de facto couple. The Respondent claimed that the couple had entered into a cohabitation agreement under state legislation in 1997. She claimed this estopped property settlement matters under the agreement from being heard by the Court.

The Court had to determine if the cohabitation agreement was valid. If the agreement was valid, the court then had to determine if it would preclude the Applicant from bringing de facto property settlement proceedings under Part VIIIAB of the Family Law Act 1975 (Cth) (the “Act”).

Background

At the time of the hearing, the male Applicant was aged 70 years of age. The female Respondent was aged 61 years of age. They had commenced their de facto relationship together in 1995. At this time the Applicant moved into the Respondent’s home and remained there for the duration of the relationship. The couple separated sometime between October and December 2013.

The Respondent claimed that in May 1997 the couple had entered into a cohabitation agreement under the Property (Relationships) Act 1984 (NSW). The effect of the terms in the agreement was that upon separation all property in each party’s name is retained by that party and all joint assets are divided equally between the parties.

While the Applicant submitted his signed cohabitation agreement to the Court the Respondent could not find her signed copy of the agreement.

De Facto Relationships and the Family Law Act 1975

Prior to 1 March 2009 de facto relationships involving disputes over property and financial matters were governed by state and territory legislation. By a referral of powers, most states and territories referred de facto powers to the Commonwealth Government (the only not referring state is now Western Australia). The Commonwealth Government passed the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008. This allowed de facto disputes involving property and financial matters to be resolved under the Act.

Under Schedule 1, section 88 of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 de facto agreements made before 1 March 2009 under a preserved law of a state become Part VIIIAB financial agreements under the Act. However, any agreement must meet the requirements of the preserved state legislation.

Was the Cohabitation Agreement Valid?

As the cohabitation agreement was made in 1997 it had to meet the requirements of section 47 of the Property (Relationships) Act 1984 (NSW). If it was valid under this legislation the agreement would become a section 90UC agreement under the Act. This would prevent the Court from making an order against the terms of the agreement.

Section 47(1) of the Property (Relationships) Act 1984 (NSW) requires that an agreement:

be in writing;
signed by the party against whom the agreement is being enforced; and
that the party who seeks the protection of the agreement has a valid certificate of independent legal advice signed by a solicitor.

The Respondent was able to provide through the Applicant a written and signed copy of the cohabitation agreement. However, the Respondent could not produce a certificate of independent legal advice.

To find the agreement enforceable the Court had to be satisfied with the Respondent’s oral evidence that she had a certificate of independent legal advice. However, inconsistencies were found in the Respondent’s affidavits referring to her alleged copy of the cohabitation agreement. The Court was not satisfied that the Respondent’s certificate of independent legal advice actually existed. As a result, the cohabitation agreement was not binding on the Parties.

Conclusion

In this case the Applicant and Respondent were in a de facto relationship. The Respondent attempted to stop the Applicant from bringing a property settlement claim against her by relying on a cohabitation agreement.

The cohabitation agreement was entered into under state legislation before de facto relationships were governed by the Family Law Act 1975 (Cth). As a result, the agreement had to meet state legislation requirements. While the Respondent met most requirements including providing a written agreement signed by the other party, she could not provide a certificate of independent legal advice. The Court was not satisfied that one existed and as a result, the agreement was unenforceable.

This case shows the importance of ensuring financial agreements meet strict legislative requirements. It shows that those entering into financial agreements must be able to fulfill the evidentiary burden of proving that a valid agreement exists. This requirement continues for the life of an agreement.

20 January 2025in Family Law

Family Court Lifts Injunction Allowing Husband To Use Law Firm That Lawyer From Wife’s Firm Had Joined

In Osferatu [2015] FamCAFC 177 (15 September 2015), the husband appealed an injunction that restrained Barkus Doolan from acting for him, where a solicitor (“Mr. F”) joined that firm having previously worked for the wife’s solicitors, Watts McCray.

It was common ground that Mr. F did not have any direct dealings with the wife whilst he was a member of the firm instructed by her. Furthermore, upon joining Barksu Doolan, Mr. F had made an undertaking to the wife that he would not speak, disclose or convey any information he may have had concerning the wife to anyone at Barkus Doolan nor involve himself in the wife’s matter.

In February 2015, the husband filed an Application in a Case applying for the case to be relisted. An e-mail from the wife has stated that she had ‘no issue’ with the husband re-engaging Barkus Doolan as his solicitor. However, upon doing so, the wife objected and filed an Application in a Case seeking an injunction restraining the firm from acting on the husband’s behalf.

Court’s Reasoning

The court stated that there are three established categories in which a solicitor may be restrained from acting against their client or former client:

Breach of confidence
Breach of fiduciary duty
Inherent jurisdiction of a court over its officers and to control its process.

The category that concerned the court, in this case, was number one, ‘breach of confidence,’ specifically the risk of the misuse of confidential information.

Frederico J in Thevenaz & Thevenaz (1986) FLC 91-748 explained the manner in which a client’s confidential information is to be protected in family law proceedings which were adopted by the court:

‘A practitioner who wishes to cease acting for one party and continue to act for the other party will be restrained from doing so by the court if there is any evidence that confidential communications have been made to him by the party for whom he is ceasing to act. In such a case the court will not weigh conflicting evidence as to confidence. It will act upon the evidence of the client who swears that he has made the confidential communication’.

Furthermore, Lindenmayer J in Stewart & Stewart (unreported, Family Court of Australia, Lindenmayer J, 17 April 1997) said:

‘… All that is necessary is that the wife swears that she has conveyed confidential information to the solicitors and that she believes, not unreasonably, that that information may be used against her, or at least to her disadvantage, in these current proceedings…’

The three stages that need to be considered, as Goldberg J said in PhotoCure ASA v Queen’s University at Kingston [2002] FCA 905:

Whether the firm is in possession of information which is confidential to the former client;
Whether the information is, or may be, relevant to a matter in which the firm is proposing to act for another party with an interest adverse to the former client;
Whether there is any risk that the information will come into the possession of those persons in the firm working for the other party.

The burden of establishing the first two propositions is upon the former client to establish.

The third proposition is for the firm to establish once the first two propositions have been established. As such the law requires the applicant, the wife, to seek to restrain a solicitor from acting to establish the confidential information and risk of the misuse of that information in the circumstances.

In the current scenario, the wife never spoke to or provided instructions to Mr. F. Furthermore, there was no capable evidence to support the trial judge’s findings that Mr. F engaged in the detailed discussion of the wife’s case. Mr. F left Watts McCray in February 2012. The wife should have identified the nature of the information received or likely to have been received by Mr. F between 24 June 2011 and February 2012 that is not, or could now be, relevant to current proceedings. The wife did not do so but merely stated that any information at all received by Mr. F could have been relevant.

As such, it was held that the trial judge erred in not taking such matters into account. Furthermore, the court below erred for giving no reasons as to why the wife’s email waiving the objection did not carry any significant weight.

The appeal was allowed, the injunction by the wife was set aside and the wife was ordered to pay the husband’s cost.

20 January 2025in Uncategorised

Violence Orders Swamping Our Courts

Apprehended Domestic Violence Orders (ADVOs) are swamping the NSW Local Court system.

An ADVO is a court order that aims to protect a person in need of protection (PINOP) from another person. It is a criminal offence to breach an order.

An ADVO can protect a person from: violence or threats of violence, stalking, intimidation, harassment, and property damage or threatened damage.

In 2020, there were 33830 final ADVOs granted by the NSW Courts, according to the Bureau of Crime Statistics and Research (BOSCAR). This was up from 28812 in 2016, an increase of 17 per cent. This figure does not factor in the number of ADVOs which were not granted.

NSW criminal courts finalised 140,644 court appearances in 2020/21, an increase of 20,394 (17%) from the previous year (120,250 in 2019/20).

On these figures, although the reporting periods do not align exactly, ADVO’s represent roughly one quarter of local court matters finalised in that reporting period. The number of ADVOs applied for by police has been tracking steadily upwards since 2016.

“ADVOs are overwhelming the NSW Local Court system and a new way to deal with these matters has to be found,” Goldman and Co Lawyers’ head of criminal division, Mr Mathew Nott, said.

“The delays in contested matters are an affront to the administration justice and to the rights of the people who stand accused of domestic violence.

“You contest an ADVO, as you have the right to do given the reputational and employment impacts, you need to go before the Courts on at least three occasions and maybe more. The cost can run into thousands of dollars.

“We have one client at Liverpool who has been waiting more than 20 months to have her matter resolved, through no fault of her own.

“Another client is still living with the pressure and will wait 15 months until she is heard at Bankstown.”

Legislators have enacted laws to safeguard the vulnerable and police play a key role in applying to the Courts for protective orders yet there is no doubt the system is being manipulated in some instances.

Police and the courts have become potential playthings of savvy “victims” who make complaints by way of a pre-emptive strike, particularly if there are family law proceedings involving parental custody on foot.

Courts are beset by COVID backlogs, so the delays give the interim ADVOs keep the orders enforceable for lengthy periods even though they may eventually be thrown out.

Even though an ADVO is a civil matter, they are dealt with in the criminal jurisdiction of the NSW Courts.

Mr Nott said one of the issues to resolve was the hardening of police policy which has resulted in a default refusal to negotiate the nature of or the facts underpinning them.

“There is no doubt that many orders would be consented to if police were prepared to amend the facts or the nature of the orders,” Mr Nott said.

“If police softened their policy position, these matters could be resolved in many cases the first time they were before the courts.”

Male and females under 18 are the people most in need of being protected by ADVOs, according to NSW statistics
In the period October 2020 to September 2021 (the reporting period), 5565 young men were the Person(s) in Need of Protection (PINOP). In the same period, 6385 young women were the PINOPs.

The number of female victims was almost double that of male victims with 34453 women being protected by AVOs compared to 17709 men.

In 2020 in NSW, the most AVOs, 195, were issued on the Central Coast of NSW, though Broken Hill had the highest per capita rate of offending with 348.2 offences per 100,000 people.

Males aged 30-39 years were most likely to offend, with 8898 beings subject to orders in the reporting period. Females in the same age range were also the highest offending citizens with 2570 being subject to Orders in the same period.

The most breaches of Orders occurred on the Central Coast.

Amendments to legislation now means the default duration of ADVOs to two years and new provisions allow the court to make an ADVO for an indefinite period.
There are also strategic advantages often used PINOP when police make the application for an ADVO.

The PINOP can reach out and make contact with the person restrained – no crime – to entice the person restrained to reply which constitutes a breach, then denounce that person for breach to the police.

The police will not withdraw an ADVO, as a rule.

The police will, depending upon the officer in charge, will take the defendant’s representations to the victim to consider. This should not be discretionary and should be evidenced.

If you have to deal with an ADVO, contact mathew@goldman-lawyers.com for a free consultation.

20 January 2025in Family Law

Full Court Increases Wife’s Contribution During Marriage as Trial Judge Overstated Her Earning Capacity During Marriage

Keywords:

Property; contributions; contribution assessment; section 75(2) adjustment; adjustment from nil to 7.5 per cent;

Abstract:

In Wah & Golay [2016] FamCAFC 67 (7 April 2016) the Full Court of the Family Court heard the wife’s appeal against the trial judge’s decision concerning a $3.9 million pool and an 8 year marriage. Importantly, the husband had supported the wife for a further three years after separation through paying outgoings for the former matrimonial home in which the wife continued to reside.

Article:

At first instance, Rees J assessed property contributions for the purposes of the Family Law Act 1975 (the “Act”) as 87.5/ 12.5 in the husband’s favour. According to the court at first instance, the wife’s contributions amounted to “not more than $280,000”, while the husband’s contributions were $2.4 million. Rees J made no adjustment to this percentage split applying section 75(2) of the Act (which lists a number of different factors that the court can take into account in determining both eligibility for spousal maintenance as well as in distribution of property proceedings), holding that the wife’s earning capacity was unaffected by the relationship. In determining contributions to a relationship’s pool of property in order to arrive at a ultimate settlement, section 79(4) allows the Court to take into account the factors in section 75(2) of the Act.

The trial judge took into account that the husband was a self-funded retiree and 71 years of age; as well as that the wife was 59 years old, her English was very poor, and that she was unlikely to obtain paid employment.

On appeal, Murphy J (with whom Ryan and Aldridge JJ agreed) commented that:

[26] The wife had, as her Honour found, little if any prospect of gainful employment. The fact that the husband was 71 at trial, and the wife 59, was very important in the consideration of that comparison. As an instance of that, the section requires, in particular, a consideration of the respective ‘commitments of each of the parties … necessary to enable’ … them to support themselves. While, in the context of a broad assessment referrable to s 79(4)(e), that may not require a dollar-for- dollar comparison assessment as might be required, for example, in a spouse maintenance case, I am unable to see where her Honour has given any consideration to this important requirement stipulated by s 75(2)(d).

[27] As a related matter, it was submitted before her Honour, it seems uncontroversially, that the wife was in receipt of sickness benefit at the date of trial, a consideration the specific subject of s 75(2)(f). Again, I am unable to see where her Honour has considered that factor. Separate from the requirement to consider, where relevant, the issue of capacity to earn income, s 75(2)(k) obliged her Honour to consider, if relevant, the ‘duration of the marriage and the extent to which it has affected the earning capacity of the other party’.

Further, at paragraph [30] of the appeal judgment:

“While, of course, the wife was some 10 years older than she was at the commencement of the relationship and while the wife was, as revealed in the medical evidence before her Honour, suffering from health issues, I am respectfully unable to see how her Honour’s finding that the wife’s earning capacity was unaffected by the relationship was open to her on the evidence before her.”[31] In a similar vein, there can be no doubt that the parties enjoyed a very good standard of living during their relationship; much of that, of course, emanated from the husband’s assets with which he entered the relationship, including what was able to be purchased from his substantial cash reserves and the income derived from them and otherwise by the husband. However, the contrast between that standard of living and the comparative standards of living reasonably open to the parties post orders is nevertheless a relevant matter, and one which, in my view, was not at all considered by her Honour.”

Further, in deciding to make an adjustment, applying section 79(4) of the Act, to the contribution made by the wife during the marriage, Murphy J commented that:

“The respective asset positions of the parties consequent upon an 87.5 per cent/12.5 per cent assessment of contributions [results in] a very significant disparity between the parties. The husband funds his retirement from his assets and resources which remain considerable. There is no suggestion that there will be any change to that in the future. They are the assets, resources and income of a man who is now 72. He lives in a $1.2 million home, has available to him a valuable piece of real property that he uses as a holiday home, and owns a unit subject to a debt, from which he receives income.

… I consider that an adjustment of 7.5 per cent is appropriate. That equates to approximately $294,000. That adjustment would see the wife receiving 20 per cent of the parties’ interests in property and superannuation, or in dollar terms, approximately $786,000. The husband will need to source and pay approximately $663,000.

.. The disparity between the parties’ respective positions of 60 per cent represents, in dollar terms, about $2.35 million. The husband will retain his three pieces of real property, his three cars, his $50,000 worth of furniture, and have cash and superannuation – which is effectively cash – of slightly more than $1 million. The wife is currently in receipt of sickness benefit, has not worked remuneratively for some years and, in all likelihood, will not in the future. She has a number of health issues. It is not contended that the husband has any such issues.

… I consider that the relationship has had a detrimental impact on her capacity to earn income. Her current standard of living is markedly poorer than the husband’s and markedly poorer than that enjoyed by the parties during their relationship. All but about $18,000 of the property retained by the wife is in cash. Thus, from an amount of about $750,000 in cash that she will receive, she will need to re-house and otherwise support herself in the absence of remunerative income. In that respect, I note her age by comparison to the husband’s age.

Accordingly, the appeal court made the adjustment to the property settlement, a result advantageous to the wife.

20 January 2025in Uncategorised

Apprehended Domestic Violence Orders (ADVOs) threaten to swamp the NSW Justice system

The NSW justice system is at risk of being “gamed”

22nd June 2022: Apprehended Domestic Violence Orders are overwhelming the NSW Local Court system. “A new way to deal with these matters has to be found.” according to Goldman and Co Lawyers’ head of criminal division, Mr Mathew Nott. Mr Nott is a Sydney Criminal Lawyer.

An Apprehended Domestic Violence Order (ADVO) is a court order that aims to protect a person in need of protection (PINOP) from another person. An ADVO can protect a person from: violence or threats of violence, stalking, intimidation, harassment, and property damage or threatened damage.

However significant delays in contested ADVOs are overwhelming the NSW justice system and an affront to the rights of the people who stand accused of such domestic violence criminal offence .

“If you contest an ADVO, as you have the right to do given the reputational and employment impacts, you need to go before the Courts on at least three occasions and maybe more,” Mr Nott said.

“The cost can run into thousands of dollars. We have one client for domestic violence and family law at Liverpool who has been waiting more than 20 months to have her matter resolved, through no fault of her own.”

“Another client will have to wait 15 months until she is heard at Bankstown.”

ADVO’s taking up more court time than ever

In 2020, there were 33,830 final ADVOs granted by the NSW Courts, according to the Bureau of Crime Statistics and Research (BOSCAR). This was up from 28,812 in 2016, an increase of 17%.

This figure does not factor in the number of ADVOs which were not granted but still contested at hearing.

NSW criminal courts finalised 140,644 court appearances in 2020/21, an increase of 20,394 (17%) from the previous year (120,250 in 2019/20).

“Legislators have enacted laws to safeguard the vulnerable and police play a key role in applying to the Courts for protective orders, yet there is no doubt that the system is being manipulated in some instances.” Mr Nott said.

“Police and the courts have become potential playthings of savvy “victims” who make complaints by way of a pre-emptive strike, particularly if there are family law proceedings on foot.”

Mr Nott said one of the issues contributing to this current crisis was the hardening of police policy which has resulted in a default refusal to negotiate the nature of or the facts underpinning apprehended violence application the ADVOs.

The police will not withdraw an ADVO, as a rule.

The police will, depending upon the officer in charge, take the defendant’s representations to the victim to consider, however, in Mr Nott’s opinion, this should not be discretionary and should be evidenced.

“There is no doubt that many orders would be consented to if police were prepared to amend the facts or the nature of the orders,” Mr Nott said.

“If police softened their policy position, these matters could be resolved in many cases the first time they were before the courts.”

Who are ADVOs protecting in our community – the PINPO

Male and females under 18 are the people most in need of being protected by ADVOs, according to NSW statistics

In the period October 2020 to September 2021 (the reporting period), 5,565 young men were the Person(s) in Need of Protection (PINOP). In the same period, 6,385 young women were the PINOPs.

The number of female victims was almost double that of male victims with 34,453 women being protected by AVOs compared to 17,709 men.

In 2020 in NSW, the most ADVOs(195) were issued on the Central Coast of NSW, though Broken Hill had the highest per capita rate of offending with 348.2 offences per 100,000 people.

Males aged 30-39 years were most likely to offend, with 8,898 being subject to orders in the reporting period. Females in the same age range were also the highest offending citizens with 2,570 being subject to Orders in the same period.

The most breaches of Orders occurred on the Central Coast.

Amendments to legislation now means the default duration of ADVOs is now two years and new provisions allow the court to make an ADVO for an indefinite period.

“We have seen instances where a strategic advantage is afforded to the PINOP when police make the application for an ADVO” according to Goldman & Co Lawyers’ head of criminal division, Mr Mathew Nott.

“The PINOP can reach out and make contact with the person restrained – no crime – to entice the person restrained to reply which then constitutes a breach. Then the PINPO denounces that person for breach to the police and they can be charged” says Mr Nott.

20 January 2025in Commercial & Corporate, Criminal Law, Cyber Law, Estates & Wills, Family Law, International & Domestic tax, Litigation & Disputes, Medical & Health

DIY Divorce & Separation When You Don’t Need To Use Lawyers For Divorce

Guided Self Help Six Easy Steps To DIY Divorce

Keywords:

Abstract:

Yes you can do divorce yourself without engaging lawyers but be aware of the tips and traps. Guided self-help to do it yourself will save you in legal fees help you understand the process. You cannot sort out the custody of children or the finances by filing for a divorce. This simply annuls the marriage. You do not need to be divorced to sort out parenting and/or the financial aspects; you simply need to be separated.

Warning: sort out your financial matters after divorce within 12 months. However, if you are separated, having being married, the time limits do not start until you are divorced.

Article:

When you do not need to use the lawyer for divorce and do I have to attend Court?

Divorce explained in 6 easy steps

Let us be clear that we are speaking about a divorce and not about the custody of children, sharing parenting obligations or separating finances.

File electronically yourself

You do not need a lawyer if you can use the FCFOA. (Family Court) website to electronically file for a divorce.

You need to make sure you are eligible below to file for the divorce and you will need to serve your other partner with the divorce papers once they are sealed.

All of this can be done for free except the fees of the court which are $1031 (subject to CPI indexation).

All of this can be done online and there is a checklist and a court portal to e-file for your divorce.

Service of the divorce papers is very important

If you can serve these documents electronically, by email, on your partner, and he accepts the service then you will not need to go to court.

When you agree with your former spouse

If you cannot serve your partner, or there are other reasons, such as a short-term marriage or where the court is not satisfied that adequate arrangements have been made in relation to children under 18, you will need to go to court.

If you have agreement with your partner on parenting arrangements. You will not have to go to court to sort out the custody of the children, but simply satisfy the court that adequate arrangements have been made. In this case, you do not need a lawyer.

If you and your former spouse are perfectly agreeable on the separation of finances, you will not need a lawyer. However, if you are separating mortgages, the bank may need a copy of a binding financial agreement (BFA) or court order to ensure that you have separated your finances properly and that you would be liable separately for any new mortgages. In this case, you may need a lawyer, certainly for a BFA.

The advantage is that you do not have to pay any stamp duty on any property transfers. If you are separating your finances pursuant to court orders, or a BFA.

Step 1 – Check Your Eligibility –– 12 Months Separation

The Family Law Act 1975 established the principle of no-fault divorce in Australian Law.

When granting a divorce, the Court does not consider why the marriage ended and the only ground for divorce is that the marriage broke down and there is no reasonable likelihood that the parties will get back together.

Children and Financial Matters Do Not Need A Divorce To Be Finalized

vorce To Be Finalized

The granting of a divorce does not determine issues of financial support, property distribution, or arrangements for children. It simply recognizes that the marriage has ended.

Step 2 – Eligibility To Apply For A Divorce?

You can apply for a divorce in Australia if either you or your spouse:
regard Australia as your home and intend to live in Australia indefinitely, or are an Australian citizen by birth, descent or by grant of Australian citizenship, or ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

Living Under The Same Roof Can be Living ‘Separately’

You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated.

Step 3- What A Court Considers In Divorce Applications

If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them.

Step 4- Pay the Fee – What Will A Divorce Cost?

There is a filing fee for divorce applications and currently it is $1031.

Can I Get A fee Exemption?

In some cases; for example, if you hold certain government concession cards or you are experiencing financial hardship, you may be eligible for a reduced fee.

Service of Papers and Can I Oppose A Divorce Application?

If you have been separated for more than 12 months, there are few opportunities to oppose a divorce application. You can only oppose the divorce where: there has not been 12 months separation as alleged in the application, or the Court does not have jurisdiction.

If you do not want the divorce granted, you must complete and file a Response to Divorce and appear in person on the hearing date.
You need to set out the grounds on which you seek the dismissal in the Response to Divorce.

If you file a response, you should attend the divorce hearing. If you do not attend, the Court may decide the divorce application in your absence

Step 6 – All online OR Do I Have To Attend The Divorce Hearing?

No children under 18

If there is no child* of the marriage aged under 18 years, you are not required to attend the court hearing. This applies for both sole and joint applications.

Joint application with children under 18

If you have made a joint application, you and your spouse are not required to attend the court hearing (even if there is a child of the marriage aged under 18).

Sole application with children under 18

If you have made a sole application and there is a child of the marriage aged under 18 years, you (the applicant) are required to attend the court hearing unless circumstances prevent you from attending (see below).

Your spouse does not oppose the divorce

If there is no Response to Divorce, the other party is not required to attend, although they may do if they wish. If a respondent has completed and filed a Response to Divorce, but does not oppose the application, he or she does not need to attend the hearing.

Your spouse opposes the divorce

If a respondent has, in a Response to Divorce, opposed the application, the respondent must appear in person on the hearing date.

Will Decisions About Future Arrangements For Our Children, Property And Maintenance Be Made At The Same Time?

The granting of a divorce does not decide issues about property and maintenance or parenting arrangements for your children. If you want to make arrangements about these issues you can: make an agreement with your spouse and file it with a court, or seek orders from a court, where you and your spouse cannot reach an agreement.

For parenting cases, you also have the option to make a parenting plan. If you want to apply for maintenance for yourself or a division of property, you must file a separate application within 12 months of the date the divorce becomes final. Otherwise, you will need the Court’s permission to apply.

I Have Applied For A Divorce, Is It Safe To Set A Wedding Date For My New Marriage?

You should not make firm plans to marry on a specific date until the divorce order is finalized. You may, however, complete and lodge a Marriage with an authorized celebrant before the divorce order is finalized.

If you intend to remarry, you must lodge the Notice of Intended Marriage with an authorized marriage celebrant at least one month before the date the marriage is solemnized, and comply with other requirements of the Marriage Act 1961. The authorized celebrant must sight a copy of the divorce order before the wedding can take place.

In most cases, the divorce order takes effect one month and one day after the divorce is granted. You should not assume the divorce will be granted at the first court hearing. For example, you may be told at the hearing that you need to provide more information.

We Want To Divorce but Have Been Married Less Than Two Years. We Understand We Have To Do Certain Things, What Are They?

If you have been married less than two years you will need to file a counseling certificate. To obtain a certificate you will need to attend counseling. The two years are calculated from the date of the marriage to the date of applying to the Court for a divorce.

You and your spouse must also have been separated for at least 12 months before applying for a divorce.

Married Overseas – Can I Get A Divorce In Australia?

If you were married overseas, you can apply for a divorce in Australia if either you or your spouse: regard Australia as your home and intend to live indefinitely in Australia are an Australian citizen or resident, or are an Australia citizen by birth or descent are an Australia citizen by grant of an Australia citizenship ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

You must provide the Court with a copy of your marriage certificate. If your marriage certificate is not in English, you need to file an English translation of it, and an affidavit from the translator.

I Got Divorced Overseas- Is It Recognized In Australia?

You can apply for a divorce overseas. Australia will recognize a divorce if it was effected in accordance with the laws of that country.

How much will it cost for Goldman lawyers to help me if I need to speak to a lawyer, but still do it myself?

Our guided self-help options provide the opportunity to speak to a lawyer about specific aspects of your own application or your own case.

If you use our guided self-help portal (links) then you can obtain specific advice.

Starting from $100 for 15 to 20 minutes of a lawyers time, or our most popular option which is for a 30 minute discussion, including review of documents for $200 plus GST. If we need to quickly draft or read drafts and parenting orders or consent orders for you on key aspects then avail yourself of the $500 option.

We also will provide quotes and estimates for specific work over and above the guided self-help blocks quoted above,

**********

For more information or to arrange interviews, please contact: Ms Kerry Turner,
kerry@goldman-lawyers.com or on 1300-343-560
Goldman & Co Lawyers Pty Limited, www.goldman-lawyers.com

Contact & Connect

Daily Archives: 20 January 2025

Background

De Facto Relationships and the Family Law Act 1975

Was the Cohabitation Agreement Valid?

Conclusion

Court’s Reasoning

Keywords:

Abstract:

Article:

Guided Self Help Six Easy Steps To DIY Divorce

Keywords:

Abstract:

Article:

When you do not need to use the lawyer for divorce and do I have to attend Court?

Divorce explained in 6 easy steps

File electronically yourself

Service of the divorce papers is very important

When you agree with your former spouse

Step 1 – Check Your Eligibility –– 12 Months Separation

vorce To Be Finalized

Step 2 – Eligibility To Apply For A Divorce?

Living Under The Same Roof Can be Living ‘Separately’

Step 3- What A Court Considers In Divorce Applications

Step 4- Pay the Fee – What Will A Divorce Cost?

Can I Get A fee Exemption?

Service of Papers and Can I Oppose A Divorce Application?

Step 6 – All online OR Do I Have To Attend The Divorce Hearing?

No children under 18

Joint application with children under 18

Sole application with children under 18

Your spouse does not oppose the divorce

Your spouse opposes the divorce

Will Decisions About Future Arrangements For Our Children, Property And Maintenance Be Made At The Same Time?

I Have Applied For A Divorce, Is It Safe To Set A Wedding Date For My New Marriage?

We Want To Divorce but Have Been Married Less Than Two Years. We Understand We Have To Do Certain Things, What Are They?

Married Overseas – Can I Get A Divorce In Australia?

I Got Divorced Overseas- Is It Recognized In Australia?

How much will it cost for Goldman lawyers to help me if I need to speak to a lawyer, but still do it myself?

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