A common misapprehension of the public is that a Divorce finalises and deals with all issues between the parties. This is wrong.
In plain English, a Divorce simply allows a party to dissolve their marriage and get remarried.
There are certain requirements that must be meet prior to a Divorce being granted, one of which is that the parties must be separated for a continuous period of 12 months prior to the application being made.
It is possible to live under the same roof and still be separated (this is called separation under the one roof). This can happen if you and your spouse had decided the marriage was over and were living independently from each other. For example, if you no longer shared the usual activities of marriage such as sex, eating meals together, performing domestic services for each other, sharing finances and going out together.
Property Disputes Lawyer And Settlement Lawyer
The Family Court and the Federal Circuit Court (The Court) have the jurisdiction relating to the property dispute between spouses.
The Court generally adopts a three stage process in which:
Firstly: Needs to identify and value the matrimonial assets and all matrimonial liabilities.
Secondly: Needs to assess the parties contributions to the acquisition conservation and improvement of the matrimonial assets.
The contributions can be economic and non-economic.
Once the above is determined the Court then generally determines the percentage division of the matrimonial asset pool.
Thirdly: The court has power that in order to ensure that justice is done as between the parties the court can make a further adjustment to take into account the needs of the parties after separation. Accordingly the following matters are taken into account:
Each parties health
Care of children under the age of 18
Amount of child support.
The Family Law Act requires the parties to comply with the pre-action procedure prior to commencing a case.
What Is Required?
The aim of the pre-action procedures is to explore areas of resolution and, where disputes cannot be resolved, to narrow the issues that require a court decision. This should control costs and if possible, resolve disputes quickly, ideally without the need to apply to a court. The pre-action procedure applies to:
Anyone considering starting a case
Anyone named as a respondent if a case is started, and
Their lawyers (if any)
The Family Rules require prospective parties to genuinely try to resolve their dispute before starting a case and we always strongly suggest to clients that they attempt to negotiate and sort out their differences instead of going to court.
It is no secret that going to court is expensive, and we always remind our clients that sometimes agreeing for that 5% difference earlier on in the matter may in fact save you much more than going to court and fighting over it for several months and maybe even years!
Children & Custody Matters Lawyer
Your Obligations As A Prospective Party To A Case
Families, particularly the children, are a courts first consideration when resolving or determining family disputes. At all stages during the pre-action negotiations and during the case itself, should you ultimately apply to a court you must keep in mind.
The need to protect and safeguard the interest of your children.
The importance of a continuing relationship between your children and both parents, and the benefits the child gains from the parents co-operating with one another, as far as is possible.
The potential damage to a child involved in a dispute particularly if a child is encouraged to take sides or take part in any dispute between the parents.
The importance of identifying issues early and exploring options for settlement.
The need to avoid protracted, unnecessary, hostile and inflammatory exchanges.
The impact of correspondence on the reader, particularly on the other party in the case.
The need to seek only those orders that are realistic and reasonable on the evidence and that are consistent with current law.
The principle of proportionality and the need to control costs.
The duty to make a full and frank disclosure of all material facts, documents and other information relevant to the dispute.
Parties must not:
Use the pre-action procedure for an improper purpose (for example, to harass the other party or to cause unnecessary cost or delay), or
In correspondence, raise irrelevant issues or issues that might cause the other party to adopt an entrenched, polarised or hostile position.
The Family Court and the Federal Circuit Court (The Court) have the jurisdiction to make parenting order(s) concerning children whether or not the parties are:
2. In a De Facto relationship, or
3. Never entered a permanent relationship.
Generally the Court makes orders about:
a) Where the child or children live (residence order).
b) The time that the child or children spend with the parent or any other party that they do not
live with (contact orders).
c) Other matters to do with the child or children’s care (specific issues orders).
The Courts paramount consideration in making a parenting order(s) is the following test:
What, in all the circumstances, would be in the best interests of the child?
Child Custody Lawyer
The Family Law Act requires the parties to comply with the pre-action procedure prior to commencing a case. The objectives of such action are:
To encourage early and full disclosure through the exchange of information and documents about the prospective case.
To help people resolve their differences quickly and fairly, and to avoid legal action where possible. This will limit costs and hopefully avoid the need to start a court case.
Where an agreement cannot be reached out of court, to help parties identify the real issue in dispute. This should help reduce the time involved and the cost of a case.
To encourage parties to seek only those orders that are realistic and reasonable on the evidence.
Lawyers must and should as early as practicable:
Advise clients of ways of resolving the dispute without starting legal action.
Advise clients of their duty to make full and frank disclosure, and of the possible consequences of breaching that duty.
Subject to it being in the best interests of the client and any child, endeavour to reach an agreement rather than start or continue legal action.
Notify the client if, in the lawyers opinion, it is in the clients best interest to accept a compromise or settlement where, in the lawyers opinion, the compromise or settlement is a reasonable one.
In cases of unexpected delay, explain the delay to their clients and whether or not the client may assist to resolve the delay.
Advise clients of the estimated costs of legal action.
Advise clients about the factors which may affect the Court in considering costs orders.
Actively discourage clients from making ambit claims or seeking orders which the evidence and established principles, including recent case law indicates, is not reasonably achievable, and provide clients with documents prepared by the Court about
The social and legal effects of separation
The services provided to families by the Family Law Courts and by government, community and other agencies, and
The obligations created by an order and the consequences for failing to comply with an order.
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