Australian divorce legislation

I’m delighted to welcome Head of Household Regulation, Steven Edward of Australian Family Lawyers to the weblog to share his ideas on Australian divorce legislation and the way the courts take care of monetary settlements. 

The English/Welsh and Australian jurisdictions have many issues in frequent, however there are two significantly fascinating areas the place they differ.

First is the Australian courts’ method to {couples} who’ve been dwelling in a cohabiting relationship for 2 years buying the identical rights as a married couple. 

That is very completely different from the English jurisdiction method, the place a cohabiting couple’s rights stay extraordinarily restricted (and normally restricted to the division of property the place they will present they’ve an curiosity in) no matter how lengthy they’ve lived collectively. 

Second is the procedural variations in how the Australian system has much less of a hyperlink between divorce and finding out monetary preparations.

Within the English jurisdiction, there’s a extra direct hyperlink between divorce and monetary settlements each by way of when a courtroom can approve a monetary settlement and make it an order (after the Decree Nisi has been pronounced); and when it turns into absolutely enforceable, for instance, the implementation of a pension sharing association (after the Decree Absolute has been pronounced). 

I ponder what our readers think about are the professionals and cons of a system that treats cohabiting {couples} in the identical means as married {couples}? I’ll hand over to Steven Edward of Australian Household Attorneys to elucidate additional. 

Formalising a household legislation monetary settlement settlement

In Australian divorce legislation, an settlement reached on find out how to divide property could be formalised at any time as soon as there was a separation between a husband and spouse – there isn’t a want to attend till the divorce. 

This was not at all times the case. Till 1985 you needed to be separated for at the very least 12 months, then apply for a divorce, and as soon as a divorce order was made a monetary settlement settlement may very well be authorised by the courtroom. 

Because the finish of the “divorce first” rule in 1985,  it has change into frequent to see a breakdown of marriage, negotiations, a monetary settlement being formalised after which years later there could also be a divorce software when both the husband or the spouse needs to remarry. 

There are additionally loads of conditions the place a monetary settlement can be formalised however nobody ever applies for a divorce.

As soon as a divorce is granted, if a settlement settlement has not been finalised, there’s a 12-month interval obtainable for a monetary settlement settlement to be formalised, or for one facet to start courtroom proceedings to realize a settlement. 

Past the 12-month post-divorce order interval, the courtroom has to grant go away for courtroom proceedings to go forward, however the courts are sometimes very versatile in granting go away if there has not been an extended delay.

De facto relationships

The place there was a separation between events to a de facto relationship (together with a same-sex relationship), there isn’t a divorce course of so negotiations can start for monetary settlement settlement at any time after separation and an settlement formalised.

The phrase “de facto relationship” is what we use to explain a pair dwelling collectively on a real home foundation.

There are a selection of things the Court docket can have a look at to work out if the couple has lived collectively on a real home foundation, together with the extent of monetary interdependence; whether or not a sexual relationship exists; the diploma of mutual dedication to a shared life; whether or not others knew them as a pair; care and assist of youngsters;  the extent of their frequent residence and whether or not the couple registered their relationship (registration does occur however it’s not frequent).

Although in observe, if the couple has lived collectively for at the very least 2 years, it’s not frequent to have disputes on whether or not they did so on a real home foundation.

The rule in Australia is that if the couple resides collectively on a real home foundation, and that has gone on for at the very least 2 years (topic to 2 exceptions), then,  following separation,  both of them can use property division and partner upkeep rights beneath the Household Regulation Act in the identical means as for married {couples}. 

The exceptions are if there’s a baby of the connection, or one individual has made substantial contributions and there could be severe injustice if the Court docket didn’t enable property division/partner upkeep proceedings to go forward.

An settlement will should be formalised inside 2 years from separation, and if negotiations break down then courtroom proceedings need to be filed inside 2 years from separation to keep away from the necessity to apply for omit of time (though the courts have proven the identical flexibility right here as for divorced spouses).

Formalising a monetary settlement

In Australian divorce legislation, the conventional method to formalise a monetary settlement settlement is with an software for consent orders lodged with the Household Court docket. That could be a detailed doc that units out sufficient background details for a registrar of the courtroom to work out whether or not the settlement proposed is inside the vary of what a decide at trial would resolve is acceptable. 

An skilled household legislation solicitor will normally have the ability to predict if an software for consent orders can be authorised by a registrar or be a waste of money and time. 

There are precisely the identical property division entitlement guidelines following the tip of a wedding, or a de facto relationship, and all the pieces that’s “property” could be divided, together with superannuation entitlements.

The place the monetary settlement settlement is outdoors the vary of what a registrar would settle for, the events must as an alternative use a binding monetary settlement. This isn’t lodged with the courtroom however requires a press release of impartial authorized recommendation signed by a lawyer for every celebration confirming that recommendation has been given on the which means and impact of the settlement and the benefits and drawbacks of the settlement. 

One benefit of a monetary settlement in comparison with an software for consent orders is the flexibility to not solely divide up property but in addition cancel out any future spousal upkeep entitlements, as long as neither celebration has an entitlement to a authorities pension.

Prenuptial agreements 

A binding monetary settlement can be used at the beginning of a wedding or de facto relationship to exclude the facility of a courtroom to divide up property and to specify who will get what if the wedding or de facto relationship breaks down i.e. a prenup.

It’s additionally potential to have a binding monetary settlement throughout the course of a wedding or de facto relationship, although these are fairly unusual. 

Not many individuals in joyful marriages/relationships deal with organising a proper settlement on who would get what if all the pieces goes unhealthy. You may name {that a} “midnup”.

One of many large questions is whether or not a prenup is well worth the paper it’s written on.

Whether it is correctly ready, it adheres to regular contract certainty rules, both sides has loads of alternative to obtain recommendation, there isn’t a duress or undue affect tainting the making of the settlement and there’s full monetary disclosure from both sides, then the danger of a prenup being efficiently attacked is minimal.

For a nuptial settlement to be legitimate and binding, there isn’t a requirement for the Court docket to first think about the proposed final result to be truthful.

If the required formalities are adopted, then the settlement is binding and enforceable until put aside by a Court docket i.e. the settlement ousts the jurisdiction of the Court docket. Grounds to put aside an settlement can embody duress, unconscionable conduct, fraud and likewise the same old contract legislation requirement of certainty. 

There is no such thing as a floor to put aside an settlement just because it was a foul cut price. Nevertheless, having mentioned {that a} frequent thread in circumstances the place the Court docket has put aside agreements has been that the end result is means outdoors what a Court docket would think about truthful. 

Some current “large cash” circumstances have proven that the place one individual is getting a really unhealthy deal, it’s actually because there’s been duress or unconscionable conduct by the opposite celebration. So, a foul deal and unhealthy behaviour typically go hand in hand.

It’s really potential to have a prenup about one single asset-e.g., who will get the pet canine. We’ve heard these referred to as “petnups“.

Australian divorce legislation recommendation

For recommendation on Australian divorce legislation please contact Steven Edward, Head of Household Regulation at Australian Family Lawyers in Melbourne. You’ll be able to attain him at [email protected] 

Household legislation recommendation 

If you want any recommendation on English divorce legislation, please do contact our Consumer Care Staff to talk to considered one of our specialist attorneys here