Family law proceedings can be complex, with answers sometimes difficult to come by. Compounding this problem is the fact that everyone has an opinion as to how family law “works” despite the absence of their qualifications, and the media and fictional court room dramas provide no greater clarity.
As such we have compiled a quick list of some commonly asked questions in order to dispel some myths, and to provide an understanding of the family law process.
Family law proceedings are heard by a judge and a jury.
Family law proceedings are heard before a judge and a judge alone. There are no jury trials in the family law court system.
Family law proceedings are public.
Courts are not only places that must do justice, but they must also be seen by the public to do justice, and do so independently. To this end, almost all proceedings before a court in Australia are open to the public. Family law proceedings are held in open court unless the court orders otherwise. However, it is considered an offence to disseminate to the public the specific names of parties involved in family law proceedings.
Judgements are published on the family law courts website, as well as on free public databases such as AustLII and paid databases. Judgments are anonymised, which involves the removal of all identifying information.
I have to go to court to get divorced.
The court plays a role in all divorces, but depending on your circumstances the level of involvement may vary significantly.
To apply for divorce, an application must be made and lodged with the courts. These applications can be lodged personally with the court, or online via the Commonwealth Courts Portal.
If you are making an application for divorce and the parties to the marriage have no children under the age of 18, you do not have to attend the court hearing.
If you are making a joint application for divorce, and the parties to the marriage have a child or children under the age of 18, you do not have to attend the hearing.
If you are making a sole application for divorce and you have a child or children under the age of 18, you must attend the hearing. The other party is only required to attend if they have lodged a Response to Divorce and seek to oppose the application.
Please note: a divorce hearing will not deal with property settlement or with child custody issues. Those issues will be dealt with separately.
If an agreement is reached and encapsulated in a Binding Financial Agreement or Application for Consent Order then no attendance at Court is required.
If no agreement can be reached, you will be required to make application to the Court.
I don’t have to pay any child support, as I do not see my children.
A person has a financial obligation to provide for their child or children, regardless of the amount of time spent with them.
Parenting orders are orders made by the court that set out care arrangements for a child. Parenting orders are normally applied for by a child’s parents, however any person concerned with the care, welfare and development of the child may apply.
There is no set formula for the court to use when determining a property settlement. Property settlement splits are determined on a case-by-case basis with consideration given to a series of complex considerations.
You can apply for a divorce and be granted one within a week/fortnight/month.
To qualify for divorce in Australia, parties must satisfy the court that there is no reasonable likelihood of resuming married life. To do so, parties must have lived separately for at least 12 months. Further requirements also exist for newly married couples seeking divorce.
Separation can take place under one roof in certain cases.
A de facto relationship only occurs if we both declare we are in one.
A de facto relationship for the purposes of the Family Law Act requires that both parties live together in a relationship on a genuine domestic basis. Parties are not required to “declare” their relationship as de facto for it to be so.
My lawyer can provide me with all the taxation and financial advice I will require.
Your family lawyer is not in the best position to advise you in relation to complex issues of taxation and financial planning. Best Wilson Buckley works closely with accountants and financial planners to ensure the best possible combination of legal and financial advice.