Quite often our client’s first interaction with lawyers and the legal system is their first interaction of this kind. That alone can be incredibly daunting, and what may already be a stressful situation can become more so or even confusing. Legal terms and jargon are thrown about, like when you are receiving legal advice, being asked to consider proposed terms of settlement, or asked what a court order means. Below is list of words and phrases, along with their definitions, to help shed light on some of the legal jargon you may encounter.
An advocate is a person who defends or presents an argument for or on behalf of another person. In family law, you will encounter solicitor advocates and barristers, both of whom advocate on behalf of a client in court.
An affidavit is a statement of fact that someone makes when either making an application or defending an application. The facts contained in an affidavit need to be relevant to what a court is being asked to do and tells a court a person’s version of events.
An applicant is a person who commences court proceedings.
Application in a case
An application in a case is an application that either the applicant or defendant, or even a third party who isn’t yet involved in proceedings, may make in ongoing court proceedings. Such an application allows a person to ask a court to do something which they have not yet been asked to do.
Best interests of the child
The best interests of the child is the primary consideration that a court must have when called upon to make a decision that will effect a child. When considering what is in the best interests of a child, a court must have regard to the child’s benefit in having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm.
A caveat is a type of injunction registrable over real property which serves as a form of public notice of a person’s interest in that property. You would lodge a caveat over disputed real property in which you have an interest in so as to prevent the other person from doing anything with that property, like selling it, without you knowing.
A Defendant is a person who responds to court proceedings commenced by an applicant.
The formal conclusion of a marriage. To obtain a divorce, one or both parties need to apply for divorce in the Federal Circuit Court of Australia. If the divorce is granted, a formal divorce order is issued by the court recognising the separation of the parties and the formal conclusion of their marriage.
Duty of disclosure
The duty, or requirement, of parties in court proceedings for property settlement to exchange documents relevant to their financial position.
Equal shared parental responsibility
The presumption that both parents must make joint decisions in consultation with each other about the long-term care, welfare and development of their children.
An agreement that can be made before getting married, before obtaining a divorce, or after a divorce.
A financial agreement made before getting married is typically called a “pre-nuptial agreement”. The purpose of such an agreement is to provide for certain things to happen should parties separate, thereby formally ending their financial relationship.
Such an agreement can cover a wide variety of financial matters, including superannuation, interests in property, trusts, businesses, cars and cash.
Independent children’s lawyer (“ICL”)
An ICL is a solicitor who is appointed by a court to represent the children who are the subject of court proceedings. The ICL is an independent party to the court proceedings and is tasked with presenting the views and interests expressed by the children to the court. The ICL undertakes evidence gathering for the purposes of ensuring the parties act in the best interests of the children and that any orders made by a court are in the children’s best interests.
An Initiating application is the document an applicant files in court to commence court proceedings. This document is used to commence court proceedings relevant to parenting and/or property settlement.
Property that is owned by one or both parties to a marriage which is the subject of a property settlement and the formal conclusion of the parties’ financial relationship.
A formal agreement containing the parties’ terms regarding the parenting arrangements for their children.
A property settlement is the formal process of dividing the matrimonial property and other assets, including superannuation, in accordance with an order of a court or the terms of a financial agreement. Settlement is the final step in effecting the formal conclusion of a financial relationship.
Sole parental responsibility
Parental responsibility for the long-term major decisions of the parties’ children that has been conferred on just one of the parties to the exclusion of the other.
A document issued by a court for the production of certain documents or for someone to present themselves at court.