Family Law
What are your rights?
Separation or divorce is a major crisis in anyone's life. You may find that it takes some time to come to terms with the separation and adjust to your new circumstances. When families break down, lots of decisions have to be made about the future.
This pamphlet should help explain some of the things that are happening to you and help you in making decisions. Lots of help is available to you. All you need to do is ask.
Separation
Separation means ending your relationship with your partner, and living separately from him or her. It can be either temporary or permanent.
How is separation arranged?
No formal procedure is needed to start a separation and your partner's consent is not necessary.
You don't need to see a solicitor or obtain any legal advice, but it may be helpful if you are unsure of what to do. It is a good idea to discuss and try to agree with your partner about who will leave the home, what items of property (furnishings, etc) may be taken, and arrangements for the children.
You should change all of your financial arrangements, such as joint bank and credit card accounts, utilities, Medicare and insurance into separate
names. Arrangements will also need to be made for housing, joint debts, Social Security payments, child care, and so on.
If you are having problems organising these things or coming to an agreement with your spouse, then you may find it useful to make an appointment with the Family Mediation Centre.
Separation under one roof
It is possible to be separated but still be living in the same home. This can happen if you have ended your marriage and are living independently from each other.
For example, if you live together, but no longer share the usual activities of marriage, such as sleeping together, eating meals together and going out together, you can be `separated under the one roof'. When you apply for a divorce, the Family Court may require evidence called `corroborative evidence' from a third person to support your claim of separation under one roof. This person may be a neighbour, a friend or a relative who is familiar with the circumstances in which you and your spouse have been living.
De facto relationships
De facto relationships are generally defined as two people living in a real domestic situation for a period of two years or more. Two people who have had a child together are also considered a de facto couple, even if they have never lived together.
De facto couples' children are covered by the Family Law Act in exactly the same way as if their parents had been married.
But to dissolve a de facto relationship, you do not need to prove that you have been separated for 12 months. Because you have never been married, there is no actual divorce process.
If you are de facto, want to end your relationship and have not had any children with your partner, the only thing you need to be concerned about is the division of any jointly owned property. As soon as you have
separated you can arrange a division of property. Because this is a
complicated area of the law, we suggest you seek the help and advice of a solicitor.
What is counselling?
Before you apply for your divorce, you should consider contacting the Family Court's Counselling Service. The service is free and confidential and has been set up specially to talk about your divorce, reconciling with your spouse or about any other problems you or your family are facing. This service is also available for de facto couples who are separating.
Divorce
Divorce is the legal end of a marriage. It does not matter to the Family Court why the marriage has broken down or whose fault it was. You only need to show that the marriage has broken down beyond repair.
To establish the `irretrievable breakdown' of a marriage, the Family Court considers whether or not you and your partner have lived separate lives for at least one year. If you have, you may apply for a divorce.
What do I need to do?
You can get all of the necessary forms to file for a divorce from the Family Court, a free community legal service such as the Monash Oakleigh Legal Service, or a stationery shop that sells legal forms.
You need to have your marriage certificate or an official copy from the Office of Births, Deaths and Marriages and details of any other Court orders made. If you are trying to arrange a divorce less than two years after your marriage date, you also need a certificate from an approved counsellor stating you have considered reconciliation.
What is the procedure?
It costs $500.00 to apply for a divorce, but if you cannot afford this, you can ask not to pay the fee. The Family Court will make a decision about this based on information you give them about your money situation. Cash, Bank Cheques and Money Orders are the only methods of payment
accepted by the Family Court. You may also have to pay for the divorce papers to be served on your partner. This can cost you up to $60.00.
Do I need to have a solicitor?
Even though you can process your own divorce without a solicitor, it is important to be sure of your rights, especially where there is a continuing
disagreement or where property is concerned. You may also need help in filling in the forms.
If you are not sure, one of the legal advisers at a free community legal service, such as the Monash Oakleigh Legal Service, may be able to help you fill in the forms and advise you further about your legal position.
The aftermath
Even after separation or divorce you may still need to consider: ·
• Arrangements for the care of your children ·
• Child support ·
• Property which is jointly owned, or to which you both contributed. All of these areas can be dealt with by agreement between you and your partner. You do not have to see a solicitor or go to a Court. You can,
however, come to an agreement which can be put into writing by a solicitor and be made into a formal court order. The benefit of this is that, if your partner refuses to comply with the order, you can ask the Court to make your partner do what the agreement says.
Contact, parental responsibility and residence
According to the Family Law Act, both parents have a duty to support their children so far as they can. In law they have joint responsibility for their children, until the Court makes an order stating otherwise.
This means that if you have separated from your partner, one of you may ask the Court to decide things such as where the children should live and what sort of contact they should have with the other parent.
In deciding who should have responsibility for your children the Court has to chose what is best for the children. In fact, your divorce will not be finalised unless the Court is satisfied that proper arrangements have been made for your children.
The Court usually expects separating parents to discuss their children's future with a counsellor before a case is heard by a judge. So, it is best to talk with a counsellor before considering legal proceedings. You may find that you can solve the problems without having to see a solicitor. A list of the counselling services available to you is on the back page of this pamphlet.
What is parental responsibility?
Parental responsibility means all the duties surrounding the child's long term welfare, as well as all major decisions involving the child's health, education and religious upbringing. During marriage and after separation and divorce, parents share joint parental responsibility for their children, unless the Court orders otherwise.
What is residence?
Residence is where a child will live after separation. Parents may go on sharing the residence of children, or the children may reside with only one parent. Legally, children will have residence with both parents unless that is changed by a Court order.
What is contact?
Contact is the time children spend with the parent they do not live with. The Family Law Act says that children have the right to good relationships with both of their parents and contact with the parent they do not live with is very important to the welfare of children. However, the law does not regard contact with children as a parental right. Violent or abusive parents may not be able to have contact with their children. Contact will only be maintained if it is in the child's best interests.
What is the Child Support Scheme?
The Child Support Scheme applies to parents who separated on or after 1 October 1989 and is a new way of making sure that the children of
separated or divorced parents get financial support.
If you have daily care of a child, you no longer have to go to Court to apply for maintenance of the child from your spouse. Instead, you can fill in a form asking the Child Support Agency to assess how much the parent who is not living with the child is liable to pay for their support.
The Child Support Agency, which is part of the Tax Office, decides how much Child Support should be paid by taking both parents' incomes into account. It also collects the child support payments, either by arranging for an employer to deduct them, like tax, or having the parent send the money direct to the Agency, who will then forward it to the parent who has
custody.
This sort of assessment is not compulsory. Parents can still make private agreements about how much child support should be paid and can decide whether or not to register their agreement with the Agency and have child
support collected by it. You can find out more about this by phoning the Agency on 13 1272.
Parents who separated before 1 October 1989, and do not have a child born on or after that date, may have to go to Court to arrange Child
Support. This is also a complicated area of law and you should obtain the advice of a solicitor.
Property division
Property division can be difficult, so it is probably best to speak with a legal adviser about how it affects you. But here are a few things you should know about the way that it operates.
Major items of property, such as a jointly owned house, can be divided any time after you have separated from your partner. If you and your partner cannot agree on how property should be divided, you can apply to the Court for a decision about the property. But you cannot apply once you have been divorced for one year or more, unless you convince the Court that there are special circumstances.
How the property is divided depends on contributions made by you and your partner. Contributions can mean by way of money, or by working for the upkeep of the home (i.e. housework). It also depends on the future needs of each person. The person who has greater financial needs and/or is caring for the children, may be given a greater share of the property. Property division takes all personal property into account, including insurance policies, superannuation, savings, cars and the family home.
Services Available:
Federation of Community Legal Centres
For information about your local legal service: Tel: 96024949
Domestic Violence & Incest Resource Centre
139 Sydney Road Brunswick 3056 Tel: 93879155
Family Mediation Centre
367 Princes Highway Noble Park 3174 Tel: 95476466
Counselling Services Available: Family Court Counselling Service
570 Bourke Street Melbourne 3000 Tel: 96042800 53-55 Robinson Street Dandenong 3175 Tel: 97676280
Relationships Australia (Victoria) Inc.
46 Princess Street Kew 3101 Tel: 98535354 48 Webb Street Narre Warren 3805 Tel: 97047788 1 Clarke Street Sunshine 3020 Tel: 93649033 8 Civic Square Croydon 3136 Tel: 97259964
Catholic Family Welfare Bureau
396 Albert Road East Melbourne 3002 Tel: 96622033 96 Cleland Street Dandenong 3175 Tel: 97932200 500 Whitehorse Road Mitcham 3132 Tel: 98734344 3 Wingfield Street Footscray 3011 Tel: 96893888
Citizen's Welfare Services
197 Drummond Street Carlton 3053
Anglican Marriage Education and Counselling Service
Tel: 9654 7360
The information provided in this pamphlet is a general guide only. To be sure of your rights and responsibilities, you should get advice
