Children and relationship breakdown

Children and relationship breakdown

 

This is the closest and hurtful topic I like to write on! This post is about the most vulnerable parties of them all in a relationship breakdown.

Children are the most affected of all the concerned parties in family separation. Child custody, child support, parenting arrangements are few of the key areas to mention.

Check out how each of these key points get affected during a separation process:

Child Support

 

Child Support or Child maintenance is a financial issue, discussed while the partners are separating. Child Support is paid by either or both the parents depending on the family situation. The child support is paid either in one lumpsum or as periodical payouts.

The more a parent is involved directly in child care, the less he/she will have to pay the child support. The Child Support Agency is an authorised establishment to assess and administer child support amount, and payments

The Child Support Agency assesses the family’s financial situation and other commitments before recommending child support amount.

The parents, in turn can opt for getting a Child Support Agreement, with the help of family lawyers. The Child Support Agreements comprise of the parents plans and commitments towards child care, support and sharing parental responsibilities.

Child Custody

 

Child custody is an endlessly debated topic between the separating parents. Most often than not, the children become the tool to ego boosting for their parents. Unfortunately, many separating parents fail to understand that parental alienation can cause severe psychological disorders in the children.

The judiciary taking note of such tendencies, is very strict with assigning child custody to either one (Sole Custody) or both the parents (Joint Custody). The physical custody of a child can be shared between the parents, with child/ children spending equal time with both the parents.

The parents can access alternative dispute resolution services to decide about the child custody, if they themselves cannot come to an agreement. Alternative dispute resolution services like mediation, or collaboration assist the parents to work through their disputes sensibly and put the best possible arrangement for the child / children.

Rather than taking the child custody to court, it is highly recommended that you consider alternative dispute resolution options.

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Parental Child Abduction

 

This might seem quite strange to start with! But yes, this is very likely and of course disturbing for the parents. Parental child abduction means, a parent, takes the child/children out of state or out of country without the knowledge or consent of the other parent, who has joint or sole custody of the child/children.

Parental child abduction is a criminal offence.

If the child is being taken from a parent to another state in Australia, a family lawyer can get orders from court, instructing state and federal police to recover the child and handover to the rightful parent (who has parentage orders from the court).

If the child is suspected to be taken outside Australia, the family lawyer can bring orders from court to seal all exit points in Australia and stop the child to be taken out of Australia.

In unfortunate event of child being already taken out of Australia, one should reach a family lawyer who is experienced in international family laws and can apply to Hague Convention for recovery of the child. This process of recovery and handing over the child to the other parent is very time consuming, and stressful.

 

Paternity Testing and Fraud

 

When one partner suspects that he/she is not the biological parent of the child in their family, they can bring it up in the court and deny paying the child support.

The court order form DNA testing. Since the DNA tests are very costly, the court may advice the cost to be shared by both the partners.

If the test reports confirm fraud in claim of paternity, the person can claim to refund the child support provided so far and deny paying the future amount of child support.

De Facto relationships: What it entails, legally and emotionally?

De Facto relationships: What it entails, legally and emotionally?

De facto relationships are substituting marriages in Australia. Heterosexual or same sex couple can have live-in arrangements.

By definition, de facto relationship can exist between two individuals;

  • if there is no familial relationship between them
  • if they are not legally married, and
  • if they are leading a domestic life

The de facto relationships enjoy same legal status as a marriage, with some slight variations in different states of Australia.

The Family Law Act 1975, that governs the marriage and divorce, too, govern the de facto relationships and separation. However, note that, the separation of de facto partners before 1st March 2009, is governed by family law act before 2008.

In 2008, the family law act was amended with new bills, which is the current law and applies to de facto partners separating after 1st March,2009.

State and Federal Laws

 

The couple in de facto relationship, who have separated before 1st March 2009, are by default come under state laws. If, the de facto partners wish to be governed by Federal Law, they must meet these conditions:

  1. The couple in de facto relationship must consent in writing that they are willing to be governed by Federal Law.
  2. The signing of the above document, must be done after taking due legal advice from the family lawyers and after understanding the advantages and disadvantages of the decision.
  3. A signed copy of the family lawyer’s advice must be submitted along with the written consent of the partners.
  4. The de facto partners must not have entered any agreements with regards to finance and property / children/ maintenance, which is enforceable under State laws. Federal Laws cannot be applied to such conditions.

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The Amended Family Law Act of 2008 gives equal legal rights to de facto partners, in terms of:

Legal Rights of De Facto Partners

 

Spousal maintenance: The partner can claim maintenance from the other partner, if he/she is not able to support himself/herself.

Finance and property settlements: The de facto partners can settle their finances as any other legally married couple. However, the time frame for settlement for de facto partners is 2 years, post separation.

The de facto partners can split superannuation, enter financial agreement, and can seek legal relief as married couple.

Apart from the finances and living facts, there are some emotional aspects, that a court considers important to prove the partners were indeed in de facto relationship like commitment towards their relationship, living a domestic life, sharing of things etc.

Circumstances of genuine de facto relationship

  • The couple have sexual relationship
  • The couple share each other’s finances and properties
  • The financial arrangements, the couple have between them
  • The couple are dependent on each other: emotionally, socially and financially
  • The seriousness of commitment of the partners towards each other
  • If there is/are any child / children, how their care is arranged and shared between the partners
  • If the relationship is duly registered in any of the states
  • Length of the relationship
  • How the couple conduct in public life and the nature of their relationship
  • The partners reside together in one house

 

If the partners are in such circumstances, as mentioned above, for the past 2 years, they are considered as genuine de facto partners by the court.

If a couple, have had a child within 2 years of their living together, it is still considered genuine de facto relationship.

If any one partner has made substantial monetary contribution to the relationship, it is too considered as genuine de facto relationship.

 

Why the above legal points are important? Because, the de facto partners perpetually are under the risk of being abandoned by the other partner and end up in miserable situation. Legal coverage of de facto relationship ensures the partners are responsible towards each other.

I hope you pay attention to your live-in relationship, before being sorry!

Separation and Divorce laws in Australia

Separation and Divorce laws in Australia

 

The separation and its aftermath is way too stressful for the couple. The separation decision and planning for coming days become the focus of both the couples. If children are involved, one need to tread very carefully, so that their care is not affected adversely.

Requisites for granting divorce

Surprisingly, not many couple in relationship don’t know the guidelines set for divorce application and granting of the same! I thought, it’s better to acquaint the readers’ with some legal know-hows!

The family law has laid down few rules as to when the spouses can file for divorce and whether they can be granted divorce decree; at least not until they meet the below criteria:

  1. The couple must have lived separately for minimum of 12 months before filing for divorce.
  2. The couple must prove to the court that their marriage has irretrievably broken down and that there is no means of reconciliation.
  3. The couple must provide their original marriage certificate to the court.
  4. If the couple have a child out of their wedding, who is below 18 years, they should show the court that sufficient care arrangements have been made for the upbringing of the child.

You can check here on how to apply for divorce in Australia . For the spouses to apply for divorce in Australia, they must confirm their relationship with Australia first.

Grounds on which divorce can be filed by spouses

 

  • Either any of the spouses or both have lived in Australia for the minimum of 12 months just before filing for divorce in Australia.
  • Either or both the spouses are Australian citizens by birth, grant or descent.
  • Either of both the spouses are currently living in Australia or wish to live in Australia for indefinite time.

 

Separation

 

You can do your own divorce process through online divorce filing services provided by the family courts of Australia. You can either apply in Family court or Federal Circuit Court for divorce. The divorce filing fees must be borne by both the partners if the spouses are jointly applying for divorce.

If one spouse does not agree to divorce and decides to contest the divorce case filed by the other partner, then he /she must file Response to Divorce in the court within 28 days of receiving the divorce notice.

A family lawyer’s assistance might be required when you choose to oppose the divorce filing. Because, you must prove to the court that either of the below mentioned grounds point that the divorce case is invalid:

  1. The couple have not separated for more than 12 months as against the information provided by the other spouse.
  2. Or, that the court is acting beyond its jurisdiction by taking this divorce case for hearing.

If both the couple agree to divorce but either one does not agree to the facts mentioned there in the divorce filing, he/she can ask the family lawyers to file Response to Divorce and state the discrepancies in the facts.

The divorce process generally takes 6-10 weeks to get finalised.

Will the divorce filing parties need to attend court hearings?

 

Not generally! The family lawyers handle the case without you attending court hearings. In below situations, you need not go to court sessions, personally.

  • If the divorce is joint application and there are not child/children involved.
  • If the divorce is joint application and there are child/children involved who are below 18 years of age AND all the necessary arrangements have been made for the care of the child/children.

*The court grants divorce to such couple only after it satisfies itself fully that the provision made for the child care are adequate. If the court finds the child care inadequate, it asks the spouses to attend the court sessions personally.

If in any other unavoidable circumstances, you cannot attend the court personally, you can ask your family lawyer to arrange for an audio or video participation.

This video clip might help you understand how divorce papers are prepared and served: