On 9 December 2017, the Marriage Act 1961 (Cth) was amended to redefine marriage as the ‘union of 2 people to the exclusion of all others, voluntarily entered into for life’. The right to marry under Australian law is no longer determined by sex or gender. This means that same-sex couples can access the family law system and courts in Australia.
Is a Divorce Application the same as an Application of Property Settlement or Parenting Orders?
An application for Divorce is a separate application to The Family Court of Australia from an Application for Property Settlement.
Once you have been granted a Divorce, what is called a limitation period starts to run and you must initiate proceedings for Property Settlement (assuming you have not been able to reach an agreement with your partner) within 12 months of your divorce becoming final.
Many lawyers will advise their clients not to divorce until their property and parenting issues are resolved. This is largely strategic advice with the aim of putting pressure on a spouse (who wants to remarry for example) to settle (finalise) parenting and property issues.
I have applied for a divorce, is it safe to set a wedding date for my new marriage?
No. You should not make firm plans to marry on a specific date until the divorce order is finalised. You may, however, complete and lodge a Notice of Intended Marriage with an authorised celebrant before the divorce order is finalised.
If you intend to remarry, you must lodge the Notice of Intended Marriage with an authorised marriage celebrant at least one month before the date the marriage is solemnised, and comply with other requirements of the Marriage Act 1961. The authorised celebrant must sight a copy of the divorce order before the wedding can take place.
In most cases, the divorce order takes effect one month and one day after the divorce is granted. You should not assume the divorce will be granted at the first court hearing. For example, you may be told at the hearing that you need to provide more information.
More information can be found in this section of the Family Court website.
Do all family law matters have to go to court to be decided?
Not necessarily. And very few go to a final hearing.
There is a range of options for resolving disputes including Mediation, Negotiation and Collaborative Law. Anecdotal evidence suggests that of those cases that proceed to court 95% settle without the need for a final hearing.
Family Dispute Resolution
Family Dispute Resolution (FDR) is a process in which a Family Dispute Resolution Practitioner (FDRP) helps parties to resolve their disputes. These disputes might include who your children will live with, who they will spend time with, and what to do about your shared property. FDR can help separating or separated couples or interested parties reach an agreement without having to go to Court.
If you are intending to ask the Court for parenting orders, or to make changes to current parenting orders, you will be required (except in very limited circumstances) to attend FDR and obtain an FDR Certificate before being able to commence Court proceedings.
There is no requirement for you to attend FDR if you only want to resolve property or financial issues. However, FDR can be a useful process to help resolve these sorts of disputes.
An FDRP is a person who has undertaken special training and is nationally accredited to satisfy certain legislative requirements and standards. An FDRP is independent of all the parties involved. FDRPs are specially trained mediators who are accredited by the Attorney General’s Department.
Marie is a Nationally Accredited Mediator and is a member of The Resolution Institute https://www.resolution.institute/ however when acting as your family law solicitor she cannot also be your mediator. She will recommend an independent mediator.
During the mediation process, FDRPs help parents to discuss parenting issues, identify options and work out parenting and property agreements that are in the best interests of the children.
Mediation may be undertaken voluntarily or by order of a Court.
Where mediation is ordered by the Family Court, parties may participate in a form of mediation known as a Mediation Style Conference. This differs from traditional mediation in that the mediator is usually a qualified Family Lawyer who may be asked, with the agreement of all parties, to express a view to the parties about the issues in dispute and or the range of possible outcomes.
For more information about Mediation and how it works, and the services we offer, please go to www.mariesullivanmediation.com
Negotiation involves lawyers assisting you with identifying the issues in dispute, developing options, considering alternatives and endeavoring to reach an agreement whilst providing ongoing advice and representation.
No matter what stage your dispute has reached we remain focused on applying our skills and expertise to negotiating a resolution, having regard to your needs.
We are experienced negotiators and will use best endeavors to help you resolve your matter without the need for Court litigation.
In the event that you are unable to reach an agreement with your former spouse or partner, we are able to represent you in every aspect of Court litigation; equally, we may recommend retaining a barrister to represent you at Court which may in certain circumstances save costs.
We regularly appear in the Family Court of Australia and may appear in the:
- Full Court of the Family Court of Australia
- The Family Court of Australia
- The Federal Circuit Court of Australia
- The Children’s Court
- The Magistrates’ Court