Comments Off on Separation for persons in de facto relationships
For persons who are in a de facto relationship, there is no need to make any application for a divorce order. If the parties to the de facto relationship had registered their relationship with the Queensland Births Deaths and Marriages office, then an application to deregister the relationship must me filed with that Government Department but beyond this, no further formal action is required.
Importantly for de facto couples, the twelve (12) month limitation period which occurs for married couples also extends to operate for de facto couples but for de factos, the limitation period runs for two (2) years and runs from the date of separation. Notably, the term “separation” is not defined anywhere in the Family Law Act but according to case law it is said to exist when every aspect of the de facto marital relationship has broken down. Consequently, there can be cases where the former de facto couple might presently agree that they are separated but disagree as to the date in past history when separation actually occurred. For de facto couples therefore, the need to have some formal record of the date of this separation and indeed the need to stay alert to the operation of the two (2) year limitation period is very important if it is the other spouse who has all or the predominate share of the assets.
Note: If your enquiry relates to:
Division of assets [property settlement];
Division of care arrangements for children;
Periodic financial support for yourself or your children;
Updating your Will or Superannuation Death Benefit Nominations
then please feel free to contact our office from where we can provide you with more information concerning these topics.
Comments Off on Separation and Divorce for Married Couples
If your enquiry relates to general Family Law issues and/or separating from a de facto relationship, then please refer to the notes at the base of this paper.
If you and your partner are separated from each other and you were originally Married, you will eventually need to apply for a divorce.
A divorce is granted from the Australian Family Court and cannot be applied for until the couple have been separated for One (1) year and a day. If the couple were married for less than Two (2) years (Including the separation period) then the couple must at least attempt marriage counselling before the divorce application can be filed.
The divorce application can be completed by one of the couples individually or by the couple together as a joint application.
If there are children who are either born to the marriage or ordinary members of the couple’s household (for example children born to earlier relationships) then:
the divorce application must set out what arrangements are currently in place for the care and welfare of those children because the divorce order will not be granted if the court is not satisfied that those arrangements are appropriate;
the divorce application itself steps out the information, which is required and in short, it covers the time which the child/children spend with each parent, schooling, health and financial support;
if the divorce application is being made by one member of the couple alone, then that person will be required to attend personally before the court on the day of the hearing;
if however the application is being made jointly between each of the parents then the requirement for personal attendance is removed.
The divorce order, once made, initially only functions as a provisional order and in fact only becomes fully operative (that is taking full legal affect) after a period of one month has expired. The one month delay is arguably antiquated but is there to allow the couple a grace period within which they can change their mind and cancel the divorce if they want to.
Once the divorce order takes effect, some important legal consequences activate which in summary are:
Either member of the couple are freed up to marry another person under Australian Law if they choose to do so.
If either spouse is named as a beneficiary under the will of the other spouse, the granting of the divorce order disqualifies them from that beneficial entitlement , and
In some areas under superannuation and general deceased estate law, the obtaining of a divorce order closes off rights that might otherwise have been available to make a claim against either a superannuation fund or an estate.
Another important feature of a divorce order is that it activates a countdown of a limitation period for the commencement of property division proceedings. The time limit is twelve (12) months and if formal court proceedings for property settlement have not been commenced or the full property division exercise not otherwise fully agreed and properly documented by the expiration of this twelve (12) month period, the result will be that the assets effectively stand where they fall because the doors to the family court to commence a case for an alternate division of the assets will now be closed. Importantly, the limitation period is not an absolute bar because the court can grant leave (permission) to commence proceedings out of time but this leave will not be granted if the court cannot be convinced that there is a reasonable excuse for the delay and financial hardship will be suffered if leave is refused.
Note: If your enquiry relates to:
Division of assets [property settlement];
Division of care arrangements for children;
Periodic financial support for yourself or your children;
Updating your Will or Superannuation Death Benefit Nominations
then please feel free to contact our office from where we can provide you with more information concerning these topics.
Thanks to all of our friends and family who have supported our own Michael Zande in his first ever attempt at growing a Mo for the “Movember” Men’s health charity appeal. The jury results are in and everyone agrees that it was a woeful effort but at least we have raised some good donations and awareness for the cause. It’s not too late to get involved and donate or just give us your feed-back. For money Just Google Movember and then click on the “Donate” button in the top left hand corner then either type in “Michael Zande” in the search section and then follow the prompts or if you’d prefer to donate anonymously, click on the “general” section and again just follow the prompts. For feed-back just email us here at info@zandelaw.com.au and we will post it up on the Movember web site – be as brutal as you like it can’t be any worse than what has already been said.
Zande Law was proud to again be a major sponsor of The Lakes College Fun Run in 2013. Staff and their families enjoyed a fun day in the community with a great turn out for all the events. The North Lakes scenary has provided a beautiful back drop to what has turned into a large gathering for the community.
We attended the North Lakes Retirement Resort to give a presentation on Advance Health Directives. The seminar had an outstanding attendance of more than 130 residents. It was enjoyable to mix with the local residents and we received fantastically positive feedback to the quality of the information which we provided.
Our firm is delighted to continue to maintain its association with this extremely worthwhile and dedicated organisation.
The Foundation’s vision is to create training and high level medical specialist service facilities to the Redcliffe Peninsula and its surrounding region so as to better support the health needs of the local community. Its projects in the recent times have been to construct the $11 million medical specialist health centre which will now augment and superbly support the medical services already being provided out of the adjacent Redcliffe Hospital. Zande Law has participated as a platinum member for the Foundation now for the past 3 years. For the past 2 years, we have also with the kind support and appreciation of our clients, elected to distribute annual Christmas cards via an “E card” medium via email and have put the savings in the cost of printing and postage for those cards towards making additional $1,500.00 donations to the Foundation in both 2010 and 2011.
Zande Law is proud to be a continued supporter of the life changing work of the International China Concern. As part of our annual Christmas gift to the community, in December 2012 $1,000 was donated and a further $1,200 in 2013 to the organisation in support of all the good work they do.
International China Concern was founded in 1993 by David Gotts after seeing first hand the suffering of children with disabilities who had been abandoned and left in desperate conditions. In the beginning, ICC sent short term teams into China to help give care in government welfare centres. Later, permanent locations were established to provide full-time care for children in Changsha, Hengyang and Sanmenxia. Since 1993, more than 4000 children have been impacted through the work of ICC.
