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What Contagious Disease Called ‘Divorce’

The rate of Divorce in Australia is high, with approximately 2.2 divorces per 1,000 estimated resident population.

The decision to separate and/or divorce is very difficult.

I find it difficult to believe that the decision to separate and divorce can be triggered by the separation or divorce of a friend (unless there is a ‘tryst’ between the parties to the marriage).

I have yet to meet someone who’s decision to separate was brought about by someone else’s decision.

I think that the decision to separate is much more profound than any ‘contagion’ and that the parties deserve greater respect than this oversimplification of this most difficult of decisions.

http://www.theage.com.au/lifestyle/life/making-a-break-for-it-when-you-divorce-because-your-friends-have-20140711-zt29v.html

Mathews Family Law provides expert divorce law / family law advice in Melbourne and the metropolitan area and, through the use of technology, to clients all over the world.

Vanessa Mathews
Accredited Family Lawyer

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Bitcoins and Divorce Property Settlements

I recently had my first encounter with ‘Bitcoins’, a new and modern form of currency which, like savings, are included in the matrimonial asset pool.

‘Bitcoin’ is a form of digital currency.

‘Bitcoin’ can be used for payment of goods and services.

In this particular case, the value of the ‘bitcoins’ had significantly increased and was considered by the parties to have been an excellent investment. Much of the ‘bitcoin’ market is speculative, and the value of ‘bitcoins’ is therefore very much subject to fluctuation.

The ‘bitcoin’ investment was valued according to the current market value and included in the assets of the marriage to be divided between the parties.

Whether its ‘bitcoin’, an e-commerce business or an ‘app’ in the development phase, the team at Mathews Family Law & Mediation Specialists, Australia Divorce, is able to provide you with expert legal advice about your property settlement entitlements.

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The Task of the Single Expert Witness: A Recent Decision of the Family Court

To follow is a summary of the ‘pathway’ to be taken by the single expert witness in parenting proceedings.

It provides a useful reminder of the Family Court’s expectations of the single expert witness.

  1. ‘ … The task of a single expert witness is never easy. The opportunities for observation and consultation are rarely if ever entirely satisfactory, because of constraints of time and money. Usually, each party is seeking some corroboration from the single expert witness of his or her position.
  2. Although the expert may give evidence about the “ultimate issue”[67], more frequently the determination of that matter will fall to the Trial Judge. Each party and the Judge may confront the single expert witness with hypothetical sets of facts to see if the expert will or could modify or qualify his or her opinion. Frequently, with a necessarily limited database a single expert witness faces challenges to his or her opinion.
    It is important therefore that single expert witnesses follow the pathway prescribed by authority[68] to prepare and present his or her report.
  3. The pathway accords with common sense. First, the expert must have primary and particular qualifications and experience. For example, expert evidence on the health of children should come not only from a medical doctor but desirably from one specialised in child medicine and moreover someone experienced in such an area of practice and knowledge.
  4. Second, the expert should clearly indicate the information and facts upon which he or she has relied and identify the assumptions upon which he or she proceeded.
  5. To the extent that the expert relies on research to form his or her opinion, it may be wise to identify that research, particularly if it is likely to be controversial and invite cross-examination. An expert becomes an expert through knowledge of and reliance upon, research other than his or her own and the expert’s opinion must necessarily be a synthesis of knowledge in the field of expertise. However, comments such as “research shows” may indicate a lack of specialist acuity.
  6. Third, the pathway of reasoning to the opinion must be discernible. This would seem to be a statement of the obvious but surprisingly from time to time it is overlooked by the single expert witness …’.

As reported in Hoffman & Barone [2014] FamCA 52 (4 February 2014), Deputy Chief Justice Faulks, paragraphs 93-100 (inclusive).

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Divorce Process in Australia

Divorce is the legal word for the termination of a marriage.  In Australia, there is no need for there to be “fault” in order for the divorce to be permitted.   So even if only one partner wants out of the marriage, the court will grant a divorce order.  But there is still a legal process involved that generally takes up to a year to complete.

Issues related to Divorce Process in Australia are covered in Part VI of  The Family Law Act, 1975 (link to the law).   The law says that a divorce order is based on “the ground that the marriage has broken down irretrievably”.

Step One: Separation

Before one or both partners may file for divorce in Australia, they must be separated for a period of one year and a day.  This is in order to show that the ground for divorce – the breakdown of the marriage – really exists.  While no fault must be shown, the law considers divorce a serious matter.  By requiring this long period of separation, a couple is required to think very carefully about their decision to terminate their marriage.   A court may ask for proof of the separation during the hearing (to be discussed further).

It is important that one partner officially notify the other that he or she wishes to separate.  This can be done verbally but a written notification is even better and can be used in court in the event that questions arise about the date of separation or whether it happened at all.

Step Two: Completing an Application for Divorce

One or both partners must fill out a standard Application for Divorce.  This form may be found at the Family Law Courts website.  It requires a good deal of information, including personal details about each partner, financial information, questions about property, and details about your children (if you have any) and custody arrangement if they are under 18 years of age.

While this application can be completed without a lawyer (other than the affidavit in Part G), it’s useful to consult with a lawyer to be sure that you’ve completed the application properly and accurately.

Step Three: Submitting the Application for Divorce

You must file the Application for Divorce in three copies – an original and two copies, along with a copy of your marriage certificate and any other accompanying documents (see below).   This packet can be filed at the nearest family law registry or on-line at www.comcourts.gov.au.

There is a fee for submitting an Application for Divorce.  As of January 1, 2013, the fee is $800 but it is also possible to obtain a reduced fee.

Once everything is filed and paid for, you’ll receive a file number and a time and date for your hearing.

Step Four: Serving Your Spouse

If you filed your Application for Divorce together with your spouse, then nobody needs have the application delivered to them.

If you are submitting the Application for Divorce alone, you need to serve your spouse with a copy of the application, the “Marriage, Families and Separation” brochure and any other documents you filed with the court (except the marriage certificate).

The Divorce Service Kit details how these documents are to be served on the other spouse.  Consult with a lawyer before taking any legal action to be sure that you understand all of the implications of your actions and that delivery is done correctly.

Step Five:  The Hearing

You are not always required to attend the hearing.

If there are no children under the age of 18, neither you nor your spouse needs to attend the hearing.

If this is a sole application (not joint with your spouse) AND there is a child under 18, you must attend the hearing.

If this is a joint application, regardless of the age of the children, neither of you needs to attend the hearing.

Step Six: The Hearing

The hearing allows the judge to ask any questions regarding the Application for Divorce Process in Australia.   If the judge decides more information, he or she may schedule an additional hearing.  If the judge is satisfied with the application, a divorce order is granted at the conclusion of the hearing.  The order becomes final only one month later.

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