Tag: Australian family law

The Australian family law is unique in a way that it does not require the divorce applicants to prove the fault of any partner. This is called a no-fault divorce. All that is required is that the partners have been separated for a period of 12 months and that there are no chances of their getting back together. It is also not necessary for a joint divorce application to be filed. Australian family law allows either partner or both jointly to file an application for divorce.

The court needs to be certain that the marriage has broken down irretrievably and that there is no hope for reconciliation at all. This requirement is particularly acute if the partners have been married for a period under two years. To ensure that the partners are not getting a divorce in haste, the court requires a certificate signed by a counseling agency to be filed with the divorce papers. This certificate attests that the partners have sought counseling as a means to seek reconciliation before applying for a divorce process in Australia. Similarly, if either spouse cannot be traced, the applicant can pursue the divorce application as long as they demonstrate that they have made efforts to locate the untraceable spouse.

Usually, the divorce proceedings do not take much time if there are no minor children involved. However, if the custody of children under 18 is an issue, then the applicants need to demonstrate that they have made adequate arrangements for the care of their children after the divorce. More so, unless a joint application is made by both partners, the applicant needs to be present at the hearing if there are children under 18 involved.

If either partner wishes to oppose an application of divorce filed by the spouse, he or she may file a response to the divorce application or a response to the jurisdiction if they feel that the divorce has not been filed in the right jurisdiction.

A man met a lady from Russia. He traveled to Russia, married her and brought her back to Australia. The relationship was the only reason for the lady to be in Australia. The parties entered into a Binding Financial Agreement on return to Australia. No copy was given to the wife, the agreement took away many of the entitlements Australian family law would have provided to her. She claimed she signed the agreement when she was under physical, mental and emotional stress from her husband. Despite obtaining independent legal advice prior to the agreement who had correctly told her the agreement was likely to disadvantage her if she signed it, she signed it in any case, the Federal Magistrate concluded the husband’s actions could be recognized as causing duress and were enough to be regarded as unconscionable conduct which allowed for the agreement to be set aside. The Magistrate also noted that the failure to give his wife a copy of the agreement was a breach of the legislation.