Family Law in Brisbane is an ever growing and developing area of law. Over the past decades, the notion of a traditional family has changed dramatically and the area of Family Law in Brisbane has changed to match the needs of today’s complex society.
Rules and Courts that govern Family Law in Brisbane
The Federal Magistrates Court of Australia and the Family Court of Australia hear most matters dealing with Family Law in Brisbane and Australia. Most complex matters involving children will be held in the Family Court and will not be open to the public. Family Law in Brisbane (along with the other states of Australia) is governed under a Commonwealth Act called the Family Law Act 1975. This piece of legislation details the rules for proceedings regarding most of the common areas of Family Law such as separation and divorce and so on.
Common Areas of Family Law in Brisbane
Getting married should be a worry free and joyous occasion; however the reality is that around 50 per cent of marriages will end in divorce. You may be worried about what will happen to your assets if you and your partner were to ever separate. You can protect your assets and your financial position by entering into a Binding Financial Agreement. A Binding Financial Agreement before marriage is what is commonly known as a pre nuptial agreement or pre nup. These agreements can also be made during a marriage or after a marriage. If drafted correctly these agreements can detail how financial resources will be split in the event of or after separation or divorce.
De Facto relationships
The legislative framework governing Family Law in Brisbane has expanded with the community’s needs and now recognises and provides de facto relationships with certain rights. A de facto couple now includes a couple of the same sex.
Separations and Divorces
Separation is a fact which must be proven if it is disputed by the other party at a later time. Therefore, it is a good idea to confirm the separation in writing, even if this is via text message that can be saved, at or shortly after the time of separation. Often divorce cases or cases for property settlements in de facto relationships can turn upon whether or not a party can satisfy the Court that separation did in fact take place on a particular date.
In the case of a divorce, the date of separation is recorded on the Application for Divorce and is sworn to be true and correct by the Applicant. If it cannot be proved that the separation took place more than 12 months ago the divorce cannot proceed until the requisite time from separation has elapsed.
Under the relevant act governing Family Law in Brisbane, you have to be separated for at least 12 months before you and your spouse can apply for a divorce. The Family Law Act explains certain criteria which spouses need to follow to be officially separated. For example, partners who live under the same roof can still be classified as separated if there is a definite division between household chores. Separations and divorces can of course be complicated and emotionally difficult so it is best to seek help from a lawyer who will understand your situation and has specific knowledge of the particular aspects of Family Law in Brisbane.
Separations and divorces can be complicated and emotionally difficult for children to deal with and often children become drawn into their parent’s disputes far more than is necessary. Accordingly the legislative frame work surrounding Family law in Brisbane and Australia is designed to try and protect the interests of a child. If you have come to an agreement with your former spouse on issues dealing with your children, for example who your child will live with, you should draft these terms in an enforceable parenting plan or as consent orders. These documents will ensure both parties follow the terms and can prevent complications or issues arising at a later date if orders have not been formalised. These documents may also detail who will pay for the child’s expenses and how a partner will provide appropriate chid support and comply with the requirements of the relevant Child Support Agency. It is important that any such orders are concise but very specific as many Orders have been held to be invalid by the Court due to their incompleteness or failure to fulfil certain legislative requirements.
Estate Planning and Wills
Another large area of Family Law in Brisbane is estate planning and wills. Many people now recognise the importance of securely leaving their assets to family, friends and charity in a valid will. This is even more important in circumstances of blended and melded families which are becoming more and more common where one or both partners may have been married or had children prior to their current relationship.
A person who passes away without a will is said to have died intestate. This impacts on certain elements of Family Law in Brisbane because the default intestacy rules will govern what will happen to your possessions if you have not left a valid will and that affects what certain member of your family may ultimately receive in the event that you pass away. The intestacy rules have been drafted to fit the most scenarios of providing for your spouse and/ or children but they may not fit your specific wishes and may be further complicated if you have been previously married or have children from previous relationships. A well drafted will or estate plan can decrease the likelihood of litigation if a family member decides to contest a will or a dependent decides to bring a family provision application. Wills can also be drafted to make particular provisions for persons that you wish to see taken care of by your assets but for one reason or another, you do not think it is appropriate that they receive a large amount of assets as a lump sum on your passing. These instruments are called testamentary trusts and can give you a greater ability to ensure that your loved ones are cared for through the provisions of your will.
At Hillhouse Burrough McKeown we can advise you on all issues and answer all your queries regarding any Family Law issue that you may have.