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Divorce Law and Family Law: Issues You Need to Discuss With Your Family Lawyer

In Australia, there are some specific laws and processes that must be followed to legally divorce. This guide will outline some of the key points to keep in mind if you find yourself going through a divorce in Australia. This includes a discussion of the different issues that may arise concerning family law. 

Divorce in Australia: An Overview

In Australia, you must be separated from your spouse for at least 12 months before you can file for divorce. Once this period has passed, either party can file an application for divorce with the court either jointly or as a sole applicant.

If you have children under the age of 18, the court will also need to be satisfied that arrangements have been made for their care and welfare. This is typically done through a parenting plan or child support agreement. 

The divorce process in Australia is relatively straightforward. Once the necessary paperwork has been filed with the court, and service has been executed on the other party, a hearing date will be listed, and the divorce will be granted if there are no objections and all court compliance matters have been completed. The whole process usually takes around four to six months from start to finish.

Family Law Issues Concerning Divorce

Divorce law in Australia is complex and often contentious. The family law system is designed to deal with the legal aspects of family relationships, including divorce.

There are several issues that can arise during a divorce, such as property division, parental responsibility of the child, and spousal maintenance. Each case is unique, and the outcome will depend on the specific circumstances of the marriage and the family.

Property Division

When a married couple decides to divorce, they must also decide how to divide their assets and property. This can be a difficult and emotional process, especially if the couple has accumulated significant wealth during their marriage.

In Australia, the family law system strives to be as fair and equitable as possible when dividing property between divorcing couples. The first step is to determine what property is eligible for division. This includes all property that is acquired during the marriage, as well as any pre-marital property that has increased in value during the marriage.

Once the eligible property has been identified, the next step is to assess its value. Once the value of the property has been determined, the couple can then begin to negotiate how to divide it.

If the couple is unable to reach an agreement on their own, they may need to seek help from a mediator or family lawyer. Ultimately, the court will decide on how to divide the property if the couple is unable to reach an agreement. Working with qualified Madison Marcus family lawyers in Sydney can help make the process as smooth and stress-free as possible.

Parental responsibility and Support

Parental responsibility and support are important family law issues that often arise during divorce. Whoa that’s very misleading, I know what is implied but the average Joe wouldn’t.  In Australia, the Family Law Act 1975 is significant legislation needing close observance when deciding shared parental responsibility, however, there may also be state or territory law that can be applicable to a given family situation, such as an Apprehended Domestic Violence order .  When making decisions about parental responsibility and support, the court will always consider the paramount principle of what is in the best interests of the child. 

At what age can a child decide which parent to live with in Australia?

There are instances when a child has a preference of which parent he or she wants to live with. There is no specific age a child can decide in under the Australian Family Law Act 1975. Until the child turns 18, he/she is considered a minor, and the law will base its decision on the best interest of the child. This rule also applies when a child refuses to see a parent.

There are some factors that the court will take into account when determining what is in the best interests of the child, including:

  • The wishes of the child (if they are old enough to express a preference)
  • The wishes of each parent
  • The relationship between the child and each parent
  • The ability of each parent to provide for the needs of the child
  • Any family violence or other risks that might exist

If you are going through a divorce and have children, it is important to seek legal advice about your rights and obligations concerning child custody and support.

Spousal Maintenance

Spousal maintenance is financial support that is paid by one spouse to the other after separation and during or after divorce proceedings. In Australia, family law courts have the power to make orders for spousal maintenance.

Spousal maintenance can be ordered if:

  • One spouse cannot support themselves adequately after separation or divorce.
  • The other spouse is in a position to pay spousal maintenance.
  • There is a genuine need for spousal maintenance.

The amount of spousal maintenance will depend on several factors, including:

  • The income and assets of both spouses
  • The age and health of both spouses
  • The care arrangements for any children of the marriage 
  • The length of the marriage 
  • The contribution of each spouse to the marriage (including any homemaking or child rearing contributions)
  • The standard of living enjoyed by the family during the marriage 
  • Affordability of the spouse having to pay to the other spouse

Spousal maintenance is not intended to be a long-term financial support arrangement. It is for a limited period until the receiving spouse can become self-sufficient.

How Madison Marcus Can Help You

Whilst going through a divorce can be a difficult time, it is important to remember that you are not alone. With the right support, you can get through this tough time and emerge on the other side stronger and wiser. (more empowered – good placement to use our motto?)

Because family law is constantly evolving, and new laws are being enacted all the time, it can be difficult to keep up with the latest developments in divorce law. If you are considering a divorce, it is important to seek legal advice from a solicitor who specialises in family law.

Our family law specialists at Madison Marcus will be able to advise you of your rights and obligations under the law and help you to navigate the divorce process. Call us at 131-LAW(529) for a free 15-minute consultation.  

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