Family Law

What makes an overseas marriage valid?

In order for a marriage solemnised overseas to be valid in Australia, the marriage must conform to the legal requirements of the country in which the marriage is held. If no such laws exist, then the vows must be performed before an episcopally ordained priest and generally should also include the following:

Are marriages involving a transgender person valid?

The question of the validity of a marriage involving a person who underwent a transition was considered by the Full Court of the Family Court in the matter of Re Kevin FLC 93-127.

What are the requirements that a step parent must meet if they wish to adopt a child?

In order for a step parent to adopt a child, the following requirements must be met:

Does separation also mean living apart for other reasons?

Separation in the sense used within the Family Law Act 1975 (CTH) (the Act) does not encompass periods where the parties are living apart for other reasons, such as one person has been transferred overseas for work for example. In order for the court to construe that a period of separation has begun, some of the considerations can include:

What are the laws relating to voluntary and mandatory reporting for child abuse?

The ACT, New South Wales, Queensland, Tasmania, and Victoria provide for voluntary reporting to an authoritative body if a child is being maltreated or requires care. The provisions differ slightly between the jurisdictions. For instance in New South Wales, s 24 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) provides that a person believing on reasonable grounds that a child is at risk of harm, may notify the Director-General of the Department of Community Services. Additionally, some jurisdictions provides that any person acting honestly and without recklessness in their reporting, will not be been deemed to have breached their professional ethics and is protected from civil liability, such as s 874 of the Children and Young People Act 2008 (ACT).

Are those who are in de facto relationships afforded personal protection from family violence?

At the federal level, there are no laws in place where those in de facto relationships are afforded personal protection. However, s 114(2A) of the  Family Law Act 1975 (Cth) (the Act) may apply to a de facto relationships restricting one party from entering, using or occupying a residence of one or both parties to the de facto relationship.

What is a living will?

The term ‘living will’ is somewhat misleading in that it is not a document related to how a person’s assets are to be dispersed upon their passing, but rather, it is a written document relating to how a person is to be treated in the future if they are incapacitated. The more accurate descriptor for a living will is ‘Advance Care Directives’ and there may be some differences between the States and Territories in relation to such documents.

How does the relationship registry work?

Using the Relationships Register Act 2010 (NSW) as our statutory example, two adults who are in a relationship can register if:

What process does the court take to ensure that a property settlement is just and equitable?

Prior to the High Court decision in Stanford v Stanford (2012) 247 CLR 108; HCA 52, the courts relied on the four step process based on s 79(4) of the Family Law Act 1975 (Cth) (the Act) which provided guidance as to how the court should apply a “just and equitable settlement”. However, with the decision in Stanford, there is now a threshold question that also needs to be raised before the application of the four step process.

What do I need to know about creating enforceable agreements?

Section 90G of the Family Law Act 1975 (Cth) (the Act) outlines the circumstances when financial agreements are binding. The requirements are strict, and all parties must have been provided with independent legal advice about the effects of the agreement on the rights of the party, and the advantages and disadvantages of making the agreement. Additionally, the parties must be provided with a signed statement that independent legal advice had been sought, and that the agreement has not been terminated. After both parties have signed the agreement, both parties will be provided with either the original document, or a copy.

Can I serve an application for divorce if my spouse is in another country?

If the respondent is based in another country, it is important to find out whether Australia has an agreement with the other country in relation to civil proceedings, and such countries are referred to as a Convention country, as set out in reg 21AE of the Family Law Regulations 1984 (Cth). The other important detail, besides whether the respondent resides in a Convention country, is also whether the person is a citizen of that country.

When does a person have a reasonable excuse to contravene a parenting order?

There may be instances where the court may consider that there is a “reasonable excuse” for contravention of an order with the reasonable excuses outlined in s 70NAE of the Family Law Act 1975 (Cth)(the Act), and are as follows:

What are the indicators that demonstrate there has been a change in the marital relationship

There is of course no uniform way in which marriages should be conducted, and the law does not attempt to define how a married couple should behave. Instead, the court will look at evidence showing that there has been a change in the overall character of a relationship.

Are homemaker and parental duties considered as non-financial contributions?

It should also be noted that the homemaker and parental contribution considerations can also apply to men as well. Therefore, labour involving home improvements can also be seen as non-financial contributions, especially if it leads to an increase in the value of property.

What effect does marriage have on a will?

Generally speaking, when a person gets married, any will made before the marriage will be revoked. However, wills made before a marriage that anticipates the marriage will generally be valid.

Can a person lose property if their spouse becomes bankrupt?

With the introduction of the Bankruptcy and Family Law Legislation Amendment Act 2005(Cth)(the Amendment) afforded non-bankrupt spouses greater protections in property proceedings with the insertion of the s 59A provisions into the Bankruptcy Act. The provisions provides that ss 58 and 59, being the vesting sections, are subject to orders made under Pt VIII of the Family Law Act 1975 (the FLA). So what does that exactly mean? Well, what it essentially signifies is that the income of the bankrupt does not vest in the trustee, therefore, allowing a non-bankrupt spouse the ability to seek maintenance from a bankrupt spouse. 

What are the laws relating to surrogacy?

The laws relating to surrogacy arrangements within Australia falls within the jurisdiction of state and territory governments, with the majority of jurisdictions having relevant legislation relating to the legal transfer of parentage following surrogacy. Additionally in most jurisdictions, altruistic forms of surrogacy are legal, while surrogacy arrangements that have a commercial aspect are illegal.

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