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At de Korte Lawyers we work extensively in the area of family law. We promote alternative dispute resolution and approach each matter with care and sensitivity.
Divorce & separation
A marriage can be dissolved under the Family Law Act where the marriage has broken down irretrievably. Previously the fault based system proved for one party to be at fault, however since the introduction of the Family Law Act in 1975 a no-fault divorce concept was established.
In order to prove that the marriage has broken down irretrievably with no chance of reconciliation, the parties must be separated for no less than 12 months. This separation period must be continuous and requires several criteria to be satisfied. Upon the 12 month period of separation expiring a party can apply to the Federal Magistrates Court for a divorce.
Parenting
The introduction in 2006 of the Family Law Amendment (Shared Responsibility) Act (Cth) established that there is a presumption of equal shared parental responsibility. The presumption basically establishes that the significant, long term decisions regarding the child/children are made by both parents. This includes such decisions as what school the child will attend and serious health matters. However, a court must also consider whether it will be reasonably practical for the child to spend equal time with each parent. The overarching consideration of the best interests of the child remains paramount as in every case. Also, if there have been acts of family or domestic violence, the presumption of equal shared parental responsibility does not apply.
De Facto Property Settlements
In order to make an application to the federal family courts under the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, the relationship must satisfy one of three criteria, namely that the parties were in a de facto relationship for a minimum of two years, there was a child of the relationship, or it would be a serious injustice to fail to make orders due to substantial contributions to the relationship.
In consideration as to whether there exists a de facto relationship, a court will also consider the nature and extent of a common residence, evidence of a sexual relationship, and the extent of financial dependence or interdependence amongst other considerations. Upon proving that a de facto relationship exists, the usual property settlement considerations are taken into account; namely determining the property pool, each parties' contribution to the relationship and then the section 75(2) factors are considered. If the court is satisfied that the proposed orders are just and equitable, the orders will be granted.
Property Settlements
Upon the breakdown of a relationship, the parties can arrange to have their property interests distributed. The court has the power to make orders regarding property such as land, buildings, money, motor vehicles, and more recently superannuation. A property settlement application can be done before or after divorce proceedings, however upon the parties getting divorced ,they must apply within 12 months for a property settlement. When undertaking a property settlement the property pool is first determined, the contributions each party made is then assessed, and the s75(2) future needs factors are then considered. If the court is satisfied that the proposed orders are just and equitably, the orders will be granted.
Domestic Violence
Domestic violence occurs when a family member, partner or ex-partner attempts to physically or psychologically dominate or harm the other. In Queensland, the applicable legislation is the Domestic and Family Violence Protection Act 1989. While most incidences of domestic violence go unreported, statistics show that 5.8 per cent of women had experienced violence in the 12 month period preceding a survey in 2005.
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