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3.2 Couples who are married

22 May 2017 - 09:37 | Version 24 |

Contributed by MauriceSgarbossa, AnneleiseHey and SallyBolton and current to 1 May 2016

This section covers issues that married couples may face. These include validity of marriage, property settlement, divorce and spousal maintenance.

Marriage

The law regulating marriage in Australia is contained in the Marriage Act 1961 (MA). The Marriage Act contains information about the process that needs to be followed to make a marriage valid. It also details offences and the law relating to the recognition of foreign marriages in Australia.

What is marriage?

Legally, marriage is considered as 'the union of a man and a woman to the exclusion of all others voluntarily entered into for life' [MA s5; Family Law Act 1975 (Cth) s43(a)].

Under Australian marriage law, Aboriginal customary marriages, de facto relationships or permanent homosexual relationships are not recognised as marriages. However, Aboriginal customary marriage and de facto relationships are recognised for many other legal purposes, such as inheritance (see Estates ), compensation (see Work-Related injury ) and property division. All three types of relationships are recognised by the Domestic Violence Act (see Domestic and family violence ).

Who can marry?

Anyone over 18 years old can marry [MA s11]. People aged 16 or 17 can also marry, but they first have to get permission from a judge or magistrate [MA s12]. Permission is only given in exceptional and unusual circumstances. By questioning the people involved, the judge or magistrate finds out about the circumstances of the case before deciding whether to grant an order allowing the couple to marry. If the judge or magistrate does grant an order allowing the couple to marry, they must do so within three months of the order being made. After this time the court order ceases to have any effect [MA s12].

Even if the judge or magistrate grants the order, the person who isn't of marriageable age still has to get the consent of both parents before the marriage can be solemnised (the word used to describe the effect of the marriage ceremony, which makes the marriage valid). If one or both parents are dead or can't be contacted, consent can be given by some other authority recognised by the Marriage Act, such as the person's guardian. If a parent refuses to give their consent, the person can apply to the Local Court for the consent of the Judge instead [MA s13-16] (see Children's rights and responsibilities ).

If the couple is old enough to marry or has been granted permission to marry, the marriage will be legal unless:
  • either partner was already legally married to someone else at the time of the marriage or is awaiting a decree absolute [MA s23B(1)(a)].
  • by marrying, the couple enters a prohibited relationship - a person can't marry an ancestor, descendant or sibling, including a half sister or brother, irrespective of whether these relationships are through birth or adoption [MA s.23B(1)(b), (2), (3) & (5)].
  • the person who performed the marriage was not legally authorised to do so and the couple were aware of that fact. However, if one person in the relationship didn't know that the celebrant was unauthorised, but the ceremony showed they wanted to marry, the marriage will be legal [MA s23B(1)(c) & s48].
  • either partner's consent to marry was not real consent, that is, it was obtained by fraud or duress or on the basis of mistaken identity, or the person was mentally incapable of understanding the nature and effect of the marriage ceremony [MA s23B(1)(d)].
Other minor breaches of the MA, such as giving less than the required one month's notice [MA s42] or not having appropriate witnesses at the ceremony [MA s44], won't make the marriage invalid, though the celebrant may be liable to prosecution [MA s48].

If a marriage is not valid, and the couple wish to remarry, or either person wants to marry someone else, they may need to get a court order that declares the marriage invalid (called a decree of nullity). This order is usually enough to prove to a celebrant performing a new marriage that no legal complications are likely to arise from a previous marriage. In such instances, legal advice should be sought. Anyone unsure about whether they are legally married should seek legal advice.

What is the effect if either one of the couple were drunk or affected by drugs?

A bride or groom's drunkenness at their wedding ceremony will only affect the legality of the marriage if either one of them was mistaken about what was really happening. If either person didn't realise, because they were drunk or affected by drugs, that a genuine marriage ceremony was taking place, the marriage won't be legal.

Where and when can a marriage take place?

A marriage can take place at any time and place in the world. Marriages are often held in churches or homes, but have been known to be conducted in parks and fields, on speed boats and other unusual places.

Who can perform the ceremony?

A marriage has to be performed by an authorised celebrant [MA s41], a civil celebrant or the Registrar of Births, Deaths and Marriages (BDM). An authorised celebrant can be a registered minister of a religious denomination listed in the Act. A civil celebrant is a person authorised by the Federal Attorney-General. A person who is registered as a marriage celebrant may solemnise marriages at any place in Australia [MA s39F].

Getting married overseas

An Australian consular official or defence force chaplain can marry a couple anywhere outside of Australia as long as one of the couple is an Australian Citizen or a member of the Australian Defence Force [MA s84 & s77]. A marriage conducted overseas is generally considered valid if it is conducted according to the laws of that country [MA ss84, 85 & 88D].

A person wanting to get married in another country according to its laws should follow the registration procedures required in that country [MA ss88C, 88D]. Inquiries should in the first instance be directed to the relevant consulate. The marriage certificate and any supporting documentation should be kept safe and brought to Australia on return [MA s88G].

Civil celebrants

Finding a civil celebrant

BDM maintains a list of authorised civil celebrants and registered ministers of religion (see Contact points). Civil celebrants also advertise in newspapers.

Civil celebrants are appointed by the Federal Attorney-General. Applicants receive a letter of appointment from Canberra which allows them to perform their duties anywhere in Australia. A person should ask to see this letter if they want to confirm that their celebrant is authorised.

Costs

BDM has information about the fees that can be charged for the marriage service (see Contact points). Civil celebrants charge a fee fixed by the regulations to the MA, while ministers of religion receive a 'donation'.

Unhappy with the service?

A person unhappy with the service provided by their celebrant should complain directly to them. If they remain dissatisfied, they should write to the Attorney-General (see Contact points ), who administers the MA, giving the reasons why they were dissatisfied. The Attorney-General has the power to cancel a celebrant's registration.

What documents need to be given to the celebrant?

Before a marriage can take place, a Notice of Intention to Marry has to be given to the marriage celebrant no more than 18 months and no less than one month before the wedding [MA s42]. The Notice of Intention to Marry needs to be signed in front of the celebrant or another person authorised by the MA, such as a marriage officer or chaplain. If the notice is signed outside of Australia it needs to be signed in the presence of an Australian Diplomatic Officer or other official, as outlined in the MA. Less than one month's notice can be given in special circumstances [MA s42(5)].

The celebrant has to be given a certified copy of each person's birth certificate or extract. Birth certificates and extracts can be obtained for a fee from BDM. If these documents can't be obtained, a statutory declaration that states place and date of birth will do.

Each person also has to sign a document that declares them to be unmarried and of the belief that there is no legal reason why they shouldn't marry [MA s42]. A person who is divorced or widowed has to show evidence of divorce or death.

All the necessary forms are available from authorised celebrants.

If the couple who want to marry don't speak English they must get themselves an interpreter from any of the following organisations:

Interpreting and Translating service NT (ITSNT)
RCG House, 83-85 Smith Street, Darwin
Tel: (08) 8999 8583

Mezzanine Floor, Alice Plaza, Todd Mall, Alice Springs.
Tel: (08) 8951 5576

Aboriginal Interpreter Service (AIS)
Floor 1, RCG House, 83-85 Smith Street, Darwin
Tel: 1300 334 944

Mezzanine Floor, Alice Plaza, Todd Mall, Alice Springs
Tel: (08) 8951 5576

Translating and Interpreting Service (TIS) National
Tel: 131 450

A celebrant will not marry a couple who is unable to understand the proceedings due to language barriers, because the marriage could be then void under section 23 of the MA. This section states that a couple needs to be mentally capable of understanding the nature and effect of the marriage ceremony.

What documents does the celebrant prepare?

The celebrant prepares three marriage certificates. After the ceremony each certificate has to be signed by the husband, wife, celebrant and two witnesses. One copy is given to the married couple, one is kept by the celebrant and the third is sent, together with the declarations, notices and other documents, to the BDM [MA s50].

A marriage certificate is proof of a marriage, which is often needed, such as when applying for a passport, getting a divorce, or as evidence when applying for child support.

What needs to be said at the ceremony?

If married by a civil celebrant, both the bride and groom have to say in front of the celebrant and witnesses, the following statement or words to that effect [MA s45]:

'I call upon the persons here present to witness that I, [name], take thee, [name], to be my lawful wedded wife/husband.'

These words don't have to be said in a marriage performed by a registered minister of religion - any words can be used.

Witnesses

Two witnesses over the age of 18 years are required at a marriage ceremony [MA s44].

Foreign marriages

A foreign marriage is a marriage made under the laws of another country. A marriage conducted in Australia by the consular official of another country is also legitimate if that country is on a list of countries 'proclaimed' by the Governor General [MA ss54, 55]. A foreign marriage will be recognised in Australia if it was made according to the laws of the relevant country, and that country was legally recognised as the couple's home at the time of their marriage [MA s88D].

The law is likely to validate a marriage made according to the laws of another country even if the Australian Federal Government doesn't recognise the authority of the foreign government concerned. The law is very reluctant to declare a marriage void just because it wasn't made according to Anglo-Saxon or Christian notions of marriage.

Same sex marriages are an exception to this. A same sex marriage which is made according to the laws of another country must not be recognised as a marriage in Australia [MA s88EA].

Australian law also recognises a marriage performed in Australia by the consular official of a foreign country between two of its citizens under its law.

A foreign marriage is invalid in Australia for the same reasons an Australian marriage is invalid. It will also be invalid if either of the following applies:
  • at the time of the marriage, one of the partners is under the marriageable age and Australia is recognised as their hom
  • either partner is under 16 years of age [MA s88D].

Offences

A person commits an offence under the Marriage Act when they:
  • marry someone when they are already married to someone else. This is called bigamy and carries a maximum penalty of five years imprisonment [MA s94]
  • marry someone when they believe that their partner is already married to someone else. This carries the same penalty as bigamy [MA s94(4)]
  • marry someone who is not old enough to marry. The maximum penalty is five years gaol [MA s95]
  • witness the signature of a person consenting to the marriage of a minor without being satisfied on reasonable grounds as to the identity of that person. [MA s98].
  • marry a couple who haven't given the required notice or declarations or when they believe the marriage may be invalid [MA s99]
  • marry a couple without having the authority to do so [MA s101].
The last three points in the above list carry a maximum penalty of $500 or 6 months imprisonment.

It is not illegal for a couple who are already married to get married again; that is to go through a second ceremony [MA s94(5)].

If a person thinks that their partner has committed an offence they should report the matter to police.

For the full list of offences, please refer to Part VII of the Marriage Act.

Changing names

Although it's common for a married woman to take on her husband's surname, legally she doesn't have to. Neither partner need take the other's surname. A woman who decides to use her husband's surname doesn't have to register the change; she can simply start using it. Also, a woman who adopts her husband's surname can revert back to her maiden name at any time without taking any steps (see Changing names ).

Sexual relations

A husband or wife does not have the right to have sex with their partner. If a husband forces his wife to have sex without her consent, he is guilty of a criminal offence, and vice versa (see Sexual offences chapter).

Property

The law that deals with the property of married couples is contained in the Family Law Act.

Wills and estates

Marriage is still very important when it comes to succession and inheritance. When a person in a marriage dies intestate, which means without leaving a will, a surviving spouse is entitled to take some or all of the deceased's estate, depending on the circumstances. Other family members may be able to seek to override intestacy rules (see Estates chapter).

Separation

Separation means more than just living apart Separation refers to the breakdown of marriage, when one or both partners intend to end the relationship and either or both act on that intention [Family Law Act (FLA) s49].

When a court tries to work out whether or when a couple has separated it looks at each person's intention, action and communication. Did the person intend to separate? Did they act as if they were separated? Did they let their partner or others know that they had separated? What people say and do can be interpreted in an infinite number of ways so how each case is viewed will depend on its circumstances [In the Marriage of Pavey (1976) 25 FLR 450; [1976] FLC 90-051 and In the Marriage of Falk (1977) 29 FLR 463; [1977] FLC 90-247].

A married couple can legally separate at any time; neither partner has to apply for or register their separation and a spouse cannot seek an order requiring their partner to live with them again.

The law dealing with separation and ending a marriage is contained in the Family Law Act 1975 (Cth) (FLA). The FLA aims to help couples separate with as little antagonism as possible and encourage them to reach their own agreements about children, finances and property.

Counselling

Many couples benefit from counselling; either with the aim of reconciliation and making their relationship work, or getting on well enough so that they can co-parent successfully or maintain friendships within the same social circles. Marriage counselling can assist couples to prevent separation in the first place. Counselling can be undertaken together or individually.

The Commonwealth Government provides funding to Relationships Australia, Family Relationships Centres and various other agencies to offer couples and individuals counselling.

Separation period

A couple have to have been separated for at least 12 months before they can apply for divorce [FLA s48]. An application lodged before 12 months has passed will be rejected, even if the 12 month period ends before the day of the divorce hearing, and the applicant will have to apply again.

The 12 month period of separation begins the day one or both partners leave the marriage. It's not necessary to physically leave the marriage, that is, to leave the home. A person has only to act on the belief that the marriage has broken down. For example, a couple can still live under the same roof, but be separated because they sleep in different rooms and lead separate lives (see Separation under one roof ).

A person who decides to separate needs to communicate that decision to their partner. Communication doesn't have to be with words; a person's actions can convey their decisions just as effectively. For example, one partner's intention to leave the marriage might be said to have been communicated when they started a new relationship, even though the couple never talked about separating.

A period of separation doesn't automatically begin when a couple lives apart for such reasons as work, study, illness or imprisonment. As long as they continue to regard each other as husband and wife, they are not considered to be legally separated. However, the court can presume that separation has started if one partner has started living with someone else or hasn't kept in regular contact. Occasional sexual relations between a separated couple doesn't mean that the 12 months separation period has been broken and must be started over. The court sees marriage as made up of many components, sex being only one of them [In Marriage of Spanos (1980) 6 Fam LR 345; [1980] FLC 90-111 and In Marriage of Feltus (1977) 27 FLR 490; [1977] FLC 90-212].

Date of separation

A person who has separated from their partner should record the date the separation took place because that date will need to be included on divorce documents. If the exact date is not known, an approximate date can be used. The date of separation also becomes important when it comes time to divide property. The date of separation is often not disputed, but where it is, the court can resolve the issue by hearing from any witnesses either person wishes to call.

Separation under one roof

A married couple can be legally separated while still living in the same house, but it has to be shown that the relationship has ended and that they live independently [FLA s49(2)]. Each marriage relationship is different in that not all married couples sleep in the same bed, share tasks in a similar way, organise their finances similarly, holiday together and so on, so proof of separation under one roof will vary from case to case. When deciding on whether or not a couple have separated the court considers:
  • the nature of the couple's sexual relationship
  • the couple's physical living arrangements in the house
  • what communications were made about the separation
  • how much time the couple spent together socially and looked after and cared for each other before and after the separation
  • how the couple present themselves in public, i.e. as a couple or not
  • how meshed they are economically and financially
  • whether there continues to be a private acceptance of each other as spouses.
Separation is not likely to be proved if the couple were sleeping in the same bed, even if they weren't having sex [In the Marriage of Caretti (1977) 30 FLR 257; [1977] FLC 90-270].

In most cases partners agree that they are separated. Anyone who has concerns about whether the court would consider them separated should seek legal advice (see Where to get legal help ).

When separating spouses aim to live under one roof, they should make sure that others know about their separation right from the start, as the court usually requires corroborative evidence of the separation. Corroborative evidence is evidence from another source that supports someone's story. Corroborative evidence is often supplied by a neighbour, friend or relative. Only a person over 18 years old can give corroborative evidence.

Statements from any witnesses are taken in the form of affidavits (see Legal documents ) and lodged with the application for divorce (or later if the court permits). Witnesses have to be in court on the day of the divorce hearing in case the judge or other party needs to question them further.

The process of proving separation while still living together can be difficult and embarrassing. In many cases, couples have preferred to wait until they have been living in separate homes for 12 months before applying for a divorce.

Property settlement after separation

As soon as a couple has separated, either partner can apply to the court for property settlement, that is, for a division of the matrimonial property. The issue of divorce is quite separate from that of property settlement; divorce doesn't have to have taken place for property settlement negotiations to begin.

To save money and reduce stress, the couple should first try to negotiate a property settlement themselves before they apply to the courts. There is a time limit on property settlement proceedings; parties must apply to the courts within 12 months of being granted a divorce if they need a judge to settle the dispute for them [FLA s44]. Out of time applications require special leave of the court.

It is important that each party obtain independent legal advice before making any decisions in relation to property settlement (see Property ).

Trying to live together again - the effect on separation

To encourage reconciliation, the law allows separating couples to try living together again for one period of up to three months. If they decide to go ahead with the split, then the required 12 months separation doesn't have to start again. For the purposes of proving a 12 month separation period, the length of time a couple was separated before the trial period of living together is added to the length of time separated after the trial period [FLA s.50]. For example, a couple who separated for one month and then moved back together again for two months, would need to be separated again for the next eleven months before they would be able to apply for a divorce.

Divorce

A divorce dissolves the legal bonds of marriage. It does not settle the many other issues that need to be resolved when a relationship ends, such as where children will live, how property is divided or maintenance. Generally, these issues should be solved before applying for divorce (see Parenting after separation; Property; Spousal maintenance).

The two stages of divorce

In Australia, divorce happens in two stages:
  • Stage 1: the decree nisi: the decree nisi is an order the court makes on the day of the divorce hearing. The decree nisi means that the divorce is granted and will become final in one month.
  • Stage 2: the decree absolute: one month and one day after the decree nisi has been granted, the court grants a decree absolute. The decree absolute formally brings the marriage to an end.
The month between the two orders is meant to act as a cooling off period. If during that time the couple decides to reconcile, they can prevent the divorce becoming final by applying to have the court cancel the decree nisi [FLA s.57].

In special circumstances, such as when one partner wants to remarry immediately, the court can shorten the period of the decree nisi [FLA s.55(2)(b)]. Such a request should be made at the beginning of the divorce hearing. A person can't remarry until the decree absolute has been granted [FLA s.59].

Grounds for divorce

The only ground for divorce in Australia is the irretrievable breakdown of marriage. This is proved when the parties have been living separately and apart for at least 12 months and there is no reasonable likelihood of them getting back together [FLA s. 48(3)] (see Separation). The court is not interested in who is to blame for the marriage breakdown; accusations of fault, such as adultery, cruelty and desertion aren't considered in a divorce.

Who can apply?

Either partner can apply for a divorce; it doesn't matter who left the marriage or if one partner doesn't want to divorce. Partners can also apply for a divorce together.

A person can apply for a divorce if at the date of the application either of following applies:
  • they are an Australian citizen
  • they are usually resident in Australia and have been a resident for one year immediately preceding the filing of the application for divorce [FLA s.39(3)], or domiciled in Australia, that is Australia is legally considered to be the person's home [Domicile Act 1982 (Cth) s.10].
The court can grant a divorce to a couple who was married overseas, as long as the marriage was recognised in the country in which it was performed. There are some exceptions (see Marriage). However an Australian divorce may not be recognised in the county in which the marriage took place. You should make enquires with the Embassy or lawyer of that country for advice.

A couple who applies for divorce within the first two years of marriage has to meet additional requirements (see below).

Which courts deal with divorce?

Applications for divorce are usually lodged in the Federal Circuit Court of Australia (FCC). To lodge an application in the Federal Circuit Court of Australia costs $845.00 . Some people can apply for a fee reduction in particular circumstances. To find out more about the FCC fees go to its website fee page. To apply for an annulment of marriage an application is made in the Family Court. The fee for making an application is $1,195.00. To get the current fees go the fees page of the Family Court.

Marriages of less than two years

A couple married for less than two years can only get a divorce if they have seen a marriage counsellor about reconciliation. This is not a difficult requirement to meet. Usually either partner just has to tell the counsellor that there is no chance of reconciliation.

If there has been violence in the marriage, the counsellor should be told about it so separate sessions can be organised.

A couple seeking a divorce can access counselling from the Family Relationship Centre or find their own counsellor. A counsellor can be any accredited marriage counsellor or a person or organisation approved by the Family Court. If, after counselling, the couple want to continue with the divorce, the counsellor will file with their application a certificate stating that reconciliation was considered [FLA s.44(1B)].

The requirement to go to counselling does not have to be met in certain circumstances, such as when one partner can't be found or refuses to attend [FLA s.44 1(B), (1C)]. In such cases an additional form needs to be filled out, along with a sworn statement (an affidavit for leave) that explains why counselling wasn't attended, and filed with the application.

When there are children involved

To grant a divorce, the court requires a couple to have made proper arrangements for the care of any children of the marriage (see below) who are not yet 18 years old. The application for divorce asks for details about the children including:
  • where and with whom the children live
  • how the parent with whom they live supports them
  • how often they see the other parent
  • the children's health and progress at school
  • the amount of maintenance or child support being paid.
In certain circumstances, such as if the other spouse or children can't be found, these details are not needed [FLA s.55A].

At the divorce hearing the court can ask more questions about these arrangements. The court then declares whether it is satisfied that proper arrangements have been made. This declaration is not parenting orders (see Parenting after separation; Property; Spousal maintenance).

If the court is not satisfied with the arrangements made, it can adjourn the proceedings and order a report from a Family Consultant or require the applicant to return to court at a later date with more information or after having attended counselling. The court can also grant the decree nisi (see The two stages of divorce) but delay the divorce becoming final until something is done for the children's care - for example, it could require that arrears in child maintenance be paid before the divorce becomes final. Although the court can refuse to grant a final divorce (decree absolute) indefinitely, in practice, it usually declares that it is not satisfied with the arrangements for the children, but that the divorce should nevertheless become final.

Who is considered a child of the marriage?

A child of a marriage is a child of either partner, a child adopted jointly or singly by them, or a child who is neither partner's child but was treated as part of their family immediately before separation. A friend or relative's child who has lived permanently with the divorcing couple may fall into this category [FLA s.55A(3)].

The NT Legal Aid Commission gives free initial legal advice to anyone, no matter their financial position (see contact points). An appointment must be made. Anyone who can't attend an appointment in person can get advice over the telephone.

Anyone who requires legal assistance for divorce beyond an initial interview must apply for a grant of legal aid (see Legal aid). Legal aid may be granted for a divorce in very limited circumstances such as special hardship, language or literacy problems, or mental or physical disability

Aboriginal Legal Aid may assist Aboriginal people seeking a divorce, with advice available over the telephone (see Contact points; Legal aid).

Solicitors

Private solicitors are listed in the Yellow Pages. Most firms state whether they deal in family law matters. A person should select a solicitor as they select any other professional, taking into account such factors as personal recommendations, how they respond to questions and how much they charge.

The financial costs of divorce

A person who applies for divorce generally pays their own legal costs. The amount of money the divorce costs usually depends on how it is done.

Do-it-yourself divorce

To apply to the Federal Circuit Court of Australia for a divorce, a person has to pay:
  • a filing fee. Note that fees are updated every two years. You can find out the current fees by going to the Family Court or Federal Circuit Court web sites
  • the cost of serving the application on the other person, which varies depending on whether a professional process server is used or not.
  • A lawyer assisting with a divorce application will charge fees according to a scale set out in the Family Court or Federal Circuit Court of Australia Rules. Information about the current fee scale is available from the Federal Circuit Court of Australia website at www.federalcircuitcourt.gov.au, or by calling the Family Law Courts (see Contact points). A lawyer can't charge more than the fees set under this scale unless their client agrees beforehand, in writing, to a different scale.

Is a lawyer required?

Most people prepare their own divorce applications and represent themselves at divorce hearings. The Family Court and The Federal Circuit Court of Australia publishes a Do-it-Yourself Divorce Kit, which includes an application form and a guide on how to fill it in. It sets out, step-by-step, what you need to do to apply for a divorce. The kit is available free from Family Court and Federal Circuit Court registries, or online at http://www.familycourt.gov.au or http://www.federalcircuitcourt.gov.au. You can also apply for divorce online using the interactive Application for Divorce form on the Commonwealth Courts Portal ( www.comcourts.gov.au). There is no need to complete the form in this kit if you wish to eFile. You can also eFile certain accompanying documents.

In most instances, the divorce process is straightforward, but legal advice should be sought if problems arise, such as when the marriage certificate can't be found, a spouse can't be located and served with the necessary documents, or the divorce is opposed.

Applying to have the filing fee waived

In circumstances of financial hardship a person can apply to have the filing fee reduced. Family Law Court staff can assist in such instances. Fees can be reduced if a person can provide evidence that they receive a Government benefit, have a grant of legal aid, a health care card or other concession card.

Applying for a divorce

Filling in the application form

The first step in the process is to fill in the Application for Divorce using the paper or electronic form. The paper form can be typed or hand printed. The FCC is phasing out paper applications and moving towards electronic forms and lodgment. A person can apply for a divorce on their own or together with their spouse. Forms are included in the Family Law Court's divorce kits, which are available from the Family Law Court and FCC Registry in Darwin. These kits are also available online at www.familycourt.gov.au or the www.federalcircuitcourt.gov.au

A person who needs help filling out the form, or wants someone to check it over, should take it to the court's office. Court staff are usually happy to help but cannot give you legal advice.

Swearing or affirming the application

When the application form is complete, the applicant has to swear it and affirm it in front of a Commissioner for Oaths, justice of the peace, lawyer, notary public, or other person authorised to witness affidavits. Justices of the peace and notaries public can usually be found in banks, police stations and courts.

Lodging the application

The applicant must file (lodge) at a registry of the court (see contact points):
  • the original and two good copies of the application form
  • the fee or form for fee reduction
  • their marriage certificate or certified copy of it.
Copies of a marriage certificate can be ordered from Births, Deaths and Marriages (BDM). If no certificate is available, a special sworn statement (an affidavit) will be required, along with other evidence, to prove that the marriage took place. People in these circumstances should seek legal advice.

Documents can be lodged by mail (send them to the nearest court registry), but if they are not filled in properly or there is some other problem, there could be delays.

The court puts a file number and the time, date and place for the divorce hearing. The application is typically heard at the court location where it is filed, but a person can ask to have the application heard in another more convenient place if it is a regional centre or country area visited by the court (called a circuit sitting).

The registry will return to the applicant:
  • two stamped copies of the application with the name of the Registry the application has been made and the hearing date and time the court will consider the application.
  • two copies of the Family Law Courts brochure Marriage, Families and Separation, which sets out the legal and possible social effects of applying for a divorce and the mediation and welfare facilities available to help.

Serving the divorce papers

If it is a joint application, the papers don't need to be served. Both partners just keep a copy of the completed application and the brochure.

If the application has been made by one person only, they should keep one copy of the completed application and one brochure. The other copy of the brochure and application must be served on (delivered to) the other spouse (the respondent). There are special rules for how court documents can be served. These are outlined below.

If the other spouse is in Australia, they have to be served at least 28 clear days before the hearing date. If the spouse is overseas, they have to be served 42 clear days before the hearing date.

Serving papers in person

The documents can be served on the respondent spouse by anyone over the age of 18 as long as that person is not the applicant. A friend or relative, for example, can serve them, or a professional process server. The costs of a professional process server depend on where they have to go to serve papers and how often they have to try before being successful. Different companies also charge different fees. Process servers are listed in the Yellow Pages.

The server should hand the documents directly to the respondent spouse. It is not enough to leave them with someone else with whom they live or work. If the server doesn't know the respondent they should ask them to identify themselves by stating their full name, the applicant's full name and the date and place of the marriage. The server might also find a photo of the respondent useful. If the respondent spouse won't accept the documents, they can be put down in front of them. The server should also say 'Your husband or wife (whichever applies) is seeking a divorce from you. These are the papers and the Family Court or the Federal Circuit Court will hear the application on ... [name the date].'

If convenient, have the respondent spouse sign the Acknowledgment of Service because it is the best proof that they were served.

After the documents have been served, the server should fill out an Affidavit of Service by Hand that records the time, date and place of the service and anything relevant that was said at the time. This affidavit must be signed and sworn or affirmed in front of a justice of the peace or lawyer. If the respondent spouse signed the Acknowledgment of Service form, it should be attached to the Affidavit of Service by Hand. If they refused to sign an Acknowledgment of Service form, the Affidavit of Service by Hand can be used as proof that the documents were personally delivered to them.

Serving the papers by post

The documents can be sent by ordinary pre-paid post along with an Acknowledgment of Service for the respondent spouse to sign. Include also an envelope that has a pre-paid postage stamp and the applicant's name and address on it so the signed form can be returned to the applicant. Documents should not be served by post if the respondent spouse is unlikely to sign the Acknowledgment of Service.

When the form is returned, the applicant should fill out and sign an Affidavit of Service by Post and Affidavit Proving Signature. In an Affidavit Proving Signature the applicant has to state how they know that the signature on the Acknowledgment of Service is the respondent's. A good form of words is:

'During the course of our married life I saw the respondent sign cheques, credit card forms and other documents on many occasions. I recognise this as his/her signature.'

Both the Affidavit of Service by Post and Affidavit Proving Signature need to be sworn and signed in front of a justice of the peace, lawyer or other authorised person.

Serving papers overseas

If the documents are to be served overseas, the way they will need to be served depends on: whether the country is a convention country, that is one with which Australia has an agreement about civil proceedings, including the service of documents and whether the respondent is a national of that country.

If the country is a convention country, the documents can, and in some cases must, be sent to the registrar of the Family Court making an application for Request for service [FLA reg.21AF]. who will forward them to the relevant country [FLA reg.21AG, AH]. This process usually takes about nine months and can be expensive because translations of all documents must be provided if the country is not an English-speaking one. Before sending any documents to the registrar, a person should first ask whether they are dealing with a convention country and, if they are, whether there are any alternative methods of service available. If the country is not a convention country, then documents can be served either by post or by a process server in that country.

An overseas service doesn't have to include the brochure Marriage, Families and Separation.

When service isn't required

The FCC does not generally grant divorces when one of the parties doesn't know about it. However, if the applicant doesn't know where the respondent is or has for some other reason been unable to serve them, the court can order the documents to be served in some other way. This can include advertising in a newspaper or serving papers on a relative of the respondent. To seek an order that the papers be served on a relative of the respondent, the applicant is required to make a further application to the court for substituted service. Court Registry staff can assist in this process.

Sometimes the court will waive the requirement of service altogether. To have the requirement of service waived, the applicant will need to make a separate application in the FCC. With this application should be included an affidavit that sets out the details of the last contact the applicant had with the respondent and any attempts to locate them. The applicant should emphasise that all avenues of inquiry have been exhausted - electoral roll, parents, mutual friends, telephone book, union, last address, last job, etc. The court will not usually require the applicant to go to great expense in trying to track down the respondent, especially if they aren't well off. The following inexpensive inquiries are often enough:
  • writing to the respondent's family and friends, telling them of the divorce and asking them for information on the respondent's whereabout
  • writing to the last known employer of the respondent and asking whether they left a forwarding address.
The application for dispensing with service and the supporting affidavit should be filed together with the divorce application. The application is decided by a registrar, in private (called 'in chambers'). The applicant is notified of the decision two to three weeks before the divorce hearing.

The divorce hearing

To go or not to go

In marriages where there are no children under 18 years, a person can choose whether or not they want to go to the divorce hearing. This applies whether or not the application for divorce was made jointly, or by one spouse alone.

If the application was made jointly and there are children of the marriage under 18 years, neither party is required to attend the court hearing.

If the application was made by one spouse alone and there are children of the marriage under 18 years, the applicant is required to attend the court hearing. If the applicant is required to attend, but unable to do so in person, they can write to the court requesting a hearing by telephone.

If a person who is required to attend court does not, the court will either set another date to hear the application or dismiss it.

What to expect in court

The Family Court and Federal Circuit Court are open courts, which means that anyone can go to hearings. In special circumstances, the court can be ordered closed to the public. Proceedings are fairly informal, particularly in the Federal Circuit Court where the lawyers and judges wear regular clothes, not the traditional robes.

The cases for divorce to be heard on a particular day are usually displayed in the foyer of the court on the day and also published on the courts website under Daily Courts Lists. A court officer usually tries to determine who has turned up before the start time so that the list of cases proceeds smoothly. They may also briefly explain the procedure to applicants who don't have lawyers.

An applicant should arrive early, look for their name on the list, and note their case's number and allocated courtroom. They should then sit outside the courtroom until their court officer calls their case. They will then have to go into the court and sit at the long table - called the bar table - facing the registrar.

If represented by a lawyer, the applicant will not usually have to say anything. If representing themselves, they will be asked to state their name, the name of the respondent and whether there are any children of the marriage under the age of 18 years. The registrar will then read the papers and may ask a few short questions about the separation or arrangements for the children. The applicant should stand whenever the judge or registrar speaks directly to them.

The court is only concerned with the narrow factual question of whether the marriage is over. Unresolved emotional issues are best dealt with during private counselling and not in a public court.

If, after considering all the information, the divorce is granted, the court makes a decree nisi (see Divorce).

Typically, a divorce hearing takes only five to ten minutes because, in most cases, documents are served properly and the required 12 month separation period is proved.

However it is wise not to assume that the divorce will be granted at the first hearing. Proceedings can be adjourned because the court needs more information or for some other reason. Any arrangements to remarry should be put off until the court has fixed the date on which the divorce is to become final.

Finalising the divorce

After one month and one day, this decree nisi automatically becomes final when the court grants a decree absolute, unless within this time an appeal or an application to rescind has been made because the couple has reconciled or one or both parties have died.

In special circumstances, it is possible to apply to have the court reduce this period between the decree nisi and decree absolute. An application can be made in writing before the hearing date, but is more usually made at the hearing by asking the court.

An official stamped copy of the decree nisi and absolute is sent to both parties by post soon after the decree becomes absolute.

Opposing a divorce

A person who wants to oppose a divorce should first seek legal advice to find out whether they have the necessary legal grounds. A divorce can only be opposed if:
  • the couple have not been separated for 12 months before the application was made
  • it is reasonably likely that the couple will resume their relationship
  • the marriage is not legal (see Marriage).
Also, there may be grounds to oppose the making of the declaration that proper arrangements have been made for children, a step necessary if the divorce is to become final, if it can be shown that proper arrangements have indeed not been made. However, to oppose a divorce on these grounds would not stop the divorce but only delay matters. A court may adjourn a matter so that proper arrangements can be made for the children, but if nothing has changed once it is re-heard, then the divorce will still be granted.

A person who opposes a divorce simply because they don't want it will not be successful if they have no legal grounds. Not only will they be unsuccessful, a court may order them to pay the other partner's legal costs.

A person who has grounds for opposing a divorce (the respondent) should complete and lodge a Response to Divorce. The original and two photocopies should be filed at the court. Each copy will be stamped. The photocopies will be returned. The respondent should keep one; the second should be served on the other partner. The respondent should go to the divorce hearing. If the grounds for opposition require the court to hear evidence, it will probably reschedule the date of the hearing and set a timetable for the lodgment of sworn statements (affidavits). Legal advice should be sought at this stage.

Other ways to end a marriage

A marriage can also be dissolved by a court order called a decree of nullity, commonly referred to as an annulment. Divorce is by far the most common method used today because in only limited circumstances can a couple apply for an annulment.

Annulment

An annulment is the term given to a court declaration (a decree of nullity) that renders a marriage void or legally non-existent. These days annulment is not commonly used to end a marriage. A person can seek an annulment if they believe their marriage to be invalid. [FLA s.51] Either member of a couple can apply, together or on their own.

Declarations

A declaration can be sought from the Family Court or the Federal Circuit Court as to:
  • the validity of a marriage
  • the validity of the dissolution of a marriage
  • the validity of an annulment of a marriage.
If the court finds that a marriage is invalid, it can make a declaration of invalidity [FLA s.113]. Legal advice should be sought before an application is made to the court for a declaration.

In a practical sense there is no difference between the effect of a declaration of invalidity and a decree of nullity. Both declare that a valid marriage does not exist.

How to apply for an annulment

While divorce proceedings are generally quite simple, annulment proceedings can be very technical so it is best to have legal representation.

An application for an annulment is made to the Family Court. A general Application for Final Orders is used. Included with the application must be an affidavit (see Legal documents), which is a sworn statement that sets out all of the evidence the applicant wants the court to consider. The affidavit needs to contain details of the marriage ceremony and the facts that are to be relied upon to have the marriage annulled.

Three copies of the application are required. When complete, all three copies should be lodged at court. The court keeps the original. Two copies are given back to the applicant, who should keep one and serve the other on their partner.

If there's an application for divorce

If an application for divorce has also been lodged, the court will rule on the annulment first because if the marriage is judged invalid, a divorce becomes unnecessary [FLA s.52].

Effect on maintenance and property

When a court grants an annulment, each person in the relationship retains their right to spousal maintenance and property as if they had been legally married; the invalidity of the marriage has no negative effect [FLA ss.4(2), 71,].

Effect of Divorce on Wills

If you are contemplating separation or divorce you should seek legal advice concerning what happens to you and your spouse's property if either of you dies, whether or not you have made a Will.

Unless a Will clearly states otherwise, the divorce or annulment of a marriage will revoke a beneficial disposition made in a testator spouse's Will, in existence at the time of the divorce or annulment, to the other spouse of the marriage. It also revokes the appointment of the testator's spouse as an executor, trustee, advisory trustee or guardian made by the Will as well as a power of appointment exercisable by or in favour of the testator's spouse. [Wills Act NT s15] However it does not revoke the appointment of the testator's spouse as trustee of property left on trust for the spouse's children.

Property - Married and De Facto Couples

The law regulating property settlements for married and de facto heterosexual or same sex couples is contained in the FLA.

Which court hears matters about property settlement?

Disputes over the division of property on the breakdown of a marriage or de facto relationship may be heard in the Family Court but more commonly in Federal Circuit Court. [FLA ss 79, 90SM].

Before 2009 only married couples could seek property orders and settle property disputes as well as enter into binding financial agreements under the Family Law Act. Property settlement and financial agreements for de facto couples could only be made under the laws of the State and Territory where they were usually resident. However the Australian Territories, NSW, Queensland, Victoria, Tasmania or South Australia referred their power for property for de facto relationships to the Commonwealth. As a result of this transfer of power if the de facto relationship broke down after 1 March 2009 or 1 July 2010 if resident in South Australia then property matters in dispute come under the FLA.

De facto property matters

In the case of property settlement for de facto relationships the court must first be satisfied that there was in fact a de facto relationship and that certain geographical requirements have been met.

Is there a de facto relationship?

A de facto relationship is established by evidence that:
  • the period or total of the periods of the de facto relationship is at least two years; or
  • there is a child to the de facto relationship; or
  • the person making the application had made substantial contributions to the relationship and that a failure to consider the application would result in serious injustice; or
  • the relationship was a registered relationship under a prescribed law of a state or territory

Geographical connection

Geographical link for de facto couples is that the relationship broke down after 1 March 2009 and
  • both parties to the relationship were ordinarily resident in one or more of the Australian Territories, NSW, Queensland, Victoria, Tasmania or South Australia.for at least one third of the domestic relationship, at the date the relationship broke down; or
  • the applicant had made substantial contributions in one or more of the Australian Territories, NSW, Queensland, Victoria, Tasmania or South Australia.

What is considered to be property?

All property is taken into account by the court, irrespective of whether it is owned jointly or individually, including:
  • property bought during the relationship
  • gifts and inheritances
  • property owned before the relationship
  • business assets and goodwill
  • superannuation.
Usually, the value of the property is taken to be its market value as of the date of the court hearing. When the couple cannot agree on the value of a piece of property, the court makes its own assessment.

Property settlement by agreement

To save time and money and to make separation easier, separating parties should, where possible, try to strike their own agreement about property division. The majority of property settlements are made in this way. In some circumstances it is not necessary for formal court orders to be obtained because of the size and nature of the relationship assets, though in all cases it is advisable that each party obtain independent legal advice before making any agreement. Legal Aid is able to assist some people in property matters depending upon various factors including their income and the amount of property owned by them. Even if a person is not eligible for a grant of legal aid they are still entitled to a free initial advice session where they can receive basic legal advice on their matter.

Types of agreements

The FLA recognises four types of agreements for property matters:
  • binding financial agreements before marriage - s.90B or de facto relationship - 90UB
  • binding financial agreements during marriage - s.90C, or de facto relationship - 90UC
  • binding financial agreements after marriage - s.90D or de facto relationship - 90UD
  • consent orders.
These agreements are enforceable under the FLA, as though they were court orders. It is therefore very important to get legal advice before signing any type of agreement.

Binding financial agreements

Binding financial agreements are complex and require each party to have independent legal advice and to obtain a certificate from the lawyer.

Consent orders are generally recognised as being the best way to resolve property matters where parties have separated and reached an agreement about the distribution of their property. A couple considering consent orders should collect an Application for Consent Orders from the Family Court or Federal Circuit Court Registries or download them from their websites. The application is available in a kit form so it can be completed by parties who are not legally represented. This form can help because it lists all the assets and financial resources that need to be taken into consideration in an agreement.

Once all the assets and financial resources have been listed, orders in the terms that parties are seeking can be attached to the application. Generally, the consent order form includes information and examples so that parties know how to phrase their orders.

Once parties have completed the form and determined what is to be done with their property, each spouse should have their lawyer check the agreement to ensure that it reflects the intentions of the parties and on the whole the agreement is just and equitable. This is important, because couples who reach agreements aren't always aware of their rights. Points to remember are:
  • if the property to be divided is substantially more than the family home and motor vehicles, legal and financial advice should be sought.
  • if the settlement includes spousal maintenance then this should be clearly stated in the agreement in order to prevent a further application for spousal maintenance being made at a later stage.
  • The agreement finalises the financial relationship between the parties for good.
  • when the agreement has been written up, it can be registered with the court as a consent order (a court order that confirms the agreement).

Taxes

Where a property settlement involves the transfer of real estate that was held in joint names into the sole name of one of the parties, it is important that the parties formally obtain consent orders from the Family Court or Federal Circuit Court. If consent orders are not obtained then stamp duty will have to be paid on the transfer of the real estate. The parties are only exempt from stamp duty if they have orders from the court directing that the property is to be transferred.

Where investment properties are to be sold the parties should obtain legal and financial advice on the tax implications of the sale, such as Capital Gains Tax.

Property settlement through the courts

When a couple can't agree on how their property should be divided, either spouse can apply to the courts for a solution. No two cases are identical. This area of law can be quite complex. A separating couple who find themselves headed for the courts should seek legal advice from a lawyer who specialises in family property law.

Pre-action procedures

Each party must also comply with the pre-action procedures contained in the Family Law Rules 2004. The pre-action procedures outline the steps that must be taken before proceedings can be commenced. These procedures include:
  • Full disclosure of all relevant information and documents must occur. Relevant documents include tax returns, bank statements, lists of property in possession or control, loan statements, and payslips. Often the completing of a Financial Statement and providing it to the other party will satisfy many of these requirements.
  • Participating in dispute resolution services, such as family counselling, negotiation, conciliation or arbitration.
  • If dispute resolution is unsuccessful, write to the other parties, setting out their claim and exploring options for settlement including making a genuine offer to resolve the dispute. It should be made clear that the party intends to institute proceedings within a certain period if an agreement is not reached.
There are serious consequences for a party who institutes proceedings without complying with the pre-action procedures, including orders for costs. Some matters are exempt from complying, such as where there is urgency, domestic violence, fraud or a genuine refusal from the other party to negotiate.

Which courts deal with property disputes?

An application for property settlement may be made in either the Family Court or the Federal Circuit Court. Most Applications are made in the Federal Circuit Court.

Making an application

An application for a property division may be started by filing an Initiating Application, a Financial Statement, and an Affidavit. These forms are all available from the Family Court and the Federal Circuit Registries and online on each court's website. The forms for each court are the same. A filing fee will apply and differ depending on which court the application is being made to.

In each court three copies of each document need to be lodged. At lodgment, the court registry stamps all three copies, and keeps the original. All copies will have the date and time of the first court date and the court where the matter will be heard. The two copies are returned to the applicant, who must then serve one copy on the other spouse (the respondent). They can choose to respond in one of the following ways:
  • agree to the orders sought and sign a minute of proposed consent orders to be handed up to the judicial officer at the first mention of the matter in court
  • disagree with the orders sought and file a Response (filing a response also attracts a filing fee)
  • ignore the application, which may see the court find in favour of the applicant.
Before a court will make a property division, a couple may have to attend:
  • an information session
  • a directions hearing
  • a conciliation conference
  • a pre-trial conference.
At any stage during this process, parties can choose to resolve their differences by making an agreement. If an agreement isn't reached the matter will be fixed for a final hearing and a hearing fee is payable. This fee is paid by the applicant.

Time limits

Married Couples

Where parties are married, an action to resolve a property dispute may be started before divorce but must be made within 12 months of the decree absolute being granted [FLA s.44(3)].

De Facto Couples

In the case of de facto couples an action to resolve a property dispute must commence within two years after the date of separation.

Applying after the time limit

The court may allow a person to make an application after 12 months if married or two years in the case of a de facto relationship, if one of the following applies:
  • that hardship would be caused to a party to the relevant relationship or a child if leave were not granted
  • for maintenance proceedings, if the applicant would have been unable to support themselves or herself at the end of the 12 month period after the decree absolute, or two years for de facto couples without an income tested pension, allowance or benefit.

How the court decides

There are no fixed rules about how property is to be divided. A spouse is not necessarily entitled to half of everything or to keep property that is in their name or for which they paid. Courts can divide property in any way they believe to be fair.

There are four steps the court goes through in determining how property will be divided:
  1. the court makes findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing
  2. the court must consider the direct financial, indirect financial and non-financial contributions of the parties as well as contributions of a homemaker and parent and then determine the contribution-based entitlements of the parties expressed as a percentage of the net value of the property of the parties.
  3. the court shall make findings identifying and assessing the future needs of the parties so far as they are relevant and determine the adjustment (if any) that should be made to the contribution-based entitlements of the parties established at step two
  4. the court must consider the effect of those findings and decide what order is just and equitable in all the circumstances of the case.
The court is not interested in who was to blame for problems in the relationship. The way a person behaved within a marriage is only taken into account if it affected the other person's contributions or if it actually devalued property.

Valuing the property

The court requires each party to make full and frank disclosure of all property that is in their possession or control. All property is taken into account regardless of whether it was purchased before or during the marriage or even after separation. Most items' value can be easily determined though others such as companies, superannuation and real estate may have to be valued by an expert. It is preferable and compulsory in many cases for a single expert to be appointed to value property. Parties should negotiate and agree on an expert.

Contributions

The court looks at the history of the marriage, including any periods when a couple lived together before the relationship, to work out how much each person contributed to acquiring, maintaining and improving any property [FLA s.79(4), 90SM(4)].

There are four types of contributions:
  1. direct financial - these include buying property, paying a mortgage and paying for renovations.
  2. indirect financial - where a party makes a contribution to financial wellbeing of the family such as paying for rates, groceries and other bills while the other person was paying the mortgage. The party would have been seen to have made an indirect financial contribution to the family home because by paying the other bills they free up the other party to pay the mortgage.
  3. non-financial - this is where contributions are made which increase the value of the family assets without money being invested. Non-financial contributions include unpaid work for family businesses such as bookkeeping, labor during renovations and improving gardens.
  4. contributions as a homemaker and parent - this is just as valuable as the other contributions as by caring for the children, that party frees the other party up to be able to go out and work to provide for the family.
Contributions are not always equal especially if one party owned significant assets prior to the relationship or if one party has received a windfall such as an inheritance. In situations where there has been a long relationship and the parties have accumulated all assets during the relationship, and each party was performing one of the four types of contributions, then the court is likely to find that the contributions were equal. In that circumstance, a court will only depart from that course if either party has wasted, destroyed or devalued an asset.

Future needs

After determining who should receive what based on their contribution, the court then decides if the division should be adjusted further to take into account the future needs of each of the parties [FLA s.79(4)(e), 90SM(4)(e)]. It considers each person's:
  • age and health
  • time remaining in the workforce
  • ability to support themselves in the future
  • dependents, such any children under 18 years or a dependent relative
  • earning capacity.
A person who is responsible for the day to day care of children or other dependents may well receive an adjustment in their favour. So may a spouse who can't earn as much money as the other party to support themselves.

Just and equitable orders

After the court has been through all of the above steps the court will have determined what percentage of the property each party is entitled to. The court must then consider the practical effect of its findings or the proposed settlement and determine what order is just and equitable in all the circumstances of the case.

Waste, destruction or dissipation of assets

There is a well accepted guideline that losses incurred by either party during a marriage are usually shared by both of them. The only exceptions were outlined in Kowaliw (1981) [1981] FLC 91-092 at 76,644:
  • where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets
  • where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Examples of these exceptions include damage to the matrimonial home or other property, alcohol or illicit drug consumption, gambling and spending of money on pursuits for the benefit of that party alone rather than for the benefit of the family as a whole.

If waste, destruction or dissipation can be found to have been caused by one party to a marriage, then the court may adjust the property allocation in favour of the other party or allocate debts to the party who caused the loss. This adjustment occurs under the FLA, section 75(2) (o) in the case of married couples or 90SF(3)(o) in the case of de facto couples.

'Special' 'extra' or 'extraordinary' contributions

The court has identified a special contribution where one of the party's contributions is so extraordinary that they should be credited with a higher percentage because of their personal skills and therefore extra contribution.

More often than not the court will recognise these contributions in cases where there are large property pools and where the wealth is attributable to the business acumen or entrepreneurial skill of one of the parties: Ferraro (1993) [1993] FLC 92-335.

The court has also accepted that there may be a special contribution from a homemaker and parent where their contributions are seen to be significantly more arduous than they ought to have been because of the other party's conduct. Domestic violence is an accepted example of this: Kennon (1997) [1997] FLC 92-757.

The court has also suggested that this may extend to other situations where the homemaker is considered to have made a 'special contribution' such as where they have the responsibility for the home and children entirely or almost entirely without assistance from the other party for long periods or when they have the care of a handicapped or special needs child: Ferraro (1993) [1993] FLC 92-335 and JEL v DDF [2000] FamCA 1353; (2000) 28 Fam LR 1.

Orders the court can make

Before a court alters either partner's existing property rights, it first makes declarations about those rights. These declarations formalise who owns what [FLA s.78 for married couples and s 90SL for de facto couples].

The court can then make orders that alter existing property rights [FLA s.79 married couples or 90SM for de facto couples]. The court has very broad discretion about how to divide property and may make orders as it thinks appropriate to achieve justice and equity in the circumstances. This may mean:
  • ordering a lump sum payment to be made in one amount or instalment
  • property to be transferred from one partner to the other.

The family home

Central to many property settlements is the family home. Usually the family home is owned by:
  • only one party
  • both parties as joint tenants
  • both parties as tenants in common.
How the family home is owned may affect the way it will be divided under a property settlement.

Sole ownership

In some instances the title to the family home is in only one partner's name, but this fact is relevant only to any division of property if it is evidence of contribution. For example, if one partner is claiming that they alone provided the money to buy the family home, that the title is registered in their name only would lend support to the claim. Mostly, however, the fact that the family home is in one partner's name isn't evidence of its owner's contribution.

If the family home is owned by only one partner, it is considered to be theirs until a court order is made. Accordingly, the owner can mortgage or sell the home without their partner's permission. However, steps can be taken to prevent a sale.

Joint tenancy

Joint tenancy is a good way for each partner in a marriage or de facto relationship to protect their interest in the family home. Under joint tenancy, one spouse can't sell the property without the other's permission, and if one spouse dies, ownership automatically passes to the survivor (see Shared ownership). In the event of a separation, the home can be sold and the money divided between each partner, or one spouse can transfer their share to the other or occupy the home for a while without altering any ownership rights.

Tenants in common

As tenants in common, each spouse has a particular share in the family home (see Shared ownership). As with joint tenancy, one spouse can't sell the whole property without the other's permission, but when one partner dies, ownership does not automatically pass to the other; a person can bequeath their share to whomever they choose through a valid will. A separating couple has the same options as those available to them under joint tenancy (see above).

Who has the right to stay in the family home?

If the family home is owned jointly, either as joint tenants or tenants in common, both husband and wife are entitled to live in it unless the court orders otherwise. The court can order one spouse to give possession of the home to the other spouse or allow them to continue living there.

If the house is owned by one spouse only, the other spouse must have a court order or the owner's permission to stay. A court can decide that a spouse should stay even if the house is not in their name, but it would be unlikely to order an owner to leave unless the needs of the non-owning spouse clearly outweighed the owner's right to live there.

When deciding who should stay in the family home, the court considers the needs of both partners and any children.

Maintaining the family home

Normally the spouse who stays in the family home is expected to maintain it and pay any expenses, but this arrangement can be varied if the person is caring for children or if the cost of maintaining and running the home outweighs the benefits of living there.

Threats to sell

Sometimes, after a couple have separated and before a final property order has been made, one spouse threatens to sell, give away or mortgage property held solely in their name. To prevent them carrying out such threats, the other spouse can make an application for an injunction. This is a special kind of court order that stops the transfer of property. A person who is aware that such a threat is going to be carried out should get urgent legal advice

A party may also respond to a threat to sell or dispose of such property by considering placing a caveat on the title of the home. A caveat stops the owner from dealing with the property and acts as a warning to potential buyers of another person's interest in the property. A property with a caveat on it cannot be sold without the person who placed it first being notified. However a caveat lapses after three months unless the person lodging it commences proceeding in a court to establish their interest in the property. Under these circumstance an application to extend the caveat may be made pending a finding by a court regarding their interest. The owner however may give notice in writing forcing the person who lodged the caveat to commence proceedings or withdraw the caveat. Time limits apply.

The option of placing a caveat over property should be considered carefully, because if the homeowner or any other person suffers loss as a result of a caveat being placed or not withdrawn, the person who placed it may have to pay compensation if they didn't have a good reason for placing it [Land Titles Act s.146].

A person who wants to apply to have a caveat placed and/or extended should go to the Land Titles Office and should consider seeking legal advice.

Selling the house

The court can order the family home be sold if that is what needs to be done to make sure each spouse receives a fair share of the property. If there are other assets the home might not have to be sold; one partner can receive assets in exchange for their portion of the home. In many cases, one spouse refinances the mortgage to pay out the other spouse.

A house in joint names can only be sold if both partners agree to the sale or if the court orders it.

If the house is owned by only one spouse, that spouse can sell the house at any time, unless the non-owning spouse has taken legal steps to prevent them doing so.

Common misconceptions about property and financial entitlements

I'll lose my rights if I leave!

Many people believe that the person who leaves the children or the family home will lose their rights to a share of the property. Underlying this belief is the idea that whoever abandons a relationship deserves nothing. This is wrong. Each partner has over the course of the relationship earned a share in the property and does not lose it simply because they decide it is no longer possible or desirable to remain in the house or the relationship.

I owned it before marriage so it's mine!

Just because a spouse owned a particular piece of property before the relationship does not mean they automatically have total rights to the property or its monetary value when the relationship ends. The property is taken into account as a contribution by its owner, but over time it is assumed that both spouses have contributed directly and/or indirectly to its maintenance or improvement. In other words, the longer the relationship, the less important pre-relationship contributions are in the final division of property.

I can keep inheritances and gifts.

A spouse is not always entitled to keep gifts and inheritances given to them by their family. As with pre-relationship assets, the importance of gifts and inheritances decreases as they become mixed with other matrimonial property and as the other spouse contributes directly or indirectly to their maintenance or improvement. Where the gift or inheritance was received shortly before the separation, the spouse who received it will have a good argument for receiving its full value in the division of property.

I worked hard for this business and it's mine!

Often a person who has worked hard during a relationship to build up a family business does not believe that the other spouse is entitled to a share of it. They claim that the other spouse never worked in the business or only contributed as an ordinary employee and should only be paid the equivalent of wages. Where the other spouse has answered the telephone, arranged work for the business, kept the books or entertained business associates, the court will consider these efforts as a contribution to the success of the business. Even where the other spouse has never worked in the business, but has taken on the responsibilities of caring for the house and children, this will be regarded as a contribution as a homemaker and parent, as it freed the other spouse to put more time and effort into the business. Often the other spouse will have taken another job to provide family income when the business was not profitable and this, too, will be regarded as a contribution. This does not mean that the business will have to be shared equally between the spouses. The court must take into account the effect of any order on a business's capacity to survive. It will usually try to maintain a business as a going concern where this can be done without disadvantage to the other spouse. The court will, however, order the sale of any asset if it is the only way to achieve fairness between the parties.

Women always get the best deal!

Those who make this statement often don't realise that the amount a woman receives in a division of property usually has to provide for themselves and their children. In the short term this may mean that the actual amount awarded to the woman and children will be greater than the amount the man receives, but studies here and overseas show that men do better in the long run. Generally, a man has a greater income earning and borrowing capacity and, without children to care for, is able to build quickly on his share of the property. A woman who has custody of children may not wish to or be able to secure full-time employment. If she has been involved in full-time childcare during the relationship, a woman may lack the skills necessary to find a decent job. A separated woman's capacity to support herself may fall far short of her former partner's, and the court will often award women marginally more than men to compensate for this and to meet the needs of the children. In regard to a younger couple, where the woman may have job skills or a career and where there are no children, the woman may not receive more than the man in a division of property. If the man were the homemaker and parent while the woman works and improves her earning capacity then it would be likely that he would get a greater percentage of the asset pool.

Superannuation

Superannuation is treated as property under family law and can be divided when a relationship breaks down.

A court can make two types of orders with regard to superannuation, as detailed below.

Splitting orders

Under splitting orders one spouse's superannuation is paid to the other. Up to 100% of superannuation can be transferred [FLA s.90MT(1)]. The court can decide to split superannuation when the spouse who has no superannuation has contributed in an indirect way to their partner's fund. Running the family home and looking after children are examples of indirect contributions. A splitting order has to be just and equitable. An order may be set aside or varied if it is not practical to carry it out.

Flagging orders

A flagging order stops a superannuation fund paying money held in superannuation to a member spouse, and requires the fund to tell the court when that money becomes payable. This order is most often sought when the value of superannuation is unknown at the hearing.

Superannuation funds have to comply with splitting and flagging orders [FLA s.90MZD(1)].

As they can with other forms of property, a separating couple can agree on how they deal with superannuation. A court can't make a splitting or flagging order over any superannuation that has already been settled in an agreement [FLA s.90MO].

Obtaining information about superannuation

Both members of a superannuation funds and their non-member spouses are entitled to obtain information about the member spouse's superannuation. This can be obtained by filing an Application for Superannuation Information. These applications are available from the Family Court or the Federal Circuit Court, though some superannuation providers have their own specific applications for their fund.

A spouse should contact the superannuation provider directly to identify which application form they use and how much they charge for the information to be provided.

If a non-member spouse is obtaining information about their spouse's superannuation, the member spouse is not notified that this information is being provided to their ex-spouse.

Once the information is obtained a spouse will usually provide the information to an expert to have the superannuation valued.

Financial agreements - Married and De Facto Relationships

Binding financial agreements were introduced to the FLA in 2000. Binding financial agreements allow parties to enter into their own binding agreements about their property, before, during and after marriage or de facto relationship. Any property not dealt with by the agreement remains able to be the subject of proceedings in the Family Court or Federal Circuit Court.

De facto relationships still have to show a geographical connection to one or more of the participating jurisdictions. These being having been resident in one or more of the Australian Territories, NSW, Queensland, Victoria, Tasmania or South Australia for at least one third of the domestic relationship before making and enforcing an agreement under the FLA.

The FLA recognises three types of binding financial agreements:
  • binding financial agreements before marriage - s.90B or de facto relationships 90UB
  • binding financial agreements during marriage - s.90C, or de facto relationships 90UC
  • binding financial agreements after marriage - s.90D or de facto relationships 90UD
These agreements are enforceable under the FLA, as though they were court orders. It is therefore very important to get legal advice before signing any type of agreement.

What can be included in financial agreements?

How all or any of the:
  • property; or
  • financial resources
of either or both spouse parties, at the time the agreement is made, or at a later time, and during the relationship, is to be distributed.

Any of the agreements can also include the maintenance of either of the spouse parties.

When is an agreement binding?

  • The agreement has to be signed by all the parties; and
  • Before signing each had received independent legal advice about the effect of the agreement on the rights of the party including the agreement's advantages and disadvantages.
  • Each party to the agreement receives a certificate signed by the legal practitioner giving the advice and a copy of the certificate is provided to the other spouse or spouses legal practitioner.
  • The agreement has not been terminated or set aside by a court. If parties to a de facto relationship get married any financial agreement ceases to be binding.

When can a court set aside a financial agreement?

There are several reasons why a court may set aside a financial agreement these include;
  • It was obtained by fraud, including failing to disclose a material matter
  • It was entered into for the purpose of defrauding or defeating creditors of the parties
  • For the purpose of defrauding another person who is a party to a de facto relationship with a spouse party
  • Circumstances have arisen since the agreement was made that make it impracticable for the agreement or a part of it to be carried out. These being a material change in circumstances relating to children.
  • The agreement is void, voidable or unenforceable.

Effect of death of a Party to a financial agreement

A financial agreement that is binding continues despite the death of the party and operates in favour of and is binding on the legal personal representative of that party.

Spousal maintenance

Spousal maintenance is money paid by one spouse to the other spouse after separation. A court can order spousal maintenance to be paid when one spouse is unable to support themselves either because they are elderly, sick, caring for children or for some other reason. There is also an additional requirement that the other spouse can afford to pay [FLA s.72].

Either partner to a relationship can apply for spousal maintenance after separation. A couple don't need to have been divorced for an application to be made. The information in this section applies to married couples only; for information about maintenance as it relates to de facto relationships (see Couples who are not married ).

A spouse's right to support

A spouse has a 'right' to maintenance in the following situations [FLA s.72], but only if they are unable to support themselves:
  • by having children of the marriage who have not attained the age of 18
  • they are unable to obtain employment because of age or physical or mental incapacity
  • any other adequate reason.
Under the FLA a person has to provide financial assistance to an ex-partner who can't pay for their own upkeep. Husband and wife have a duty to support and maintain each other as far as they can, where the need exists. This obligation continues after the relationship has ended.

How to get spousal maintenance

Spousal maintenance can be obtained in one of two ways:
  • by making an agreement with an ex-spouse
  • by applying to the courts.

Agreements

Parties who agree about spousal maintenance can formalise these arrangements either in consent orders or in an agreement. A consent order must be in the form of an Application for Consent Orders and lodged at the Family Court so that the orders are made. There is no system for court approval or registration of financial agreements but some rules do apply to them and they are quite stringent. For example, each party is required to have independent legal advice (see Property settlement by agreement ).

It is important to seek legal advice about the enforcement of court orders. If a spouse has failed to pay spousal maintenance, or there is a problem with the enforcing of the agreement, the aggrieved party should speak to a lawyer.

There are a number of enforcement devices that allow the court to obtain payment from a spouse. These can include garnishment of wages or seizure of property.

Court-ordered spousal maintenance

A person can apply to have a court order that spousal maintenance to be paid. An application for spousal maintenance is heard in the Family Court or Federal Magistrates Court both located in Darwin, or the Magistrates Court (also known as the Court of Summary Jurisdiction), which sits throughout the NT. The cost of making an application varies between the courts, with the Family Court being the most expensive (see Costs and fees for family law actions ).

Time limits

An application for spousal maintenance can be made at any time after separation up until 12 months after a divorce. An application can only be made after this time if the court allows it, which it may do where a spouse and children are experiencing hardship [FLA s.44].

How the court decides

To work out whether to make an order for spousal maintenance, the court looks at the needs of the applicant and how much the other spouse can afford to pay. The courts are not interested to know who was to blame for the marriage breakdown. Some of the factors taken into account are [FLA ss.72, 75(2)]:
  • age and health
  • income, property and financial resources and the ability to obtain work
  • children under 18 years of age and who looks after them
  • existing financial commitments
  • a responsibility to support anyone else, such as an ageing parent or new partner
  • any contribution one spouse has made to the resources or earning capacity of the other, such as where one spouse has worked so the other could study
  • the length of the marriage and how it has affected the earning capacity of one spouse
  • any property settlement arising out of the separation (see *Property* ).
It is important to note that the court must disregard any income-tested pension or benefit being paid to the applicant spouse, so an ex-spouse on a pension may have a nil income for the purposes of a spousal maintenance application.

Registering the order with the Child Support Agency

A court order for spousal maintenance can be registered with the Child Support Agency (CSA) (see Contact points ), which will collect and distribute the money on the parties' behalf. This can be the best way of ensuring payments are made because the CSA has a close relationship with the Australian Tax Office and is therefore able to access information relating to a person's financial affairs quickly and accurately.

Enforcing a court order

A person who hasn't received a scheduled payment for spousal maintenance should first try and find out if there has been a technical hitch. Sometimes the source of a problem is a bank. If payments have not been made a person may apply to have the court enforce the order. Before this is done it is recommended that legal advice is obtained.

Ending an order

As a general rule, spousal maintenance is not intended to continue indefinitely. It is paid only as long as one partner needs it and the other can afford it. If the financial situations of either party change they can apply to the court to have the order varied or cancelled. Spousal maintenance orders also cease when either party dies, or when the recipient remarries [FLA ss.82(4)].

When one spouse die

If a husband or wife dies after court proceedings have started, the court can order the process to continue, but court proceedings can't be started if the process hadn't been started before the person died. In the latter case, a surviving spouse may still be able to make a claim to property under a will or the Family Provision Act.

Changing property orders

Property orders may be changed [FLA s.79A] if:
  • the court finds that there has been a miscarriage of justice because someone acted fraudulently or under duress, evidence was suppressed or given falsely, or for some other reason
  • circumstances have arisen since the orders where made which make it impractical for them to be carried out
  • one spouse doesn't obey the order
  • the circumstances of any children involved have changed and, as a result, they or their carer are experiencing hardship.

Enforcing property orders

If one spouse fails to abide by the terms of a property order, then the aggrieved spouse will need to apply to the court to have the orders enforced. The spouse who fails to abide by the orders will generally be punished according to the severity of the breach of the order.

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