The Family Law Act is a long and often complicated piece of legislation. Since it first came into force in 1975, it has been amended on many occasions and is now nearly twice as long as it first was. The area of Family Law is also affected by the Child Support laws and by laws regarding domestic violence. Some of the terminology has changed over the years and in this newsletter we shall look at some definitions and words used in this area of the law.
Divorce: The formal legal ending of a marriage. When a divorce first comes before a court, the court grants what used to be known as a Decree Nisi. This becomes final or absolute usually one month and one day later, and it is only then that parties are free to remarry.
Separation: Twelve months separation is the only ground for a divorce in Australia. Separation requires that the parties cease to live to together as a man and wife and at least one party to believe that the relationship is over. There can be a separation under the same roof but not all physical separations qualify – there must still be the belief that the relationship is over.
Custody: This term is no longer used. Years ago it was replaced by residence and since 2006, the law talks about who a child lives with.
Access/Contact: Also no longer used. Since 2006, the courts refers to who a child spends time with
Property settlement: The finalising of financial arrangements following a separation. Normally this has to be started within twelve months of a divorce. It can be effected by court orders or by a Binding Financial Agreement
Consent Orders: Orders of the court which are agreed to by the parties. They can be obtained during court proceedings or more regularly by a written application to the court. In the latter case, no appearances in court are required and the orders have the same effect as if made by a court after a full hearing.
Superannuation Split: Obtained either by a court order or a particular type of agreement, a split will transfer the designated amount or proportion of one party's superannuation to the other party. The funds remain classified as superannuation and can only be accessed under the normal superannuation rules.
Domestic Violence: Under both State Criminal Law and Family Law, domestic violence covers far more than just physical violence. The term covers matters such as abuse, harassment and threats. The existence of Apprehended Domestic Violence Orders can be very relevant to parenting arrangements.
De Facto Relationship: for practical purposes, this exists where two people live together as if they were married but are not. The law covers same sex relationships as well. Property claims normally arise only if the parties have been together for two years, or there is a child of the relationship.