Family law is a significant part of the legal system in Australia, governing the rights and responsibilities of family members. Predominantly, the federal Family Law Act 1975 and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 are at the heart of Australian family law. Other laws, the common law, and laws of equity also impact family relationships, particularly when these relationships end.
Divorce and Annulment
In Australia, the concept of no-fault divorce was established with the Family Law Act 1975. This means the only ground for divorce is the irretrievable breakdown of a marriage, demonstrated by a twelve-month separation. This separation can still be considered valid even if the couple is living together in the same home, as long as they are living separate lives. Evidence of this separation is required to be submitted via an affidavit.
If a couple reconciles for 3 months or more during this period, the 12-month separation requirement resets and restarts. This only applies if the couple wishes to file for divorce.
Annulment, on the other hand, is a decree of nullity under the Family Law Act 1975, which declares a marriage void. A marriage can be considered void for several reasons, such as if one or both parties were already married at the time (bigamy), if the parties are closely related, or if one or both parties were forced into the marriage.
Asset Division in Divorce
When a couple decides to divorce, the division of assets is a major consideration. Importantly, you do not need to be divorced to have your assets divided. Asset division can occur any time after separation.
The options for asset division include a non-legal arrangement (without legal documentation), a Binding Financial Agreement (a legal document stipulating the terms of asset division), Consent Orders (agreed upon by the couple and approved by a registrar), or litigation (where the family court decides the division).
The division of assets is not strictly based on a formula, and there is no automatic 50-50 split rule. Several factors are considered, including both the financial and non-financial contributions of each party to the relationship, the assets and liabilities of both parties, the length of the relationship, any children and their custody, and the future needs of each party.
Family Dispute Resolution
In Australia, separated families are encouraged to use family mediation to help resolve disputes outside of court. The national database of accredited Family Dispute Resolution practitioners is a useful resource for families seeking this form of resolution.
Furthermore, Australia has an innovative digital service named ‘amica’, which uses artificial intelligence to suggest asset splits and assist parents in developing a parenting plan for their children. This tool bases its suggestions on agreements reached by other couples in similar circumstances and how courts generally handle similar disputes.
Understanding the basics of Australian family law involves comprehending the principles of divorce, annulment, asset division, and family dispute resolution methods. It’s important to remember that while the law provides a framework, each family’s circumstances are unique and individual. As such, legal advice should always be sought when dealing with complex family law matters.
Please note that this is a general guide and is not intended to be a substitute for legal advice.