Bearing in mind we are writing for an Australian audience we thought we should outline the steps necessary to divorce in Australia.
Often people come to see their divorce lawyers (or family lawyer as we tend to refer to them in Australia) to ask the question of how to divorce their spouse, when really what they mean is how do they sort out their property dispute. Often the question how to divorce is a long way off. It is worth noting that some people never feel the need to apply for a divorce.
Perhaps the best way to address the question of divorce is to examine what you need to do to apply for a divorce.
Firstly you have to have been separated (often people refer to a legal separation here) for at least twelve months. Do not despair if you have been separated for more than twelve months but some or all of that time has been spent under the one roof.
Legal separation implies that you have both been living separate and apart for at least twelve months.
If that is you, you can fill out the form application for divorce and sign it in front of a Justice of the peace or a lawyer. Remember you will also need a copy of your marriage certificate.
If you have been living under the one roof you will need to file an affidavit setting out the circumstances for living under the same roof together with supporting affidavit from someone who can verify your position. More on this in our next post.
Once you have completed the document (application for divorce) and signed it you need to make two copies. You then take the original with two copies to the Federal Magistrate Court (which is about to change its name to Federal Circuit Court), where you will file it. There is a fee of about five hundred and something dollars (if you are on centrelink benefits the fee is reduced to eighty something dollars). It is best you check with the court for the exact filing fee to make sure you have enough money on you to file the document.
After you have filed the document the court staff will give you back two copies, one for you and one to serve on your ex-spouse. An application for divorce has to be personally served on your ex spouse. The easiest and most cost effective way is to hire a process server. That way the documents will be handed personally to your ex-spouse and you will get an affidavit of service to file with the Court to prove service.
Your application for divorce will have a date on it, which is the date the Court will 'hear' your application. These days there is generally no need to attend at Court, unless you have children.
Your divorce becomes effective or absolute 31 days after it was heard at Court. That means that 31 days after the Registrar of the Federal Magistrate Court said the magic words "I grant the application for divorce," your divorce is legal. It is after this date you are free to re-marry.
In other posts we will discuss personal service and what to do if you disagree with anything on the application for divorce.
Thursday, 11 October 2012
Tuesday, 9 October 2012
What is a legal separation
When are you legally separated? Is it simply when you think it is over and when you move out or when is the date you have legally separated from your marriage? Does it really matter we hear you ask? It depends.
Firstly it might matter from the point of view of dividing assets. For example you might think you separated on the first of June this year and your spouse thinks it was really at the beginning of the year. If you bought (together or separately) a house (or some other major item of worth) between January and June the date of legally separating might be relevant. In Australia a court looks at the entire asset pool (even if items of property have been purchased after separation in people's sole name) and then works out the contribution to each asset. This might make the date of legal separation something you need to consider.
Another example might be where a party inherits some money and there is an argument about the date you legally separated from your partner.
If you have been married the date of legal separation becomes important for an application for divorce. Again looking at the Australian perspective, to be able to apply for a divorce you need to have been legally separated for 12 months.
What then is a legal separation?
Good question. Legal separation is simply that date when the two of you stopped living as husband and wife (or as de-facto partners). It sounds a simply definition, and that in itself is the problem. Sometimes one spouse simply cannot or will not accept the relationship is over and that is when the question of legal separation becomes an important one.
If you are about to leave or have left and are not sure your spouse has understood or accepted your decision and you want to make sure your date of legal separation is accepted down the track it is best to write to your ex spouse/partner and spell it out (with some tact if possible).
In our next post we will look at separation agreements.
Good Old Mud Slinging
Don't you just love the letters that arrive from opposing lawyers throwing anything and everything at you, the lawyer and the client? Here at divorcewise we wonder what that is about? Does it serve to satisfy an ego, and if so does it satisfy the ego of the lawyer or the client? Or is it simply a believe that he (or she) who shouts the loudest and throws the largest pile of mud wins? If so, boy......
What happened to good old fashioned respect and courtesy? And why do some lawyers feel the need to wade in with their own opinion? How relevant is the phrase 'in the writer's view'? All of us at divorcewise agree that giving your own opinion as the lawyer for a client does nothing to resolve the dispute of the clients, nor does it look or sound professional. Sometimes client's of ours form the view something must be going on between client and lawyer if correspondence continues to contain statements about i 'in the writer's view'.
Shouldn't letters be short and to the point? Who reads five pages of insult anyway?
The current law society journal seems to have an article on effective legal writing in it. We have not read the entire article but glanced at the summary points in the centre of the article, which to the best of our recollection said something about the first twenty five percent of any document drafted being of no use (or words to that effect). And that using three main points goes a long way to writing a good persuasive document (no doubt this would apply to a letter as well).
Next time you sit down to write a mud slinging letter, offering your own opinion we urge you to stop and pause; will it really add anything to the document? Will it make it more persuasive? Probably not.
Perhaps we can all try to become better creators of documents and more persuasive in our writing.
What happened to good old fashioned respect and courtesy? And why do some lawyers feel the need to wade in with their own opinion? How relevant is the phrase 'in the writer's view'? All of us at divorcewise agree that giving your own opinion as the lawyer for a client does nothing to resolve the dispute of the clients, nor does it look or sound professional. Sometimes client's of ours form the view something must be going on between client and lawyer if correspondence continues to contain statements about i 'in the writer's view'.
Shouldn't letters be short and to the point? Who reads five pages of insult anyway?
The current law society journal seems to have an article on effective legal writing in it. We have not read the entire article but glanced at the summary points in the centre of the article, which to the best of our recollection said something about the first twenty five percent of any document drafted being of no use (or words to that effect). And that using three main points goes a long way to writing a good persuasive document (no doubt this would apply to a letter as well).
Next time you sit down to write a mud slinging letter, offering your own opinion we urge you to stop and pause; will it really add anything to the document? Will it make it more persuasive? Probably not.
Perhaps we can all try to become better creators of documents and more persuasive in our writing.
Monday, 1 October 2012
Shared parenting in the news
In case you have not read the papers lately there is a renewed push to re-visit the idea of a presumption of shared parenting, but this time to revoke it. Of course the Family Law Act does not actually provide that there should be shared parenting, it states that there is a presumption for shared parental responsibility, which is the platform for a Judge to consider shared parenting.
It should not come as a surprise to anyone that no matter how much you try and put a round peg into a square hole, it won't work.
Shared care does not work for everyone, nor in every case. It is extremely unlikely to work if the parents find themselves in the Court arena. Why? Because if the parties are so hostile toward one another that they cannot discuss and work out what is in their children's best interest common sense dictates shared care will not work.
The shame in the research and debate and statistics is that none of the cases where shared care works are cited or probably even examined, because those parents had enough sense to stay out of system.
The other shame is that the knee jerk reaction to any parental dispute (if one is unfortunate to be in the court system) of most Judges and Magistrates will be to minimise time one parent can spend with the child or children, which no doubt leads to more conflict between the parents.
If you find yourself in this predicament you should read publications by Jill Burrett. You can find her work at the following link:
http://www.carringtonpsychology.com.au/
What should be important in cases where parents have separated should be the quality of time parents spent with their children, which of course means they have to be able to spend some time with them and not snatches here and there.
No doubt this problem won't go away. However, it can be minimised if people would approach the dispute from a different perspective and not rely so much on the legal system to solve their dispute, instead using services like psychologists/counsellors and mediators.
It should not come as a surprise to anyone that no matter how much you try and put a round peg into a square hole, it won't work.
Shared care does not work for everyone, nor in every case. It is extremely unlikely to work if the parents find themselves in the Court arena. Why? Because if the parties are so hostile toward one another that they cannot discuss and work out what is in their children's best interest common sense dictates shared care will not work.
The shame in the research and debate and statistics is that none of the cases where shared care works are cited or probably even examined, because those parents had enough sense to stay out of system.
The other shame is that the knee jerk reaction to any parental dispute (if one is unfortunate to be in the court system) of most Judges and Magistrates will be to minimise time one parent can spend with the child or children, which no doubt leads to more conflict between the parents.
If you find yourself in this predicament you should read publications by Jill Burrett. You can find her work at the following link:
http://www.carringtonpsychology.com.au/
What should be important in cases where parents have separated should be the quality of time parents spent with their children, which of course means they have to be able to spend some time with them and not snatches here and there.
No doubt this problem won't go away. However, it can be minimised if people would approach the dispute from a different perspective and not rely so much on the legal system to solve their dispute, instead using services like psychologists/counsellors and mediators.
Monday, 24 September 2012
Recent Decision
In these techonologically advanced times one is never too far from the latest information. Most nights, at about nine or ten o'clock, the ipad announces an email has come in. Sometimes it is clients, but mostly it is an update to lawyers on recent developments in the law.
Last nights email included a summary about a case where a father appealed a decision that the mother be allowed to relocate with two children of the relationship two hours away from his residence (a town in which the mother had lived with the children after separation).
The case is called
Muldoon & Carlyle [2012] FamCAFC 135
and can be found on the internet and should be read if you are thinking of relocating and have to consider children and a parent that needs to spend time with them.
Is is interesting to read that part of the fathe's appeal related to the fact that his counsel was not allowed to pursue questioning of the mother's motivation of relocating. If you read the appeal judgement you will see that the mother gave evidence that she could not continue to live in the small town she was living in as it was like living in a fish bowl (what a great description). She went on to describe how her ex husband had a lot of family in town and she felt as though she was under scrutiny and talked about all the time. All very valid reasons one would have thought.
It is difficult to see where the father's motivation lay. After all the move was only two hours away and not twenty. True it is there was to a small reduction in his time with the children but when this is averaged out over ones own lifetime it would pale into inisginficance.
Needless to say that the father's appeal failed and it was held the mother was free to move whereever she chose.
One of our writers points out the story has a happy ending as lawyers got paid. However, we are sure all of you would agree that the money spent on lawyers would have/should have been spent on the children (we wonder if it ever crossed the father's mind to simply take the children on a trip around the world instead of going to court).
We urge you to read the Judgment (and others) if you are in a similiar predicament, and perhaps pause for a moment or two before rushing off to court.
Last nights email included a summary about a case where a father appealed a decision that the mother be allowed to relocate with two children of the relationship two hours away from his residence (a town in which the mother had lived with the children after separation).
The case is called
Muldoon & Carlyle [2012] FamCAFC 135
and can be found on the internet and should be read if you are thinking of relocating and have to consider children and a parent that needs to spend time with them.
Is is interesting to read that part of the fathe's appeal related to the fact that his counsel was not allowed to pursue questioning of the mother's motivation of relocating. If you read the appeal judgement you will see that the mother gave evidence that she could not continue to live in the small town she was living in as it was like living in a fish bowl (what a great description). She went on to describe how her ex husband had a lot of family in town and she felt as though she was under scrutiny and talked about all the time. All very valid reasons one would have thought.
It is difficult to see where the father's motivation lay. After all the move was only two hours away and not twenty. True it is there was to a small reduction in his time with the children but when this is averaged out over ones own lifetime it would pale into inisginficance.
Needless to say that the father's appeal failed and it was held the mother was free to move whereever she chose.
One of our writers points out the story has a happy ending as lawyers got paid. However, we are sure all of you would agree that the money spent on lawyers would have/should have been spent on the children (we wonder if it ever crossed the father's mind to simply take the children on a trip around the world instead of going to court).
We urge you to read the Judgment (and others) if you are in a similiar predicament, and perhaps pause for a moment or two before rushing off to court.
Tuesday, 18 September 2012
Should a Magistrate make decision about your children
As we are writing a summary of the Australian Family Law in German we are combing through cases, legislation and research. It was this start of a decision that twigged our interest.
Dr Brent Waters, the Part 15 single joint expert in this matter, who said in cross-examination “So we’re really talking about a damage minimisation exercise, rather than something that’s going to be a perfect solution” (transcript 2 September 2009, p.29, lines 9-10). Were the determination of this case akin to a mere theoretical exercise, a scientific experiment, or a mathematical equation, then something less than a perfect solution might not matter. But this case is about 2 children, [X] age 12, and [Y] age 5. This case is about important aspects of their lives. And the solutions found by the court are far from perfect.
What a sad state of affairs for children who are dragged into the Family Court jurisdiction.
We have not read the entire case yet, but will do so and share other information with you. In the meantime you can read the case yourself by following the link:
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FMCAfam/2010/14.html?stem=0&synonyms=0&query=Goode%20and%20Goode
In case the link does not work it can be found in austlii:
Goode & Goode
The above statement by an eminent psychiatrist should give food for thought to anyone contemplating going to court over a dispute involving the children. A far better way to sort out the difficulties, whatever they are (unless it is violence), would be mediation and the assistance of counsellors/psychologists. Why is it we wonder that people think the law is the answer and preferable over alternative options? The law is such a blunt instrument, which cannot cater for children.
Some food for thought.
Dr Brent Waters, the Part 15 single joint expert in this matter, who said in cross-examination “So we’re really talking about a damage minimisation exercise, rather than something that’s going to be a perfect solution” (transcript 2 September 2009, p.29, lines 9-10). Were the determination of this case akin to a mere theoretical exercise, a scientific experiment, or a mathematical equation, then something less than a perfect solution might not matter. But this case is about 2 children, [X] age 12, and [Y] age 5. This case is about important aspects of their lives. And the solutions found by the court are far from perfect.
What a sad state of affairs for children who are dragged into the Family Court jurisdiction.
We have not read the entire case yet, but will do so and share other information with you. In the meantime you can read the case yourself by following the link:
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FMCAfam/2010/14.html?stem=0&synonyms=0&query=Goode%20and%20Goode
In case the link does not work it can be found in austlii:
Goode & Goode 
[2010] FMCAfam 14 (15 January 2010)
The above statement by an eminent psychiatrist should give food for thought to anyone contemplating going to court over a dispute involving the children. A far better way to sort out the difficulties, whatever they are (unless it is violence), would be mediation and the assistance of counsellors/psychologists. Why is it we wonder that people think the law is the answer and preferable over alternative options? The law is such a blunt instrument, which cannot cater for children.
Some food for thought.
Monday, 17 September 2012
E book published
In case you missed the exciting news, one of our authors (not the horse he is still working on his book called My Olympic Dream), just published a book in paper back as well as electronically.
If you want to check it out the electronic version you can find it here.
http://www.amazon.com/dp/B009C8TC96
It would not surprise you to learn that the majority of the stories in the book called 'Briefs' deal with relationship breakdowns and how people deal with them. And then there is a story about a dragon and well about virginity. Have we wet your apetite? Hope so.
What are you waiting for? Get your copy now.
A hard copy can be found either at amazon (search author name: Tanya Thistleton) or at
https://www.createspace.com/3962688
If you want to check it out the electronic version you can find it here.
http://www.amazon.com/dp/B009C8TC96
It would not surprise you to learn that the majority of the stories in the book called 'Briefs' deal with relationship breakdowns and how people deal with them. And then there is a story about a dragon and well about virginity. Have we wet your apetite? Hope so.
What are you waiting for? Get your copy now.
A hard copy can be found either at amazon (search author name: Tanya Thistleton) or at
https://www.createspace.com/3962688
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