Frequently Asked Questions

Seitz & Pepper Family and Divorce Lawyers assist you in the legal issues that arise during the breakdown of your relationship. This involves either the breakdown of a marriage or the breakdown of a de facto relationship, and the legal matters that arise following the separation. When a couple is considering separation, or after the relationship has irretrievably broken down, they will often need to seek legal advice from a family lawyer.

The role of our Family and Divorce Lawyers is to navigate you through the turbulent legal issues following a separation. Alternatively, our Family and Divorce Lawyers may also assist clients in protecting their assets, and making provisions for children, in the event of a future separation. Family and relationship law is a broad area of legal practice that encapsulates property and financial settlements, parenting and custody, de facto relationships, family violence orders and international family law.

Australia has a no-fault system for the dissolution of marriage. The only thing to be proved in divorce proceedings is “irretrievable breakdown of marriage”. The only way to prove this is to demonstrate that the parties have been legally separated for at least 12 months.

If there is no doubt about the date of separation, and the arrangements for any children are clearly appropriate, the Court will probably grant the divorce on the application of one party even if the other party does not want it.

To file for divorce in Australia, the following requirements must be met:

• You must be legally married in a recognized jurisdiction and present a translated copy of your marriage certificate.
• The marriage must be considered irretrievably broken down, which can be proven by having been separated for a minimum of 12 months and 1 day.
• At least one of the spouses must either:
  • Consider Australia as their permanent home and plan to reside here permanently, or
  • Be a native Australian citizen by birth, descent, or through the grant of citizenship, or
  • Normally reside in Australia and have done so for 12 consecutive months prior to filing for divorce.

When filing the Application for Divorce, the Commonwealth Courts Portal enables the individual filing for divorce, known as the Applicant, to select a hearing date from a list of dates that are available. To ensure that the other spouse has enough time to receive the Application for Divorce and file a Response, if desired, no dates will be offered less than 28 days from the filing date.

Typically, the finalization of the divorce process will take anywhere from 2 to 3 months from the time the Application was filed, and the amount of time it takes can be influenced by the hearing date selected. If the Registrar confirms the divorce at the hearing, the Certificate of Divorce will be issued one month and one day after the hearing.

Child custody in Australia is referred to as "parental responsibility." In general, both parents have equal parental responsibility for their children, unless there is a Court order that specifies otherwise. The Court will make a decision on child custody based on the best interests of the child, taking into account factors such as the child's relationship with each parent, the child's education and health, and the parents' capacity to care for the child.

In some cases, the Court may order that one parent have sole parental responsibility, or that the parents share responsibility, but one parent makes major decisions for the child. The Court may also order that the child live with one parent and have regular contact with the other parent.

Spousal maintenance in Australia is financial support paid by one spouse to the other after the separation or divorce. The purpose of spousal maintenance is to provide financial assistance to a spouse who is unable to support themselves adequately after the separation or divorce.

The amount and duration of spousal maintenance is determined based on the needs of the recipient spouse and the capacity of the payer spouse to provide financial support. The Court will take into account a range of factors, including the income, assets, and liabilities of both parties, the age and health of the parties, and the length of the marriage.

Mediation is a process that involves a neutral third party facilitating a resolution between two parties in a dispute. In Australian Family Law, mediation is often used to resolve disputes related to divorce, child custody, and property division.

Mediation provides a less adversarial and less expensive alternative to Court proceedings, and can be faster and less stressful for the parties involved. The mediator will help the parties reach an agreement on the disputed issues, which can then be formalized by a Court.

A de facto relationship is a relationship whereby a couple has been living together on a genuine domestic basis. Same sex couples are also included in the definition of de facto relationship under Australian law. The length of time for a couple to live together to be considered de facto is two years. However, exceptions are made to this rule, such as if there are children, or if substantial contributions to joint property have been made. If our Family and Divorce Lawyers establish that you and your ex-partner are in a de facto relationship, you will have the same legal status as a married couple.

Yes, same-sex couples can divorce in Australia. The process for divorce for same-sex couples is the same as for opposite-sex couples, and the grounds for divorce are the same.

In 2017, the Australian Parliament passed legislation allowing same-sex couples to marry. As a result, same-sex couples can now divorce under the same laws that apply to opposite-sex couples.

The unlawful removal of a child from the legal guardian, even if the child consents, is referred to as child abduction. It is crucial to note that the child's desire to go with the abducting parent is not a valid defense.

As per the Family Law Act 1975 (Cth), parental child abduction is prohibited if the Court has made Consent Orders, or the parents are currently undergoing parenting responsibility Court proceedings. The prohibition under the Act encompasses not just the other parent but also anyone who acts on their behalf in attempting or succeeding in abducting a child.

In certain situations, child abduction may also be classified as kidnapping, which carries the criminal penalties associated with that offense.

However, there are specific circumstances where a defense against a charge of child abduction is valid. For instance, a parent who is escaping domestic violence and wants to safeguard their child from mental or physical harm has a legitimate defense. Additionally, an individual has the right to act in self-defense to protect themselves and others from harm.

In Australia, a magistrate can make an order to protect somebody from physical and mental harm. In Victoria, these orders are called Intervention Orders. In other states, orders go by different names, including Restraining Orders, Apprehended Violence Orders (AVOs) and Domestic Violence Orders (DVOs). To get an Intervention Order in Victoria, you will need to follow the steps below:

1. Contact the police: If you are in immediate danger, call the police for assistance. They can help you get to a safe place and can also help you apply for a restraining order.
2. Go to a local Magistrates Court: If you are not in immediate danger, you can go to a local Court in your state or territory and apply for an Intervention Order.
3. Complete an application form: You will need to fill out an application form, which can be obtained from the Court registry.
4. Provide evidence: You will need to provide evidence to the Court to support your application for an Intervention Order. This may include statements from witnesses, medical reports, and police reports.
5. Attend a hearing: The Court will set a hearing date and you will need to attend the hearing to present your case. The person you are seeking an Intervention Order against may also attend the hearing and present their side of the story.
6. Wait for a decision: The Court will make a decision based on the evidence presented and will either grant or refuse your application for a restraining order.

It's important to note that the process for obtaining a restraining order may vary depending on your state or territory. Our Intervention Order Melbourne lawyers are ready to advise you to help you through the process.

Under the Family Law Act 1975, the Court determines an application for property settlement pursuant to the “4-step” process.

The first step is to identify the value of the property of the parties. The Court is given a detailed list of all the property. This is usually done in a financial statement. All the documents that prove the financial history of the relationship and the current circumstances are collected. These can include group certificates, tax returns, bank statements, certificates of title, superannuation, and insurance policies.

The second step is to assess the contributions made by each party during the relationship. Contributions means what has been offered or given to the property. This includes financial contributions, non-financial contributions, contributions to the care and welfare of the family and contributions in the capacity of homemaker or parent. The Court will often take the view that the Parties have contributed equally, where there has been a long relationship. However, there are many circumstances where the contributions of the parties will not be viewed as equal.

The third step is to assess the future needs of each party. The Court shall consider factors such as the age and health of each party, the income, property and financial resources of each party and their capacity for employment, and who is responsible for caring for a child of the marriage who is less than 18 years old. Additional factors the Court shall consider include commitments necessary to enable a party to support themselves or any other person that the party has a duty to maintain, the eligibility of either party for a pension, allowance, or benefit, and the standard of living that is reasonable in the circumstances.

The fourth step is for the Court to determine if it is just and equitable to make the order for the proposed division of property. The Court will only make an order it considers to be 'just and equitable' (fair) according to the requirements of the Family Law Act 1975. This assessment is undertaken by the Court examining the unique circumstances of the particular case.

The general rule for costs in Family Law proceedings is that each party will normally be expected to bear his or her own legal costs. However, there are circumstances where the Court will make an exception to this rule and require one party to pay the other party’s costs. The Court will consider the factors set out in Section 117(2A) of the Family Law Act 1975, when considering whether to exercise the discretion to make an order for costs.

We provide a free initial telephone consultation, to enable our Family and Divorce Lawyers to gather some information about your matter and provide you with a proper quote according to what will suit your individual case. We provide fixed fees for all our matters, so you will know exactly what you are up for before we even start work on your matter.

A fixed fee means that our team will charge you a fixed amount for the work they do. This means that you pay one fee for the work they have quoted you and it doesn't matter how many times you email or speak with them, you will still be charged that same amount. Our experienced Melbourne Family Lawyers can offer fixed fees as they have undertaken the work so many times, they understand approximately how much it would cost so they can give you a fixed quote.

Follow the following link at https://seitzpepper.com.au/contact/ to access a free 30-minute phone consultation to speak directly with one of our expert Family Lawyers, Intervention Order Lawyers, Wills & Estates Lawyers, and Criminal and Traffic Lawyers:

Alternatively, contact us on 1300 926 125 or mail@seitzpepper.com.au to find out what’s next for you.