If the existence of a de facto relationship is in issue, the court will have regard to the following factors:
The duration of the relationship;
The nature and extent of their common residence;
Whether a sexual relationship exists;
The degree of financial dependence or interdependence, and any arrangements for financial support, between them;
The ownership, use and acquisition of their property;
The degree of mutual commitment to a shared life;
Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
The care and support of children; and
The reputation and public aspects of the relationship.
No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether people are in a de facto relationship. The court will weigh up all of the evidence and determine whether on the balance of probability the de facto relationship exists.
For people in de facto relationships separating after 2009, in most Australia states including Queensland, de facto couples enjoy practically the same rights as married couples to property adjustment orders and spousal maintenance.
In addition to there being a de facto relationship, in order to bring an application for de facto property adjustment/spousal maintenance one of the following criteria must also be met:
The relationship is of 2 years duration; or
There are children of the de facto relationship; or
Where there have been significant contributions made and a serious injustice would result if the court did not make an order or declaration.
Currently in Queensland there are 3 different types of de facto relationship property adjustment regimes depending on when separation occurred. These are:
For de facto couples who separated pre 1999, an Application can be made utilising equitable doctrines in the State Courts;
For de facto couples who separated between 1999 and 1 March 2009, an Application can be made pursuant to Part 19 Property Law Act 1974 in the State Courts;
For de facto couples who separated after 1 March 2009, an Application can be made pursuant to the Family Law Act 1975 in the Family Court or Federal Circuit Court.
However for de facto couples who separated before 1 March 2009, the parties can submit to the jurisdiction of the Family Court or Federal Circuit Court pursuant to s 86A of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008.
The methods by which de facto matters can be resolved are similar to those available for married couples including court orders, binding financial agreements, recognised separation agreements and consent orders.
An application for a de-facto property or spousal maintenance claim must be brought within 2 years from the date of separation. If this limitation period expires you may be required to establish “hardship” and seek the permission of the court before bringing your application.
Whether you are part of a heterosexual or same sex couple, if you separate we recommend you attend upon Peter Hooper, family lawyer Brisbane, for advice with respect to your rights.
A consent order can be made at any time during the conduct of a proceeding before a court, or prior to proceedings being commenced.
Once a consent order is made the parties are bound by the terms of the order.
The advantage of a consent order is it gives the agreement the force of being an order of the court while still allowing the parties to craft the outcome best for them.
One of the most inexpensive methods or resolving a family law dispute is for each of the parties to obtain independent family law advice, reach an agreement and then have their family law solicitors prepare the consent order.
Hooper Family Lawyers can provide you with an estimate of costs to draft your consent order application, or discuss with you fixed fee arrangements in appropriate circumstances.
De Facto & Divorce Property Settlement
Financial Agreements are private contracts between parties to a marriage or de facto relationship. Third parties can also become parties to the agreement in some circumstances i.e. the family company.
There are three situations where these agreements apply:
Agreements prior to marriage or “pre nuptial agreements”;
Agreements made during a marriage;
Agreements made post separation as a method of severing the financial relationship.
When Financial Agreements are “binding” they remove the jurisdiction of the court to make an order with respect to the subject of the agreement.
Financial Agreements can be very useful including for asset protection for people wanting to cohabit together or in contemplation of marriage and a Binding Financial Agreement is the best method of providing certainty with respect to Spousal Maintenance rights.
Financial Agreement must also be approached with caution.
For a Financial Agreement to be binding it must comply with legislative requirements including that each party has received specific legal advice. If Financial Agreements are not properly drafted, and advice given, they can lead to more litigation and uncertainty should one party seek to have the agreement set aside.
Hooper Family Lawyers are family lawyers in Brisbane who can draft your financial agreement, and provide the requisite advice, to ensure your financial agreement is binding, and achieves what you intend.
Is your former partner seeking spousal maintenance payments from you? Are you looking for a way to maintain the lifestyle you earned whilst with your former partner? You may benefit from speaking to a spousal maintenance solicitor in Brisbane at Hooper Family Lawyers. We’ll be able to help you understand what your rights and obligations are.
Read on to find out more about what to expect from your appointment with a spousal maintenance lawyer in Brisbane.
What is spousal maintenance?
Married couples who separate (and de facto couples who separate after 1 March 2009), may be liable for or entitled to spousal maintenance. Spousal maintenance becomes an issue where one party is unable to support themselves adequately (due to having the care of children, incapacity for employment or any adequate reason) while the other party is reasonably able to provide support.
Spousal Maintenance can be provided for in a Binding Financial Agreement, in a Consent Order or can be awarded by a Judge.
Many people are aware of child support obligation but have not considered the possibility of receiving spousal support. Our expert team of spousal maintenance lawyers at Hooper Family Lawyers Brisbane can provide you with advice as to your rights and responsibilities under the law
Child Support Payments
Child support issues are for the most part dealt with by the Department of Human Services and not by Court action. The Department of Human Services administers the Child Support Scheme. Information regarding your potential child support entitlement or liability can be located at the Department of Human Services website (in the Links section of this website).
Even though child support is more of a government rather than Court process, we can provide advice/services in child support matters such as:
Advice concerning your rights and obligations;
Drafting Limited and Binding Child Support Agreements;
Advice concerning applications for Change of Assessment/Departures;
Appeals to the SSAT;
Child maintenance pursuant to the Family Law Act 1975 concerning adult children or step children.
Family Dispute Resolution and Mediation
In any civilised society there are only two methods by which disputes between parties can be resolved. That is by agreements between the parties or decisions from judges.
Family Dispute Resolution or FDR includes mediation which is a process by which a trained mediator facilitates an agreement being reached by the parties themselves. Generally it is also helpful and efficient for each party to have the assistance of legal representatives.
Mediation can involve discussions in a round table format or by “shuttle” where the parties and advisors are in separate rooms and they communicate via the mediator.
With some very narrow exceptions related to criminal offences, mediation is “without prejudice” which means concessions made at mediation cannot later be raised in evidence if the mediation is unsuccessful.
Mediation in property matters is often successful when both parties are well represented and well prepared; saving large sums of money that may otherwise be spent on proceeding to trial. In the event that proceedings are commenced, it would be unusual for the matter to be listed for trial unless mediation has occurred.
In parenting matters, the necessity to attend FDR is encapsulated with section 60I Family Law Act 1975. This section provides that as a general rule, unless a certificate is obtained from a mediator who is an accredited dispute resolution practitioner, a party cannot file a proceeding in court.
The Family Law Act 1975 provides that in certain circumstances the law will presume parentage. These presumptions arise as follows:
Paternity presumption arising from marriage;
Paternity presumption arising from cohabitation;
Paternity presumption arising from registration of parentage information i.e. Birth Certificate;
Paternity presumption arising from a court finding;
Paternity presumption arising from acknowledgement of paternity.
If the fact of parentage becomes an issue, the parties can agree undertake DNA testing or one party can seek a court order.
In applications for declarations that a person should not be assessed to pay child support pursuant to section 107 Child Support (Assessment) Act 1989, DNA testing is regularly ordered at the interim hearing stage.
In some circumstances family law settlements can offer tax relief with respect to transfers of property between spouses or parties, such as, exemption from stamp duty for transfer pursuant to a matrimonial instrument and CGT roll over relief.
In other circumstances where complex financial structures exist such as private companies, trusts or self managed superannuation funds (“SMSF”) it is important to ensure the family law settlement contemplates what the tax implications will be and make appropriate allowances.
Hooper Family Lawyers Brisbane can advise you with respect to the restructuring of your affairs and drafting orders to reflect the advice you receive from tax accountants or financial planners as to the best way forward.
One of the most emotionally difficult circumstances in family law arises when one parent wishes to relocate a child’s residence to another city or town.
A move away that would make it significantly more difficult for the child to spend time with the other parent is a major long term issue, and equal shared parental responsibility requires parents should make a “genuine attempt” to come to a “joint decision” on this issue.
However if an agreement cannot be reached a decision of the court will be necessary.
Although the courts have said relocation matters do not form any special category of cases, and that the best interests of the child remains the paramount consideration in determining what order will be made, there are a number of other considerations that have been expressed by the case law such as:
Recognition that a relocation case represents a tension between a parent’s constitutionally protected freedom to live where they choose; and the rights of children to enjoy a meaningful involvement of the other parent in their lives;
Recognition that best interests is the “paramount” and not “sole” consideration;
The court is not bound by the proposals of the parties and may consider other proposals;
The relocating parent is not required to establish compelling reasons for the relocation.
Important evidence in relocation cases will depend on the facts of each case and evidence such as the prospects for the relocating parent financially, geographically or emotionally, the nature of the child’s relationship with the non relocating parent, existence of any family violence and any other relevant matters need to be examined.
Timing can also be important. If a parent unilaterally decides to relocate a child, obtaining legal advice as swiftly as possible is recommended.
While the court does not have power to order a parent to live in a particular location, the court can make orders as to where the child will live. Thus it is important to also consider what the options might be if the court orders the child to remain in a particular location but the residential parent decides to move anyway.
In the event that a parent decides to relocate a child without consultation, we recommend you contact Hooper Family Lawyers Brisbane without delay.
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