Saturday, 6th September 2008
18°C (Adelaide)
18°C (Adelaide)
In South Australia, we now have a law called the Domestic Partners Property Act. This Act applies to relationship between 2 adult persons (whether or not related by family and irrespective of their gender) who live together as a couple on a genuine domestic basis. This means that the law applies to same sex couples and other situations that were previously not recognised.
To be entitled to make a claim for property settlement, the relationship must have existed for at least 3 years or there is a child of the domestic partners.
The Court seeks to divide the property in a way that is "just and equitable" and has a number of factors to take into account.
See our public page for wills.
On a property settlement the Court may not have the power to make any Orders affecting Superannuation. But it may take this into account. The position after death is dealt with on our Public Page for Wills.
The same laws apply to the residence and care of children whether the parents are married, in a de facto relationship or have never lived together.
There are no laws for the maintenance of a former de facto spouse. The same laws apply to the support of all children regardless of the relationship between their parents.
It is possible to enter into a legally binding agreement at the commencement of the domestic relationship. There are strict legal requirements to be observed and you must see a lawyer.
www.familycourt.gov.au Cause List
Roma Mitchell Commonwealth Law Courts Building
3 Angas Street
Adelaide SA 5000
Postal Address
GPO Box 9991
Adelaide SA 5001
Phone: 1300 352 000
Fax: (08) 8219 1625
DX 156 Adelaide
Email: adelaide@familycourt.gov.au
Counter open: 8:45am - 4:30pm
Phones available: 8:30am - 5pm
Prenuptual Agreements are a binding legal agreement between a couple, agreeing as to how they will divide their property if they were to separate. These may be signed prior to marriage or during the marriage.
It is not just movie stars who sign these agreements. Usually though, one party has significantly more assets than the other party and is trying to protect these.
There are many arguments for and against such agreements. There are also very strict legal requirements to be observed and you must see a lawyer.
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When a relationship ends and there are children of that relationship, both parents usually wish to maintain contact with the child or children. The way in which the parents (called the husband and wife by lawyers and the Courts) establish and maintain this contact can be made formal through the Courts, to give the parties some certainty as to the arrangement.
The Court Orders dealing with child issues are called Contact Orders, Residence Orders and Specific Issue Orders, are filed in the Court, and address questions such as:
Sometimes a formal arrangement addressing these issues is not necessary as some parents are able to come to an amicable arrangement without assistance.
Assistance and counselling is available through agencies such as Relationships Australia.
Lawyers are bound by strict rules of confidentiality. So you can see them at any stage for advice, even prior to separation.
If the issue is the care of children then you should see Relationships Australia and take their advice on resolving the issues before seeing a lawyer. The service is free.
Child maintenance issues are handled by the Child Support Agency (on behalf of the Carer). Their service is also free. Lawyers usually only become involved in child maintenance issues that are well out of the ordinary run of things, or to assist the paying parent.
In cases of spousal maintenance (the Americans call it alimony) and property settlement we always recommend that your first step should be to see a solicitor. If you are intending to speak to your spouse yourself or want to try mediation; it is an excellent idea to find out in advance from an experienced independent lawyer what your rights and options are.
A lawyer will become involved as much or as little as you wish. Many people lack experience or confidence in these situations, and it is all the harder when it is so personal and so important to you.
The following information will be useful to your lawyer. You can save time and money by preparing the following information for your lawyer prior to your interview, and providing it to your lawyer at the interview:
Remember to bring along any relevant documentation such as Certificates and Court Documents.
Family Law:
Maintenance for children is known as child support. Both parents are liable for supporting their children financially. The amount that is paid is worked out by a formula. The child support agency can tell you how much you have to pay.
If either parent is unhappy with the Child Support Agency’s assessment, an application can be made to the Court.
You may also have to pay/or be entitled to spousal maintenance. This is like “alimony” – it is different to child support and is for the support of your former partner or your support. It can be paid/received in addition to child support. This form of support can be obtained by an order of the court. The individual financial circumstances of each party are considered before an order is made by the court.
Note that:
Marriage revokes any Will previously made unless the Will refers to contemplation of that particular marriage. People often separate but forget to change the Will which could mean that their spouse still inherits their estate. When a divorce becomes final that part of your Will that relates to your former spouse is revoked not the whole Will. It is important to seek legal advice about the impact of this on your Will. Whenever a married couple separate, each party should review his or her Will.
You should also review your Will, Power of Attorney and any other authority that you have given you spouse or partner to sign anything on your behalf.
See Foolkit's page on wills.
You should consider changing pin numbers and passwords.
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