Putting children front and centre of legal family matters
Family issues such as divorce, property settlement, and parenting arrangements can be complex and emotionally draining. During similar ordeals, the children’s best interests cannot be put aside, especially that prioritising them is mandated in parenting orders.
On divorce
Divorce legally ends a marriage but requires separate arrangements for property, finances, and children, with a 12-month period to resolve these issues post-divorce.
On Property Settlements
Property settlements divide assets and liabilities and can apply to both married and de facto relationships, with the Court assessing fairness based on various factors.
On Parenting Orders
Parenting Orders focus on the child's best interests, considering factors like parental proximity and ability to care, with family violence cases requiring intervention and possible additional support.
Family problems are one of the hardest issues anyone must deal with. Not to mention the emotional drain and psychological effect it could bring to children and to the parents involved.
If you find yourself stuck in a situation in either of the following family law-related issues, it is better to have a grasp and get a clear picture of what you might be dealing at the moment, and what options you could do when seeking legal advice from a family lawyer.
Divorce and Separation
Revoking the marriage agreed upon by two legally married people is called divorce. In simpler terms it the process of legally ending a marriage. It is worthy to note that property divisions, financial agreement, and parenting arrangements do not automatically come after the divorce and the process must done separately. Legal Services Commission of SA recommends applying for such issues before applying for divorce. The parties have 12 months after the grant to resolve any issues that need to be resolved upon divorce.
What grounds should divorce be an option for in the family?
Opting for a divorce is grounded by irretrievable marriage breakdown. This is characterised by not living as a married couple for at least 12 months and that the relationship cannot longer be mended.
Couples who do not have children and/or are only married less than two years cannot apply for divorce. They would have to present a certificate from a counsellor stating that the two parties have considered getting back together through marriage counselling; or ask permission from the court to go ahead even without seeking marriage counselling. In such event, the court will have you provide evidence in an affidavit what were your reasonable explanations of not opting marriage counselling or not trying to get back together.
Couples who separated but live under one roof during part or all of the required 12 months separation period needs to provide extra information such as an affidavit to state that they have separated but live in same house.
One vital factor for a divorce application to be approved is the arrangements for the children under the age of 18 who were living with the couple at the time of separation.
Opposing Divorce
Both of the parties must demonstrate that there is a chance for them to get back together. Agreeing to attend a counselling session will give the other party a chance of reconsideration. To be able to oppose a divorce a Response to Divorce must be completed within 28 days upon being served with the Application for Divorce.
For a divorce, couples must show an irretrievable breakdown of the marriage. Additional documentation is needed if living together during separation or if under two years of marriage.
Victims of violence, or physical or emotional abuse should seek financial, housing, and legal support, especially for those on spousal visas.
Property Settlement
The importance of dividing the properties is to end the financial relationship between two parties. It is noteworthy however that property settlements do not only apply to divorced individuals. It could also apply to those married and in de facto relationship.
While the length of a marriage is an important factor, a property settlement pertains to all assets and liabilities between the two. This means the Court has the power to alter the interests of each party after thorough assessment of the property’s value, individual contributions, future needs of the party, and consideration whether the settlement being proposed is just, reasonable, and equitable.
Parenting Order
All biological parents have legal responsibility to their children under 18 regardless of their relationship. The court may say otherwise, which is known as a Parenting Order, where all concerns on children’s welfare and other arrangements for care are established. The court always considers the best interest of the child when making an order, and they presume that an equal parental responsibility is necessary. There are some cases however where equal shared responsibility is not the best for the children.
The context of an equal time shared as a parental responsibility does not equate to having exact same time to be spent with each parent. In the events when an equal time is not suitable the court seeks to order a substantial and significant time, whereby children spend their time with the parents during weekends, weekdays, or holidays. The court always protects the best interest of the child, and therefore considers the following factors to decide between an equal time or a substantial and significant time:
- Proximity of parents’ residence from one another
- Other factors which the court thinks are vital
- Current and future ability of parents to resolve any difficulties that may arise
- Parents’ ability to talk to each other
- Current and future ability of parents to care for the child
Family Violence
Violence between family members can occur by means of physical injury, psychological harm, social isolation, financial control, and emotional damages.
An intervention order may be issued once it has reached the attention of the police. Criminal sanction and penalty does not apply to all forms of family violence in general.
In the events where the victim has to seek help from other services, Legal Services Commission advised for the abused individuals to make an arrangement and seek help on the following:
- Financial Assistance –Centrelink income support payments
- Housing Assistance – Assistance programs on private rentals such as Housing SA
- Counselling or family therapy – Such as women or community health centres
- Immigration Advice – For abused people on a spouse visa, or on-going partner’s visa at the time of abuse, they must immediately seek help and legal advice from their migration lawyer. They will make sure that your visa status will not be threatened due to unfortunate family violence and that you do not need to stay in the relationship for the application to commence.
How Can Gabito Lawyers Help You?
Our migration lawyers and family lawyers specialise in the said areas. Our team of lawyers have numerous successful cases in related matters.
