1 min read
01 Sep 2021
Family law covers all aspects of law that relates to families. It encompasses all children’s matters and Separation of Assets for de facto and divorcing couples.
Most Family lawyers will also handle Intervention Orders and Wills and Estate matters as they are all intertwined with family law matters.
The Family Law Court and Laws look after all disputes and processes for parents to make decisions about the welfare and care of children. It is not only parents. The law also recognises the rights of others such as carers and relatives and other significant people who have a role in the child’s life.
Both parents if they are separating or divorcing will have to ensure that their children are provided for. This is both for physical and emotional well-being. Parents can decide on what’s best for their children amicably and are encouraged to do so by the law. When an agreement is reached a parenting plan can be drafted and the parents can decide to formalise the agreement via a court order. This makes the agreement enforceable.
When parents can’t agree on how to raise their children or there are constant disagreements about their obligations parents may have to take further steps. There are several alternative pathways in Family Law that are available to parents. Much can be provided by private negotiation or mediation or arbitration. The final step is commencing legal proceedings in the Family Court. Some of these dispute resolution processes can also run simultaneously.
Grandparents, relatives and others such as ex DeFacto partners may wish to retain a relationship with a child and have rights under family law Act 1975.
Relatives and others can become estranged for a variety of reasons and not solely due to a separation of the parents. The Court’s is dealing mainly with protecting the child and will always look to determine what is in the best interests of the child.
Property settlements are another key area covered by family law. This is where separating couples reach and agreement on how they will split their assets or property.
The family court will look at many factors before making a decision. They will also look at the “pool of assets” or what the couple have together. They also consider the ability for each person’s financial position. Some couples not only have to consider how assets are being split but spousal maintenance may also be considered.
Spousal maintenance is where a spouses have an obligation to ensure the other spouse is financially provided for. This can become complex where many aspects are considered. Things such as ability to work, retraining, health and other factors are considered.
Mostly couples will attempt to sort out their own financial separation and if successful a binding financial agreement can be drafted. Family Law dictates that both parties need to get independent legal advice. This ensures that they understand what they are signing.
If a couple can’t agree then there are several avenues to help resolve a dispute about the division of assets. These are the same as with children’s matters such as private negotiation, mediation, arbitration or formal court proceedings.
Like with a parenting plan you can also get a court order to ensure that the Binding Financial Agreement is enforceable.
A Divorce is granted by an application to the Family Court. If the couple have children they must have made sufficient provision for their child/rens care before a divorce will be granted. The process of a divorce is different to that of the division of properties and assets following a separation. These are two distinctly different legal process at law and in the courts.
Family law court and other websites are helpful for people to work out what the law says about a particular subject. What isn’t as easy to work out is case law (or precedents) and processes of the courts.
Family lawyers and barristers have experience working with the court and seeing first-hand how family law is applied. They also have a deep understanding of case law. Getting advice is key to understanding how the law and case law applies to your circumstances and family.
It is these individual differences and variations that make family law more complex. Each family has different needs and circumstances. A different approach and considerations will be made in each case.
Family lawyers and barristers are also a great resource on how you can improve your chance of success. There are very practical steps people can take to improve their chance of a better outcome in family law. Particularly in disputed child custody matters.
Family Law is Australian wide legislation and only WA has some state specific legislation. This means that the law is consistent. This reduces confusion and increases compliance with the law. One set of rules for all.
There have been recent changes to the courts that deal with family law. Shortly the Federal Circuit Court of Australia will no longer handle family law matters and only the Family Court of Australia will deal with family law matters.
If you are needing advice about a situation or what your options are if you divorce getting advice from a family lawyer is quick and easy. Friends and relatives can be well meaning, but family law is specific and unique area of law.
Contact one of our family lawyers to discuss your matter today on 1300 907 335. Alternatively submit your details and we will get back to you promptly.
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Disclaimer: This article has been prepared for general information purposes and may not apply to your situation. This information should not be relied upon for legal, tax or accounting advice. Your individual circumstances will alter any legal advice given. The views expressed may not reflect the opinions, views or values of PCL Lawyers and belong solely to the author of the content. © PCL Lawyers Pty Ltd.
If you require legal advice specific to your situation please speak to one of our team members today.
Theresa is a Senior Associate of our Family Law and Estate Planning practice groups. Theresa's practice includes acting for clients across a broad range of complex family/relationship matters as well...
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