General Legal Matters - Information Pages

Law Society - Family Law Discussion

The information contained on this page is not legal advice. If you do have a legal problem you should talk to a lawyer before making a decision about what to do. The information on this page is written for people resident in, or affected by, the laws of South Australia, Australia only.

Electoral offices like Community Legal Services are utilised by the public for a myriad of legal matters that relate to constituents’ day-to-day lives. Despite the predominance of typical queries in the criminal, civil and family law areas of practice, there are always subtle differences, and in some cases, stark ones, from client to client. This is especially the case in family law matters.

Alan and I will be giving you an overview of the most common areas of family law that may be presented to you when you receive a phone call from one of your constituents.

I will be dealing with the issues of property, divorce and changing the name of a child. Alan will look at residence, contact, relocation issues and domestic violence/restraint orders.

We hope this overview will provide a framework so that you feel sufficiently informed when dealing with any queries touching on family law.

Property - FAQ

The most common and immediate concerns that will be asked of you will probably include the following:

Q. Can the other party make me leave the home?
A. Not unless there has been a sole occupation order applied for and obtained through the Family Court.

Q. Can I leave at any time I choose?
A. Yes. There is no restriction. The decision is in no way dictated by the other party.

Q. Can I take jointly owned contents from the home when the other party is not there?
A. Yes. If there is any dispute over taking certain items from the house, they can be resolved by way of negotiation after the event, or in terms of an adjustment of the division of property in final orders.

Q. My partner has investments/superannuation/bank accounts that I am frightened he/she might withdraw. What can I do to stop it?
A. An injunction will be necessary to formally prevent him/her from accessing or disposing of those assets.

Q. The house is in joint names. Am I protected?
A. Yes. The house cannot be sold unless both parties sign relevant papers.

Q. What if the house is in the other person’s name alone?
A. There will be a need to obtain a caveat through a broker. This will prevent the other party selling the property until division of property has been finalised.

Q. We have a joint bank account. Can he/she access that money without my knowledge.
A. Yes. The bank should be notified if there has been a separation. As both parties can equally access the account a fair share can be withdrawn or the account can be closed. One of the parties may otherwise access the funds and clean out the account prior to the other to their detriment of the other. In the end, the property settlement will be able to readjust what has been taken by one of the parties if it is over and above their entitlement. However, it is best to try and prevent this from occurring so that both parties have an equal share of the cash to utilise in establishing their lives post-separation.

Married or De Facto?

1A. De Facto

The first thing to establish is whether the person calling is in a de facto relationship or a marriage. Marriage is self-explanatory. When it comes to defining a de facto relationship, to come within the South Australian legislation (S.A. De Facto Relationship Act), we need to explore what definition is applied. In common usage, it is two people living together in a way that is to all intents and purposes marriage-like. Section 3 of the Act defines a de facto relationship as “the relationship between a man and a woman, who although not legally married to each other, live together on a genuine domestic basis as husband and wife.” The reference to a man and a woman is deliberate. Lobbying took place prior to the act being passed to include same sex relationships but in the end this was excluded from the scope of the act.

The other criteria that need to be satisfied to come within the operation of the act are:

(a) Relationships must have ended after the commencement of the Act, being 16 December 1996 (Section 4)

(b) An application for division of property can only be made if, when the relationship has ended, the party applying or responding to an application is resident in South Australia

(c) The de facto partners were resident in South Australian for the whole or substantial part of the period of the relationship and the de facto relationship existed for at least three years or there is a child of the de facto partners (Section 9 Sub-section 2).

1B. Time Limits

Another important point is that the time limit to make an application for division of property is twelve months. Therefore, any prospective applicant must either have settled their property matters or issued proceedings within twelve months from the end of the relationship.

The difficulty for you is that you are not meant to give advice. If there is information regarding time limits provided, you must make it clear that the caller needs to follow up this matter him/herself. Otherwise you may find yourselves drawn into liability issues in terms of time limits if there is an expectation that you will follow up the matter for the constituent.

1C. Jurisdiction

Proceedings for division of property are issued out of the Magistrates Court, District Court or Supreme Court. The choice of court depends on the amount being claimed. This is the major and substantial difference between division of property for a de facto as opposed to a married couple in that the married couple can obtain any orders for settlement through the Family Court, which is federal jurisdiction.

However, just recently there has been agreement by State Attorneys General to transfer the jurisdiction for property settlement of de facto couples to the federal jurisdiction. With a bit of luck, this will be in full swing sooner rather than later. As you can appreciate, this will simplify the procedure for family law matters in that all issues whether it be property division or child-related will come under the Family Court or Federal Magistrate’s jurisdiction, whether de facto or married.

2. Common Law

If you don’t come within the requirements of the S.A. De Facto Relationship Act the Common Law will apply. The main difference is that contractual principles will determine a share in the property settlement. This does not place importance or emphasis on non-financial contributions such as raising a family. The State Act has resulted in a fairer approach to the division of property between de facto couples than under the Common Law. However due to the lack of precedents (there have only been a handful of matters contested all the way to judgement), likely outcomes are still uncertain. The costs of issuing proceedings in State Courts for either Common Law or De Facto Relationship actions will vary depending on the amount claimed.

3A. Married Couples

For a party in a marriage, property matters are dealt with through the Federal Magistrate’s Court or Family Court, both being federal jurisdictions. Unlike property proceedings in de facto matters under the State Act, the federal jurisdiction provides a greater framework to encourage the parties to settle their matters rather than go to trial. In this regard it offers counselling and property conferences to encourage settlement. Unlike the proceedings in the State Courts, no press are allowed to report on proceedings issued or heard in Court in any form of media.

Parties can settle their division of property by way of an agreement that is then filed in the Court as Consent Minutes of Order. This order has the same force and effect as if the parties had issued proceedings against each other and the matter had proceeded to a final judgement after a full trial. Most couples settle on this basis.

A danger can arise when couples that have agreed informally to property settlements, (whether it be verbally or in writing but without formally lodging their agreement with the court), in that one of the parties can apply for further division at a later date. The bottom line is that if an agreement has been reached, make sure it is formally registered as Consent Minutes of Order.

Once consent orders have been filed or judgement has been handed down in Court, no further claim can be made unless exceptional circumstances exist. This is an overriding principle of the Act in that it aims to give parties the opportunity to finalise matters and move on with their lives. There is no cost when lodging a Consent Order. However, an application for property settlement costs $172 in the Family Court or $109 in the Federal Magistrates Court. This is waived if receiving Social security or on a low income.

3B. Superannuation

One major change occurring from 28 December this year will be the ability to make orders splitting superannuation. As the law currently stands, any adjustment, where one party has a higher amount of super than the other, would be by way of a cash adjustment or adjusting the share of the contents etc. Now it will be possible to split a superannuation fund that was previously untouchable until retirement. Whereas in the past it may not have been financially possible to pay out a party’s entitlement to a share of super, the fund can be conveniently split so that the other party will receive a share of the super in their name. However the accessibility to that super will still be dictated by retirement age unless there is financial hardship, or compassionate grounds exist. In this way it is still not the same as being handed cash. Parties will still be able to settle using the existing laws but at least there will now be an alternative to overcome the previous problems.

3C. Time Limits

In terms of time limits, parties to a marriage can apply for a property settlement at any time once they have separated. However, once a divorce has been applied for and granted, there is a twelve-month time limit to either settle proceedings or issue them out of the Family Court or the Federal Magistrate’s Court.

4. Divorce

Division of property is not dependent on obtaining a divorce. Parties can agree to the division of property without ever divorcing. However, in the majority of cases, both seem to run hand in hand, even though they are separate applications and are independent of each other. An application for divorce can be made by either of the parties independently once they have separated from their partner for a period of twelve months or more. To use the wording of the Family Law Act - “the marriage has irretrievably broken down for a period of twelve months or more.”(s.48)

By definition, the party seeking the divorce does not therefore need the consent of their partner or former partner.

An application can be made by obtaining a divorce kit from the Family Court.

To encourage parties to complete documents themselves, they can be completed by hand without the need for typing. The directions for filling out the document are clearly set out and there are usually no problems in completing the document. A copy of the marriage certificate needs to be attached to the application so if your constituent does not have a copy with them because the other partner refuses to hand it over or it has been lost, they will need to obtain another copy from the Births, Deaths and Marriages office.

As long as the Family Court has evidence that the documents have been served either by way of post or process server, and that suitable arrangements have been made for the welfare of any children under the age of 18, an order can be made for dissolution of the marriage. The issue which can sometimes delay such an order is where the other party contradicts the date the marriage ended so that the twelve-month minimum period is in dispute. It is then up to the applicant as to whether they wait until that purported time period has passed, or they can obtain statements from others to vouch for the fact that the marriage had been at an end for the twelve-month period claimed.

The cost of making an application in the Federal Magistrates Court is $273. The same application in the Family Court is $573. However, it is waived if the applicant is receiving social security or on a low wage.

As a further option, the parties can issue an application jointly which allows them to elect not to attend the court hearing if there are no children under the age of 18 in their care.

Changing a Child's Name

There are two types of name change that can arise:

(1) A change of name on a birth certificate which needs to be pursued by the relevant State Court. We won’t be pursuing this avenue today.

(2) A change of name for usage at school or in a sporting team which needs to be pursued through the Family Court. A dispute can arise:

(i) when a child’s name has been changed and the other party seeks an order that the original name be reinstated.

(ii) the party wanting to have the child’s name changed finds that the other party opposes such a change taking place.

The overriding principle in determining this question is that the welfare of the child is the paramount consideration. There are a number of other considerations which relate to this principle such as confusion as to the child’s identity particularly if there have been a number of surname changes in the past, any associated embarrassment as a result of the change, the relationship/contact the child has with the party who is objecting to the change in name and the effect of not changing the surname if the child lives with and goes to school with other step-sisters and brothers. Convenience is not in itself a reason for change.

As each case is dependant on its facts, there can be no definite answer given until the caller obtains legal advice.

Mark Rubeo

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