Divorce is the formal legal ending of a marriage. It is totally separate and distinct from property arrangements following the breakdown of a marriage.

People usually get confused, thinking that divorce is linked to property settlement (including spousal maintenance), parenting orders and child support payments. This is not the case. Consider divorce to be merely the licence to re-marry.

To be able to get divorced you need to prove that your marriage has irrevocably broken down. This is confirmed when the parties have separated officially for 12 months or more, and can confirm that there is no likelihood of the relationship resuming.

Parties can be separated under the same roof, but can not be in a physical relationship once they have separated.

To apply for a divorce, as outlined above, you must be separated for at least 12 months and you and your spouse must be:

  1. Australian citizens, OR
  2. Live in Australia and regard Australia as your permanent home, OR
  3. Ordinarily live in Australia and have done so for at least 12 months before the divorce application.

Of course if you have been married overseas, you can apply for a divorce in Australia as long as you meet the above criteria.

Kindly note however, if you have been married for less than 2 years, you must attend counselling with a family counsellor and file a counselling certificate giving you the exemption or get the permission from the court to apply for a divorce without the appropriate certificate being obtained (this would be in a scenario where there has been a significant case of domestic violence).

A divorce application can be filed for by one party or jointly.

 

How to apply:

You can be legally represented or proceed to self-represent if you wish to apply for a divorce. You need to apply to the Federal Circuit Court, (if located in Western Australia, you will need to apply through the Family Court of WA). You can apply together via a joint application or solely (a sole application). Depending on whether you have children under the age of 18, you will be asked to appear in court for the Final Hearing. There is a filing fee for the divorce application and it is in the sum of $930.00.

Kindly note that after the Final Hearing, if the court is satisfied that all criteria is met, a divorce decree will be granted. However you will not be issued with the same until one month and one day after the divorce hearing.

There is no time period in which a divorce must be applied for. However, you should take special note of the fact that as soon as a divorce decree is obtained, you need to obtain a resolution in relation to property settlement within 12 months. If an amicable resolution cannot be reached, you must apply to the court for property orders, as a time limit for the same expires 12 months after the date of divorce.

If you need any assistance or advice, please do not hesitate to contact Freedman & Gopalan Solicitors via our online enquiry service or by calling 02 8917 8700.

 

 

You’re now separating with your partner and trying to understand your position, whether it be in relation to your finances or issues with parenting. However, it is important to not rely upon many unqualified sources for information, whether it be from social media, a friend of a friend who has gone through a separation or advice from your family itself. Each case is different and should be dealt with in accordance to its own facts. Freedman & Gopalan Solicitors specialises in Family Law, and we can provide you with expert advice.

Here are 5 common family law myths which you may have heard of: -

 

  1. Everything will be split 50/50.

This is one of the most common myths in relation to property settlement. In Australia, there is no rule provided for equal division nor is there a clear-cut mathematical formula followed. According to the Family Law Act 1975 (Cth), the Court considers a number of factors such as: -

  1. The financial contributions of each person;
  2. The non-financial contributions of each party;
  3. Any contributions made to the welfare of the family by each party; and
  4. The future needs of each person.

Remember, each case is unique and requires adjustments made in order to ensure there is a ‘just and equitable’ result. This does not necessarily mean equal.

 

  1. My partner cheated on me and therefore will be obligated to pay for.

This is the second misconception. Australia is a ‘no fault’ jurisdiction which applies to the partner who had an affair. This means that any moral issues such as infidelity does not impact the overall property settlement or determines who the children of the relationship are to live with. Of course, there are exemptions if there are issues such as domestic violence.

 

  1. We have to be divorced in order to separate our assets.

This is not necessary. Parties are able to negotiate and formalise any issues relating to their property at any stage, whether it be after they separate and prior to being divorced. However, it is important to note that should a Certificate of Divorce already be granted by the Court, parties have 12 months after that date in order to formalise the property settlement.

 

  1. We don’t need Court Orders. Everything has been amicable.

There are many benefits of obtaining Consent Orders from the Family Court in order to formalise an agreement in relation to the division of the property. This protects your interest in the future and provides confidence that the matter is final. It is also an enforceable agreement by the Court should your ex-partner does not comply with the initial informal agreement.

The benefits of the digital age is that we have become accustomed to do-it-yourself guidelines and other online resources to help solve problems. However, not seeking legal advice can in fact be detrimental to your matter and result in future unnecessary legal costs. Lawyers understand the complexity of the law, can negotiate a better outcome on your behalf and take the burden of handling the matter whilst you are experiencing the emotional stress that can come with separation.

Please do not hesitate to reach out to Freedman & Gopalan Solicitors on 02 8917 8700 or email us at reception@freedmangopalan.com.au if you wish to discuss any issues.

 

 

 

Is there a Default Judgment made against you?

A “Plaintiff” is the person who has a claim against another person and initiates a civil lawsuit in Court with regards to that claim.

A “Respondent” is the person against whom the claim exists and is the one who is to respond to the lawsuit.

A Plaintiff can apply for a Default Judgment against a Respondent, when the Respondent fails to file an appearance or a Defence within the time prescribed by the relevant rules. The time limit is often 28 days after the Statement of Claim was served by the Defendant. If the Defendant has not responded in this time, the Plaintiff can apply for a Default Judgment. The Plaintiff has 9 months to apply for a Default Judgment, after which the court will just dismiss the case, because nothing has been done.

If you have been served with a Default Judgment by the Sheriff of the court, you can proceed to ask the court to set aside the judgement. Setting aside a Default Judgment means it will be cancelled and the Defendant will be given extra time to file a Defence. The court will set aside a judgment, provided it is satisfied hat:

  1. The Defendant had sufficient reason for not lodging the Defence within the time limit or failure to appear in Court;
  2. That you do in fact have an arguable and genuine Defence; and
  3. Any other reason sufficient for the court to reopen the Proceedings.

Even if the proceedings are reopened, you might be asked by the Court to pay Plaintiff’s Costs, especially if you do not have an arguable Defence.

If you have a Default Judgment made against you or if you are unsure whether you have a valid Defence against the claim filed by the Plaintiff, we would highly recommend that you obtain independent legal advice.

Our team at Freedman & Gopalan Solicitors is here to assist and guide you through these tough times. Please do not hesitate to contact us on 02 8917 8700 to speak with our lawyers, or feel free to leave an enquiry via email, and we will be in touch as soon as possible.

 

 

If someone owes you a debt and you have exhausted all your efforts to recover the funds, we would highly recommend for a formal letter of demand to the sent to them.

What is a letter of demand?

A letter of demand for payment of debt is a formal letter which provides the debtor with one final chance of taking action and conveys the seriousness of which the matter is being treated. It generally includes the following: -

  1. The debt amount owed;
  2. Why the debt amount is owed (e.g. pursuant to the contractual obligations between the parties such as an exchange of a service for a fee);
  3. How the amount is calculated;
  4. Details of your attempts made to collect the debt;
  5. A time limitation on when the payment should be received (e.g. 7 to 14 days of the date of the letter); and,
  6. A formal notice should no response or payment be received (e.g. legal proceedings to be commenced).

Whilst you do not need a lawyer to write a letter of demand, the greatest advantage of retaining a lawyer is that the letter will be on a law firm’s letterhead. This in itself will indicate to the debtor that you are treating this matter seriously, and the debtor will then more likely attend to the payment.

If you require any further assistance in recovering a debt, please do not hesitate to contact our office on 02 8917 8700.

 

Many parents are open to financially assisting their child to purchase their first property, particularly in today’s competitive housing market. In Australia, it is legally presumed that advances of money provided from a parent to their child are a gift (and not a loan), but what are the consequences of choosing one over the other?

  1. Loaning the funds

It is important to consider the risks of providing the funds to your child, particularly when your child is married. This is a question that many family lawyers come across when the marriage has irrevocably broken down. How then can you retrieve the funds? If it was provided by way of a loan, the Family Court generally considers this as a liability of the marriage and is borne by both parties jointly – regardless of whether it was initially intended to both parties or only in your child’s name.  Liabilities form part of the total property pool and naturally will decrease the net value when it comes down to distributions during property settlement. However, without solid evidence, the Family Court tends to be sceptical whether the funds were a loan.

 

  1. Evidencing a loan

At the time of providing financial assistance to your child, we would highly recommend that a loan agreement is formalised in writing and executed by all parties. Here, the loan amount will be specified as well as the loan amount and how and when the money should be repaid. This will ensure that the funds can be retrieved. If you require any assistance in drafting the loan agreement, please do not hesitate to reach out to Freedman & Gopalan Solicitors, and we will be happy to assist you.

So, what happens then if there was no such evidence supporting the claim of the loan?

 

  1. Gifting the funds

Unfortunately, the funds provided will then be considered as a gift, and you could face the risk of your child’s partner seeking a share of that matrimonial asset. This is why we would highly recommend for you to get an agreement documented and evidence the funds by way of a loan.

 

If you have any further concerns, please do not hesitate to contact our office on 02 8917 8700.

 

 

What is mental abuse?

Psychological abuse is often termed as emotional or mental abuse. This is categorised by a person subjecting or exposing another person to a behaviour that may result in psychological trauma, including anxiety, chronic depression or post traumatic stress disorder. The effects of mental or emotional abuse can be painful and destructive, both in short and long term. Survivors often feel it is difficult as they are left to deal with low self-esteem, anxiety, depression and the feeling of helplessness.

What are the signs of abuse?

Possible signs include intimidation, coercion, ridiculing, harassment, treating an elder like a child, isolating either from family, friends or other regular activities, use of silence to control behaviour and yelling or swearing which results in mental distress.

This leads to often the victim ending up with insomnia, low self-esteem, uncooperative and aggressive behaviour, lost of appetite, weight loss, tearfulness and anger.

Who can be an abuser?

An abuser could be anyone. It could be someone you know; someone you work with or someone you live with.  It could be your partner, husband or wife. It could be staff who cares for you, like a nurse or assistants in your home. It could be your family or friends.

Can you charge someone for mental abuse?

Filing a complaint against the abuser in workplaces with the HR department is the right place to initiate your complaint. However, it is a difficult process for a victim. Additionally, it could be challenging to prove, as victims often endure additional emotional and financial damages by pursuing it.

Of course, if it is by way of verbal abuse and it is inflicted on you by your partner, husband or wife, you can proceed to consider your options as to whether you want to obtain an Apprehended Violence Order against your partner, husband or wife or whether the time has come for you to make a decision whether to walk out of your relationship.

After putting up with years and months of humiliation, negating, criticising, character assassination, yelling or public embarrassment, you need to consider your option as to whether you need to complain about it and put an end to it.

In Australia, you can contact 1800 RESPECT or 1800 737 732 in order to have a confidential discussion about the mental abuse that you are put through, to seek counselling and support services. Of course, please call 000 if you are in any danger.

Please also visit www.1800respect.org.au for further information, and if you are worried whether there could be traces after you have visited that website, there is also a specific link providing you with tips to use that site in order to ensure that it cannot be traced. Kindly proceed to check the site www.1800respect.org.au. An interpreting service is also provided if you contact 13 14 15.

Never feel that you are alone, and you have to put up and shut up.

If you wish to discuss your legal options, please do not hesitate to contact Freedman & Gopalan Solicitors on 02 8917 8700.

 

 

Separation with your partner is certainly one of the most difficult times of your life. After separation, disagreements over parenting or/and financial matters is most common, especially because there are a lot of emotions involved. These disagreements can cause a great deal of conflict which is unhealthy for you and for the children.

It is easier said than done, to have your emotions aside while making decisions with regards to finances or parenting, after separation. However, there are avenues and courses available for people who have separated and are struggling to co-parent while living apart i.e. Parenting After Separation Program or Keeping Kinds in Mind, separated parents who are unable to deal with their emotions i.e. Circle of Anger or Managing Anger or even follow through the Orders made by the Court or agreed between your partner and yourself i.e. Parenting Order Program.

These courses assist you in developing a child-focussed approach, which is all you need on your coparenting journey, as you learn to parent together while living apart. Apart from that, these courses help you recognise and minimise conflicts while making decisions. You might neglect to notice, but children are also greatly affected/impacted. Groups are also run for children to help them deal with feelings and experiences associated with their parent’s separation i.e. Our Kids.

Also, there are courses and coaching available for parents are who are unprepared for facing the challenges of the legal process, particularly preparation for Court, or to have the best chance of coming to suitable agreements in Mediation i.e. Court and Mediation Readiness for Separating Parents. Prior preparation is essential but most of the times, emotions such as stress, anger, fears, ego and insecurity can get in the way, while making important decisions.

A few of the organisations that provide courses after separation are Relationships Australia (1300 364 277), Anglicare (02 9895 8144), Uniting Counselling & Mediation (02 8830 0700), and Catholic Care (13 18 19).

If you are struggling after separation and require any legal assistance, please feel free to contact us on 02 8917 8700, we can assist in directing you to the most appropriate course suitable for you and also assist in resolving the matter amicably and expeditiously.

 

Whether the relationship/ marriage has broken down, or you are still in the process of considering ending the relationship/ marriage, here are some practical considerations before walking out: -

  1. Take immediate steps to secure your data

Many couples share passwords and logins to bank accounts and other personal information during the relationship in order to more easily manage the family’s affairs. To ensure your interests are protected, ensure that all your personal accounts and passwords are changed. It may also be worthwhile to establish a new email account, particularly if you intend to retain a lawyer to assist you for your property settlement and parenting affairs subsequent to separating. Kindly start saving all important text messages, emails and photographs. It is imperative that you start recording and taking photographs of events, especially if you have been injured in any manner during a domestic violence incident.

  1. Ensure you have access to some funds

This may vary depending on your individual circumstances, but it highly recommendable that you have a secure sum of money (whether it be funds from your own or joint sources) which can be used for expenses such as obtaining initial legal advice. You may also need to consider monies in relation to setting up new accommodation if you intend on moving out of the premises. This would include a bond, a few months’ worth of rent, utility costs and an amount saved for food and other necessities.

  1. Secure your children’s passports, birth certificates and other important documentation

This is particularly important if your former partner has connections overseas, and there is a chance that the children may be taken overseas without your knowledge. Whilst a Recovery Order may be obtainable in these circumstances, prevention is always key and will give you a peace of mind. You may also want to consider placing your child on the Airport Watchlist if your intention is to commence legal proceedings soon thereafter. We would strongly recommend that you keep the original birth certificate, passport and other important documentation at a safe place that is only accessible to you and your close contacts.

  1. Secure your own documents.

It is paramount that you collate and secure your important documentation. This may include bank statements, tax documents, any registration documents and superannuation documents. You may also need to review your Will and Power of Attorney, and we would highly recommend you obtain legal advice if this is necessary.

  1. Inform relevant people of your separation

For your safety, particularly in domestic violence situations, it is essential to notify you close family or friends that you intend on leaving your partner.

You may also consider notifying your child’s school/ childcare to ensure there are immediate steps taken to ensure there is a joint authority of both parents to remove the child from the premises.

If you have joint bank accounts with your ex-partner, it may also be worthwhile to notify the banks of your intention to separate. This is particularly important to ensure the banks do not act on your ex-partner’s instructions without your consent.

  1. Consider the impacts this will have on your Will. 

If there are considerable assets that you are worried about, kindly ensure that your Will is updated, or you proceed to prepare your Will, in order to ensure that your assets are only distributed amongst your children and does not go to your partner in the event that something happens to you between now and formal separation or property takes place

If you are intending to walk out on your partner, we would highly recommend that you obtain independent legal advice. Our team at Freedman & Gopalan Solicitors is here to assist and guide you through these tough times. Please do not hesitate to contact us on 02 8917 8700 to speak with our lawyers, or feel free to leave an enquiry via email, and we will be in touch as soon as possible.

 

 

High-conflict situations post-separation can lead to the child preferring to spend time only with one parent, or even outright refusing to spend time with or contact the other parent. If this is the result of one parent deliberating alienating the child from the other parent, it is called parental alienation. If this occurs naturally, without manipulation by any parent, it will not be parental alienation.

Parental alienation is the specific process by which a child becomes estranged from one parent as a result of the psychological manipulation of the other parent. It can be a grave concern for some parents who are parenting after separation, and this manipulation can result in a fracture between the parent-child relationship that needs to be addressed immediately.

Examples of parental alienation include:

Parental alienation is both a legal issue and one which needs to be addressed with family therapists and psychologists with experience in these situations. Agreeing the terms of how parenting after separation will operate, with binding Consent Orders, and discussing these issues with your ex-partner is important in terms of not letting the situation go this far.

If you are parenting after separation and feel that the other parent is undertaking emotionally manipulative tactics to influence your child, please contact our offices, and we will assist you in understanding these personality traits and provide you with assistance and support, as well as in depth practical legal advice.

envelopeprinterphonemap-marker