Our experienced family lawyers can assist you with any family law question you might have, including:

Mantzoros & Partners Lawyers offer a first free interview of half an hour to provide you with advice relevant to your specific family law query. Call us now on 08 8396 3143 or use the chat option to arrange your free consultation.

Marriage and Divorce

Any person over the age of 18 may marry, as long as they are able to consent, are not married to someone else and are not in a prohibited relationship (this includes incestuous and same sex relationships).

A person under the age of 18 may get married, so long as they are at least 16 years old, their proposed spouse is at least 18 years old, they have the written consent of their parents and a Court Order authorising the marriage.

A marriage can only occur between members of the opposite sex. This means that the current law in Australia prohibits same sex marriage.

A marriage can end in two ways, a Decree of Nullity or Divorce.

The only ground for divorce in Australia is the irretrievable breakdown of the marriage. A marriage is said to be irretrievably broken down after the parties have been separated for at least 12 months and do not intend to get back together again. The 12 months start once one or both parties leave the marriage.

Sometimes parties are not in a position to immediately live separately. The law understands this and as long as you can prove that you are living independently of each other, under the same roof, the 12 month separation period can begin.

Parties who have been married for less than two (2) years cannot apply for divorce unless they provide a certificate from a counselor confirming attendance at marriage counselling or they have permission from the Court due to special circumstances, such as family violence, one party refusing to attend counselling or not being able to find the other party.

A party can oppose an application for divorce on limited grounds. It is not enough that you want to get back together or do not want a divorce. You must show that both parties want to get back together.

Property Settlements

Dividing Property

The purpose of a property settlement is to bring about an end to the financial relationship between the parties. In order to divide the property evenly and equally, four steps must be taken.

  1. Identify the property

Logically, the property cannot be valued and divided unless all of the property is identified. Most commonly the identified assets include: real estate, vehicles, cash, stocks, superannuation, household goods and the like. The parties must also identify ant liabilities that they owe, such as: mortgages, personal loans, credit card debt and the like.

  1. Consider the contributions of each party

Next you must consider the contributions of each party. This step takes into consideration financial and non-financial contributions from before and during the relationship. Contributions can include: property, cash, wages and income, gifts received, work done to improve property, efforts put into starting and/or running a business, and contributions to the welfare of the family. A homemaker or stay at home parent is entitled to a share of the property and in many instances their contribution is considered about equal to a wage earner. However, this may not necessarily be the case where the direct financial contributions of the other party were large and/or the relationship was short.

  1. Consider the future needs of each of the parties

You then need to consider the future needs of the parties and whether an adjustment should be made to take into account one party’s greater future needs. Factors which may affect this step are: age and health of the parties, the ability for each party to support themselves in the future, whether either party is supporting another person (such as a child), and whether a party is being supported by another person (such as a new partner).

  1. Consider whether the proposed property settlement is just and equitable

The property settlement must be just and equitable to both parties.

Of course, property disputes can be avoided by entering into a financial agreement at the commencement of your relationship. These agreements are commonly known as prenuptial contracts. These agreements can nominate how assets are split if the relationship breaks down and are considered a good idea for parties entering into a relationship with significant assets.

At Mantzoros & Partners Lawyers we try to encourage our clients to be civil to their former partners and work towards an agreed property settlement. An agreed settlement can save years of legal proceedings and thousands of dollars in legal and Court costs.

Separation and Children

It is a fundamental principal of family law that (except in exceptional circumstances) it is in the best interests of the child to have regular contact with both their parents. The difficulty arises in trying to make proper arrangements for the child to spend time with both parents.

The Family Law Courts are primarily focused on what is in the best interests of the child or children. An important way to look after your children’s wellbeing is to resolve any issues between yourself and your ex-partner by talking civilly. Remember, you will be obliged to continue dealing with your ex-partner for many years, at least until your children reach maturity. It is important that you have a civil relationship with your ex-partner, even if it is only to save yourself and your children from years of conflict and bitterness.

It is important to remember, that despite everything your ex-partner is still one of your child’s or children’s parents. Making destructive comments about your ex-partner to your children can impact your child, you are essentially telling your child that half of them is: lazy or immature or worthless or a low life etc. At Mantzoros & Partners we try to promote a healthy relationship between ex-partners and family members because it is much healthier in both the short term and long term for all parties.

If you are able to come to a custody agreement with your ex-partner, then it is recommended that you apply for Consent Orders from the Family Law Courts. Consent Orders will ensure that your agreement is enforceable should one party breach it.

If you cannot reach an agreement with your ex-partner then you can apply to the Family Law Courts to determine the arrangements for your children. Unless there are exceptional circumstances, you will be required to undergo mediation with your ex-partner before the Court will consider your claim. If you cannot reach an agreement with your ex-partner, your claim will be placed in the waiting list for a trial. This list is notoriously long and you may be forced to wait for over a year before your trial takes place.

While you wait for a trial the Court will make Interim Orders regarding contact with your child. These Orders are very important because they will become the norm for you and your child. If when the Court hears your trial your child is happy and settled with the arrangements, the Court may not be willing to disrupt the status quo. This is one of the many reasons that it is important to get early legal advice.

Pets and Divorce

Often, despite everything else that is going on clients ask, “Who gets to keep the dog?”  It is often the case that both parties want to keep their loyal friend.

These days’ pets are often treated as family members.  Many people will admit that they feel they get more affection from their pet than their partner. Some couples choose fur-babies (pets) over having children and treasure and spoil their pet as if it was their child.

Unfortunately, the law is yet to catch up with how a lot of people feel about their pets. In law, your pet is seen as property. In a property settlement your pet is seen as personal property categorised in the same way as your collection of photographs, essentially as an item of little monetary value. The Court expects you and your former partner will negotiate who gets what of your personal property without assistance. However, it is recognised that although some items may have little monetary value, they may have high sentimental value and significance to you and your partner and accordingly they may become something the Court needs to make a decision about.

Essentially, if you came into the relationship with the pet, it is very likely you will leave with the pet. However, if you bought the pet as a present for your ex-partner, the Court will probably let them keep the pet.

If you are currently negotiating a property settlement and want to know who should keep the dog pets then you should take into consideration:-

  • Who has the money to pay for the basic needs of the pet, such as insurance, vet bills, food, accommodation etc.?
  • Can you support and care for the pet?
  • Is your residence big enough for the pet?
  • What is best for your pet?

It is also important to consider living arrangements, if you are living in rental accommodation that does not allow pets, it is unlikely that the Court will let you keep the pet. Make sure you look into this before moving if you want to keep the pet.

If you can’t reach an agreement with your former partner you should seek advice from a family law expert. We can attempt to help you negotiate and work through any issues you have with your former partner so that suitable arrangements can be put in place. For more information contact Mantzoros & Partners on 08 8396 3143.

Does One Partner’s Conduct During the Relationship Affect the Property Settlement?

Australia has a ‘no fault’ divorce system, and accordingly the conduct of the parties does not have any bearing on the termination of the relationship. The government made these laws to ensure that married couples could have a dignified way of ending their marriage without having to show fault.

Matrimonial property settlements commonly take into account (this is not an exhaustive list):

  1. The financial contributions of the parties;
  2. The domestic contributions of the parties;
  3. The living arrangements of the parties and children of the relationship;
  4. The future needs of the parties; and
  5. The length of the relationship.

The assets of the relationship are then divided between the parties in a just and equitable manner, reflecting each party’s contributions to the relationship.

It has long been held that spousal conduct during the course of the marriage is not relevant to the matrimonial property settlement. There is an exception; however, as was shown in the case of Kennon v Kennon [1997] FamAC 27 (Kennon).

In the case of Kennon the Court considered that the Family Law Act 1975 (Cth) specifically empowered the Court to consider the conduct of the parties during the course of the marriage when determining a matrimonial property settlement. In that case, Strauss J was of the view that domestic violence should be factored into the property distribution as a negative contribution to the marriage.

The other Judges in Kennon somewhat agreed that domestic violence should be considered a negative contribution; however, they formed the opinion that domestic violence should only be considered in circumstances where the violent conduct occurred during the marriage and significantly affected the contributions of the parties. They further held that the domestic violence must be present for a sufficient duration during the marriage and that the violence is so severe that it shakes the conscious of the Court.

Since 1997 a number of cases have sought to follow on with and expand on the principles in Kennon. These cases have largely been unsuccessful and it remains the case that domestic violence can only be taken into account regarding a property settlement in special circumstances.

If you are the victim of domestic violence or going through a relationship break up call or email Mantzoros & Partners to discuss your options.