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Family Law News

1. What effect does marriage have on a will?

Under general circumstances, when a person gets married, any will that was made before the marriage will be revoked. Wills made before the marriage that anticipate the marriage will, however, will be valid.

It is important to draw up a will after marriage so as to ensure that the person’s wishes are taken into consideration in the event of sudden or otherwise death. Having no will, in such cases, causes problems for the surviving spouse who then has to make an application at the Supreme Court to be appointed as the executor.

2. What are the laws regarding domestic violence in Australia?

Domestic violence includes all behaviors that harm the victim in a familial or intimate relationship setting, including physical abuse, sexual abuse, emotional or psychological abuse, verbal abuse, stalking, isolating the person socially or geographically and cruelty to pets. There are specific domestic violence laws under all Australian jurisdictions and these laws are in accordance with the principles found in both the United Nations Declaration on the Elimination of Violence against Women, and the United Nations Convention on the Rights of the Child.

According to Section 67ZA(2) of the Family Law Act 1975 (Cth), it is mandatory for certain professionals to notify a prescribed child welfare society if they have reasonable ground to believe that a child is being abused or is at risk of being abused. These professionals include Registrars of the Family Court of Australia, family consultants, family counselors, arbitrators, doctors, teachers, lawyers, and community service employees. Apart from these professionals, in proceedings an “interested person” is also asked to report occurrences of child abuse. An interested person is one that is a party to the proceedings and is independent of the child’s lawyers.

3. What are the requirements for separation when a marriage has ended?

In accordance with the Family Law Act 1975 (Cth) (the Act) divorce is granted in Australia when there is an “irretrievable breakdown of a marriage”. Section 48 of the Act outlines that in order to prove that a marriage has irretrievably broken down, it is essential that a couple has been separated for at least 12 months.

The court will look at certain factors to determine whether the marriage has reached a point beyond reconciliation. Relevant factors include whether they still live together, carry out household chores for one another such as cooking and cleaning, jointly raise a child, still show themselves as a couple in public and still support each other financially and emotionally.

4. How to serve an application for divorce?

When the application is made, it must filed with 1 original and 2 copies. The court will keep the original application and stamp the two copies, one for the applicant and one for the respondent who is to be served. The respondent must be served the application at least 28 days before the hearing and 42 days if the person is overseas.

For the personal service process, any applicant above the age of 18 is allowed to serve the application to the respondent. They may they be a relative, friend or a professional process server. Under all circumstances, the document is to be handed to the respondent personally and not to anyone they may reside or work with.

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