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family Law: Same Sex

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If you are in a same sex relationship and have recently married or intend to do so, you may have some questions as to how the recent changes to same sex marriage laws in Australia could affect you. We assist parties whether you are beginning or ending same sex relationships and advise how the law works.

helping you Resolve Family Law Issues

Same Sex Relationships

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Same Sex Marriages

Same sex marriage became legal in Australia on 9 December 2017 when the Marriage Amendment (Definition and Religious Freedoms) Act 2017 commenced. The Act amended the Marriage Act 1961 by redefining the concept of marriage as ‘the union of 2 people to the exclusion of all others’ rather than the union of ‘a man and a woman’. A report released by the Australian Bureau of Statistics revealed that in the six months following the legalisation of same sex marriage in Australia, 3149 same sex weddings were held. Prior to the 2017 amendments, same sex couples could not legally marry in Australia but those who lived together ‘on a genuine domestic basis’ were recognised as being in a de facto relationship. Same sex couples who are recognised as de facto partners do largely have the same rights and obligations in family law matters as legal spouses do. One major difference and an additional obstacle for parties to a de facto relationship however, is that they must prove the existence of their de facto relationship prior to commencing property proceedings. Parties to a marriage do not face this additional hurdle and must simply provide their marriage certificate to commence property proceedings.

Same Sex Separation and Divorce

Perhaps the biggest practical effect of the 2017 amendments is that because same sex couples can now legally marry in Australia, they can also now be divorced in Australia. The same process and requirements apply to same sex couples applying for divorce as to heterosexual couples applying for divorce, namely that the spouses must have been separated for 12 months before applying for divorce. As with heterosexual spouses, same sex spouses who have separated can finalise their property matters at any time however once a divorce has been finalised, there is a 12 month time limit on applying to the court for a property settlement.

Overseas Same Sex Marriages

The Act was further amended to the recognise all same sex marriages performed overseas before the amendments, as well as same sex marriages performed in Australia by a diplomatic or consular officer under the law of a foreign country.  This means that any same sex couples who married in a foreign country prior to the 2017 amendments can apply for divorce in Australia. The Act also recognises all same sex divorces granted overseas prior to the 2017 amendments.

important things you should know

Questions And Answers

Family violence is not limited to physical or sexual abuse. Emotional abuse of any kind, and threatening, controlling, or coercive behaviour are all forms that family violence may be presented as. Family violence also includes any behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of family violence. Not all Intervention Orders are taken out due to family violence, but with family violence affecting one in five Victorian women, a large proportion of Intervention Orders are a result of same. You should know that you don’t have to continue to be a victim of family violence as there are a number of services that will assist you. 

Firstly, under no circumstances should you contact the Protected Person listed on the application without first obtaining legal advice. When you are served with an Intervention Order, usually a member of the Victoria Police will explain the conditions of the order to you. However, the police are often very busy and only have limited time to explain the order to you. Additionally, most people are surprised to be served with an Intervention Order, and may not fully understand the conditions of the order the first time they see it. We strongly advise that you immediately make an appointment to speak with a lawyer to understand the conditions of the order. Sometimes, the conditions are quite simple. Usually, however, there are several conditions, exceptions, and sometimes other orders already in place that make understanding the order very difficult. For example, the Intervention Order can sometimes suspend Family Court orders. Every Intervention Order is unique, and the Court can include specific clauses depending on the circumstances. You should consider obtaining legal advice as soon as possible; our lawyers are on call to speak to you about your Intervention Order matter.

Recently, the general Intervention Order conditions in Victoria have changed. The new changes are aimed to make Intervention Orders easier to understand for both applicants and Respondents. The Court can choose some or all of the conditions below, and can also include specific conditions sought by the applicant depending on the circumstances: All Intervention Orders include a condition not to commit family violence; That the Respondent does not get others to do what the Order does not let them do themselves; That the Respondent has no contact or limited contact with the Protected Persons; That the Respondent does not stalk the Protected Persons; That the Respondent abide by certain conditions regarding arrangements and time spent with their children; and That the Respondent hand in any firearms or weapons. This is not an exhaustive list, however, it provides a brief overview as to some of the conditions imposed by an Intervention Order.

To make an application for an Intervention Order you should first contact your nearest court and make an appointment to see a registrar.  The registrar will talk to you about your application and will give you information about legal representation. In certain circumstances, a member of Victoria Police may make an application on your behalf. Children can also be named as Protected Persons on an Intervention Order. A Family Violence Intervention Order (FVIO) can be taken out by yourself or by a Child Protection practitioner on behalf of your child. In these circumstances, the Respondent would likely no longer be able to stay in the child’s home to provide a safer home environment for your child.

Often, the first question someone will ask their lawyer after being served with an Intervention Order is “how did this person obtain an order without me getting to tell my side of the story?” This is because the court process for obtaining an Intervention Order means that the Respondent (i.e. the person who has been served with the Intervention Order) does not need to attend, or even know about, the application at first. The general stages of an Intervention Order are: Application for an Intervention Order; Mention; Consent or Contest of an Order; Directions Hearing; Contested Hearing.

An Intervention Order is not a criminal office, and does not give you a ‘criminal record.’ It does not appear on most police checks, and will usually not impact someone’s work or travel. However, if the Respondent breaches the Intervention Order, they may be charged with a criminal offence. If the Respondent breaches an Intervention Order, they can be imprisoned for up to 2 years. If the Respondent continues to breach an Intervention Order, they can be imprisoned for up to 5 years. If you are charged with a breach of an Intervention Order or are contacted by Victoria Police in relation to a breach of an Intervention Order, you should contact us immediately to receive advice and have us attend the Police Station if you are arrested. 

“Liberty is the right to do what the law permits.”

Montesquieu

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Issues that may arise in family law

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