The rate of Divorce in Australia is high, with approximately 2.2 divorces per 1,000 estimated resident population.

The decision to separate and/or divorce is very difficult.

I find it difficult to believe that the decision to separate and divorce can be triggered by the separation or divorce of a friend (unless there is a ‘tryst’ between the parties to the marriage).

I have yet to meet someone who’s decision to separate was brought about by someone else’s decision.

I think that the decision to separate is much more profound than any ‘contagion’ and that the parties deserve greater respect than this oversimplification of this most difficult of decisions.

http://www.theage.com.au/lifestyle/life/making-a-break-for-it-when-you-divorce-because-your-friends-have-20140711-zt29v.html

Mathews Family Law provides expert divorce law / family law advice in Melbourne and the metropolitan area and, through the use of technology, to clients all over the world.

Vanessa Mathews
Accredited Family Lawyer

The team at MFL has been busy presenting seminars to CPA and IPA accountant discussion groups. We’ve appreciated the opportunity to speak with other professionals providing expert advice to clients moving through the divorce process in Australia. The discussions have been lively with lots of questions and hypotheticals canvassed. Thanks for having us!

Your client who is going through a matrimonial/de facto property settlement may say to you that their particular contribution to the accumulation of the asset pool was ‘special’, by which they mean that:

• They made a greater contribution than their partner;
• They should receive a greater share of the asset pool.

In this article, we review the current law on ‘special contributions’ and how you might respond to your client’s claim.

The second step of the ‘4 Step Process’ for determining how the assets of the marriage ought to be divided between the parties includes consideration of the contributions of the parties.

Contributions may be:

• Financial, to the acquisition, conservation or improvement of property
• Non-financial, to the acquisition, conservation or improvement of property
• Welfare and homemaking, to the relationship and the children of the relationship.

A party may claim that they made a ‘special’ direct financial contribution which warrants them receiving a greater share of the asset pool.

Examples of ‘special contributions’ include contributions made by:

• An inheritance
• A ‘good’ business person
• An entrepreneur
• A successful artist
• A specialist surgeon.

The existence of a ‘Doctrine of Special Contribution’ was recently reviewed, and rejected, in the decision in Kane v Kane by the Full Court of the Family Court [2013].

The parties had been married for 30 years. The issue in dispute was the weight to be given to their respective contributions to their self-managed superannuation fund. The husband sought a greater share of the fund based on his ‘special contributions’, being ‘the application of his acumen to investment decisions which caused the fund to prosper’ (from $540,000 in 2008 to $1,850,000 in 2012). The husband, with the wife’s consent, purchased shares using matrimonial savings. The shares were registered separately in the name of the husband or the wife, with different rates of growth in their respective portfolios. The husband asserted that this separation evidenced the parties’ shared intention to benefit individually and not collectively, from their respective portfolios only. The wife asserted that the husband had merely invested their savings and they should benefit equally in the overall growth. The husband took principal responsibility for the investments and the wife was content with this (not unusual) arrangement although in evidence she conceded that she was unenthusiastic about the husband’s wish to invest in a particular share purchase. The husband asserted that he carefully researched each investment before deciding to purchase and that the success of the investment was due to his judgment and not mere chance or a random lottery win.

The trial judge held that ‘the evidence in the present proceedings permits a rational conclusion that the acquisition of those shares was no fluke. The husband’s diligent research of that corporation and his decision to invest the parties’ funds in it was an inspired investment decision, manifesting considerable expertise. His decision is all the more remarkable given that he knew he was making that investment decision without the support of his wife. I am satisfied that, without the husband’s skill in selecting and pursuing the investment in Company 1 shares, the parties’ superannuation interests within R Investments would currently be worth substantially less. It follows that the husband’s contributions to those superannuation interests were substantially greater than those of the wife. I reject the wife’s submission that her contributions were equal to those of the husband. The real difficulty is evaluating the parties’ contributions in mathematical terms.

The trial judge split the funds’ two-thirds to the husband and one-third to the wife.

On appeal by the wife to the Full Court of the Family Court, it was held that the trial judges’ disproportionate division of the Fund could not be justified.

On the claim of ‘special contribution’ by the husband, His Honor Deputy Chief Justice Faulks stated:

• The Family Law Act does not refer to ‘special’ or ‘extraordinary’ contributions
• `Special skills … will not always produce significant financial results. An academic may be brilliant and possess exceptional or special skills which require much work and effort to apply, but which may nevertheless not reflect in the … property of the parties’
• `A range of highly specialized practical skills may not produce an economic return equivalent to the return produced by the entrepreneurial skills or a newspaper magnate’
• It is difficult to correlate effort or skill (even if special) with results. Frequently, the financial result of a contribution (whether by physical or intellectual labor or imagination foresight and perspicacity) will be influenced by external factors beyond the control of the party contributing’.

Family lawyers now have the benefit of a very clear message from the Full Court of the Family Court:

• There is no such thing as a ‘Doctrine of Special Contribution’
• The totality of the contributions to the asset pool must be considered
• An asset pool ought not to be divided merely on the basis of a ‘special contribution’ having been made by one of the parties
• No one contribution to an asset pool should be given greater weight than other contributions.

The rejection of the existence of a ‘Doctrine of Special Contribution’ will be most keenly felt by parties with a high-value asset pool which they believe is the result of their ‘special contribution’ over and above the other parties’ contributions.

For many people, meeting with a family lawyer is terrifying. Some may feel that it signifies that the marriage is truly over, others are just scared of the process, and others may still be holding out hope for reconciliation. There are many reasons why being proactive about seeking advice might be hard. The good news is, there is a great resource available to Australians who are looking for information or advice about family issues: The Family Relationship Advice Line.

While you should not depend on the Advice Line to give you legal advice, it can be a great resource for general inquiries. Advice Line staff are equipped to provide information about:

• services to help maintain relationships
• the family law system and family separation
• how to develop workable post-separation parenting agreements
• the impact of conflict on children
• Family Relationship Centres and other dispute resolution services, including telephone services
• other services which will help with family relationship and separation issues

Another advantage to using the Advice Line for general or initial inquiries is that your call will remain anonymous. You can feel free to pick up the phone and ask your question without having to provide any personal information.

The phone number is 1800 050 321 and is open for calls from 8 am and 8 pm Monday through Friday and from 10 am until 4 pm on Saturday.

While this is not an appropriate resource to have your legal questions, such as “will I have to pay spousal support?” answered, it is a great resource to ask general questions about the divorce process and other family issues.

When you attend mediation, the mediator is the person who runs the show, so to speak. The mediator works with both sides in helping the parties come to an agreement. But just because the mediator is driving the settlement negotiations, your lawyer still has an important role.

Prepare

First, your lawyer will need to prepare for mediation. This entails meeting with you to discuss the process, preparing a file with all important and necessary documents to bring to the mediation, and exchanging documents with the opposing party. Even though the lawyer is not the one who will lead the negotiations, the lawyer still must come to the mediation prepared to advocate on your behalf.

Advocate

Your lawyer will need to be your advocate at mediation. Your lawyer will help you explain your case to the mediator, and will make sure that your wishes are being clearly expressed to the mediator. If you forget to tell the mediator a pertinent fact or detail, your lawyer will be sure to make sure that said detail is mentioned.

Advise

Your lawyer will be your advisor at mediation. While a mediator can tell you how the law works, and can suggest a certain path, you will still want your lawyer present to advise you on whether a proposed agreement is in your best interest. If it seems like the parties are too far apart with regard to reaching an agreement, your lawyer may advise that the mediation cease.

So while the parties and the mediator are front and center, so to speak, at mediation, your lawyer also has a significant role as well.

Welcome to Mathews Family Law & Mediation Specialists. We’re here to assist you with your family law matter. I’m Vanessa Mathews, and I’m an accredited Family Law Specialist and Mediator.

I established Mathews Family Law & Mediation Specialists in 2007, with a commitment to providing our clients with a high level of family law advice and personal service. At Mathews Family Law & Mediation Specialists, we cover all of the issues that commonly arise when our clients separate and divorce. We’re experts in negotiating parenting arrangements and the division of assets.

If you’re starting a new relationship whether married or de facto, we can assist you with a prenuptial agreement. We also advise on the full range of family law matters, whether it be relocation, maintenance or superannuation splitting.

For most of our clients, we’re able to achieve a resolution through negotiation and mediation. For some of our clients, it only is a last resort, litigation may be necessary.

Separation and divorce is always difficult. At Mathews Family Law & Mediation Specialists, we can assist you to navigate your way through this time. If you have any questions about your family law matter, please don’t hesitate to contact us.

Our website contains lots of information about family law in Australia. We’ve also prepared a family law eBook with you, our client, in mind. Simply click on the eBook icon to download.

Choosing a family lawyer is a very important decision. I’m confident that Mathews Family Law & Mediation Specialists is the right choice for you.

The Australian family law is unique in a way that it does not require the divorce applicants to prove the fault of any partner. This is called a no-fault divorce. All that is required is that the partners have been separated for a period of 12 months and that there are no chances of their getting back together. It is also not necessary for a joint divorce application to be filed. Australian family law allows either partner or both jointly to file an application for divorce.

The court needs to be certain that the marriage has broken down irretrievably and that there is no hope for reconciliation at all. This requirement is particularly acute if the partners have been married for a period under two years. To ensure that the partners are not getting a divorce in haste, the court requires a certificate signed by a counseling agency to be filed with the divorce papers. This certificate attests that the partners have sought counseling as a means to seek reconciliation before applying for a divorce process in Australia. Similarly, if either spouse cannot be traced, the applicant can pursue the divorce application as long as they demonstrate that they have made efforts to locate the untraceable spouse.

Usually, the divorce proceedings do not take much time if there are no minor children involved. However, if the custody of children under 18 is an issue, then the applicants need to demonstrate that they have made adequate arrangements for the care of their children after the divorce. More so, unless a joint application is made by both partners, the applicant needs to be present at the hearing if there are children under 18 involved.

If either partner wishes to oppose an application of divorce filed by the spouse, he or she may file a response to the divorce application or a response to the jurisdiction if they feel that the divorce has not been filed in the right jurisdiction.

As long as you were separated for 12 months and a day – even under one roof – you are eligible for divorce, whether your husband wants the divorce or not.  You can fill out the divorce application by yourself, completing all of the information about him. If you don’t know some of the answers, just write in “not known” on the form.

Sometimes there are variations of separations.  Perhaps you separated under one roof for three months and then one of you moved out for another 9 months.   If you lived under one roof for any part of the 12 months required prior to filing for divorce, you need to file an affidavit along with your divorce application.  An affidavit is a statement made by you or another person, serving as your testimony about particular issues.

In your affidavit, you need to show that you and your spouse separated even though you were under one roof (see above) and you need to explain why you remained living in the same house.   You also need to explain what the living arrangement were for any of your children who were under 18 during the separation and what government agencies you told about your separation.

Pretty much what you would have done if one of you had moved out.  But now you may be required to prove that you are leading “separate lives”.  Social Security law breaks down the relationship into five categories when determining whether or not there was separation under one roof.

1. The financial aspects of the relationship.  Have you separated out your finances?  Do you hold different bank accounts?  Is there a property settlement or did you seek legal advice about dividing your property?

2. Nature of the household.   This factor considers the physical separation within the house, making you and your spouse independent of one another.   Are you living in separate rooms?  Have you stopped eating together?  Do you no longer help each other with laundry, cleaning, cooking and shopping?

3. Social Aspects of the Relationship.  This has to do with how you are viewed by others.  Do you no longer go out together – to functions, parties, holidays – as a couple?  Have you told other people that you are no longer together?  Do one or both of you have a relationship with someone else?

4. Absence of a sexual relationship.

5. Nature of the Commitment.  This factor considers whether the level of commitment between the partners has changed.  Have you stopped discussing joint plans for the future?  Would you help the other person in a time of crisis?

A court may consider any or all of these factors when deciding whether or not the separation requirement was fulfilled.

Nullity is an invalidation of the marriage.  While divorce takes a marriage and terminates it, nullification basically erases the marriage, as if it never existed.   But you can’t pick between nullity and divorce.

The Marriage Act, 1961 (give link to the law) lists the reasons for a marriage to be voided (Section 23):

(i) Bigamy: One or both partners were already married at the time or;

(ii) Prohibited: relationship :(ie brother and sister) or;

(iii) Underage: One or both partners were under age (18 at the time of the marriage) and did not receive the approvals required by law or;

(iiii) One or both parties were:

1. forced into the marriage under duress or fraud or;
2. mistaken regarding the identity of the person they were marrying or the nature of the ceremony or;
3. mentally incapable of understanding the nature of the marriage ceremony or the effect of the ceremony.

If there is both a request for a nullity and a request for a divorce, the court will not grant the divorce unless it has first dismissed the nullity request.