Same Sex

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The passage of same sex marriage laws in Australia has resulted in same sex couples having the same access as heterosexual couples to the Family Law regime in relation to property and parenting issues

Same-sex couples that elect to marry no longer have to prove the existence of their relationship in order to come within the jurisdiction of the Family Court.

A de facto relationship is defined as a relationship where a couple live together on a genuine domestic basis. The Court determines this by having regard to a multitude of factors, such as the duration of the relationship (a minimum of 2 years), the extent the couple lived together, the nature of their sexual relationship, and the degree of joint finances and financial dependence. There is no formula or set of facts that automatically establish the existence of a de facto relationship; the Courts have emphasised that proof of a de facto relationship will always depend on the circumstances of each individual relationship.

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Our Experience

Berry Family Law is a firm specialising solely in the practise of family law and divorce law and is acknowledged as having forged a solid reputation in this area of law.

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  • Accredited Family Law Specialists

    Accredited Family Law Specialists

    Berry Family Law is a firm specialising solely in the practise of family law and divorce law and is acknowledged as having forged a solid reputation in this area of law. The professional team consists of eight family lawyers, three of whom are Accredited Family Law Specialists

  • Forged Relationships

    Forged Relationships

    To better serve our clients we have offices in the CBD and also Heidelberg, Moonee Ponds, Box Hill and Hawthorn. Over the years we have forged relationships with an extensive array of forensic accountants, valuers, psychologists, financial advisors and lenders to offer a total focus on the practise of family law.

  • Industry Leaders

    Industry Leaders

    Our extensive knowledge and working history of family law is also highlighted by a number of our lawyers regularly lecturing at the request of The Law Institute of Victoria and Leo Cussen Institute.

Frequently asked questions

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Proceedings for Divorce are usually commenced after all parenting and/or financial matters have been resolved. You can apply for a property settlement at any time after separation and prior to Divorce.

Once a Divorce certificate has been issued, you will only have 12 months to make an application to the Court by right. After that time any application for a property settlement can only be made with the consent of the parties or with permission from the Court under strict circumstances. That is why it is advisable to finalise all financial matters before applying for a Divorce.

Unlike resolving parenting or financial matters, the divorce process is relatively straightforward and many people choose not to engage a lawyer to assist them with their Divorce. An application for Divorce can be made by either party or jointly.

Property issues in Family Law are those involving the division of assets and liabilities after separation. They are also referred to as financial matters.

Under Family Law, ‘property’ includes many things, not just cash and houses. If you have a family business, a trust, investments, an entitlement to be paid, superannuation or even a pension entitlement it is likely to be defined as ‘property’. ‘Property’ also includes money you owe and any other liabilities of the relationship.

Superannuation is included in property distribution, but is not necessarily treated the same way as other property.

Many relationships do not go the distance – about 40% of marriages end in divorce and there’s nothing to suggest that de facto relationships fare any better. If this was to happen to you, having a prenuptial agreement – otherwise referred to as a prenup or a financial agreement – could save you the stress of deciding who gets what.

Prenuptial agreements set out how your property will be divided if your relationship breaks down.
They can be made before, during or after the relationship – whether it’s a marriage or a de facto relationship. The property that you can protect includes not only cash and real estate but also assets such as a family business, a trust, investments, an entitlement to an inheritance, superannuation or even a pension entitlement.

When a marriage or a de facto relationship ends, parties need to sever financial ties with one another. This can often be a daunting and complex process. This may involve the transfer of ownership of real estate, cash, superannuation, corporate interests or other property from one party to another.

When you are separating, it is important to get legal advice from a lawyer specialising in family law, in order to determine your entitlements and the advantages and disadvantages of any agreement you have reached. Then you can make an informed decision about whether this is right for you.

If you are able to reach an agreement with the other party, then this agreement should always be formally recorded.

There are two ways of recording your agreed property settlement:

1. A Consent Order; or
2. Binding Financial Agreement.

Your lawyer can advise you as to which of these options is best for you.

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