Q: I have been living in Australia for almost 20 years. I have been married with my husband for 5 years but have hardly contacted with him. I had considered starting procedures for divorce and marriage property distribution because that our relationship collapsed. However, I was recently informed that he was given six moths to live due to his final state lung cancer. He has never written a will that would leave inheritance to me. So, what would be my rights to marriage property if he dies? And do I have any right to receive inheritance? A: Divorce and distribution of marital property in Australia are subject to the Family Law Act. If a marriage property proceeding has commenced pursuant to section 79(8) of the Act, even if one of them died in the middle, it shall be continued by the executor or the estate administrator as the agent of the deceased. Importantly, the lawsuit must be initiated while the spouse is alive. If the proceeding has not begun before your husband dies, your right to claim for sharing marital property has been expired. Therefore, if you choose the marriage property distribution method, you need to start a legal action immediately. If your marriage distribution proceeding cannot begin before your husband dies, your rights will become the right as an inheritance. In this regard, if your husband wrote a will that would leave you with no property or only an inadequate inheritance, you would still be granted a family provision (similar to a Japanese claim for retention). The amount of inheritance under family provision is at the discretion of the court in light of your situation and other factors. The most important factor is whether you a dependent of your husband have relied on him. On the other hand, in the case of seeking marriage property distribution, the family court is mainly concerned with the situation during the past marriage period, for example, the court takes into account how much each couple has contributed to acquire the marriage property to be distributed. The contribution of a full-time housewife to the family, such as childcare and housework, is of course an important factor to be considered.
Q: I have been divorced with my husband without any children, but I have a family dog. This dog is like a child to my husband and me, and we both are disputing over ownership of the dog. How does the law treat pets at divorce? A: In recent years, many pets (especially dogs and cats) have lived as members of a family, and there has been cases before the courts as to who the owner of the pet would be at divorce. The Australian Family Law Act 1975 (Cth) (‘Act’) has no direct reference to pets owned by couples in divorce proceedings. However, in previous cases before the Family court, it was decided that pets are personal properties. Based on the reason, the Family court, pursuant to section 79 of the Act, considers pets as part of the property of a divorced party and issue an order as to who owns it. While pets has generally no financial value due to its purposes, there are cases where pets have a monetary value by reason of its unique pedigree. If there is a dispute between the parties over the ownership of the pet, the Family court will, as with any property, take into account each party's case and make its determination. The following situations are advantageous for claiming that you own the pet. You are registered as the owner of the pet in the local council; A microchip was embedded in the pet, containing your information; There are receipts to prove that you are always bringing your pet to the vet; You regularly bring your pet to a training school. You live in a house that has enough spaces for pets (especially for large dogs, it is important to live in a house with a large garden). Your pet recognizes you as the best owner, often by feeding or taking walks. In any case, pet ownership should also be determined through mediation or negotiations, rather than a court proceeding. Just like the case of a child custody dispute, what is important is what makes the pet happy.
Divorce is one of the most onerous and traumatic procedures in our lives. As a result, it is often to see cases where a party to a divorce proceeding jumps on social media and talk about its disappointment or anger, which ultimately gives rise to a regret about its posting. There are a significant increase in the number of cases where posts on social media such as Instagram, Facebook and Twitter are used as evidence especially for determining eligibility or entitlements as a parent in divorce or parenting proceedings. With this in mind, circumstances where parties to the proceeding in relation to family law need to take into account are set out below: prevent derogatory comments or messages (including email or SMS) - it may give the court a negative impression that a party lacks responsibilities as a parent; be cautious about posting or posting by third party any photo which may deteriorate its own reputation (e.g. a photo showing ) – it may trigger a suspicion as to eligibility as a parent; bear in mind that the other party or third party may use your post on social media as evidence; do not post any comment on social media when you are in emotional circumstances; consider any impact on your children when they read your post; do not publish your private information; do not publish any account of any proceedings on social media – it is an offence under section 121 of the Family Law Act 1975 (Cth); The example below illustrate how a post on social media can be used in the court proceedings. Husband A sent a message to his 10 year old son, stating “I want to separate you from incompetent wife B.” after taking children from wife B without her consent. Few years later, as a proceeding was commenced, husband A posted a comment ‘What a **** joke!’ and published contents relevant to the proceeding on his Facebook page. Such posts were used as evidence to support his incapability of taking care of children due to the fact that those may have been exposed to their children. Mr C posted several defamatory statements about the court on its Facebook such as “Worst family law court system that imprisons a person due to meeting with his daughter!”. As a result, such posts were presented before the court as evidence proving lack of responsibility as a parent. A Facebook post that were posted by D who took a picture of a prisoner during a supervised visit was used to prove that she is a thoughtless mother in her proceeding.