Q: I have been living in Australia for almost 20 years. I have been married to my husband for five years but have hardly any contact with him. I had considered starting procedures for divorce and marriage property distribution because our relationship had collapsed. However, I was recently informed that he was given six months to live due to final stage lung cancer. He has never written a will that would leave an inheritance to me. What would be my rights to the 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 dies 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 expired. Therefore, if you choose the marriage property distribution method, you need to start 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 are dependent on your husband or 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 decide the marriage property to be distributed. The contributions of a full-time housewife, 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 are disputing ownership of the dog. How does the law treat pets in a divorce? A: In recent years, many pets (especially dogs and cats) have lived as members of a family, and there have been cases before the courts as to who would own the pet in a 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 this, the Family Court, pursuant to section 79 of the Act, considers pets as part of the property of a divorced party and will issue an order as to who owns it. While pets have generally no financial value, there are cases in which pets have a monetary value due to 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 space for pets (especially for large dogs, it is important to live in a house with a large garden); Your pet recognises 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 common to see cases in which a party to a divorce proceeding jumps on social media and talks about their disappointment or anger, which ultimately gives rise to regret about the posting. There is a significant increase in the number of cases in which 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 parties to the proceeding 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 their reputation – 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 emotional. 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 illustrates how a post on social media can be used in court proceedings. Husband A sent a message to his 10 year-old son stating, “I want to separate you from my incompetent wife B” after taking his child from Wife B without her consent. A few years later, as the proceeding was commenced, Husband A posted the 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. Mr C posted several defamatory statements about the court on his Facebook account such as “Worst family law court system - who 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 was 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.
Q: There is an upcoming marriage between Australians who have an age gap of 10 years. The man has economic power, a house and some assets. As a condition of marriage, he said, “I want you to sign a contract which pre-determines the distribution of assets in the event of a divorce”. When he divorced his ex-wife, he stated he did not want to go through it again as it was not a pleasant experience. What is this document and what is its effect? A: It is a Financial Agreement and is more commonly known as a Prenuptial Agreement under the Family Law Act as per Part VIIIA. The main purpose of the agreement is to identify how the couple will distribute their assets should they divorce. For example, if at the time of marriage, one party has a pre-existing home or an expensive piece of artwork that may have been inherited from a parent, the prenuptial agreement will state “the house or art is not marital property at the time of the divorce and is to be excluded from distribution”. The Financial Agreement not only determines the distribution of assets but also covers child support fees and alimony. However, child support is a child’s right and there is a very likely chance that a dispute will arise in relation to its validity and is generally not covered by the Financial Agreement. A Financial Agreement can be entered into not only before marriage but also during the marriage and after divorce. Ideally, entering into a Financial Agreement will make the divorce process smoother (without having to waste unnecessary legal costs or effort). However, one thing that should be noted is that even if the Financial Agreement was considered a fair arrangement at the time, it may be considered unfair in the future. For example, 10 years later after a child is born, if an individual had been a housewife for a long period and cannot obtain a stable job, can it be considered acceptable then? In this regard, the Family Law Act has several conditions that can revoke the Financial Agreement, including situations whereby the effects of the Financial Agreement are considered unfair. To ensure the validity of the Financial Agreement, information will need to be disclosed which may be considered important, including the details of the assets and a certificate from each respective lawyer that shows advise has been provided to you in relation to the pros and cons of the Financial Agreement and the benefits and the rights of the parties(Section 90G(1)(b) of the Act).