The Same but Different – Family Law in Australia and England

In the UK, family law legislation applies to both England and Wales. Scotland maintains its own set of family laws.

Although at first glance much of the legal framework of family law in Australia and England appears to run parallel, there are some quite important differences in certain areas that should be noted.

Grounds for Divorce:

In England (and Wales), family law barristers can argue grounds for ‘immediate’ divorce if adultery, or other unreasonable behaviour such as violence, is involved. In Australia, no such legislation exists for unreasonable behaviour to be taken into account. The irretrievable breakdown of marriage is based solely on the couple living apart for 12 months. In England however, divorce by separation is based on a couple living apart for two to five years.

The Divorce Process:

The whole divorce process in Australia is significantly quicker than in England, taking on average just three months. This is partly due to the fact that a couple in Australia don’t have to instigate divorce proceeding before submitting a financial settlement application to the court, as they do in England.

Also, Australia no longer issues a decree nisi followed by the absolute, as is still the law in England. In Australia, after the 12 months separation, and on completion of the divorce application, the registrar can immediately sign the divorce papers (decree absolute), although the couple have to wait one month for it to become effective.

Financial Protection for Cohabitants:

There is a strong belief in England that both members of a long standing cohabiting relationship gain all the financial protection on separation as a legally married couple. In actual fact no such laws exist, and financial provision is made on a case by case basis. However, in Australia the law requires that separated cohabitants financial needs be addressed as if they were a married couple.

Maintenance Payments and Clean Breaks:

In Australia, family law barristers look differently when awarding maintenance. Provision is made for the parent rearing any children by way of maintenance payments or the awarding of additional capital. However, in Australia it is assumed (expected?) that both parties will become financially independent in a relatively short period of time. As in England and Wales clean break arrangements are not only considered in Australia, but do appear to be more determinedly approached when deciding whether such arrangements are appropriate.

Pre and Post Nuptial Agreements:

If undertaken correctly, because it is written into Australian family law that pre and post-nuptial arrangements (known as Binding Financial Arrangements) are enforceable. Should the need arise; the agreement can be pursued without the plaintiff having to resort to court appearances, as is required in England.

Children’s Upbringing:

In Australia, as in England, provided both parents agree the arrangements, no court order is required when it comes to access and how many days of the week/month the children spend with each parent. However, unlike England, Australia is very much of the opinion that parenting is a two person job, and that arrangements are expected to work toward the children spending equal amounts time with each parent.

Finally, resorting to mediators when the parties can’t agree, is popular in both Australia and England, and considered by all the best way to negotiate a resolution suitable for all concerned before any court appearance.

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