Cecil Black Mediation and Family Law Property Settlements Cecil Black Mediation and Family Law Mediation Services

Cecil Black Mediation and Family Law

Cecil Black has sensitively guided local and interstate families through the legal process for more than thirty years.

Property Settlements

Cecil Black can assist you at all stages of obtaining a property settlement.

Cecil Black Mediation and Family Law

Cecil Black has sensitively guided local and interstate families through the legal process for more than thirty years.

Mediation Services

We use creative problem solving in a way that you can reach your own agreement.

Domestic violence in a family law property situation

Domestic violence in a family law property situation

Prior to the coming into operation of the Family Law Act of 1975 (FLA), much emphasis was given in the former Matrimonial Causes Act of 1959 that was succeeded by the Family Law Act to the concept of fault, such that there were 13 force grounds of conduct upon which a divorce could be granted including cruelty, and to succeed in one of these grounds a spouse had to prove matrimonial fault.

This meant that except in relation to the 14th ground that is the parties had been separated for a period of 5 years only the “not- guilty party” could seek a divorce.

The debate that led to the introduction of the FLA was the new concept of a no-fault divorce, the effect of which was that after a period of separation for one year with the likelihood that the relationship would not be continued then either party could seek a divorce.

This meant that judges had to change their minds about how to deal with issues that arise from a broken relationship including what orders to be made in respect of property.

One area in which some would argue that the concept of “no fault” behaviour has led to the potential for an undesirable outcome is in the area of domestic violence and for the last 20 or so years, the general rule of law has been that domestic violence is not by itself a consideration, but it can however be taken into account to the extent that it is directly relevant to one or other considerations set out in the FLA. It is argued that this is a relatively strict test and is not often used with any success.

The Australian Domestic and Family Violence Clearinghouse in 2012 noted in their research on the impact of family violence on women’s financial security, the overwhelming majority of women were experiencing financial hardship. That organisation also noted that for women who were unable to stabilise their financial situation, the consequence was a downward spiral of debt and poverty. That organisation also noted that decisions to leave the relationship were affected by the ongoing financial uncertainty, and that some women spoke about returning to partners because of being unable to support themselves (and their children) on their own. So, there is clearly an issue for women who are the victims of domestic violence.

How is that affected by the concepts now set out in the Family Law Act of 1975?

The FLA as it exists presently gives the court very wide powers to adjust property interests but this is where the issue of discretion comes into effect.

There has been a long debate in Australia about whether the current discretionary system should be replaced with a more prescriptive or formula approach so as to avoid inconsistency in decision-making (excerpts from the discussion paper referred to below).

On balance, the ALRC does not consider that the case has been made out for a shift before research is undertaken about property adjustment on relationship breakdown however, a number of amendments can be made to improve the clarity of the law.

In a discussion paper released by the Australian Law Reform Commission into the Family Law System has made some very important and significant recommendations (proposals 3-10 and 3-11 at page 88) about proposed amendments to the FLA. The proposal requests that the FLA be amended:

  1. To more clearly state the process used by the court in determining the division of property; and
  2. Requiring the court to take into account the effect of family violence:
    1. On a party’s contribution to the acquisition, conservation or improvement of any of the property of the parties; and
    2. In determining the future needs of a party.

During the week of 19 November 2018, the Morrison Federal Government announced a four-year $109 million program to support women’s economic empowerment which offers some promise of financial security for women experiencing domestic violence including access to low-interest loans.

According to the Minister for Women (Ms Kelly O’Dwyer), the Morrison Federal Government is also ramping up support for those who have experienced domestic violence including extending the early release of superannuation for them. I don’t presently know whether the ALP supports that and I don’t know whether there will be time between now and the next federal election to make changes to the rules for accessing superannuation nor do I make any comment on whether the current government will be returned at that election.

The question that poses for me is that early access to superannuation should only be permitted where there is no other alternative.

It just seems wrong for the victim of domestic violence to have cash in her (it is mainly the woman) superannuation to deal with the effects of domestic violence upon her financial situation.

Should you wish to find out more about what I have set out in this post, please contact me on (07) 4723 4601, or send me an email to the address on my website.

Liability limited by a scheme approved under professional standards legislation”

The contents of this document are not intended to create any legal relationship between the author and the reader.

The material contained herein is designed to provide you (the reader) with some important but general information and should be read in association with legal advice given to you.

You should not rely or act on this information

without seeking legal advice specific to your circumstances.

 

Cecil Black

25 November 2018

 

 

 

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