Can a couple separate and divorce while living together?

When we think of a married or de facto couple separating, we usually picture one of them being thrown out in anger by the other. Whether it is because of a long argument about finances or the infidelity of one party, we normally don’t expect these people to remain living together.

Real world separations can be much more complicated than we think and it’s not always convenient for ex partners to move into different residences. The term ‘separation’ can be misunderstood in the legal context whereby separating does not necessarily imply a physical separation.

For those wishing to spend the 12 month separation period (required before divorce can be granted) under the same roof, they will have to provide some added evidence that the relationship has broken down.

In order to prove that the relationship has suffered a irrecoverable breakdown the parties must convince the court that they have no chance of reconciliation. When this is done while parties remain living together it is known as “separation under one roof”.

The party or parties that wish to prove separation under one roof may need to provide evidence that they are no longer functioning as a married couple. This type of evidence includes:

  • Moving into separate bedrooms and declaring a change in sleeping arrangements
  • Telling friends and family that the separation has occurred
  • Disclaiming the separation in a signed and dated document
  • Having changed the last will and testament
  • Telling outside interests about the separation such as insurance companies or banks

There is no legal requirement, even after divorce is granted, that the parties physically separate. They can live in the same residence for as long as they wish without and legal need for them to become physically separate.

If one party has been granted the residence as an asset and wants the other party to leave they can apply for a sole occupancy order. This is usually only granted if it can be proven that the other party has a history of violence or there is a fear of violence from the other party and any children.

If a party leaves the residence and changed their mind later, they might have legal difficulty in trying to return. The act of removing personal possessions and leaving the residence may grant the other party sole ownership.

Couples can separate and then divorce even though they remain living together because the act of divorce only requires that the marriage has broken down.  However, former spouses that choose to separate may have to provide added proof that their relationship has indeed ended.

What Constitutes Constitutional Law?

Constitutional law is a matter that concerns the hierarchy and structure of a nation’s roles and powers. The judicial body in this instance is focused primarily on the connection between the central state of government and those below within the territories, states or provinces.

 

British legal theorist A.V. Dicey was credited with forming the first of element that would one day form constitutional law, this being the rule of law. It would include the priority of the regular law usurping any arbitrary power, equality before the law in all cases, and the constitution acting as a result of the ordinary law of the land.

 

The second element that would spawn from this creation would be the separation of powers, an implementation to ensure that there would be oversight and accountability. The three branches of government that we are accustomed with today are a result of this separation, involving the legislature, the executive and finally the judiciary.

Official Constitutional Law Definition

 

“The body of law that evolves from a constitution, setting out the fundamental principles according to which a state is governed and defining the relationship between various branches of government within the state.”

Role of the Attorney-General

 

In Australia, the department of the Attorney-General has the overall responsibility to uphold and maintain the constitutional law. When there are potential amendments to the Australian Constitution that are up for debate, whether through a policy development or as a point of order, the Attorney-General will advise the government on their recommendation. Any alteration to the constitution will have an impact on the Commonwealth and this is considered when an amendment is on the table.

Strong Human Rights Component

 

Written charters such as the Canadian Charter of Rights and Freedoms are a fundamental part of what forms a nation’s constitution. Whilst this is not a uniform case around the globe with some notable exceptions, these documents help to define a set of rules of guidelines that upholds a basic set of social and economic principles that the people can live by.

 

The UN Charter’s infamous Universal Declaration of Human Rights is an example of a globally ratified constitutional right that is active and evident for all citizens of the world, no matter their country of origin or residence. Other segments in the legal profession tend to focus on mico details of legislation where one party holds a grievance over another. Constitutional law speak to an emphasis on a macro level whereby the judicial body is intended to uphold and protect a citizen’s basic right as a human being.

What Constitutes Public Law?

Public law happens to be one of those practices that is comprised of many parts within it. From tax law to constitutional law, administrative matters and criminal law, instances of public law will arise when a legal case is presented between a citizen and a government body that is in the public interest.

 

What actually operates as a public or private matter is entirely under the jurisdiction of the government in question, yet they must act according to the rule of law under all conditions and all circumstances. Whilst there can be ambiguity in certain cases, all citizens have the right to a fair and open trail once a legal situation becomes open to public discourse.

 

So what is involved in public law exactly? Here we will outline the central features that you should know when these instances arise in the media.

Public Law: Dictionary Definition

 

“Body of law governing relations between a state and its citizens, and dealing with the structure and operation of the government. It covers administrative law, constitutional law and criminal law.”

What Constitutes Public vs. Private Legalities?

 

To break these scenarios down to their essence, it is worthwhile thinking about them in terms of their effect and how wide reaching they should be. For instance, a restaurant that is violating various occupational health and safety practices to serve uncooked food could find themselves in violation of public law. On the other hand, a hired caterer for a dinner date that breaches the same offence would likely be in violation of a private law.

 

Should the incident have any relation to an administrative, constitutional, international, municipal or criminal case, then that will fall into public law. When contracts, property or family law is involved, that will fall into private law.

Politics and The Grey Area

 

The obvious question that derives from matters of public law is simple: who ultimately determines this definition and can it be influenced by external forces and political agendas? Clearly there can be cases whereby agendas can be served when examples of public law become media items and this is a philosophical battle that scholars have debated for decades.

 

Lawyers who specialise in this field will be at pains to argue that any case that fits this category does so because it will advocate for the betterment of the community at large. Nevertheless, cases can also be altered and have their ‘public’ title changed to a ‘private’ one should a law be regulated.

What Constitutes Labour Law?

Labour law a.k.a. employment law is a vast field that covers a series of categories and sub topics. Essentially what this practice boils down to is the connection between employee and employer, ensuring that basic rights and principles are upheld at all times.

 

Despite working conditions improving gradually across the globe, there are still continuous instances of worker deaths, child labour exploitation and cheap labour being prevalent and this is where litigation becomes a factor.

 

So what exactly constitutes labour law? How far does it reach and what steps are taken by individuals, groups and businesses in these instances? Let us explore this field in more depth.

General Objectives of Labour Laws

 

Whether through malicious intent or an unconscious bias that is taking place, labour laws are in place to help combat discrimination practice in the workplace. That can venture to the hiring process all the way to the a structure of a company and their day-to-day operation. Upholding basic occupational work and safety is a core objective for labour law firms as well as ensuring that enterprises are able to function as per usual whilst a dispute is taking place between management and the employees/union. Case studies in this category illustrate that workers are most vulnerably economically when labour laws are breached and this is where standards and practices are used either at a local, state or federal level to maintain proper governance.

 

Role of the Union

 

As a general rule, workers and individuals are more powerful when they have a combined and committed cause as a group. This is where a union steps into the breach to fight for correct working conditions. Common occurrences that unions will become active is to fight for increased pay, enhanced worker safety conditions or improving the hours that are being demanded by the company in question. Should a deal be struck between the two parties, then the collective bargaining agreement will have been a successful endeavour.

 

Unions however do not operate without oversight and employees that sign onto these groups are limited by the legal constraints that are formed between the union and the business. Union power also happens to be hamstrung by the limitations enforced per state rather than being on a purely national level.

Instances of Labour Law

 

Labour/Employment law can come across in a variety of guises, but the most common will be found in the following:

 

  • Wrongful dismissal/termination
  • Immigration
  • Labour relations
  • Employment discrimination
  • Social security
  • Minimum wage
  • Employment benefits and contracts
  • Medical leave
  • Family leave
  • Maternity leave
  • OHS – Occupational Health & Safety

What Constitutes International Law?

Amid all the different disciplines that are evident under the banner of ‘law,’ international law is a curious and unique case study to examine.

 

Under a democratic system of governance, there is no official body that is enabled or empowered to hold significant sway over any nation or state. This creates complications that are only evident in matters of international law where pressures are exerted politically.

 

Given the need to have nations abide voluntarily to these matters, international law becomes a balancing act in order to garner consent from one body to the next.

3 Key Brackets

 

International law in its current state can be broken down into three key categories. This will include:

 

  • Supranational law – voluntary laws that a sovereign state will abide by in a collective nature
  • Public international law – the relationships that define the connection between various sovereign states and bodies
  • Private international law – debates over jurisdiction when international conflict occurs

 

General matters of international law will see the following be examined:

 

  • Offshore constitutional settlements
  • International environmental law
  • Banking/Taxation
  • Border protection
  • Resolution of international disputes
  • Law of sea, air and space

 

There are further specialties that venture into this discipline, including international trade law, human rights law and international security law where counter terrorism, military and matters of disarmament are involved.

Devoid of a Central Body

 

Unlike criminal law and property law which has a strict and set structure whereby laws are defined by a central body, international law has no such hierarchy. The International Court of Justice is the arm that was spawned by the United Nations, however this organisation holds no genuine power that it can enforce over a sovereign state.

 

What the International Court of Justice does operate through is by handing down accords, protocols, treaties and agreements between various states in the hope and expectation that they will be executed in good faith. Despite the lack of legal teeth this body carries, it has been at the forefront of leading change in matters particularly for matters of human rights around the world.

The UN Charter

 

International law in its current guise essentially exists as an extension of the Un Charter – a body that was formed as a tangible treaty for the sake of international security and peace. Those nations who sign up as a UN Member State around bound by these laws.

 

The core objective of this charter is to “establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.”

Types of will disputes in Australia

How do you dispute a will in Australia

After the heartache due to the loss of a loved one, disputes may arise in relation to how their Estate should be shared amongst the beneficiaries. To dispute a will in Australia you will need to contact a will dispute lawyer to begin the process.

It is common under these types of circumstances to seek help from a team of experienced, qualified and empathetic team of will dispute lawyers in order to achieve the best results.

The different types of will disputes

There are many different types of will disputes so make sure that when you are carrying out any proceedings that it is under the right field.

Provision claim

One of the most common forms of will disputes is the provision claim. It refers to people such as children, spouses, partners and financial dependents having the right to challenge a will if they believe they have been left out of the will or have been left an insufficient portion of the estate.

The provision is obtained by either negotiating with the estate’s representatives or by order of the court. Regardless it is important to consult a will dispute lawyer in dealing with this type of matter to get the proceedings correct.

Interpretation dispute

This type of dispute arises when;

  • The will maker’s wishes are not clearly stated
  • The will maker has assets that aren’t addressed in the will
  • The will maker fails to adequately address held assets in their will

The interpretation of the will is the difference between you getting what you are intended to receive and getting nothing at all.

It’s important to address interpretation issues as early as possible where you would contact an executor about your interpretation of the will and ask if they agree.

If there is a disagreement you will have to file for a court application where you will need to seek a will dispute lawyer to represent you and present the facts to the best of their abilities in the eye of the law.

Capacity dispute

You are able to challenge a will if you believe that the will maker didn’t have the mental capacity at the time of creation. For a will to be valid you must be over the age of 18 years old and have the appropriate mental capacity of how a will is made and what it involves.

Head injuries and other forms of conditions that impair cognitive function are all grounds to challenge a will. You have to show evidence that the person lacked the capacity at the time of creation. If you someone is challenging a will that you don’t believe needs to be you must seek a will dispute lawyer immediately to get the facts straight.

Under the influence dispute

When someone is put under pressure to alter their will so that their true intention isn’t reflected you can dispute it. Examples would include a partner or spouse persuading the will maker to exclude the children or one sibling persuading the will maker to exclude the other siblings.

If you can prove that the will maker was influenced it can be set aside and disregarded. This type of dispute can be difficult to prove so make sure to collect all necessary pieces of evidence before they’re lost or destroyed.

Executor dispute

This type of dispute relates to when the executor of an estate acts inappropriately in respect to the administration of the estate.

If you are the beneficiary of a will or estate and you believe that the executor has acted inappropriately, you have the right to have them removed and seek compensation for any loss that you have suffered from their conduct.

Regardless of what type of dispute you may have it is important to seek a trustworthy and reliable will dispute lawyer. This way you can be sure that you will have the best chance of receiving what you are entitled to.

 

Everything you need to know about separation

Taking a break from a relationship (either a de facto one or a marriage) is known as a separation in Australia. The amount of time spent apart is up to the people involved and is a little different for everyone. Sometimes couples like to stay under the same roof while they are taking some time for themselves, which can be ideal due to financial issues or wanting to stay in the same house for any children that may be involved.

Other times, one person may move out of the home for a short period of time to either rent or buy elsewhere. It is not uncommon for one party to stay with friends or relatives. What many people don’t know, is that it is imperative to seek legal advice even when just separating. There are many reasons for this and a family lawyer is the best person to receive support from. Family law covers separation, divorce, spouse maintenance and other family-related matters. When a couple first decides to part ways, an attorney will likely advise that they record this separation in writing.

This is because if a couple wanted to divorce down the track, they will generally need to be separated for at least a year and this needs to be proven. It is not uncommon for people to not have any evidence for their time spent apart and can find it hard to apply for divorce down the track. A family lawyer can advise on how to best document a separation, even if couples do only think that it will be short-term. There are also many other factors that need to be considered when a couple decides to spend time apart, and this article will take a further look into this as well as how a family law attorney is able to help.

There are many practical things that need to be addressed when two parties are looking to part ways, even if this time apart is only short-term. If there are any joint bank accounts, it needs to be known if they are still going to be used. Both parties need to decide where they are going to live during this time and they need to figure out who is going to take care of the children and where the children are going to stay.

Bills will still need to be paid during this time, so it is important to discuss any mortgages or rent that may need to be covered. Dealing with stress and grief is also important. Some people like to organise couples counselling during this time or may like to see a counsellor or Psychologist individually.

Whatever the situation may be, a professional attorney is able to advise both parties on how to best move forward. As ending a relationship can be an already stressful time, it makes a huge difference having the support of a professional. Many people report feeling safer knowing that they know what their rights are legally and understand how to act smart to get the best outcome possible.

If the parties involved do wish to proceed with a divorce, the lawyer is able to help with the application process and can begin to help with sorting out the division of possessions and child custody negotiations. A lawyer can further help with organising spouse maintenance payments if need be as well as documentation that may be needed throughout the process. At the end of the day, it can sometimes be a confusing process when going through a separation because the law isn’t necessarily straightforward. Relying on someone with experience and insider’s knowledge is a great way to not only feel supported but also make the process feel as easy as it possibly can.

Everything you need to know about prenuptial agreements

While most people have heard of a prenuptial agreement (a prenup), many don’t actually know what this entails. In Australia, a prenup is a legally binding contract that is created by two people who are about to get married or who are in a de facto relationship. The agreement is specially created based on the individual’s requests and needs, so no two prenups are the same. There are many reasons why couples choose to go down this route but mostly because both parties want to feel safe within their relationship. It is also common for people to request a legal agreement when one person in the relationship is more well-off than the other person when entering the relationship.

For example, one person may own a lot of property whereas the other person owns none. Others may wish to protect certain possessions that they want to hand down to their children, and others simply want to ensure that if something does go wrong in the future, the process of ending the partnership is as clear cut as possible.

Seeking a family lawyer to help with such an agreement is very important as they are able to not only help with the paperwork itself, but they can give the two parties involved in-depth information about the prenup. For example, many people don’t know that a prenup isn’t the be all and end all. They can be overturned in court down the track. Furthermore, some don’t know what a prenuptial agreement can actually cover. A great family lawyer will advise that it can cover the division of assets when a break-up occurs such as property, cars, cash, and possessions. It can also look at businesses, investments, inheritance, superannuation, debts and pension entitlements. Here is a closer look at prenuptial agreements in Australia, and how a family lawyer is able to help.

What many don’t know is that it is important to factor in children to an agreement, even if there are no children currently in the picture. It is not uncommon for couples who thought they would never have kids to have them later in life, and then not feel protected if the relationship at hand ended. A prenup is able to include child support options, and how the division of assets would occur if there was a child or children in the picture.

Again, a professional attorney is able to help with this and can give advice on what is best to include in the agreement for the couple. It is important to know that despite an agreement, a court is able to overturn this in order to give what they think is best for the child or children involved. It is also important to understand the scenarios in which a prenup can be overturned. For example, if one person did not accurately disclose all of their assets upon entering the relationship and creating the agreement, the courts may see this as fraud and overturn it.

Similarly, if a scenario has occurred that is not included in the agreement (such as the birth of children), again the courts may look at overturning it. It is also crucial to ensure that the agreement is an actual legal document. Couples cannot simply write their wants and wishes on a piece of paper at home and then decide that this is legally binding. Again, this is why it is so imperative to seek the support of a family lawyer. All in all, there is certainly a misconception about how prenuptial agreements work due to American televisions and movies. The best way to get all of the correct information is simply by hiring an attorney.

Everything you need to know about child custody

When ending a long-term relationship, whether that be a de-facto relationship or a marriage, it can be an extremely difficult time. This can especially be the case when there are children involved. Parents often feel guilty when they are separating and have often stayed in the relationship way longer than they should have purely for the sake of the children.

child custody

Parents often do everything in their power to shelter their kids from the whole experience while still keeping them informed as much as possible. This can be tricky when emotions are high and there are lots of things to figure out such as divorce application forms, child support payments, the division of possessions and much more. It is not uncommon for two parties to not see eye to eye when it comes to ending a relationship and this is where the legal system will often step in.

There are some lucky people out there who manage to settle everything out of the courtroom, but this is extremely rare. Because of this, it is important for both parties to seek professional help in the form of a family lawyer. A family lawyer is a person to go to when wanting to find out how to legally separate, divorce and decide where the kids are going to live and for how long. For example, some parents are happy to share their children half-half, whereas others will decide that the children can stay with one parent every second weekend. It is important to have this agreement in formal writing so both parties can be crystal clear on the requirements, and the children will be able to thrive in a stable environment. Here is a further look at child custody in Australia and how a family lawyer is able to help.

When there are disputes surrounding where a child or children are going to live, there are usually two hearings. It is important to have a reliable and reputable representative for these hearings. The first is an interim hearing and the second is a final hearing.

The first hearing usually occurs a couple of months after an application has been filed with the court. A family lawyer is able to help with this application process and to explain what type of paperwork is needed. In the interim hearing, a judicial officer will hear a submission from both parties and will decide on an arrangement for the children involved until the final hearing. Many different things can factor into the outcome such as if there is abuse involved. The final hearing will require that anyone who has given a sworn statement needs to attend. When it is needed, a Psychologist or counsellor will be spoken to in order for the final decision to be made. After considering all of the evidence and information, the judge will then make their final decision.

This decision will be held in place until the child turns 18, unless otherwise stated by the court. This whole process can be a daunting and stressful process as the courtroom can be a bit of a scary place. In order to have the desired outcomes met, it is crucial to deal with an attorney who has experience in this field. They will understand the language and will know how to best move forward considering everything involved. If there is ever a time where an appeal needs to be made, they are able to help with this and are also able to help organise affidavits. Whatever the severity of the case, or whatever the situation may be, there is always a family attorney out there who is able to help and can best achieve the desired outcome.

 

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