Who gets the family dog on separation? | Brisbane Divorce Lawyer

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The decision as to who should keep the family dog can be very difficult following a separation. As we all know, your dog is often a much loved member of the family or pretty well treated as a member of the family. It can be especially difficult for this issue to be resolved where your children are spending time with each parent or more unusually, one parent only but the family dog is living with one parent only following a separation. Read on to find out more from our Divorce Lawyer Team.

One option to consider is for the family pet to travel between households although this is not without its complications. Sometimes, as a practical measure, it can help to buy another pet following separation. Of course, that is not a full solution but it may assist in reducing legal fees that may otherwise be incurred resolving arrangements for your existing pet. Contact LGM Family Law today to speak with one of our experienced divorce lawyers. We are able to assist you with resolving this and other property settlement issues.

In a recent decision in the Federal Circuit Court of Australia, the Court declared that the Wife was the owner of a former matrimonial dog as against her Husband and ordered that the Husband do all things necessary to cause the registration of the dog to be transferred into the Wife’s name.

Whilst we do not know from the case what was the name of the dog, we will call him/ (or her) “Alfie” for the purposes of this article.

Orders had been made by consent of the parties including per Order 6 that “….each party will be entitled to retain all other items, chattels, superannuation, Jewellery” and personalty “ in their names and possession”.

However, as the one issue outstanding regards the consent orders, the Husband sought that as an effective exception to that Order 6, that the Wife transfer ownership of Alfie to him.

The Wife however sought that Order 6 would include ownership of Alfie and that as she had possession of Alfie, she be declared his owner. The Wife also sought then that the Husband transfer to her registration of Alfie pursuant to the provisions of the Companion Animals Act 1998 (NSW).

Divorce Lawyer

Who gets to keep the family dog? | Divorce Lawyer

A little diversion

The Judge observed that the dog was a chattel being a sentient creature and noted that, at least in the English-speaking world, until relatively recently in our history, there were four classes of sentient creature who were capable of being the property of others. Firstly, people who had been slaves; secondly, women who had in the past often not been permitted to own property of their own but in many jurisdictions had been treated as the property of their fathers and then of their husband’s upon marriage; thirdly, children and fourthly, animals including companion animals such as the dog.

The Judge commented that sadly, these animals remain classified as the “property of their owners rather than having some more temporal existence with consequent rights”.

History is obviously not the object of this article. However, we pause to recognise with relief what  progress our western world has made in treatment of women and effective outlawing of slavery and think it interesting and worth considering that our closest animal friends should have recognised rights.

Back on track

The Court looked to a well known case in the High Court of Australia, Stanford v Stanford [2012] HCA 52, recognising that the first step in any determination of parties’ property interests and adjustments to those interests is to determine the net assets and liabilities of the parties.

Interestingly, the Court noted that neither the Husband nor the Wife sought to attribute any monetary value to Alfie and that this was appropriate. The recognised that Alfie’s value was not monetary but his worth was the parties’ love and affection for the dog as the parties each expressed it.

The Court noted, as the High Court in Stanford had made clear, that the Court was also required

to determine for the purpose of any controversy with respect to property adjustment whether an Order should be made and whether it is just and equitable for it to be so.

Whilst the Court had jurisdiction to make either of the Orders as sought by the parties, it was necessary that the Court determine whether any change in ownership of Alfie as it then existed should occur.

The Court concluded that:

  • Ownership of Alfie must be determined before the Court could determine whether any Order for the adjustment of ownership should be made;
  • The fact of payment by the Husband of the purchase fee for Alfie did not of itself determine ownership or the Order that the Court might make in adjustment of property interests between the parties;
  • Whilst ordinarily registration of ownership of a dog may assist in determining ownership, the Court would not draw any inference of ownership from Alfie’s registration by the Husband as the dog had not been registered until 8 months after separation and after the Husband had had clear notice of claim of ownership by the Wife in her Affidavit which had been served on him. The Court had looked for guidance as to “ownership” from NSW legislation mentioned above and noted the obligation of an owner under that Act to register a dog’s ownership within 6 months of acquiring the dog. Alfie had not been registered within that period;
  • The person who ordinarily kept Alfie was the Wife. A section of the NSW legislation provided a definition of “owner” as the person by whom an animal is ordinarily kept or the registered owner. The Court took the view that prior to the Husband having registered Alfie and subsequently, Alfie had either lived with the parties jointly and following separation, with the Wife;
  • The reference in correspondence annexed to the Wife’s material was the only direct reference to the dog’s ownership by the Husband and that was a mere assertion.

The Court then considered contributions under section 79 of the Family Law Act 1975, both financial and financial that had been made regards the purchase of Alfie and his on-going care and maintenance.    Whilst the Husband had paid the purchase price for Alfie, the Wife had contributed financially and non-financially to Alfie’s care, including payment of vet’s bills.

The Court took the view that it was very difficult to apply section 75(2) of the Family Law Act 1975 dealing with the future needs of the parties “unless one were to place some value upon lover and affection” whereas if Alfie had been a seeing eye do, those factors may have been relevant.

In these circumstances, the Court having determined that the Wife was Alfie’s owner, the Court took the view that there was no basis for any adjustment of interests in the chattel comprising Alfie.

The Court declared that the Wife was Alfie’s owner; that she had had possession of Alfie and that she had contributed to Alfie in such a fashion that it was not appropriate for any Order to be made varying ownership.

What next? | Our Divorce Lawyer Team

If you are needing family law advice on how best to resolve the issue of who takes ownership of your family dog or regards property division following separation, contact us and one of our experienced divorce lawyer will be happy to assist you.

You might also be interested in our complimentary separation checklist which has been prepared by our Divorce Lawyer Team to guide you through the process of separation.

Whether you’re located in Brisbane, Melbourne or elsewhere in Australia, our divorce lawyer team are able to assist you.

When Should I Apply for a Divorce?

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It is of course a very personal decision as to when you take the step to apply for a divorce.

It can be very positive for you to take the steps you need to take as soon as possible following separation so that you may finalise your affairs with your former partner and move forward with your life, knowing where you stand financially and able to plan more effectively for your future.

You must be separated for a period of 12 months before you may obtain a Divorce Order. The Court must be satisfied that you and your former partner have separated and thereafter lived separately and apart for a continuous period of not less than 12 months. The day on which separation occurred is ignored in the calculation of that 12 month period.

Sometimes after a period of separation, couples decide to try to reconcile and may resume living together. If you have resumed cohabiting together on one occasion but within a period of 3 months after doing so, you again separate and then live separately and apart up to the date of filing an application for divorce, the periods of living separately and apart before and after the period of cohabitation may be aggregated as if they were one continuous period. However, the period of cohabitation cannot be included in the calculation of the total time that you and your former partner have lived separately and apart before filing for divorce.

You may prefer for personal reasons not to apply for divorce once you have been separated for that 12 month period. For other people, it may be important to obtain a divorce as quickly as possible, for example, where they wish to marry their new partner.

You should be aware though that once your divorce becomes final, there is a period of 12 months within which you should endeavour to settle the division of property with your former partner on a final basis. That will mean obtaining a court order or entering into a binding financial agreement within that time.

A court order may be obtained without actually having to go to court if you and your former partner reach agreement and apply through the Registry of the Family Court of Australia for a consent order.

If you cannot obtain a final court order for the division of property or enter into a binding financial agreement within that 12 month period, you should ensure that you initiate a court action in the family courts seeking property orders on a final basis before that period expires. If you do not do this and you wish later to obtain court orders, you will need to first make application to court seeking leave of the court to be permitted to bring an application seeking property orders. However, there is no certainty that you will obtain that leave.

It is for this reason that many people will choose not to apply for a divorce until they have obtained final property orders or are at least close to be in a position to file an application in the Registry signed by both parties seeking that consent orders be issued.  In that way, they ensure that that 12 month period does not start running and potentially adding to the pressure of obtaining property orders by agreement with their former partner.

We recommend that you do act as soon as you feel able to settle the property division with your former partner. If you are able to do this on an amicable basis and there is broad agreement in principle, it is possible to finalise the documents and file an application for consent orders at the Court Registry within a few weeks. Provided that the Registrar of the Family Court is satisfied that the orders that you are seeking are within the range of what the law would regard as just and equitable for your circumstances, the orders may actually be issued within a further two to three weeks. Sometimes, it may take longer depending upon the Court’s work load.

It can however take much longer to obtain consent orders if negotiations with your former partner become protracted. If that happens, you will want to consider going to mediation with your former partner rather than becoming bogged down in ongoing correspondence between solicitors.

The sooner then that you begin the process towards obtain court orders or entering into a binding financial agreement with your former partner, the sooner you can fully embrace moving forward with your life.

It is very helpful then for you to obtain early legal advice about what your likely entitlement is for the division of property. Our Brisbane Divorce Lawyers at LGM Family Law are ready to provide you with that advice and to assist you in obtaining a final property settlement with your former partner.

Contact us today, and receive a free 15 minute consultation. Let our Brisbane Divorce Lawyers assist you in moving forward in life.

What is the Process for Divorce in Australia?

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Wondering what the requirements are for divorce in Australia? Our divorce lawyers Brisbane Northside provide a guide to the process. 

In Australia, we have a “no fault” divorce system. Unlike other countries, you do not have to prove any wrong doing on the part of your husband or wife to be able to file for Divorce.

The main requirement in Australia, is that the marriage has broken down irretrievably, that it is not reasonably likely that the parties will resume cohabitation. To demonstrate that there is no likelihood of reconciling, you must live separately and apart from the other party for a period of at least 12 months.

There are a few different variations of this, such as parties who live separately and apart, but “under the one roof”, and parties who reconcile for a short period before again separating, but who have lived separately and apart for a total period of more than 12 months. It’s important to remember though, that if you get back together for more than 3 months and then separate again, the 12 month separation period will start again.

If you fall under one of these categories and you’re uncertain as to whether you will be eligible to apply for Divorce, why not make use of our free 15-minute telephone conversations to get some clarity.

Divorce Lawyers Brisbane Northside

What's the process for Divorce in Australia? | Divorce Lawyers Brisbane Northside

Apart from living separately and apart for a period of at least 12 months, in order to apply for a divorce in Australia, at least one of the parties to the marriage must be:-

  1. An Australian citizen; or
  2. Ordinarily resident in Australia, and has been so resident for at least one year prior to filing the Application; or
  3. Domiciled in Australia.

The next question then, is whether you and your ex are going to file the Application together, i.e. a “joint application”, or if just one of you is filing the Application.

If you are filing for divorce, and the application is not a joint application, then you must serve the Application on the other party. The Court website provides some useful tips on serving a Divorce Application here.

Once you have filed the Application, the Court will set down a date.

If the Divorce Application was a joint application, or if you have served the other party with the documents and they have signed the Acknowledgment of Service (Divorce) and this document has been filed, neither of you are required to attend at Court for the divorce hearing.

Once the Registrar makes the Order, your divorce becomes effective 1 month after the Order was made.

If you make an Application for Divorce and things don’t go smoothly or if you would like us to handle the Application for you, give our Divorce Lawyers Brisbane Northside team a call and we will help you what can otherwise be a stressful time.

Contact our Divorce Lawyers Brisbane Northside a call today, to receive a FREE 15-minute phone consultation.

 

Do I Still Need a Lawyer After I Have Reached Agreement

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We as family lawyers love hearing that a separation was amicable, or that someone is still on good terms with their former spouse or partner. However, agreeing to divide your property without obtaining a legally binding property settlement can leave you exposed in a number of ways.

Limitation periods

If the limitation period has not yet lapsed (see our article on time limitations), your former partner may initiate proceedings in Court seeking a legally binding property settlement, even though you have previously agreed something informal between yourselves.

Even where the limitation period has lapsed, if the Court is satisfied that hardship would be caused to your former partner or a child if leave were not granted to bring the action out of time, leave may be granted for your former partner to bring the matter before the Court outside the limitation period.

Generally, the property pool which is available for division between parties is the property pool as it exists at the time that a final property settlement is made.  Any assets acquired by either party post separation from savings or other assets acquired during the relationship may then be included in the property pool available to be divided between the parties (although adjustments may be made in favour of a party regarding their particular contribution post separation). If then, for example, you had received the family home when you negotiated an informal settlement with your former partner and since sold that property and used the funds from the sale to buy a new house, that new house (including any increase in capital value since its purchase) may form part of the property pool available for division with your former partner.

Legally Binding Agreements

There are a number of ways you can make your agreement for the division of property legally binding.

These include:-

  1. Consent Orders- the terms of the Orders are agreed between the parties and an Application signed by each party is filed in the Registry of the Family Court seeking that the Court issue the orders in the terms as agreed;
  2. Court issued Orders - after the parties have progressed through a trial, the Court determines what is a just and equitable division of property; and
  3. A Binding Financial Agreement made in accordance with the requirements of the Family Law Act 1975 (Cth).

When parties are able to agree as to how to divide their property, whether that’s over a cup of coffee or with the assistance of a lawyer, a lawyer can then assist with drafting the Application for Consent Orders as well as the Orders that you are seeking that the Court issue.

North Brisbane Divorce Lawyers

Why you still need a lawyer | North Brisbane Divorce Lawyers

It will be important to first obtain legal advice where you are seeking Consent orders to ensure that the proposed division of property is within the range of what the law would regard as just and equitable for your particular circumstances.

Contact our team of North Brisbane Divorce Lawyers today for an initial consultation regards how best to finalise your property settlement.

Reducing Conflict Following Separation

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Online Harassment Following Separation

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You’re experiencing online harassment and being tormented by an unknown author. You have suspicions it’s your ex. What can you do?

Online harassment following a separation

Online harassment and abuse by a former partner can sometimes follow in the aftermath of a separation. Harassment can come in many forms. It may be defamatory materials published or inappropriate sexual comments directed at you or a family member. All types of online abuse can be hurtful, damaging to you or a family member’s reputation and even threatening.

It’s important for you to know who you can turn to for help and stop the abuse before it gets worse. Our family law practice has the experience and understanding to assist you in the face of this kind of abuse. If you have found yourself the subject of online abuse or harassment, we’re here to help.

So, what can you do?

Unfortunately in our digital age, social media platforms like Facebook have made it easier than ever for faceless bullying to occur. You may have suspicions that your former partner is using an alias to harass you online. This is where we can help. Luckily, all activities of online users creates a trail of metadata. Metadata is data that your network provider records every single time you use your mobile device. This may include making a call or accessing the internet. Your network provider is obliged by law to record this metadata and store the information for a minimum of two years.

This data enables you to see who someone’s talking to, for how long and where the caller was when they made the call. It can also track their activities on the internet. You can even use this data to map a user’s usual route to work, pinpoint where they live and where they holiday. Information like whether they travel in a car or by public transport can also be traced. This is can be gathered even if they aren’t accessing their phone all the time.

Metadata records can also be subpoenaed by other parties. This will grant access to a record of all calls made, all internet usage and the times, dates and various locations of users at any given point in time. At our family law firm, we have experience in accessing metadata records for family law and domestic violence law purposes, to help you resolve issues such as online abuse by a spouse.

Contact us today to find out more.

Which Document Will Help You With Divorce in Queensland?

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Filing for divorce? It’s important to know what documents you should prepare in order to help you in your divorce hearing.

Getting a divorce in Qld

Getting a divorce in Qld?

If what you are wanting to obtain is a divorce, you will need to complete an Application for Divorce and file the Application and other required documents at the Registry of the Federal Circuit Court of Australia. The relevant divorce papers Qld and for Australia, can be downloaded from the Family Law Courts website
www.familylawcourts.com.au

In order to apply for a divorce in Australia, you must have lived separately and apart for a period of not less than twelve months before the date that your application for divorce is filed and there must be no reasonable likelihood of a reconciliation. Either you or your former partner must also satisfy certain requirements regards Australian residency, domicile or citizenship.

You will need to provide the Court with a copy of your marriage certificate when filing for divorce as well as an English translation and Affidavit from the translator if your certificate is not in English. You may also need to provide the Court with a copy of documents establishing Australian citizenship. Dependent upon your circumstances, there may be some further documents that the Court may require.

If you qualify for getting a divorce in Qld or another state, then provided that you supply the necessary information to satisfy the Court, provide the copy marriage certificate with the Application and meet any requirement for service of the Application on your former partner, in the usual case, you can generally expect that your application for a divorce will be granted. The information that is required for getting a divorce in Qld and other states is set out in the Application. You should obtain legal advice regarding whether in your circumstances, any further documents in addition to those identified in this article, may be required to be filed at Court.

You can make a sole Application or a joint Application which your former partner and you will both sign. If you make a sole Application, you must then arrange for the Application to be served on your former partner. There are specific requirements for service.

You will need to show in the Application that appropriate arrangements have been made for the welfare of dependent children but the granting of a divorce does not decide issues about arrangements for your children, property or maintenance.

If you have separated from your former partner, you will also need to make a property settlement which needs to be confirmed by a final and binding agreement. This can be done by obtaining Consent Orders which are issued by the Court but you do not need to go to Court to obtain them. You may also wish to have Consent Orders for arrangements for your children or a parenting plan That plan is not a legally enforceable document but can help with help with confirming arrangements for children that you and your former partner have agreed in principle.

For more information on getting a divorce in Qld or Australia, click here. Or contact our family lawyers today for a free 15 minute consultation.