QUESTION: Which Australian State or Territory has the highest number percentage of recorded divorce rates against marriages?
ANSWER: Queensland had the highest crude divorce rate of 2.5 divorces per 1,000 estimated resident population, while the Northern Territory had the lowest of divorce rates in Australia at 1.7 per 1,000 estimated resident population.
Tasmania, ACT, and Queensland reported the highest proportion of all divorces involving children, at 53.7%, 51.6%, and 51.3% respectively. New South Wales and Northern Territory (46.3%) reported the lowest proportion of divorces involving children.
Northern Territory had the highest median age at divorce rates for males at 45.7 years, followed by Western Australia and Tasmania (45.4 years), while New South Wales had the lowest median age at divorce for males at 44.2 years of age.
Tasmania had the highest median age at divorce for females at 42.8 years, followed by Western Australia and South Australia (42.6 years), while New South Wales had the lowest median age at divorce for females at 41.1 years of age.
The median length of marriage prior to divorce was highest in Tasmania (13.1 years), while New South Wales (11.2 years) had the shortest median length of marriage to divorce.
In 2012, New South Wales, Queensland, Western Australia, the Northern Territory, and the Australian Capital Territory all recorded more joint applications for divorce than male or female-only applications. This did not change from 2011.
The recent amendments to the Commonwealth Fair Work Act which are intended to address the issue of Workplace bullying have been passed and have been given a date to commence of the 1 January 2014, rather than the 1 July 2013 as had been originally intended.
The new provisions in the Fair WorkAct enable employees who allege that they have been the subject of bullying in the workplace to make an application to the Fair Work Commission. The Fair Work Commission is then obliged to commence the process of addressing the allegation within 14 days, although exactly how the Fair Work Commission will do that has yet to be confirmed.
If the allegation of bullying behaviour in the Workplace is accepted by the Fair Work Commission it can make any orders that the Fair Work Commission believes are appropriate, but it is not authorised at that point to impose a financial penalty. However, any subsequent breach of any orders made by the Fair Work Commission can lead to significant financial penalties for both employers and individuals. This reinforces the need for employers to ensure that they have adequate policies and procedures in place, which are adhered to and implemented, to ensure that they do not fall foul of these new provisions.
The word surrogate means a person trying to achieve output for another person. This person is simply a replacement. So in surrogate parenting, a married couple finds a substitute person to carry their child. Usually, these are parents who are not wanting to bear the child themselves. They can be physically unfit or they might have some medical illness that can be transferred to their child.
For this purpose, a healthy surrogate mother is found. Thanks to advancements in medical technology, there is no need for physical contact between the male parent and the surrogate mother. Sometimes both the egg and the sperm are from the couple and the third person just carries their child. But commonly the egg is from the third person.
The surrogacy law in Australia is complicated. This process can be personal contractual between parents and the surrogate where payment is not involved. Or it is a commercial agreement. The agreements of commercial surrogacy in Australia have some pre-conditions, the conditions are
The surrogate volunteer should be at least 25 years of age and less than 38 years. And she should have given birth to at least one child.
There should be a written agreement signed by all parties involved.
The parties must have spoken to a counselor. They also have to take legal advice from a solicitor at least 3 months before signing the agreement.
You will have to obtain advice from a solicitor before surrogacy and before applying for parenting orders.
You must be medically assessed to be parents to the child born to a surrogate.
The Reproductive Technology Council must approve the agreement of surrogacy.
This agreement must be signed before the surrogate becomes pregnant. There can be other conditions if a fertility clinic is involved.
What is surrogacy?
The introduction of your youngster is inevitable – and you are not pregnant by any means. Eager dads know this, yet it is uncommon for moms. If another lady conveys your child, one talks about surrogacy. For example, in individual nations, Australia, Ukraine, India, or some US states, surrogacy is permitted. Hormonal issues, natural breakdowns, scarred fallopian tubes, a missing uterus, illnesses, for example, endometriosis, or being too old can be the reasons why couples pick surrogacy. Surrogacy can likewise be an issue for gay men hoping to have a youngster.
The parenting order:
Surrogacy in Australia has different rules. The parents arrange for a surrogate to give birth to their child. They will have to apply for a parenting order from the court. The time of this application is different in different states. For instance, in the Family Court of Western Australia, this application is submitted after 28 days of the birth of the child, and it should be before 6 months after the birth.
In this order, the court looks for the best interest of the child. In many cases, the arranged parents are made the official parents of the child. The result of this parenting order is that the arranged parents will be treated as the original parents of the child.
Is surrogacy legal in Australia?
The surrogacy law in Australia is a bit complex. They might vary from state to state. We have tried to explain the basic implementation of surrogacy law in Australia.
There are two types of surrogacy Altruistic surrogacy and commercial surrogacy.
In Altruistic surrogacy, a woman carries the child of married couples as a volunteer she does not makes any profit out of it. This type of surrogacy is not illegal in Australia. However, it is not legal for singles or gay couples.
Commercial surrogacy is illegal in all parts of Australia, it is legal in only Northern territories as there is no legislation. You cannot make a profit through surrogacy.
You can do commercial surrogacy at the international level where a professional surrogacy agency is involved. In Queensland, New south wales, and the ACT international commercial surrogacy is also illegal. In 2014 a handicapped child was born to a gestational carrier, after this event surrogacy was banned in Thailand. It was a good source of surrogate mothers for Australian couples. Still, it is thriving in most jurisdictions.
Commercial surrogacy must be international or transnational. Which can be a problem for many Australian families. The Australian Department of Home Affairs has the responsibility to look after surrogacy in Australia. But the Australian government has given some support by reducing travel and medical expenses.
In Australian surrogacy law, for instance, individuals who wish to go into an intentional surrogacy game plan with a gestational transporter should go into a legitimate ‘Surrogacy Arrangement Agreement.’ Certain pre-conditions apply to these arrangements:
Surrogacy cause the mother should be in any event 25 years old and have recently offered work to a kid;
The understanding should be recorded as a hard copy and affirmed by totally related gatherings;
The gatherings need to show that they have addressed an advocate and gotten legitimate counsel from a specialist in any event three months before consenting to the arrangement.
The gatherings should get counsel from a legal advisor before going into a surrogacy course of action and on for a Parentage Order.
An attorney should not guide both the birth mother and the couple looking for surrogacy plans as this adds up to a conflict of interest;
The gatherings should be medicinally confirmed to establish that they can be guardians to a kid destined for surrogacy. It should be commented that Australia explicitly bars age as a substantial motivation to preclude an individual from endeavoring the consideration of a surrogacy youngster.
The Reproductive Technology Council should affirm the understanding between the gatherings.
This approval should be set up before the birth mother gets pregnant, or the agreement will be invalid. There might be additional rules expected by the gatherings if a ripeness center is included.
How much does surrogacy cost in Australia?
The cost of this process varies from state to state. When a woman is ready to help you in giving birth to your child, you will have to take care of all of her needs. You must bear the cost of her medical expenses and some other basic needs that a pregnant woman needs. Also, you will be responsible for her delivery charges. This cost can be anywhere between 15,000 dollars and 120,000 dollars. This is the surrogacy law in Australia cost.
Also, if it is a commercial surrogate in Australia the price starts at least 70,000 dollars.
Advantages and Disadvantages of Surrogacy Law in Australia
Advantages of Surrogacy
It will fabricate your family.
This isn’t only a master, but the purpose behind surrogacy in any case! Not all guardians can hold an infant all alone. Notwithstanding, with ripeness techniques and strategies like surrogacy, it is conceivable to carry new life to your family.
Surrogacy permits a hereditary connection.
Numerous guardians are attracted to the replacement alternative because of one primary consideration: it permits their kid to be a hereditary parent. While this isn’t generally a choice – a few guardians likewise use sperm and egg benefactors – it’s a draw for some.
You are associated with consistently.
With surrogacy, future guardians can speak with their substitute mother, go to physical checkups and be available for the birth. It’s a consoling and energizing approach to remain included and makes the change for the child simpler.
The cycle is straightforward.
Now, surrogacy is a notable and considered family assembling choice that the aces have at a science. There will be agreements to sign and legal advisors to work with, to secure both your family and your surrogacy. It’s a smoothed-out technique, and your office will be there to assist you with exploring it.
It works!
The way toward choosing a substitute is broad. The one you pick will be sound and has brought forth youngsters previously. This takes into account a smoother experience with a lot higher achievement rates!
Disadvantage of surrogacy
It very well may be costly
Surrogacy isn’t free. There are numerous costs to remember while leaving on this excursion, from lawful expenses to the expense of the simple IVF system and everything in the middle. Nonetheless, organizations like Extraordinary Conceptions work with Intended Parents.
Coordinations can be overpowering.
Although the surrogacy cycle is efficient, it tends to be overpowering for a few. Working with attorneys, medical care experts, and a surrogacy mother herself can be extremely hard for a few. That is the reason organizations like Extraordinary Conceptions make sure to give assets to hopeful guardians. We are in your corner!
There are enthusiastic complexities.
Richness and family arranging is a passionate themes and can carry a wide range of emotions to the front. During your surrogacy venture, there might be some genuinely testing times, discussions, and choices to be made.
What is the profile of those who attend surrogacy?
Between 70 and 80% of the people who use this technique are heterosexual couples who cannot carry a child naturally due to physical or health problems: the woman may not have a uterus or have some difficulty in the same as injuries or malformations that prevents pregnancy. The rest are couples of gay men or single men, and to a lesser extent, single women.
How can Aylward Game Solicitors help?
In surrogacy, there is a need for a proper legal agreement. We will create an authentic agreement for you. After the birth of the child, you will have to apply for a parenting order to become the official parents of the child. It is easy to get this order but sometimes it can get complex. We can help you to get out of this problem.
A problem of discharge order can also arise. In this order, an interested person will apply for a discharge order. In this order he may claim that surrogacy was done to gain profit If it is granted then you will no longer be parents to the child. It is not good to take away the child from his parents, If you work with us you will not have to worry about this issue.
We deliver to you the Top 10 Family Law Questions asked to us by our clients in Brisbane.
1. What is a Legal Separation and Divorce?
A Legal Separation or Divorce is legal recognition of the conclusion of your marriage.
You gain a Divorce if your marriage has broken down irretrievably and you’ve been officially separated for a minimum of 12 months.
Importantly, you don’t have to prove who was “at fault” and you don’t have to wait for the full 12 months after separation to conclude a property settlement.
2. What is the definition of a de facto relationship?
Contrary to public belief, there is no single “legal definition” of a de facto relationship because there are different requirements for various legal purposes.
Generally speaking though, a de facto relationship exists between 2 persons (who aren’t legally married) of the same or opposite sex (who aren’t related by family) and, to all intents and purposes of the partnership, have a relationship with the same as that of an officially married couple living together on a genuine domestic basis.
3. What is child support or child maintenance?
As soon as you are separated, you can lodge an Application with the Department of Human Services (Child Support) to have child maintenance or child support assessed for your child in the event you are unable to come to an agreement with the child’s other parent.
4. What is a Parenting Order and is it important?
A Parenting Order made by the Court will often deal with the following issues:
Determination of parental responsibility (i.e. who will carry the duties, powers, and authority, which by law parents have) regarding the children (whether solely or jointly cared for);
Who the children are to reside with; and further
How the children are to spend time with each parent;
All other aspects of the care, welfare, and development of the children, as well as any other aspect of parental care for the children.
When a Parenting Order is made by a Judge, it is a legal requirement that all parties follow the Order specifications.
If a parent refuses to follow a Parenting Order (and is unable to show a reasonable excuse), it is called “contravening a Parenting Order”.
There are serious ramifications that flow from a contravention of a Parenting Order such that it is possible for the Court to order parents to attend programs, facilitate “makeup” time, enter a bond, pay a fine, or even 12 months imprisonment.
It is therefore important that you read and understand the terms of a Parenting Order made by a Court.
5. How does a Court determine who the child will live with and spend time with?
Contrary to popular perception, there is no “fixed rule” about whom a child shall stay with (previously referred to as “child custody”) and whom a child shall spend time with (previously referred to as “child access”).
The Court’s top priority in determining which parent the child shall live with and how much time the child will spend with the other parent is what is in the “best interests of the child.”
The Family Law Act 1975 sets out the main factors that are to be taken into account in determining the best interests of the child or children.
6. How does a Judge determine a property settlement amount?
Contrary to belief, the process that the QLD Courts use to calculate a family law property settlement, is not a “mathematical” one.
Unlike in other countries and regions, there is no “starting rebuttable presumption” that the parties’ net property pool is equally divided “50/50.”
Each relationship is considered unique and is determined based on a number of discretionary factors.
The Court has a wide scope to consider in making the property settlement orders and as a result, the outcome can vary significantly.
For example, you could potentially get 10 unique outcomes before 10 unique Judges on any given day at Trial and each outcome would be legal and acceptable, as long as it falls within a range of plausible outcomes.
In general practice, the Judge generally adheres to a well-established process that involves a number of steps to determine the entitlement of each party in the relationship.
These steps are as follows:
The Court must decide if it would be just and equitable to adjust or change the parties’ current legal ownership of assets.
To list all of the current assets, liabilities, and superannuation of each of the parties and arrive at a net figure, or what becomes known as the “total net property pool”.
To ascertain the contributions of each of the parties throughout the relationship, to the net property pool, and to the welfare of the family. Contributions can be direct (eg. made by one of the parties to the relationship) or indirect (eg. one of the parties’ family members’ contributions), financial (eg. earning money), or non-financial (eg. improvements to a property performed by one party) or made as a homemaker or stay at home parent. Each of these contributions is determined as a single percentage or a range of percentages.
To assess the current and future circumstances of each of the parties and make adjustments to the percentage arrived at in step 3 above. The list of factors can be found in Section 75(2) of the Family Law Act 1975 including:The age and state of health of both of the parties;The income-earning capacity or a financial discrepancy between both of the parties;The total length of the relationship and its overall effect on both of the parties earning capacities; andWho has primary care of the children into the future
For the Court to “step back” and assess whether the percentage or division achieved by the application of the above 4 steps is suitable or “just and equitable” in the overall sense.
7. What is a spousal maintenance payment?
Spousal maintenance is sums of money paid from one spouse (i.e. the paying party) to the other (i.e. the receiving party) in situations where the receiving spouse is unable to support themselves “appropriately”, after separation.
When determining if spousal maintenance is suitable, the Judge will consider:
Whether a “threshold” is met (i.e. if there is a “requirement” for one of the parties to be financially supported by the other);
The capacity of the paying party to support the receiving party for a period of time; and
The overall extent of financial support needed (i.e. what is ‘suitable’ under the circumstances) and the amount of time support is needed to be paid for.
Most importantly the Court is not required to ensure that either party has the “same standard of living” that they had during the relationship.
It only has to be reasonable under all the circumstances.
8. Must I formalise my property settlement in Court?
After separation, it is critical to formally resolve the issue of a property settlement and have any agreement formally recorded in “Consent Orders” (which are lodged at and approved by a Judge at the Family Law Courts) or enter into a Binding Financial Agreement as per the Family Law Act 1975 (known as a “BFA”).
Unless a property settlement is ruled on by a Court Order or is properly recorded in a Consent Order or BFA, the issue of property settlement is always potentially “alive” (albeit subject to time constraints) and either one of the parties can commence proceedings in the future to make a claim against the other party.
Cost savings and tax advantages in transferring property and signing documents pursuant to a Consent Order or a BFA may also be possible. This will include implications such as capital gains tax and stamp duty exemptions.
9. Are there any relevant time limits to be aware of in Family Law property settlements?
Be aware that parties must resolve or commence proceedings for a property settlement and/or spousal maintenance within 12 months after you have obtained your Divorce officially.
Alternatively, you must seek leave of the Court to do so (which is generally only allowed under exceptional circumstances). This is normally a difficult, costly and lengthy process.
Note that a financial claim at the end of a de facto relationship must be filed within 2 years after the date that the de facto relationship ended.
Parties can (and should) commence negotiations or file an Initiating Application for property settlement and/or spousal maintenance immediately upon formally separating from their spouse based on the irretrievable and permanent breakdown of the relationship.
10. Do I need to update my Will, Superannuation, and Powers of Attorney or Enduring Powers of Attorney upon separation?
After formal separation, it is critical to examine the terms of your Will (if you have one) or create a new Will to properly reflect the change in your circumstances.
It is also very important to consider who is named as a beneficiary in your Superannuation policy and if you wish to change the beneficiary (as in most cases, this will be your spouse).
Also, examine any Powers of Attorney and/or Enduring Powers of Attorney you put in place during your relationship. In most situations, it may be advisable to revoke those Powers of Attorney as soon as possible after formal separation.
If you have a different question regarding Family Law, we’d love to hear from you.
If you wish to know more, please contact one of our experienced Brisbane Family Lawyers at 1800 217 217 to arrange your free 20-minute initial appointment today.
