What are Muslim women’s options in religious divorce?

Muslim women value their membership within their religious community; making them aware of the various options they can access to gain a religious divorce is an important way they can claim their religious rights and freedom.

Muslim women value their membership within their religious community; making them aware of the various options they can access to gain a religious divorce is an important way they can claim their religious rights and freedom. (Samere Fahim Photography / Getty Images)

Both Muslim men and women are allowed to divorce in the Islamic tradition. But community interpretations of Islamic laws mean that men are able to divorce their wives unilaterally, while women must secure their husband’s consent.

In Australia, there are instances where couples divorce under the civil process but the husband refuses to grant his wife access to a religious divorce by withholding his consent, effectively trapping her in a “limping” marriage situation. This means she is divorced under civil laws but still considered by her husband and community to be religiously married and unable to enter a new relationship.

Like other faith communities in Australia, Muslims are able to have a combined religious and civil marriage through a religious leader if they are also an authorised celebrant. When it comes to divorce, however, the civil and religious proceedings must be done separately — civil divorce through the Family Court, and religious divorce through community processes. Although the civil divorce is acknowledged by Muslims as the only legally recognised form of divorce in Australia, the religious divorce is important for its communal and symbolic significance, to ensure that the relationship entered into “in the eyes of God” is now dissolved according to Islamic laws.

It’s not just Muslim women who face difficulties in gaining a religious divorce alongside a civil divorce. Since 1992, there have been numerous submissions and recommendations from both Muslim and Jewish communities seeking solutions for women in “limping” marriages. The Australian Law Reform Commission produced a report regarding this predicament in 1992, followed by Family Law Council reports in 1998 and again in 2001. The main recommendation involved minor legislative changes to remove the barrier to remarriage faced by these women — essentially involving the withholding of a decree absolute until the religious divorce was effected. But the Attorney-General’s office was not convinced that the proposed legislative changes would provide the best solution.

Muslim and Jewish women’s advocacy groups also expressed concerns that such proposals would mean recalcitrant husbands who are not interested in a civil divorce could prevent their wives from receiving either a religious or a civil divorce. Another concern is that husbands will seek to delay or prevent their wives from accessing a civil divorce by insisting that they go through a community process first.

Many of the submissions regarding Islamic divorce stated that women in “limping” marriages are not completely divorced until they gain a religious divorce through community processes, even when they have undergone a civil divorce. My research on Muslim women’s experiences of religious divorce found this approach restricts the avenues by which Muslim women can secure a religious divorce, and doesn’t consider other options available under Islamic laws that a woman can be free of an unwanted marriage.

What I found troubling about this approach was that all Muslim women were positioned as passive subjects that needed to be saved from their “limping” marriage situation rather than as active instigators seeking justice for themselves. In my own family and among many of my friends, I have witnessed numerous instances of Muslim women who married and divorced, in some cases multiple times.

The phrase “not ‘completely’ divorced” in the title of my book does not imply my agreement that all Muslim women are trapped in “limping” marriages — rather, it serves to highlight the dilemma in which Muslim women find themselves. At many levels, from families to friends to community groups to religious authorities, women are told that they are not “completely” divorced unless they have a definitive religious divorce. But how do they decide what is definitive to them?

The purpose of my research, therefore, was to explore and understand how Muslim women in Australia go about determining for themselves what constitutes a “complete” divorce, and how they navigated the challenges faced along the way.

Multiple options for women to divorce

Despite Muslim community perceptions that under Islamic laws women can only divorce with their husband’s consent or by means of community processes, there are in fact multiple options available by which Muslim women in Australia can secure a religious divorce. Derived from the primary religious texts of the Qur’an and Sunnah (sayings and teachings of Prophet Muhammad) and formulated by Muslim male jurists into religious rulings by the twelfth century (six centuries after the introduction of Islam), they have become codified in many contemporary Muslim countries through case law or legislation.

Men can initiate divorce through talaq — which is no-fault — and they do not need the wife’s consent. According to Muslim jurists, this form of divorce is extra-judicial, in that they do not need to declare it before a religious authority. In order to manage registration of marriages and divorces, however, most Muslim countries now require men divorcing through talaq to notify the court.

Is the husband’s consent necessary?

Women are able to initiate divorce through the process of khul‘. This is a form of no-fault divorce referred to in the Qur’an and Sunnah where the husband’s consent was not stated to be required. In these primary texts, the wife is granted the ability to divorce her husband for the simple reason of incompatibility, and there are records of women at the time of the Prophet who married and divorced numerous times. There are also reports of women who married the Prophet but then changed their mind on the wedding night and he granted them divorce without seeking cause.

Over time, however, the majority of Muslim male jurists determined that the husband’s consent was necessary, and most Muslim countries today still adopt these twelfth-century rulings. Interestingly, case law in Pakistan (1967) and legislation in Egypt (2000) returned to the Prophetic practice whereby the husband’s consent was not needed.

If the husband is at fault, women can also initiate a judicial divorce through faskhtafriq or ta‘liq — whereby in Muslim countries they present their case and prove certain grounds before a court judge. Because this form of divorce does not require the husband’s consent, this is usually the main option women take when they are not successful with khul‘. Given there are no such courts in Australia, Muslim women seek out divorce through community processes involving imams.

Many imams or religious leaders in Australia prefer the husband to pronounce talaq or give their consent to a khul‘, so that they are not responsible for ending the marriage, but in extreme cases of domestic violence they will award women this form of divorce. However, as reported by the ABC in a series of investigations across various religious communities in 2018, a number of Muslim women experiencing domestic violence faced numerous challenges seeking religious divorce from imams. This was in part due to imams having narrow interpretations as to what constituted “domestic violence” and requiring meetings with both the husband and wife present in the same place.

In my research, as well as that of others, imams and community leaders are becoming aware of the dangers presented to women experiencing domestic violence and are working with specialist services to make the religious divorce a safer process for women.

Another option for divorce is that women can specify in their marriage contract her right to divorce through talaq at-tafwid, whereby the husband grants his right of talaq to his wife through delegation so that she can initiate divorce without needing his consent. Contrary to common belief among many Muslims, he still maintains his right of talaq. Given the sensitive nature of mentioning divorce at the time of marriage, many Muslim women are discouraged by their families from including it in their contract for fear that they are seen as not committing to the marriage long-term. There is a long tradition of talaq at-tafwid in countries such as Bangladesh, India and Pakistan, but it is largely unknown and not commonly practised in many other Muslim countries and communities, including in Australia.

What options do Muslim women in Australia have?

The women I interviewed for my research were aware of their rights to khul‘ and divorce through imams, but not many had heard of talaq at-tafwid. However, it didn’t prevent them seeking out other ways in which they could be “completely” divorced by using their civil divorce decree.

Some women who were married overseas started proceedings in religious courts and were able to get a divorce through the system overseas with the help of family members.

“Iman” (all women’s names have been changed here to protect their identity) applied for and received a civil divorce and sent it to her home country of Algeria, because it was accepted as legitimate. She considered their recognition of the Australian civil divorce and subsequent registration as divorced under Algerian laws as a “complete” divorce without needing to engage Muslim community processes for a religious divorce.

Other women who had sought religious divorce through community processes and had been unsuccessful decided that their civil divorce sufficed as a “complete” divorce. “Aisha” felt that the imams were not completely aware of her situation when they refused to grant her a divorce without her husband’s consent, and that she was entitled to one — so once she had gained her civil divorce she felt certain that it was sufficient “in the eyes of God” because her marriage was effectively over and she was legally divorced.

This reflects a ruling issued in 2002 by the European Council for Fatwa and Research (ECFR), a body of contemporary Muslim jurists who offer new interpretations of Islamic laws specifically for Muslims living as minorities in non-Muslim countries. This ruling or fatwa declared that Muslims who conduct their marriage according to a country’s laws should also comply with the rulings of a non-Muslim judge in the event of divorce. According to the ECFR, a civil divorce can and should be considered as sufficient for a Muslim to have a “complete” divorce. Indeed, in Britain some community processes such as the Fiqh Council of Birmingham have adopted this approach to streamline the many religious divorce requests from women.

My research illustrates that improving Muslim women’s access to religious divorce in Australia requires addressing particular social norms and interpretations of juristic rulings that exist among many Muslim communities in Australia, to ensure that just and equitable outcomes are achieved. The Muslim women I interviewed were able to define their own parameters of a “complete” divorce due to their own determination and resilience, and awareness of how civil divorce can be used to gain religious divorce.

While current Muslim community processes are not always easy to navigate, the research shows that Muslim women value their membership within their religious community. Making women aware of the various options they can access to gain a religious divorce is thus an important way they can claim their religious rights and freedom.

Dr Anisa Buckley is a Research Fellow at the University of Melbourne and the University of Sydney. She is the author of Not ‘Completely’ Divorced: Muslim Women in Australia Navigating Muslim Family Laws.

My divorce came OUT OF THE BLUE!

Screaming-woman“I’d be lying if I said I saw it coming,” says Emma*. “We were busy parents and professionals. We didn’t really argue. There were ups and downs, but nothing that said ‘unhappy’.”

It was Boxing Day, after what Emma thought had been the perfect Christmas, when her husband turned to her and announced he was leaving. She was 39, they’d been together since they were teenagers and they had a nine-year-old son. He told her, “I can’t do this any more,” and admitted that there was someone else.

It was the first time Emma’s husband had ever said anything like that. She thought it was a “blip”, that he was having some sort of “mad moment”, so for a few days she kept quiet thinking they’d work it out. But by New Year’s Day, he had gone.

The aftermath, says Emma, was brutal. Her husband barely talked to her. “I felt as if the person I knew had died. And the person I subsequently dealt with was someone else.”

Telling her son and seeing him run out of the room sobbing was, she says, the worst moment of her life. “Like me, he had absolutely no idea this was coming. And why should he?”

Emma took many years to get over her husband’s sudden exit. She went from having a packed family life to spending every other weekend on her own while her son stayed with his father and his new girlfriend. She wondered who she had been married to, how she could not have known, if there had been any signs.

Looking back, she believes she did see a change in her husband. He had seemed “distracted and worried” and she noticed “odd behaviours”, like the time she rang him at work to be told he’d gone home not feeling well. “I thought, ‘That’s weird. I’m at home.’ ”

When Emma’s husband eventually came home that evening he said he’d gone to the cinema because he was fed up at work. But at the time she didn’t suspect him of having an affair, or ever think that he was about to walk out on her with no warning.

According to Lyn Ayrton, managing partner of a UK firm of family-law experts, “Meeting someone new and starting an affair is often a catalyst for walking out on a long-term partner. And with access to social media, having an affair has never been easier.”

She has noticed a pattern in the way men and women walk out of long-term relationships: typically men say nothing until the last minute, while women claim they’ve said it all but have never been listened to.

Usually, when a marriage fails, both partners can see the end coming, because it follows a fair bit of talking, fighting and arguing. They are braced for separation, even if it’s not what they want. But a decision by one person out of the blue is harder.

“Our brains don’t process sudden traumatic events in the same way they cope with more natural ones, making it more difficult to adjust to the new situation,” says clinical psychologist Dr Angharad Rudkin. “There’s no opportunity to make things better, so an individual is left powerless and helpless, which is likely to lead to feelings of depression and anxiety.”

And because of our increasingly busy lives and reliance on digital communicating rather than in person, it’s never been easier to exit a relationship in this way, she adds.

“Much as the trend of ‘ghosting’ [when one person simply disappears from the relationship, rather than officially breaking up] is rapidly on the rise among younger people, so is the equivalent in older couples,” says Dr Angharad Rudkin. “Just walking away is simpler than facing the music, taking responsibility and finding words for difficult feelings.”

A gender-based difference with no-warning divorces is common, according to Ammanda Major, head of clinical practice at UK relationship counselling service Relate. She says men sometimes leave having never shared their thoughts with their partner for fear of the emotional upset it will cause. They will have the conversation with themselves until they reach breaking point.

“The abandoned partner may well say they never knew. But in some cases there was nothing to know because nothing was said, the rituals of family life were adhered to and the physical side of their relationship didn’t change.”

Tom* had been with his wife Nicky* for 10 years and married for 18 months when he walked out on her and her 16-year-old daughter. One night, Tom went to a friend’s house after work and phoned Nicky to say, “When you get home I won’t be there and I’m really sorry, but I just can’t do this any more. I’ve moved out.”

Nicky had no idea this was coming. The marriage had been Tom’s idea. He admits that there were always issues – “the missing part of the jigsaw” – that he thought marriage would sort. Instead, it only exacerbated their differences and he became increasingly afraid of his wife’s angry outbursts.

“We often argued, but with a busy life you skirt around the key issues; the most important things are ignored.” He describes their marriage as “hollow”, lacking any intimacy.

“At the time I had this complete sense of dread and helplessness, of powerlessness, that there was nothing to live for,” he says. “I felt I was suffocating and I kept thinking, ‘How did I get myself into this situation? It’s impossible to get out of.’ “

Tom never mentioned his unhappiness to his wife. He felt he could deal with it – until it became too much and he saw leaving as the only solution. He didn’t discuss the decision with Nicky: “Women can talk you around. In a weaker moment, I would have been shoehorned back in.”

Ammanda Major points out that when it’s the woman who’s unhappy, she usually says that she has attempted to talk to her partner about the relationship, but none of it hits home. “Then the crunch time comes, when she says she’s been telling him for years and he replies, ‘I didn’t think you meant it.’ ”

What Sarah* remembers most about walking out of her family home was how calm she felt seeing her husband Ian* curled up on the floor crying. “I had a remarkable lack of pity for him. I thought, ‘I should feel really sorry for this man, he’s so broken.’ But I didn’t.”

And it was Sarah, not Ian, who had been unfaithful. He was, she admits, a caring, attentive father whose successful law practice allowed her to work part-time after their children were born. Weekends were packed with ferrying two young daughters between music and ballet lessons and raucous dinner parties with friends.

Yet “crazy joy” is what Sarah felt on leaving her husband and their seemingly perfect married life. She uses strong words – relief, freedom, euphoria – and says it’s the best decision she has ever made.

For Ian, it came out of the blue – and hit hard. He couldn’t sleep or eat, it affected his work, and he only managed to function again with the help of counselling and friends. What is especially confusing is that both he and his former wife are articulate and people-oriented; popular at work and the school gate; described as warm and understanding by their friends.

Sarah points to the equilibrium of their relationship changing after their daughters were born, and feeling marginalised by Ian putting them first. She says he became very controlling and she grew increasingly frightened of him. They started avoiding each other, and surrounding themselves with friends and family at weekends.

“In retrospect I didn’t say as much to Ian about being unhappy as I should have,” says Sarah. “I had tried, but he was very difficult to talk to and very confident in his own views, and I wasn’t. He knew I was going to marriage-guidance counselling but it was as if I was talking rubbish.

“He believed we were married for ever. He didn’t believe me until I literally said, ‘I’m going.'”

Of course, many of these sudden “heart attack” endings that seemingly come out of nowhere are actually years in the making.

Relationship therapists point out that we are all effective at blocking what we don’t want to hear. A husband may try to talk to his wife about his unhappiness, but if she doesn’t want to listen she may divert the conversation. If a man doesn’t want to hear issues about his relationship he may close down the conversation by becoming angry and aggressive. And then it all blows up.

Research shows that successful relationships are not based on how few arguments you engage in but the number of positive interactions you have with your partner each day. Boosting intimacy is more important for relationship satisfaction than avoiding conflict.

For Emma and her husband, avoiding disagreements may have stopped them arguing in front of their family on Christmas Day, but it didn’t make their marriage last. Emma can now see just how much effort she and her ex-husband put into dodging the lie they were living: hiding behind their laptops in different rooms at home; organising their work around childcare and not around being together; socialising in a group, never as a couple.

“He said to me, ‘You’ll be relieved that I’ve done this,’ and 15 years on, I am. If he was unhappy and I couldn’t see it, we’d still be together and feeling like that. I much prefer my life now.”

 * Names have been changed.

THREE polyamorous divorcees fight over same luxury home

polyamorous-property-dispute-nzThree people from a polyamorous relationship are in a batle over how to split a valuable Auckland property after they broke up.

The New Zealand High Court ruled that the country’s Property Relationships Act (PRA) could not be applied to people in a multi-partner relationship.

The judge in the case, Justice Anne Hinton, also said the New Zealand Family Court could not “stretch” the law to accommodate a three-way relationship, the New Zealand Herald reported.

The case relates to a couple, Lilach and Brett Paul, who married in 1993.

In 1999, Lilach met Fiona Mead and in 2002 the three of them formed a polyamorous relationship.

They moved into a four-hectare property in affluent Kumeu, northwest of Auckland, which had just been purchased in Ms Mead’s name for $NZ533,000 ($497,000). She paid the deposit of $NZ40,000 ($37,000).

They lived together at the property for 15 years, and mostly shared the same room and bed, the court ruling said.

Ms Mead worked as a vet, Brett set up a paintball business on the property, Lilach worked as an artist, and Lilach and Brett had a lawn-mowing business. They all contributed to the household, though they dispute how much each contributed.

In 2017, Lilach separated from Mead and Brett. Brett and Mead then broke up in early 2018. Mead kept living at the Kumeu property, which was now worth $NZ2.1 million ($1.96 million).

Lilach applied to the New Zealand Family Court last year to determine each parties’ shares in the property, and said she was seeking a third of the home. The New Zealand Family Court referred the case to the New Zealand High Court.

In a ruling published on Friday, the High Court said a polyamorous relationship could not be recognised under the law because all of the relationships covered by the PRA – marriage, civil union, de facto – were defined as being between two people.

The court also considered whether the relationship could be divided into three separate de facto relationships for the purposes of the law.

But because Ms Mead was a member of both relationships this would mean she was entitled to 50 per cent of the property while Lilach and Brett would get 25 per cent each. That was inconsistent with the law’s principles of equal sharing after a break-up, the court said.

“For all of the above reasons, not only does the Act on its face not apply to a polyamorous relationship such as the parties’, but it would be unworkable to stretch the legislation to ‘fit’ this case,” Justice Anne Hinton concluded.

She said reform of the kind required by the Paul-Mead case could only be done by parliament.

The court ruling noted that polyamorous couples had asked the Law Commission of New Zealand to recognise their relationships when it recently reviewed the law. Some submitters felt it could give them some legitimacy which they did not yet have in society.

The Law Commission said at the time that excluding multi-partner relationships – which were “functionally similar” to marriages, civil unions or de facto relationships – could be difficult to justify.

Polyamorous relationships could share many of the hallmarks of the more traditional couplings, including house-sharing, raising children together, financial dependence, and mutual commitment to a shared life, the commission said.

But it eventually recommended to Government that the PRA should continue to cover only intimate relationships between two people.

“Extending the regime to multi-partner relationships would be a fundamental shift in policy and should be considered within a broader context involving more extensive consultation about how family law should recognise and provide for adult relationships that do not fit the mould of an intimate relationship between two people.”

Property relationship lawyer Jeremy Sutton said the PRA had been updated in 2002 to include non-married couples, but had not yet adjusted to more modern relationships.

“A polyamorous relationship doesn’t fit within the definition of a marriage, civil union or de facto relationship,” he said.

“It’s a challenge in that respect because if more than two people could be in a de facto relationship it could be three or four or five.

“The law is trying to cater with two people who in a relationship – it just wasn’t a fit within the Act.”

Family Court issues warning to parents planning on exploiting COVID-19 situation

family-court-of-australia-coat-of-armsThe Chief Justice of the Family Court has a warning for any parent planning on abusing their custody situation during the COVID-19 pandemic.

“There will be ramifications for people who don’t act reasonably, and don’t act in the spirit of orders,” Mr Will Alstergren QC told Tom Elliott.

“If they unreasonably withhold children, or they want to stop somebody from doing something they think will be unsafe for the child, they can file applications now electronically and they can have hearings electronically, with the court, we are open.”

He pleaded with parents to act “reasonably and sensibly” with their children during this trying period.

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COVID-19: Judge Denies Mother’s Motion to Suspend Father’s Access because of Coronavirus

coronavirus and child access

 
 
A couple of days ago, I wrote an article about parenting through coronavirus. I highlighted the need, now more than ever, for parents to work together. Court is not the place to find solutions for your family, especially during a crisis. Now, a Superior Court Judge has shared a similar sentiment, directly to the mother who was seeking to suspend the father’s access because of COVID-19.

Justice A. Pazaratz (Ontario Superior Court of Justice) is well-known for his strongly worded decisions and instructive lessons for parents experiencing divorce or separation. This recent decision, Ribeiro v Wright, is no different.

The Issue

On March 22nd, 2020, the mother brought an urgent motion to suspend all in-person access for the father because of concerns over COVID-19.

These parents had been following a parenting plan since 2012, with joint custody and primary residence with the mother. The father’s parenting time with his son has been every other weekend.

In her court materials, the mother claimed that she and her family are practicing strict social isolation, and expressed concerns that the father would not maintain social distancing during his parenting time. Therefore, she did not want their son to leave her residence, including to see his father.

The Decision

Upon review of the mother’s motion, Justice A. Pazaratz did not feel that suspending the father’s access was warranted. The child’s relationship with both parents is vitally important. COVID-19 does not mean that the child cannot leave the residence to spend time with the other parent.

The Reasons and the Lessons

In his endorsement, Justice A. Pazaratz, stated:

“7. …There is a presumption that all orders should be respected and complied with. More to the point, there is a presumption that the existing order reflects a determination that meaningful personal contact with both parents is in the best interests of the child.

8. On the other hand, the well-publicized directives from government and public health officials make it clear that we are in extraordinary times; and that our daily routines and activities will for the most part have to be suspended, in favour of a strict policy of social distancing and limiting community interactions as much as possible.

9. Parents are understandably confused and worried about what to do.  Similarly, this is uncharted territory for our court system.  We all have to work together to show flexibility, creativity and common sense – to promote both the physical and emotional well-being of children. (emphasis mine)

10. None of us know how long this crisis is going to last.  In many respects we are going to have to put our lives “on hold” until COVID-19 is resolved.  But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. A blanket policy that children should never leave their primary residence – even to visit their other parent – is inconsistent with a comprehensive analysis of the best interests of the child. (emphasis mine) In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.

12. In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).

13. In some cases, a parent’s personal risk factors (through employment or associations, for example) may require controls with respect to their direct contact with a child.

14. And sadly, in some cases a parent’s lifestyle or behaviour in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) may raise sufficient concerns about parental judgment that direct parent-child contact will have to be reconsidered. There will be zero tolerance for any parent who recklessly exposes a child (or members of the child’s household) to any COVID-19 risk.

15. Transitional arrangements at exchange times may create their own issues.  At every stage, the social distancing imperative will have to be safeguarded.  This may result in changes to transportation, exchange locations, or any terms of supervision.

16. And in blended family situations, parents will need assurance that COVID-19 precautions are being maintained in relation to each person who spends any amount of time in a household – including children of former relationships.”

COVID-19 is Not Automatic Suspension of Parenting Time Nor Results in Urgent Hearing

“19. Most of our social, government and employment institutions are struggling to cope with COVID-19. That includes our court system.  Despite extremely limited resources, we will always prioritize cases involving children.  But parents and lawyers should be mindful of the practical limitations we are facing. (emphasis mine)

20. If a parent has a concern that COVID-19 creates an urgent issue in relation to a parenting arrangement, they may initiate an emergency motion – but they should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time.  They should not even presume that raising COVID-19 considerations will necessarily result in an urgent hearing.”

“Right now, families need more cooperation. And less litigation.”

“23. Judges won’t need convincing that COVID-19 is extremely serious, and that meaningful precautions are required to protect children and families.  We know there’s a problem.  What we’re looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness. (emphasis mine)

28. I would urge both parents in this case to renew their efforts to address vitally important health and safety issues for their child in a more conciliatory and productive manner.

30. None of us have ever experienced anything like this.  We are all going to have to try a bit harder – for the sake of our children.” (emphasis mine)

Ultimately, it is you and your co-parent who are best suited to make decisions for the health of your family. And your kids expect you to! They are already experiencing anxiety and pressure which may have a long-lasting, if not traumatic, impact. They need to know that they can count on you to protect them from additional conflict and increased risk of long-term damage.

Coronavirus and family law: What you need to know

coronavirus-and-family-law

 

Resolving family law matters can be challenging and stressful at the best of times, but right now it is especially hard due to the Coronavirus pandemic.

Here is some information and updates about how the Coronavirus is impacting family law matters and what this may mean for you.

The spread of the Coronavirus means the Courts are changing the way they are dealing with family law matters so the health and safety of Court personnel and the general public is protected.

CHANGES IN THE FAMILY COURTS DURING COVID-19

Further changes may occur but for now the current responses introduced by the Court include:

  • Many matters that were to be dealt with by the Court over the coming weeks and months may be adjourned to a later date
  • There will be a staggered listing of matters throughout each day to reduce the number of people in attendance at the Court at any one time
  • There will be a maximum of 8 people allowed in the court room at any one time (other than the Judge and Court personnel)
  • Court appearances will occur by phone wherever possible (if you have a lawyer this means both you and your lawyer will attend Court by phone)
  • The maximum time any matter can remain in any Courtroom is one and a half hours and the court room will be cleaned after each matter. Available court time each day will therefore be minimised.

New matters can still be filed with the Court and will be allocated a date as soon as possible, but this could be 2-5 months away. Urgent matters can still be listed but what is considered urgent will determined by the Court and subject to the availability of the Court.

SERVICES FROM DUTY LAWYERS AND COMMUNITY LEGAL CENTRES

It will become more difficult for individuals who are self-representing to access legal information and advice.

Legal Aid have cancelled the provision of Duty Lawyer Services in the Family Courts and Community Legal Centres have cancelled face to face advice sessions.

COVID-19 AND PARENTING MATTERS

Except for those that have recently been made, parenting orders won’t include arrangements about the Coronavirus pandemic. This means that many separated parents will be wondering how their parenting plan or parenting order will work over the next few weeks and months.

Examples of how the Coronavirus is impacting parenting matters include:

Changeover Arrangements

Parenting orders often specify that changeovers are to occur at a public location, for example the children’s school, day care or after school activity. If these changeover locations close, the changeover may still be able to occur at this location, for example, out the front of the school or day care facility, rather than inside. In some situations though, there may be a need to vary the location.

Lockdown or Self Isolation Arrangements

If a lockdown is announced or self isolation becomes necessary changeovers may not be able to occur as planned. If the children are unable to spend time with a parent because of a lockdown or self isolation, make up time may need to be arranged once things return to normal. It is best if parents plan ahead for suitable arrangements in the event of a lockdown. If parents are unable to communicate and reach agreement seek legal advice sooner rather than later.

Domestic Travel

Restrictions on domestic travel have increased and if separated parents live interstate it may not be possible, or in any event not advisable, to arrange interstate travel for the children.

General Information

Regardless of the impact of the Coronavirus, court orders are legally binding on parents and should be followed. Parents should not see the Coronavirus as a way to take advantage of the other parent or reduce the other parent’s time with the children.

CHANGING PARENTING ARRANGEMENTS DURING A PANDEMIC

If a parent wants to change parenting arrangements this should be done on the basis that the change is in the best interests of the children and with the agreement of both parents.

The first step is to discuss this with the other parent. If the parents are unable to communicate directly then see a lawyer who will be able to communicate with the other parent on your behalf.

If there is no agreement with the other parent to vary the parenting orders you should seek legal advice about your position.

CORONAVIRUS AND CONTRAVENTION PROCEEDINGS

If a parent breaches parenting orders, contravention proceedings may be commenced with the Court. If a contravention is determined to have occurred, then the Court can order any of the following:

  • That the parent who breached the orders attend a post separation parenting course
  • That there be make up time if the breach involved missed time between the children and a parent
  • That the orders be varied
  • That the parent who breached the order enter into a bond
  • That the parent who breached the order pay compensation and / or costs to the other parent.

A defence to contravention proceedings is that there was a reasonable excuse to breach the orders. A reasonable excuse is established when:

The person who breached the order believed on reasonable grounds that their actions causing the contravention were necessary to protect the health or safety of a person, including themselves or the child, and

This contravention did not last any longer than was necessary to protect the health and safety of the above person.

Although there are no determined cases yet, it may be possible for a  parent who breaches orders to show that the circumstances relating to the coronavirus amounted to a reasonable excuse to breach the orders. This however will turn on the individual circumstances of the matter and what may be a reasonable excuse in one matter may not be such in another matter.

By way of example, if a parent breached a parenting order by not allowing a child to spend their usual week with the other parent because of the following:

The child has a prior diagnosis of a significant respiratory condition

The parent the child is to spend time with has been diagnosed with the Coronavirus this may be considered a reasonable excuse for breaching the orders.

On the other hand, if a parent breached a parenting order by not allowing a child to spend their usual week with the other parent because of general hygiene and social distancing concerns in the other parent’s house then this would likely not be considered a reasonable excuse for breaching the orders.

CORONAVIRUS AND PROPERTY SETTLEMENT PROCEEDINGS

As part of family law property settlement proceedings assets such as shares, businesses and superannuation are normally valued. It can be difficult to know when and how to value these assets during uncertain economic times.

If you are about to start the property settlement process it is best to get legal advice before these assets are valued and before a property settlement agreement is reached.

Similarly, if you have recently finalised property settlement matters but the outcome now seems unfair or unworkable due to the changing economic situation you should also seek immediate advice.

5 key issues to discuss BEFORE you get married

getting-married-familylawexpressPlanning a wedding can feel all-encompassing, and in this age of Instagram, the pressures seem higher than ever to create a picture-perfect day. But getting married isn’t the same thing as being married. If therapists like me had our way, there would be far more preparation and discussion around the latter than the former.

It’s not that people are unaware of the issues that add stress to their relationships – perhaps they’ve even fought about them already. But the optimism and momentum of an engagement often nudge couples to believe that challenges will work out on their own. It may seem that married life will somehow automatically make your partner better with money, more likely to clean up after themselves, or less addicted to their phone.

But ceremonies and legal statuses don’t tend to change our inherent personalities.

In fact, if your incompatibilities arise from problems with gender roles – like inequality in the division of household labor within a heterosexual relationship – then there’s evidence that these problems tend to grow even bigger after tying the knot, as cultural notions of “wife” and “husband” make traditional gender roles seep in further.

So, don’t put your blinders on. There are nearly universal areas of strain within married life, and it’s important to know how you’ll weather them. Having differences within these areas is expected; it may even be part of your spark together. But refusing to communicate about the realities of those differences is where things go wrong. Matching up perfectly isn’t nearly as meaningful as building a road map to handle the differences that are there. Be proactive, respectful and realistic – and don’t just assume that love conquers all.

Here are the most common areas of strife that I’ve seen tear marriages apart, and the questions you should discuss before, not after, you say “I do”:

1. Work and money

How devoted are you each to your careers, and what are your professional goals? Whose work life might need to be prioritised at times, and how? Are you open to geographical moves? Are you looking to make changes in your career, position or education? Will the burden of being the main source of income or health insurance fall to one of you, be shared or alternate over time? How might this change if and when you have kids? How do your spending habits match up? If there’s debt, who is primarily responsible for it? What are your expectations around joint accounts versus your own money? If there are inheritances or job losses someday, how would those be handled?

And of course the issue of how pre-marital wealth is to be split with and without children, in the event of an early separation or divorce, must also be a topic that is discussed and agreed upon. It need not necessarily involve a Binding Financial Agreement such as a Pre-Nuptial Agreement, but such an outcome, being more and more likely as time goes on, must having matching expectations, otherwise a devastating divorce can also become a financial noose around the head of one or both divorcees, an outcome that could have been avoided with some basic preparation.

2. Health

How do you handle stress and conflict? Are there underlying histories with drugs, alcohol, anxiety, depression or other mental health issues? What is “acceptable” stress relief, and how much time and money feels OK to spend on individual self-care? Does your sexual intimacy feel satisfying to both of you, or is there an imbalance in desires or needs? What would happen if one person’s sex drive declined significantly? What are your expectations of physical health and exercise, and what happens when your bodies change? How involved should you each be in each other’s medical care? What are your views on doctors, therapists, marital counsellors, alternative medicine, and when you would choose to seek them out?

3. Family

What are the expectations of having children or not, and when? How important is it to each of you? What will happen if pregnancy doesn’t occur easily, and what are your thoughts on infertility treatments and adoption? How do you feel about each other’s families and the role they’ll play in your lives? Would you ever move closer to your parents, and might they live with you someday? How will their care giving be handled as they get older – financially and logistically? How will big holidays be spent? Will vacations involve extended families? How much will you go to your families of origin for advice, and what will you do with that advice?

4. Living together

How will you divide the workload of household chores? If you’re living together already, how does the division of labor feel to each person? How might that change, and how often will you check in and make adjustments? Who feels more responsible for the “mental load” or the hidden work of running a home, and is that acceptable? What are your sleep and eating habits – and how well do they match? Who needs more time alone, more quiet, more air conditioning or more neatness?

5. Communication and social interaction

What are your communication styles, and do you argue “well” (with respect and patience, without resorting to personal attacks or silent treatments)? What about your need for physical affection? What are your expectations of what is shared with others – friends, coworkers, neighbours – about your personal lives and marriage? How do you bring up things that are on your mind when they’re hard to talk about? How do you prioritise friends, and how do you feel about each other’s? When would an emotionally close relationship with someone else start to feel like a betrayal or an emotional affair? What is your style of socialising, and how much time apart do you spend with your own friends or interests? How much planning should be done for weekends, evenings and free time – and who takes the lead on that?

Did any of these conversations reveal deal-breakers? No couple will line up 100 percent. But whether a given difference becomes a serious incompatibility depends on how big an issue is in your day-to-day life, and how willing you each are to bend. The more tempted you are to brush an incompatibility under the rug, whether due to awkwardness or how complicated or emotionally loaded it feels, the more you should pay attention to it. It’s not going away on its own. Being willing to talk and listen honestly about challenges – no matter how much of a buzzkill it is, or how hard it is to squeeze in when you’re overloaded with interviewing a bunch of florists or DJs – gives your marriage the best shot at survival.

Living with an ex: one in 10 ex’s live with former partner

living-with-your-exExorbitant housing costs are preventing split couples from making a clean break – more than one in 10 Aussies say they’ve had to live with an ex just to make ends meet.

One in 25, or about 4 per cent, said they were still living with their ex, sometimes years after the break up, research from Finder.com.au revealed.

Millennials, those currently aged between 24 and 40, were the most likely to be in this living arrangement while Baby Boomers seldom cohabited after a split.

Finder.com.au money expert Kate Browne said ex-couples’ chances of still living together correlated with high housing costs.

Nearly 30 per cent of Aussies struggled to pay their rent or mortgage each month, additional polling showed. Inner Sydney rents typically demand about $33,000 a year, while mortgage repayments across the greater city area average about $45,000. Melbourne and Brisbane rents average about $24,000 annually.

“In an ideal world, once you’ve fallen out of love, you’d be able to move on both emotionally and physically,” Ms Browne said. “The reality for some is the end of the romance isn’t the end of the roommate.”

Insurance worker Jacques van der Merwe, 38, lived with his ex for nearly six months after they broke up and said competition for rentals made it hard to move into a new place quickly.

“Suddenly you’re on your own so the rent you have to pay doubles. You’re up against 20 other people viewing the same home, most of them couples, who I think landlords prefer,” he said.

A Leichhardt bar worker told The Daily Telegraph she stayed with her ex for nearly a year because both their names were on a lease they couldn’t break early and neither wanted to be the one to move.

She was in a one-bedroom unit and continued to share the same room. “We just kept getting into the same fights again. You couldn’t start dating new people.”

She said she wouldn’t have been in this situation if she had more savings. “I paid most of the rental bond and I couldn’t afford bond for a new place until I got it back.”

Ms Browne said the best way people could protect themselves from an awkward living arrangement was by having money saved for a rainy day.

Psychologist Pandelis Tsomis said those stuck in relationships that have deteriorated can suffer sleep deprivation, increased anxiety and become more distrusting of people.

“You can get in a situation where you’re trying to avoid the house so much you develop dysfunctional coping mechanisms like gambling or alcohol addiction,” Mr Tsomis said.

Relationship expert and psychologist Cindy Nour said living with an ex could only work if it was an amiable split and in some instances it could give the couple a chance to review the relationship.

Mr van der Merwe said there was a happy ending to his story – after living apart he patched up his differences with his ex and they’re back together.

A step by step guide to administering a deceased estate

deceased-estate-serviceThe period surrounding the loss of a loved one is always a difficult time. When all you want is time to grieve, administering a deceased estate can be seriously challenging.

With this in mind, we have put together a guide to help walk you through the basic steps involved in administering a deceased estate:

Determine whether the deceased left a Will

The first step is to determine whether or not the deceased actually made a Will. There are a number of places that the Will may be located, including amongst the deceased’s personal papers, with their solicitor, their bank, or potentially even with their building society.

If there is a Will, it will generally appoint one or more persons as the ExecutorIt is the Executor’s role to administer the deceased’s estate, so if you are not the person appointed as Executor, you should advise the Executor of their appointment as soon as you possibly can.

If you are unable to locate a Will, it is important to seek legal advice on who the most appropriate person/s to administer the deceased’s estate would be.

Arrange the funeral

The first step in administering a deceased estate is organising the funeral.

If the deceased left a Will, it may specify their wishes relating to funeral arrangements. On a similar note, it is important to check the deceased’s personal papers, as they may have thought ahead and purchased a pre-paid funeral plan.

If there is no pre-paid funeral plan (or there is, but it does not cover the full cost of the funeral), you can take the invoice from the funeral home to the deceased’s bank and request that they arrange payment from the deceased’s bank account.

Obtain the death certificate

Obtaining the deceased’s death certificate is crucial in administering a deceased estate. The funeral director will usually assist you with submitting the appropriate forms to obtain the death certificate. It can take anywhere from 2 – 6 weeks for the death certificate to be issued.

Identify the deceased’s assets and liabilities

The next step in administering a deceased estate is to identity the deceased’s assets and liabilities.

Go through the deceased’s personal papers carefully to obtain details of their personal assets. It is important to keep in mind that this might include assets held solely in their name, as well as those held jointly with other parties. The kind of assets the deceased may own include real estatebank accountssharessuperannuation and life insurance policies.

Similarly, you should check to see if the deceased owed any monies.

Apply for a Grant of Probate (if necessary)

Depending on the deceased’s assets, you may need to apply to the Supreme Court of New South Wales for a Grant of Probate in order to administer the deceased’s estate. A Grant of Probate is a document issued by the Supreme Court which confirms both the Executor’s appointment, and that the deceased’s Will is the most recent one. If the deceased died without a Will (or in certain other circumstances), it may be necessary to apply for Letters of Administration rather than a Grant of Probate.

Generally speaking, if all of the deceased’s assets were jointly owned with another person (more often than not, their spouse), a Grant of Probate is not required. If the deceased owned any real estate or held assets in their sole name over a certain value, then a Grant of Probate will be required.

Ideally, the application for Grant of Probate or Letters of Administration should be submitted to the Supreme Court within 6 months of the date of death. If it is submitted later than 6 months, the court will require an explanation for the delay in the application.

Gather in the deceased’s assets

Once you have the Grant of Probate or Letters of Administration, the next step in administering a deceased estate is to gather in all of the deceased’s assets.

Depending on the assets owned by the deceased at the time of their death, this could include closing their bank accounts, obtaining any death benefit payable under the deceased’s superannuation policies, collecting in the proceeds of life insurance policies, either selling or transferring real estate to the respective beneficiaries and similarly either selling shares or transferring those shares to the beneficiaries.

Make sure the deceased’s debts are discharged and tax affairs are dealt with

Once the deceased’s assets have been gathered in, you will need to ensure that any debts owed by the deceased are paid.

You will also need to ensure that that the deceased lifetime tax affairs are up to date. If the deceased lodged tax returns, this means ensuring that all tax returns are submitted up to the date of death, and that any outstanding income tax owing to the Australian Taxation Office is paid.

Depending on the assets of the estate, the estate itself may also need to pay tax. If this is the case, an estate tax return will need to be lodged and any tax owing paid.

Distribute the balance of the estate to the beneficiaries

Once you are sure that all outstanding debts and tax have been paid, you can distribute the deceased’s assets to the beneficiaries in accordance with the terms of the deceased’s Will. If there is no Will, then Coleman Greig will be able to advise you as to who the beneficiaries of the estate will be, in accordance with relevant legislation.

Coronavirus outbreak and the impact on parents with shared custody

coronavirus and shared custodyWith people being encouraged to observe social distancing and isolation during the coronavirus outbreak, family lawyers are being asked how best to manage shared custody arrangements.

Legal Aid NSW family law director Kylie Beckhouse said common questions included whether people needed to comply with court orders during the pandemic and how to manage changeovers if schools were to close.

She said people would still need to comply with court orders.

“Talk to the other party, and if you cannot talk to them, try and communicate via a third party to work out a sensible resolution,” Ms Beckhouse said.

Family lawyer Rebecca Bunney said people might feel torn between breaching parenting orders and wanting to limit their children’s movements.

She said parents should try to have a combined approach to keeping the children away from crowds and older people.

Outbreak ‘not an excuse’ to cut another parent out

Ms Bunney said even if there were court orders in place, parents could still agree to vary the orders while social distancing and isolation was being encouraged.

“This is a public health emergency, this is not an excuse to start messing around with your parenting orders just because that is what you want to do.

“The advice to clients would be make sure the other parent is not missing out on time and they get make-up time, so if they miss two nights this week then say to them: ‘It is a credit, you will get to spend that time with them once this self-isolation is over.’

“They [should] get telephone calls with the children — FaceTime is a great option.

“It is not about cutting that other parent out, it is about keeping everyone safe.”

Parents self-isolating children may be shown sympathy

Ms Bunney said she believed in the event a parent contravened court orders, the court may take a sympathetic approach to those that wanted to isolate their children during the pandemic.

“Any parent that is isolating their children due to health concerns should be making every effort possible to continue to allow the child to have a relationship with the other parent, even if it is not face to face,” she said.

“What I would be recommending to people is to put everything in an email, have everything in writing, set out your concerns really clearly and do your very best to have a sensible, practical discussion about this.

“Do your very best to put all of your past hurt and concerns about your former partner to one side and really just focus on where is the best place for your children to be to have their movements limited as much as possible,” she said.

No increase in applications, WA Chief Judge says

In a statement, the Chief Judge of the Family Court of Western Australia said the court had not seen an increase in applications for parenting orders arising from concerns about COVID-19.

Chief Judge Gail Sutherland said it would be wrong and potentially confusing for the public if the Family Court were to produce general guidelines about any impact of concerns about COVID-19 on parenting cases.

“When the court is deciding a parenting dispute, the best interests of the child are the paramount consideration,” she said.

“In any case, the determination of those best interests can be multifaceted and complex and will depend on the individual circumstances of the particular family.

“Like all members of the public, parents with cases before the Family Court should pay careful attention to information and guidance provided by Government and the health authorities.”

The Family Court of Australia has responded to the COVID-19 pandemic by making changes to court operations to accommodate social distancing.

Urgent and priority trials including child-related and family violence matters will remain listed and will be conducted “in the safest manner possible”.

Non-urgent property-only trials may be adjourned, and non-urgent parenting trials will be given similar consideration at the discretion of the judge, while trials or hearings that can be done by telephone will be.