AMICA – Can A.I Replace Family Lawyers?

Amica is a new initiative supported by the Australian Government. It is designed to assist couples to resolve their parenting and/or financial issues following separation. It is a great initiative for couples who can “get along” as they come apart.  For others, it is less helpful.

According to the website, Amica:

  • provides separating couples with a user-friendly platform to work out and record parenting arrangements that work for their family.
  • uses artificial intelligence to make suggestions about dividing money and property (considering legal principles) based on the information that is entered by the parties.

The website claims that Amica “should suit most separating couples”.  These are some of the situations listed where Amica is not going to be suitable:

  • There is a Family Violence Restraining Order in place between the parties.
  • A limitation period will expire in the next 3 months.
  • There is a genuine dispute about the validity of the relationship.
  • One of the parties to a relationship or marriage is on a visa or seeking a visa which is dependent on their relationship with their partner.
  • There are any existing court orders in place about parenting arrangements for any children of the relationship.
  • There are ongoing cases or allegations in any court involving family law, child support, family violence or child welfare that involve either parent, or a child of the relationship.
  • One of the parties wishes to relocate with a child of the relationship.
  • Either party wishes to divide superannuation.
  • There are any genuine disputes over what is included in the property pool.
  • Any property of the relationship has been disposed of (such as sold or transferred) without consent of both parties.
  • There are caveats or charges lodged over any property in the property pool.
  • Assets in the property pool are held in a company or trust.
  • One party is a director of a company that forms part of the property pool.
  • Where either party owns or partly owns property or other assets overseas.
  • The property pool includes property which is also owned by a third party.
  • Either party currently has bankruptcy proceedings against them, or if either party was bankrupt during the relationship, or if either party is an undischarged bankrupt.

While Amica appears to be a great initiative, it is not the end of family lawyers by AI.  Amica does not give legal advice. In our experience, it is very rare to encounter a matter which does not involve at least one of the complicating factors listed above, making Amica unsuitable for most separating couples.

Importantly, even if a separating couple can reach agreement using Amica, it is not legally binding. All information exchanged between parties is done so on a “without prejudice” basis, meaning the information disclosed via Amica cannot be used in Court proceedings.  

Here at Bowen Buchbinder Vilensky, we encourage our clients to reach an amicable resolution to their family law issue, whether it be divorce, parenting arrangements or property division.

To book an initial consultation with one of our experienced family lawyers, please get in touch. Alternatively, to get started online now, visit the BBV Legal Online System where you can enter your relationship details and receive information that is free, instant, personalised and helpful.

Family Law: A Complex And Private Legal System

lawyer with couple at desk

In Australia all separating couples, are subject to a family law system that is both “bifurcated” and private. 

We can read about Angelina Jolie and Brad Pitt’s divorce and separation process in the media, and learn that in California Angelina and Brad are subject to a “bifurcated” legal system. But you will not usually learn details about local celebrities’ divorce settlements.

The fact of a separation or divorce and general details can be published but that is because it is not about family court litigation or “proceedings”.  

Section 121 of the Australian Family Law Act makes it an offence to publish details of separating couples’ court cases.    

Sometimes when media outlets have sought permission, the Court grants leave for the publication of details concerning a case, or the Court itself directs publication when pseudonyms rather than the real names of the parties are used.  On other occasions, real names are necessary, for example, if there is a missing child.

The embargo on publication means not only can details about a family law case NOT be published in the media but also NOT on social media. 

A bifurcated divorce in California means “they are legally divorced, but are yet to decide on child custody and financial arrangements”.

In Australia, the Family Law Act provides that a person can apply to the court (or negotiate a settlement without going to court) as soon as they separate, but can only apply for a divorce after 12 months has run.

That is how a bifurcated system operates, where the processes are separated into separate branches or parts.  In Australia there are three parts to the system, including a separate child support system.

Services Australia Child Support decides financial obligations for children after separation, separately from Family Court property settlement and spousal maintenance.  Spousal maintenance (rarely used in the 21st Century) is usually resolved at the same time as property settlement. Spousal maintenance can be obtained and very rarely, after property settlement.

Divorce (the right to remarry without committing bigamy) often follows later, after the hard work of financial settlement and arrangements for the children has been done. 

This complicated system is private, to protect the individuals and families involved. 

People can take steps and make decisions or seek legal process to assist them, using those parts of the system that they need at that time.  But there are pitfalls that require experience and expertise in family law to negotiate.

The confidentiality of the system means that general public knowledge of family law in Australia is limited, scattered and often ill informed.

Our team at Bowen Buchbinder Vilensky has the skills to assist our clients to negotiate this complex system as best suits them.   

Separation Under One Roof

Frustrated couple experiencing 'separation under one roof'

Thanks in large part to the COVID-19 pandemic, the Western Australian economy is expected to experience a recession in the 2021 financial year.

With increased unemployment rates, and house prices falling over the last 5 years,[1] there will likely be an increasing number of newly separated couples who will have little choice financially but to remain “separated under one roof”, at least for a time.

 

Why Does the Date of Separation Matter?

The date of separation between a couple can be relevant for several reasons. 

For de facto couples, it can be the difference between the Family Court of Western Australia having, or not having, jurisdiction to make orders for property adjustment and maintenance.  For the Court to have such jurisdiction, it is generally a requirement that the de facto relationship has existed for 2 years.[2] 

It is also relevant to the limitation period for de facto couples, who generally must commence proceedings in the Family Court within 2 years after their relationship ends.[3]

For married couples, a divorce can only be granted where the marriage has irretrievably broken down.  To show that the marriage has irretrievably broken down, the parties must have separated and lived separately and apart for a continuous period of at least 12 months, immediately before filing the application for divorce.[4]

 

Separation Under One Roof

Section 49 of the Family Law Act 1975 (Cth), which applies to married couples, provides as follows:

  • The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of only one of the parties.
  • The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.

 

Are We Separated?

Whether there has been a separation under one roof will be a question of fact which is decided on the facts of each case.  As with many areas of law, it is not black and white, and the circumstances of each individual relationship will be considered.

For separation to occur between a married couple, one or both spouses must form an intention to sever and not resume the marital relationship, and act on that intention.[5]

The body of case law involving separation under one roof indicates that a comparison of the state of the relationship before and after the alleged separation may be required.[6]  The following factors may be relevant (to both married and de facto couples) in such an analysis:

  1. Whether one or both of the parties communicated to each other that they considered themselves to be separated.
  2. Whether the parties have continued to share a bedroom, and the extent to which any sexual relationship has been maintained.
  3. Any change in the financial relationship between the parties, for example the closure of joint bank accounts.
  4. How and when the separation was communicated to friends and family of the parties, and whether the parties have continued to hold themselves out to be a couple.
  5. A reduction in shared activities.
  6. The extent to which the parties have continued to perform domestic chores for the benefit of the other, such as cooking, cleaning, and laundry.
  7. The reason why the parties have remained residing under the same roof (e.g. financial pressures).
  8. Whether any government departments, such as Centrelink, have been informed about the separation.

 

What Next

If you consider yourself to be separated under one roof and require legal advice as to divorce, property settlement or parenting matters, please contact Bowen Buchbinder Vilensky for an initial consultation.

 

Disclaimer:  This article is intended to provide general information only and does not constitute legal advice. The article is in summary form and we recommend you seek legal advice or other professional advice as to whether and or how the information is applicable to your circumstances.

[1] https://reiwa.com.au/uploadedfiles/public/content/the_wa_market/house-prices-2013-web.pdf

[2] Family Court Act 1997 s 205Z(1)(a)

[3] Family Court Act 1997 s 205ZB(1)

[4] Family Law Act 1975 s 48(2). See also s 50(1).

[5] Pavey & Pavey (1976) FLC ¶90-051, citing Todd & Todd (1976) FLC ¶90-008.

[6] Todd & Todd (1976) FLC ¶90-008

PLEASE CONTACT

If you would like advice in this area please contact Kori O’Meehan at [email protected]
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Which marriage counts when you want a divorce?

Marriage certificate & rings are placed on the table to assist with obtaining a divorce.

A void marriage is of no effect in law.  It is not a marriage at all, whether or not the decree declaring it void has been pronounced.[1]

It is not uncommon for a couple to have two marriage-like ceremonies, especially where one spouse has family interstate or overseas.

So, which one counts when you want a divorce?

Section 113 of the Marriage Act 1961 (Cth) (the Marriage Act) creates a general prohibition on persons who are already legally married to each other, marrying each other again.  There are some exceptions, for example where there is doubt about the validity of the first marriage. 

While section 113 creates a prohibition against marrying someone you are already married to, it does not expressly say anything about the validity (or otherwise) of a marriage conducted in contravention of the section, or what the consequences are for those who breach the section. 

Section 23B(1) of the Marriage Act provides a list of circumstances in which a marriage will be void, paraphrased below:

  • either of the parties is, at the time of the marriage, lawfully married to some other person;
  • the parties are within a prohibited relationship (familial relationships);
  • by reason of section 48 (formal requirements for marriages solemnised in Australia) the marriage is not a valid marriage;
  • the consent of either of the parties is not a real consent because:
  • it was obtained by duress or fraud;
  • that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
  • that party did not understand the nature and effect of the marriage ceremony; or
  • either of the parties is not of marriageable age;

and not otherwise.

The grounds listed in section 23B of the Marriage Act purport to be exhaustive, and they do not include a marriage to someone who is already your spouse.  

Fortunately, this does not mean that parties who have engaged in 2 marriage ceremonies need to be granted 2 divorce orders. As a general rule, if the first marriage is valid, then the second marriage is not.

In Kapadia and Kapadia,[2] Kay J relied on the power under section 113(1) of the Family Law Act 1975 (Cth) (Family Law Act) to declare a second marriage (to the same person) invalid.[3]  In the more recent decision of Nelson & Nelson,[4] Hannam J found that on the basis of “common sense and logic”, any such marriage between spouses must be void, notwithstanding the apparently exclusive nature of the words at the conclusion of section 23B(1) of the Marriage Act.[5]

Interestingly, there does appear to be a distinction (largely without a difference) between a void marriage and an invalid marriage.  A decree of nullity may be granted by the Family Court of Australia in the case of a void marriage only.[6]  The Family Court also has a separate power to make a declaration that a marriage is invalid.[7]

The cases cited above involved second marriage ceremonies conducted in Australia.  The validity of a second marriage may depend on whether one (or both) of the marriage ceremonies were conducted overseas.

Part VA of the Marriage Act operates to recognise, in Australia, marriages solemnised overseas (which are recognised as valid marriages under the local law).  There are some exceptions, such as when either party to the marriage was married to some other person at the time of marriage, or when either party was not of marriageable age in Australia.  Already being married to the person you are marrying, is not included as one of those exceptions.

In the case of Lieu & Antcliff,[8] the bride and groom were already lawfully married to each other (having been married in a registry office in Melbourne some years prior) when they renewed their vows and engaged in a marriage ceremony in Fiji (Fijian marriage).   

The couple separated shortly after the Fijian marriage.  They were granted a divorce order in respect of their first marriage in Melbourne without difficulty.  However, they were initially not granted a divorce order in respect of the Fijian marriage because of concerns as to its validity.

The Wife subsequently applied to the Family Court of Australia seeking orders for, in the alternative:

  • a decree of nullity in respect of the Fijian marriage;
  • a declaration of invalidity in respect of the Fijian marriage; or
  • if the Fijian marriage was valid, a divorce order in respect of the Fijian marriage.

The Wife filed evidence from a Fijian lawyer who deposed that it was not an offence under Fijian law to marry a spouse. The lawyer further deposed that the Fijian marriage was valid under Fijian law, notwithstanding that the parties were already married to each other.

It followed then, under Part VA of the Marriage Act, that the Fijian marriage was recognised in Australia, notwithstanding that it was a marriage between two people who were already spouses.

If you have been through two marriage ceremonies with your spouse, and want a divorce, then you should carefully consider the circumstances of each ceremony, and seek legal advice before applying for a divorce.

The contents of this article are for reference and discussion purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.  

[1] Zua v Huang [2015] FamCA 873 at [15].

[2] (1991) FLC 92-245.

[3] See also Anouihl & Temke [2017] FamCA 325.

[4] [2016] FamCA 516.

[5] See also Zau & Huang [2015] FamCA 873.

[6] Family Law Act 1975 (Cth), s 51.

[7] Family Law Act 1975 (Cth), s 113(1).

[8] [2016] FamCA 942.

PLEASE CONTACT

If you would like advice in this area please contact Kori O’Meehan at [email protected]
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