“By biology, or by law, or a combination of both, certain people, take on the right and responsibilities of raising children, and are, or become parents”: Masson v Parsons  FamCA 789, 46.
The family law system in Australia is constantly evolving and works to recognise and assist adults and children who have suffered family violence. This year, as many as 70% of all family law matters in the Commonwealth court system involve an allegation of family violence. A particular concern of the Courts is to ensure that children who are exposed to or suffer family violence or abuse are protected as much as possible.
Upon separation, a party will often feel disgruntlement or dissatisfaction with the other party and wish to retain all they brought into the relationship. This is even more so the case with inheritances received after separation.
The Family Law courts, under s79 of the Family Law Act 1975 (Cth) (“the Act”), have the power to alter the interests of parties to a marriage or de facto relationship when it is just and equitable to do so. As far as practicable, the Court aims to make orders for property settlement that will determine the financial relationship between the parties on a final basis.
The Duty of Disclosure
Last month, the Australian Law Reform Commission (‘ALRC’) released its report, ‘Family Law for the Future – An Inquiry into the Family Law System’ (‘the Report’). The ALRC spent 18 months working on the inquiry, which was headed by the Honourable Justice Sarah Derrington.
With the update of the Family Violence Plan in April 2019, the Courts have continued to recognise the importance of protecting those experiencing family violence, and the detrimental impact on the health and wellbeing of separating partners and children in situations of family violence.
Although the legislation relating to Financial Agreements seems clear-cut, Financial Agreements are often overturned or set aside by the Court for a variety of reasons. This makes it more difficult to guarantee that a Financial Agreement will indeed be ‘binding’. When considering the application and utility of Financial Agreements in practice, it is therefore prudent to weigh the advantages of entering into a Financial Agreement against the drawbacks or risks associated with it.