When Australian courts recognise polygamous marriages

When Australian courts recognise polygamous marriages

While the political controversy around gay marriage means the vast majority of Australians are aware of the law for same-sex couples, very few people know what happens when the courts consider cases of polygamy.

Polygamy means a marriage where there is more than two people – either a man with multiple wives, or a woman with more than one husband.

Long before Australia’s political debate was dominated by the question of whether or not we should legalise gay marriage, Section 6 of the Family Law Act had instructed the country’s courts to recognise polygamous marriages.

That said the legislation does not recognise all polygamous marriages and polygamous marriages entered into on Australian soil are not legally valid.

And it is important to note that getting married to two people, in Australia, is still an offence under the Marriage Act.

However, when a man has taken more than one wife, or a woman has more than one husband, in a foreign country, the courts will, in some cases, recognise those marriages.

For example, in 2014, the Full Family Court of Australia heard a case where a couple fought over whether or not a polygamous marriage which had been sanctioned by the Iranian government, was valid under Australian law.

The question was complicated by the fact the Howard Government had, in 2004, inserted a new definition of marriage into the Marriage Act.

That new definition, which was aimed at preventing same-sex marriage, said marriage was the: “union of a man and woman to the exclusion of all others”.

Today, that definition has now been and instead of mentioning gender it now just talks about a union between two people – as a result of Australia voting “Yes” to same-sex marriage in the November 2017 referendum.

However it was the phrase: “to the exclusion of all others” which raised questions about how the Family Law Act could recognise polygamous marriages.

In the case in question it was held that a polygamous marriage, entered into in a foreign country, was still valid despite the Howard Government’s changes.

 

 

Five things you should know before posting on social media

Five things you should know before posting on social media

Number One – You can get sued for what you say, even if you say it online

Comments you post online can lead to you being sued for defamation, this includes comments on Facebook. Some solicitors have previously said it often seems as though people making defamatory remarks on social media are oblivious to the fact their actions could land them in court. And in New South Wales defamation laws are being reviewed to reflect the massive changes brought about by social media.

Number Two – Small businesses can sue for things people say that lower their reputation

In Queensland businesses with less than 10 employees can take legal action if they receive a false and defamatory online review. However, if you are posting a negative review and you can prove what you are saying, you will be okayIf you’re a small business owner looking to take-on someone who has left a false, negative review it is worth seeking legal advice.

Click the links below to read the other links on our blog:

>>Man’s surprising defence to drink-driving

>> Your rights if police stop you for a random drug search

>The 11 things you should know before getting a divorce

And sign up to our free newsletter here.

A recent decision from the Queensland courts refused to give damages to a Brisbane-based business owner, who sued over an online review, on the basis that it was in the public interest for people to be able to comment on goods and services they buy. That said, the public interest defence won’t stand if the reviewer knows what they’ve said is false. As such it’s worth considering either getting a lawyer or communicating with the reviewer yourself to ensure the reviewer sees evidence to show, beyond any reasonable doubt, their review does not reflect the truth of what happened.

Number Three – There are legal ways to stop online bullying and harassment

If you feel you are being hounded online, you can seek an injunction from the courts for an order for those involved to stop defaming you. This won’t get you damages although you will still need to prove the material which has been posted was defamatory. However, once the order is in place breaching it can have very serious consequences, including prison.

Number Four – When things go wrong this is how much it can cost

Damages for comments and posts which only harm a person’s reputation but not their business dealings are capped in Queensland at just less than $400,000. In cases where a person can show they have lost money, or their business has lost money, damages can run much higher. In a sequence of recent Victorian judgments actress Rebel Wilson was initially awarded $4.7 million because she showed she had lost acting roles due to defamatory magazine articles about her. This was reduced to $600,000 on appeal – although Ms Wilson has said she will now appeal to the High Court.

Number Five – Sharing it is like saying it and soon you might even be liable for things others say

When you go on Twitter and retweet someone else’s comment, or share it on Facebook, it is likely the courts will view you as being liable for the content of what you passed on. While this question isn’t necessarily settled in Australian law, it is established precedent in the UK. In a similar vein the New South Courts are expected to hand down judgment later this year on a case where several media outlets are being sued over comments members of the public posted on their Facebook pages. That case will centre on whether, or not, the media companies knew, or ought to have known, people would make defamatory remarks about the person who is suing them and whether they should have refrained from posting stories about that person as a result.

Click the links below to read the other links on our blog:

>>Man’s surprising defence to drink-driving

>> Your rights if police stop you for a random drug search

>The 11 things you should know before getting a divorce

And sign up to our free newsletter here.

The 11 things you should know before getting a divorce

The 11 things you should know before getting a divorce

DIVORCE is a traumatic time for anyone but getting help and taking clear action will save you time, money and let you get on with your life more quickly.

The first thing you need to sort out are your finances and if there are children involved you need to get a parenting agreement.

A key family lawyer at Strategic Lawyers, Robert Ballais, explained the whole process of getting a divorce is best thought of as having two separate parts and three parts if you have children.

“Under Australian law couples actually have to be separated for one full year before they can get a divorce,” Mr Ballais said.

“However, before you get a formal divorce you can work out how you want to divide up all of your assets by getting a property settlement and work out what’s best for the kids through a parenting order.”

In Australia the divorce rate is falling however there are still lengthy waits to access the courts.

It’s also important to note that while de facto couples – people in a relationship who have been living together for two years or more – don’t need to get a divorce, there may still be a need to get a property settlement and a parenting order.

And with the majority of divorces being agreed to by both sides of the marriage Mr Ballais said couples that are able to reach an agreement without a lengthy dispute get quicker, less expensive outcomes.

“Obviously that’s not always possible but our first step is always to try and minimise the pain by sorting everything out and reaching consensus,” he said.

Below he runs through what you’ll need to have at hand to get through each part of the process and gives you the inside running on how you can do the prep-work to save your lawyer’s time and to save your money.

GETTING A PROPERTY SETTLEMENT

1. Work out what you own and what you owe
The best thing people can do before they come in to see a family lawyer is create a document with all the assets and liabilities they have.

This should include things like the mortgage, if you have one and any other loans and how much has been paid and how much is owing.

It should also include details of any other personal loans or assets and any valuations people have for those and one final thing a lot of people forget is to bring details of their superannuation.

2. Know your business
The second thing people will need to bring along if they want to reach a property settlement are any details of any businesses they own.

This really could include any financial document to do with that business but usually things like a valuation would be the most useful.

3. Did you already have an agreement?
In a lot of cases couples have already agreed on how they’re going to split their assets but as Mr Ballais explained this often doesn’t take the form people might expect.

For example, it might be something as simple as a text message or an email from years ago where these things were discussed.

So, having any details of any discussions is a great place to start – regardless of whether the ownership of any of the assets are in dispute.

GETTING A PARENTING ORDER

In the same way people can divide their assets as soon as they separate they are also able to make legal arrangements for the custody of their children.
Below Mr Ballais goes through what you will need to bring along to make sure you have everything you need on hand.

4. Have you already agreed on this?
If you’ve already worked out who is going to take care of the kids and on which days they will have them, then bringing along a copy of that agreement saves a lot of time.

This might have been agreed at an earlier point in time or after you decided to separate.

5. Check your roster
This is especially important for people who do fly in, fly out work – or work shifts.

Sometimes people will go to put an agreement in place only to realise their work arrangements make it impossible, so bringing along your roster from the outset is the best way to avoid any issues.

6. Write out what you want
Before you see a lawyer it’s worth thinking about the custody arrangement you want and writing it down.

If you are able to agree on this it won’t just save your lawyer time, it will save you money as the process for reaching a mutual agreement on custody is a lot less costly than if the matter goes to court because there’s a dispute.

GETTING A DIVORCE

So, you’ve sorted out your property and worked out a parenting order. Now you are ready to finalise your divorce.

Below Mr Ballais explains the legal hoops and hurdles the law puts up for people looking to officially end their marriage.

7. Get counselling & make sure you’ve been separated for 12 months

If there is a chance of reconciliation, the first thing every couple should do is try to work out their problems.

This isn’t just a nicety the Family Law Act actually requires couples who have been together for less than two years to get marriage counselling.

Also under the Family Law Act people need to be separated for 12 months before they can start a divorce application.

Obviously, for people in abusive and extreme circumstances it wouldn’t be necessary or appropriate to force them into counselling and they can apply to the court to avoid the process however, they still need to have been separated for 12 months.

8. Find your marriage certificate
This is one of the first things any family lawyer will ask for at the first meeting

So, having it handy means we can get started straight away instead of having to wait on paperwork.

9. Sit down and write out all your personal details
For the divorce application itself you’ll need the addresses of both parties involved – or the address of their lawyer.

You’ll also need your places and dates of birth and your occupation.

Finally, if you moved to Australia from overseas you will need to state the date on which you moved into the country.

10. Write down all your children’s details
If there are kids involved then a lot of information is required before a divorce application can be finalised.

Mr Ballais explained the most essential items included any child support paid to date, any custody arrangements presently in place and any proposed changes to those custody arrangements.

It’s also useful to have a record of any of the children’s health issues and what schools they currently attend.

11. Find out how much it will cost
Strategic Lawyers was the first firm in North Queensland to offer something called fixed-pricing.

This means we will, wherever possible, tell you how much it will cost to work on your matter and give you a binding quote before we start.

A lot of firms will charge by the hour – creating an incentive for lawyers to waste time and charge you for it.

Here at Strategic we do things differently; we do everything we can to remove the stress created by the uncertainty of not knowing how much your divorce will cost.