Declarations and injunctions are crucial in family law disputes. The Family Law Act of 1975 provides guidelines for resolving family law disputes. It covers many issues in these disputes, such as divorce, separation, child custody, child support, property division, and spousal maintenance, among others. These court orders are powerful instruments that can resolve conflicts, clarify rights and obligations, and avoid additional harm.
What Is a Declaration?
A declaration is a formal statement the Court makes about a legal matter. In family law disputes, declarations are used to clarify the rights and obligations of parties in a dispute. For instance, if a couple is separated, and one party claims they are in a de facto relationship, the Court may make a declaration on whether the relationship existed. In another example, if a parent is denied access to their child, the Court may make a declaration on the parent-child relationship.
Declarations can have a big impact on child custody decisions, support payments, and property split. Getting advice from a lawyer before requesting a declaration is crucial. A family lawyer can provide guidance on how to make a declaration, explain the process involved, and the possible results.
In Section 113 of the Act, the Court may issue a declaration as to the validity of a marriage, a divorce, or the annulment of marriage, by decree or in any other manner that it considers suitable. This authority allows the Court to determine whether a marriage, divorce, or annulment of marriage is legal.
What Is an Injunction?
Injunctions are court orders that require a party to do or not do something. In family law disputes, this can prevent harm or further harm to a person or property. Thus, if a party is threatening or harassing the other party, the Court may grant an order to restrain them from doing so. In another example, if a party is trying to sell property subject to a property settlement, the Court may grant an order to prevent the sale.
Breaching injunctions can have serious consequences. Those who violate it may be fined or imprisoned. Thus, it is vital to comply with these court orders. Family lawyers can advise on its compliance, breach penalties, and injunction requests.
Kinds of Injunctions Under Section 114
The court can make any order it deems appropriate based on what the case is about. This includes actions between married people who request an order based on the circumstances of their marriage. These are injunctions:
- (a) for the personal protection of a party to the marriage;
- (b) restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;
- (c) restraining a party to the marriage from entering the place of work of the other party to the marriage;
- (d) for the protection of the marital relationship;
- (e) in relation to the property of a party to the marriage; or
- (f) relating to the use or occupancy of the matrimonial home.
Who May Grant Injunctions?
These may be granted by courts with jurisdiction under the Family Law Act, including the Family Court, Family Management Conference, and local state and territory magistrates courts, for various purposes.
The Family Law Act gives the courts the authority to issue these orders in two sections, one dealing with matrimonial cases and the other with child welfare cases. The law’s intent reflects the constitutional restrictions on the courts’ authority in family law cases.
De Facto Financial Cause Injunctions
When a judgment or decision is reached in family law disputes, the distribution of property or financial resources is its unavoidable consequence. These proceedings are called de facto financial causes. In these instances, the Court may:
- (a) order or grant an injunction regarding the use or occupancy of a particular residence by the parties to the de facto relationship or either of them;
- (b) if the order or grant in paragraph (a) is made, the Court may make an order or grant an injunction to prevent a party to the de facto relationship from entering or staying in that residence or the specified area where it is located; and
- (c) order or grant an injunction regarding the de facto couple’s property.
Satisfaction of Requirements
Section 114 (3) provides for the requirements to be complied with for the meritorious grant of these orders. These are the following:
- The length of relationship under Section 90SB of the Family Law Act of 1975 specifies that:
- the de facto partnership lasted at least 2 years; or
- a de facto child exists in the de facto relationship; or
- a party who seeks for the order or declaration made considerable contributions of a kind indicated in the Act.
- a failure to issue the order or declaration would seriously harm the applicant; or
- the relationship is or was registered under a State or Territory’s law.
- The geographical requirement under Section 90SK requires:
- that one or both parties to the de facto relationship were habitually resident in a participating jurisdiction when the declaration or order was applied for; and
- that either:
- both parties were ordinarily resident for at least a third of the relationship; or
- the applicant made considerable contributions to the de facto relationship under the law.
- in one or more participating jurisdictions.
In conclusion, declarations and injunctions are essential tools in family law disputes. They can help parties clarify their rights and obligations, prevent harm or further harm, and provide a basis for resolving disputes.
How Can JB Solicitors Help?
Seeking a declaration or injunction can be a complex process, and it is essential to seek legal advice before doing so. A family lawyer can offer advice on how to request an injunction or make a declaration, and the procedures involved.
If you need help with a family law matter, go no further than the top-tier attorneys at JB Solicitors. We are happy to discuss the fees associated with your family law case or any legal matter.
Contact us now.