An A-Z Guide to Common Legal Terms
It’s no secret that the law and legal matters can involve terminology that sounds like an entirely new language.
With divorce and separation an already stressful time for those going through it, having to try to understand all of the various legal terms and jargon can make it feel overwhelming.
Whether you’re already involved in legal proceedings or just beginning, understanding legalese can make you feel more comfortable and make all the difference.
To help you, we’ve put together a glossary of common legal terms and phrases that you may hear throughout your divorce or separation family law matter in Australia.
A.
Affidavit
A written form of evidence that is used in court proceedings. It is written by one person, called the deponent, and it is an account of their evidence or statement of facts in regard to a specific situation. An affidavit must be signed before an authorised person and the contents of which are sworn or affirmed to be true.
Alternative Dispute Resolution (ADR)
The collective term used for processes that aim to settle disputes outside of court. Mediation, arbitration, and expert determination are different kinds of alternative dispute resolution processes.
Annulment of Marriage
A legal declaration stating that a marriage between two people is null and void from the beginning of the marriage. Also referred to as a decree of nullity. A marriage can only be annulled under certain instances, such as if one person is already legally married to someone else (bigamy), the marriage was not consented to, instances of fraud or duress, or if the parties to the marriage are closely related.
Appeal
A legal process that asks a higher court to review the decision made by a judge in a lower court because it is believed that the judge has made a mistake. An appeal can only be filed once a final ruling has been made in a case.
Apprehended Domestic Violence Order (ADVO)
An order that protects a person from someone they have had a domestic relationship with. A domestic relationship includes de facto relationships, marriage, and intimate personal relationships, as well as people who have lived in the same house. An ADVO protects a person from certain behaviours being performed towards them by the person it is against. Some of the behaviours include assault, threats of any kind, stalking, and contact.
Arbitration in Family Law
A process, other than the judicial process, where the parties to a financial dispute present evidence and arguments to an independent arbitrator. The arbitrator will make a decision to resolve the dispute. Other family law matters, such as parenting, and child support matters can not be dealt with in arbitration.
B.
Best interest of the Children
Decision relating to a child made by parents, or the Court must be made with the child’s best interests considered. The two primary considerations of a child’s best interests are, according to Section 60CC of the Family Law Act 1975:
- “The benefit to the child of having a meaningful relationship with both of the child’s parents; and
- “The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.”
Binding Financial Agreement (BFA)
A type of contract between a couple that sets out how some or all of the couple’s assets will be divided in the event of their relationship ending. A BFA can be made at any stage of a relationship. An agreement made before getting married, is often referred to as a prenuptial agreement. A BFA can also be made between de facto couples.
C.
Child Impact Report
A report that outlines the experiences and needs of a child or children in relation to the dispute before the court. The report is ordered by a judge or registrar, and it is prepared by a court child expert. Issues such as the child’s development, relationships and presence of risk factors will be considered by the court child expert.
Child Support
A payment that is made by a parent to help with the cost of looking after a child. Child support is often paid by only parent, to the parent who is the primary carer of the child, however, in some instances, both parents may need to pay child support, if the child is in the care of another person.
Collaborative Law
A type of dispute resolution that avoids going to court. The parties involved in the dispute, along with their lawyers, enter into a “Participation Agreement” contract to finalise the legal aspects of their separation or divorce without having to attend court. The aim is to find a mutually beneficial outcome for both parties using the interest-based negotiation method.
Compulsory Family Dispute Resolution
An independent family dispute resolution practitioner helps parties involved in a separation or divorce to resolve their parenting and/or property matters without having to attend court. Under Australian Family Law, parties involved in a dispute of this matter need to make a genuine effort to resolve the issue outside of court.
Conciliation Conference
A type of mediation process that is court-based. A Registrar of the Court helps the parties involved in a dispute to reach an agreement. This process can be used to help resolve parenting and/or financial matters.
Consent Order
If two parties can reach an agreement about parenting, property, or financial matters, they can formalise the agreement and make it legally binding, by applying for a consent order. This involves the court reviewing and approving the agreement.
Contravention
If a court order has been breached or not complied with by a party, the party is in contravention of the order.
Court Hearing
A proceeding before a court (or decision-making body) to resolve issues or disputes in relation to the law. A hearing allows the parties involved to present evidence to support their claim.
Court Order
The decision or judgement made by a judicial officer and issued from a court. The order will explain what the parties involved can or cannot do in relation to the matter. Court orders can result from a hearing or when parties reach an agreement privately and apply to the court to formalise the decision.
D.
Date of separation
The date of when a couple – married or de facto – decides to begin living separate and apart from one another and no longer be in a relationship. The date is important because to be able to file a divorce application in Australia, you need to have been separated for at least 12 months and 1 day.
De Facto Relationship
Two people live together as a couple on a genuine domestic basis but are not married. A de facto couple can be same sex or opposite sex.
Decree absolute
The final order of a court that officially ends a marriage. A decree of absolute allows the parties to remarry. The decree of absolute is automatically granted one month after the decree nisi has been sent to the parties. This is now commonly known as a divorce order.
Decree nisi
An order given by the court once they are satisfied that the grounds for divorce have been achieved. This is now commonly known as a divorce order.
Departure Order
Orders from the court that are allow the parties involved to depart from the standard child support formulas and create alternative obligations for the parent who is paying child support. This can be used when there is a complex situation involving child support.
Divorce Hearing
When an application for divorce has been filed by a party or both parties, a divorce hearing is scheduled by the court. The hearing is held to determine whether a Divorce Order should be granted. The basis of this decision is made on the consideration as to whether the relationship has irretrievably broken down. Depending on the circumstances of your situation, you may not be required to attend a divorce hearing.
Divorce Order
An order that recognises that the marriage has ended. A divorce order becomes final one month and one day after it has been made. When the divorce order becomes final, that is the date of divorce.
Directions Hearing
A type of court hearing. It is usually a short and is used to determine what should happen next in the case process.
Domestic Violence Order
An official document issued by courts to stop acts of domestic violence or threats. It sets out the rules the person who has committed the violence must obey and is designed to protect the person the violence has been committed against by making certain behaviours illegal for the person the order has been made against.
Duty of Disclosure
A requirement that all parties involved in a family law dispute provide all information relevant to the dispute. Failure to provide all information can lead to costs against you, certain information to not be able to be used as evidence in your case, and even imprisonment.
E.
Enforcement Order
An order made by the court to force a person or organisation to comply with a law or regulation.
Equal Shared Parental Responsibility
Both parents of a child will have an equal role and responsibility in making decisions about major long-term issues for the child. Such decisions could include healthcare related decisions as well as decisions about their education. Under the Family Law Act, when parents of a child separate, there is a presumption of equal shared parental responsibility.
Exclusive Occupation
In the event of a separation, a couple usually needs to determine living arrangements. Both parties are entitled to live in the family home unless there is a court order saying otherwise. If one party wishes to have sole occupation of the home and have the other party vacate, they must file an Application for Exclusive Occupation with the court. The court will take a wide variety of matters into consideration when deciding the outcome of this kind of application.
F.
Family Law Act 1975
The main Australian legislation that deals with divorce, parenting matters, property matters and financial matters in the context of family separations and disputes. It is an Act of the Australian Parliament and came into effect in 1976.
Family Law Watchlist
The Family Law Watchlist helps to prevent the unlawful removal of children from Australia. It is maintained by the Australian Federal Police and operates at all international airports and seaports within the Commonwealth of Australia.
Family Report
An independent family assessment that is prepared by a family consultant. The aim of the assessment is to help families and the court in making decisions about the children. The family consultant will make recommendations for arrangements that will be best for the child’s care, welfare, and development.
Federal Circuit and Family Court of Australia
Formed from the merger of the Federal Circuit Court of Australia and the Family Court of Australia, the Federal Circuit and Family Court of Australia deals with family law matters, including divorce applications, spousal maintenance, property settlement disputes, parenting orders and more.
Filing
The submission of documents that are required to commence or supplement a legal action. Documents can be filed electronically or physically.
Final Hearing
A type of hearing where each party will present their case to the judge. The judge will decide on the case and provide the reasons behind their decision as part of this hearing. The duration of a final hearing can be as short as one day or can take several days.
Final Order
This is the written resolution of a case that brings a matter to a close.
Financial Statement
A sworn document that summarises the financial details of a party who is in the process of dividing their assets and property after a relationship breakdown. It will include information about income, property owned, expenditure, superannuation, and liabilities. It is a key document in the division of assets process.
Financial Questionnaire
A document that outlines the financial income, expenditure and any liabilities that may be requested of an individual, business, or entity. It can be used as evidence in court so the document must provide honest and accurate information.
Full & Frank Disclosure
Also referred to as duty of disclosure, full and frank disclosure means that each party in a case has the responsibility to disclose documents and information that is relevant to the issue and could affect the outcome and fairness of a case to the other parties.
Future Needs
A factor taken into consideration by the court when determining a “just and equitable” division of assets between parties. Future needs of the parties are those that will allow them to meet their reasonable needs in the future. The future needs of a party can be impacted by a wide variety of factors, including the age of the person, their health, parenting responsibilities and income.
G.
Genuine Steps Certificate
A form required when initiating proceedings for parenting and financial matters. Prior to initiating court proceedings, people are encouraged to make a genuine effort to resolve their disputes. The genuine steps certificate allows you to provide details of the steps you have taken to attempt to resolve your family law dispute.
I.
Indemnity Cost Order
A court may order one party to pay the legal costs of another party involved in a matter if the conduct of the party warrants this. This usually only occurs in exceptional circumstances and is known as indemnity costs.
Independent Legal Advice
Advice from a lawyer that is separate from the other people involved in a matter. This is usually required to ensure that a person fully understands all of their legal rights and obligations without the influence of any other party involved in the matter.
Initiating Application
A form that is used to start a family law application seeking interim and/or final orders for parenting, property, financial and maintenance matters.
Initial Financial Contributions
Contributions made by the parties of a relationship at the start of the relationship. These contributions can be financial and non-financial. Initial contributions to a relationship are taken into consideration during property settlements.
Interim Hearing
An interim hearing is a type of hearing that is required when a matter is particularly urgent or temporary in nature. In family law, an interim hearing may be required in parenting matters, such as if one party believes that the current parenting arrangements puts a child at risk of harm. An interim hearing results in interim orders.
Interim Order
The result of an interim hearing. An interim order is a temporary order that is in place until a final order is made by the court. It can be used in matters that are seen as urgent or that may take a long time to resolve fully. An interim order does not finalise a matter.
Intervention Order
An order that is issued to protect someone (protected person) from another person (the respondent) who has either been violent, threatening or made someone feel unsafe. It imposes certain restrictions on the respondent that if breached, could result in penalties that include imprisonment.
J.
Judge
A person who presides over and conducts court proceedings. It is their role to serve the community by administering justice according to the law.
Judgment
A decision of a court in a legal proceeding regarding the rights and liabilities of the parties involved in the proceedings.
Judicial Officer
A person who has the responsibilities and powers to facilitate, preside over, and make decisions and directions about the law. They can also impose penalties and restrictions, and can be magistrates, registrars, and judges.
Judicial Registrar
A type of judicial officer who can assist judges and associate judges in managing workloads. They can manage administrative and judicial aspects of hearings and matters in court.
Jurisdiction
The scope of a court’s authority to decide legal matters. There are a number of different courts at federal and state levels, each with a particular jurisdiction.
Just & Equitable Property Settlement
The consideration of the justice and equity of an outcome. The outcome must suitably reflect the circumstances of each party, which includes the current division of assets, their contributions to the assets and relationship and their future needs. An order cannot be made in a property settlement matter unless it is considered to be just and equitable.
L.
Legally Married
To be legally married in Australia, a marriage ceremony must be conducted by an authorised person. You must be of legal age to get married and have provided a celebrant or minister with proof of identity, place, and date of birth, as well as the proof of the dissolution of any previous marriage. You also need to complete a notice of intended marriage form, and three identical marriage certificates must be signed by the couple being married, the celebrant and two witnesses over the age of 18.
M.
Maintenance Order
A court order for one party to pay financial support to their former partner, whether they were married or a de facto couple. Usually ordered in circumstances where one person is unable to adequately support themselves.
Marriage
Marriage in Australia is governed by federal legislation and according to the Marriage Act 1961 is defined as “the union of 2 people to the exclusion of all others, voluntarily entered into for life.”
Marriage Certificate
An official statement that two people are married. On your wedding day you will receive a certificate of marriage from the celebrant, however, this is a ceremonial certificate of your marriage. The celebrant is required to submit your marriage paperwork to the registry of births, deaths and marriages of the state or territory that you are married in within 14 days of your wedding. You can then apply for an official marriage certificate from the registry, or your celebrant can do so on your behalf.
Mediation
A process where the parties involved in a dispute are assisted by a neutral third party – a Family Mediator for example – to help resolve their dispute. The aim of mediation is to assist the parties involved in the dispute to identify their issues, figure out goals and engage in discussions that can allow them to sort through these issues. Mediation can help the parties involved in the dispute to avoid needing to go through court proceedings to resolve the dispute.
N.
Non-financial contributions
Contributions to a relationship that are not financial and have helped to improve or increase the asset pool of the parties. A non-financial contribution can be direct or indirect. Examples of non-financial contributions include homemaking, renovating, and other forms of home maintenance. Both financial and non-financials contributions will be taken into consideration when a court is deciding property settlement cases.
Notice of Risk
A form that helps the court to identify risks for children at the start of court proceedings for parenting matters. This allows the court to address these risks more promptly. All Initiating Applications and Responses to Initiating Applications seeking parenting orders must also be filed with a Notice of Risk form.
O.
Overseas Marriage
A marriage that takes place in a country other than Australia.
A marriage that occurs overseas is recognised as a valid marriage in Australia as long as the marriage was recognised as valid under the law of the country where the marriage took place, both parties to the marriage were at least 18 years old at the time of the marriage, and that neither party was married to another person at the time of the marriage.
P.
Parental Responsibility
The powers, duties, responsibilities, and authority that a parent has in relation to a child according to the law. These can include daily decisions, like what the child wears and eats, as well as longer term issues, such as the child’s living arrangements, health care matters, education matters and other long-term decisions.
When the parents of a child separate, there is a presumption of equal shared parental responsibility, meaning that both parents will be responsible for making decisions related to the development and welfare of the child. Parents can apply for sole parental responsibility, which can be awarded when it is in the best interests of the child.
Parenting Questionnaire
A court form that is a mandatory part of an initiating application seeking parenting orders. This questionnaire is required whether you’re making the initiating application or responding to one.
The questionnaire requires you to answer questions relating to your circumstances, your current parenting arrangements, and future parenting arrangements.
Party or Parties
One or a group of participants involved in a legal proceeding, legal transaction, or lawsuit. They will have an interest in the outcome of a legal matter, such as someone who has filed a lawsuit (plaintiff) or someone who is charged with a crime (defendant).
Post separation binding financial agreement
A private contract between a couple setting out how they will deal with some or all of their assets after the breakdown of a relationship. A binding financial agreement can be entered into at any point of a relationship, whether before, during or even after the breakdown of the relationship.
A post separation binding financial agreement is one made after a couple has separated and allows the former couple to make decisions about their assets without the court system making them.
Precedent
Used to promote consistency in the decision making of judges. A judge should follow the same or similar interpretations of the law that have been made in cases that are similar in facts and/or legal principles of the current case they are presiding over.
Prenuptial Agreement
A type of private contract between parties to a relationship. Legally known as a binding financial agreement in Australia and colloquially known as a prenup, this agreement is drafted at the beginning of a relationship or prior to marriage and will set out how assets and property will be dealt with and divided if the couple were to break up in the future.
Procedural Hearing
The first court event in a financial and property order case. The purpose of a procedural hearing is to identify the key issues of the case, understand the steps already taken to attempt to resolve the issues, and determine the best way to proceed. Procedural orders will be made during the procedural hearing to enable the case to proceed to the next step.
Procedural Order
Procedural orders are made during the procedural hearing of a financial or property case. Orders may be made for parties to provide specific documents and information relating to the matter. Orders may also be made to allow parties to obtain expert reports or to serve notice of the case to someone who may be affected by it.
Proceedings
An action, such as a hearing, trial, or application before the court, where the aim is to involve the power of the court to enforce a law.
Property Settlement
The division of property between the parties to a relationship. A property settlement can occur after the breakdown of marriage or de facto relationship.
The property that is to be divided includes the property that is owned by both people in the relationship, and can include the family home, other real estate, cash, cars, investments, superannuation, and various other assets that may be of value. This property may be owned jointly or by the individuals of the relationship.
The way a property settlement is determined will vary from relationship to relationship, with other factors such as the contributions to the relationship and the ongoing and future needs of each party.
R.
Reasons for Judgment
A statement that provides an explanation of the decision made by a court. A reasons for judgement can be either written or oral and will likely include:
- A statement of facts of the case;
- The legal issues involved in the case;
- Arguments raised by the parties involved;
- Legal reasoning to help resolve the issues;
- The court’s ruling;
Recovery Applications
If a child has been moved or withheld by a parent without the consent of the other parent, an application can be made for a recovery order. A recovery application can be issued by a parent, grandparent or a person who has a significant interest in the child.
Recovery Order
A recovery order is an order made by the court when a child has been moved or withheld from a parent by the other parent. A recovery order requires that a child is to be returned to their parent or person who has parental responsibility for the child.
Relocation Application
An application made to the Court requesting the right for a parent to relocate with their child to another town, state or country that may be far from the other parent. This application is usually made when the parents are unable to reach an agreement about the proposed relocation. In order for this application to be successful, the parent looking to relocate will need to show that the relocation is beneficial to the child. Some of the ways a relocation could be beneficial to the child include educational opportunities and moving to be closer to family. If a parent relocates with their child without the consent of the other parent, the other parent may apply for a recovery order.
Respondent
Also known as the defendant, a respondent is the individual, group, or organisation which a legal matter or proceeding has been made a against.v
S.
Self-Managed Super Fund
A type of superannuation fund that is private and managed by the person whose fund it is. This person will also be a trustee to the fund. When you manage your own super fund, you are responsible for the fund, including the types of investments that are made and the insurance of the fund. A self-managed super fund can have multiple members, who are all responsible for the decisions of how the fund will be managed and that it is complying with the law in Australia.
Senior Judicial Registrar
A type of registrar who plays a key role in the operation and case management of the Federal Circuit and Family Court of Australia. A senior judicial registrar can preside over interim hearings as well as determine interlocutory applications and conduct dispute resolution events that can help to resolve parenting and property related matters.
Separation
When the parties to a relationship stop living together in a marriage or domestic-like relationship. There are no legal processes that need to be completed to become separated and both parties do not have to agree to the separation. However, both parties need to be aware that the relationship is over.
Separated but living under one roof
When a couple separates, they may continue to live in the same home together but no longer as a couple. Many couples tend to live separately during their separation period, however, for some couples, this may not be financially possibly or may make it difficult to fulfill parental duties and other responsibilities.
If a separated couple continues to live in the same home, they may be required to provide additional information to the court as part of their divorce process.
Single Expert Witness
A type of expert witness who can help to resolve an issue or multiple issues in a family law matter. A single expert witness is appointed and instructed by both parties to the matter. The single expert witness provides independent evidence and information to the court. The parties to the matter agree on the issues that the single expert witness is to give an opinion on.
Single expert witnesses can assess and provide opinions on a wide range of family law matters, such as the maturity of children, the relationship of the child involved with each parent, and the capacity of each party to the matter to be able to provide for all of the needs of a child.
Spousal Maintenance
An agreement between former partners where one party to the relationship will provide financial support to the other party after the breakdown of the relationship, usually because they are unable to adequately support themselves. This may occur after the breakdown of a marriage or de facto relationship. Spousal maintenance is not an automatic entitlement.
Spousal maintenance is different to child support and is sometimes referred to as alimony, which is the legal terminology used in the United States of America.
Spouse
The term used to describe a significant other. This is usually used in the context of marriage, however, in de facto relationships, the partners may also be labelled as “spouse”.
Superannuation Splitting Orders
An order made by the Family Court for the superannuation entitlement of one person to be split, with a portion deposited to another person’s superannuation fund. This can happen when a married or de facto couple separates. Superannuation is considered a property of the asset pool in Australia.
T.
Trial
A hearing in court where all evidence in a case is heard and a decision is made on the matter. Trials can be conducted before a magistrate, a judge, or a judge and jury.
U.
Undefended Hearing
If a responding party to a family court proceeding fails to engage the proceedings in any way, including filing documents on time or appearing in court, the court may order an undefended hearing. The initiating party is then able to make submissions to the court to be able to finalise a matter.
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You should seek specialist legal advice or other professional advice about your specific circumstances.
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