Due to the overwhelming proportion of American based media consumption in Australia, it is inevitable that Australians will incidentally use American terminology, language and slang in their everyday communication.
In Australia, our Family Law system has developed its own terminologies and definitions that are not reflective of American legal terminologies. This can often result in confusion for clients as they unknowingly use legal terminology that they have heard from American based television programs or movies, which is not correct in Australia.
Below are examples of specific Australian Family Law terminologies, which are commonly confused with American Family Law language.
Australian Term: Spousal Maintenance
American Term: Alimony
In Australia, the term “Spousal Maintenance” refers to the payment made by one spouse to another to assist them financially. Spousal maintenance is granted by an Order of the Court (or by agreement between the parties) upon separation and payment can be made in a lump sum or in instalments; for example weekly, fortnightly, monthly payments. The time frame for payment can be limited or extended to any time frame as deemed fair and equitable.
In America, the term “Alimony” is used to describe what we in Australia call Spousal Maintenance. Commonly in American movies and soap operas you will hear people shout dramatically: “I want alimony!” when arguing with a separated spouse. In Australia, the term Alimony is not referred to in the Family Law Act (the primary legislative Act relevant to Family Law in Australia), nor is it used in our Court system. Spousal Maintenance is the only term used in this regard.
Australian Term: Care
American Term: Custody
The term “Care” or “Care of” refers to the care arrangements of the children in a Family Law matter. Often clients will say “I want full custody of my children”. “Custody” is not a term used in Australian law when referring to the care arrangements of children. Rather, it should be “I want the primary care of my children”.
Australian Term: Binding Financial Agreement
American Term: Pre-nuptial Agreement
In America, it is very common to hear of people getting “pre-nuptial” agreements prior to getting married. A pre-nuptial agreement is an agreement between the spouse parties which concerns the ownership of their respective assets should the marriage fail.
In Australia we use a “Binding Financial Agreement” instead of a pre-nuptial agreement. While in essence a Binding Financial Agreement is the same as a pre-nuptial agreement, it is important to note that a Binding Financial Agreement in Australia can also be drafted to apply during and after marriage as well as to prior to marriage.
Australian Term: Order
American Term: Award
In Australia if the Court makes a decision with respect to a Family Law matter they “order” that decision. Conversely, in America the Court will “award” that decision.
For example, if in Australia a Husband and Wife are involved in Family Law court proceedings involving property settlement and the court decides that the wife is entitled to 60% of the asset pool and the husband is entitled to 40% of the asset pool, the court will “order” that this division occur.
In America if the same property settlement division was to occur, the wife would be “awarded” 60% of the asset pool over the 40% to be received by the husband.
For more details on the terms commonly used in Family Law in Australia, visit our page “Glossary of Common Family Law terms”.