Legal terminology can be confusing, particularly when you are going through a divorce, an already emotionally challenging time. Most people experiencing separation or divorce have never dealt with the Court or the legal system before. As a result, many legal terms are only familiar through movies, television, or conversations with friends and family.
Because the language used by lawyers can feel overwhelming, we have put together a list of common terms that frequently arise in family law proceedings, along with clear explanations of what they actually mean.
“Alimony” vs “Spousal Maintenance”
You may have heard the term “Alimony” in television shows and movies, however we do not use this term in Australian Family Law.
In Australia, we use the term “Spousal Maintenance” which ‘is financial support paid by a party to a marriage to their former husband or wife in circumstances where they are unable to adequately support themselves.’[1] Spousal maintenance may apply where one party cannot meet their reasonable living expenses from their own income or assets.
“Custody” vs “Parenting Orders”
You may have heard the term “custody,” however, this term is no longer used regularly in Australia, to attempt to dispel the idea that the children can be “won.” Family Law lawyers will often use the term “parenting arrangements,” or “parenting orders” when care arrangements are formalised by the Court.
Parenting Orders can deal with any aspect related to the care, welfare and development of a child,[2] including:
- who the child will live with;
- how much time the child spends with each parent and other people or family members;
- the allocation of parental responsibility, and the form of consultation about parental decisions;
- communication with each parent or with other people or family members; and
- any other aspect of the care and welfare of the child.
“Attorney” vs “Lawyer, Barrister, Solicitor, Counsel, Junior Counsel or Senior Counsel”
The term “attorney” is not a term which is commonly used in Australia to refer to legal professionals, though you may often hear it in US media and television. In Australia, the term “lawyer” refers to any person who has been admitted to the legal profession.
When most people think of a “lawyer,” they often imagine someone arguing in Court before a Judge. However, this is not always the case. The term “lawyer” refers to both ‘solicitors’ and ‘barristers.’
When you begin legal proceedings, you will likely engage a solicitor. Your solicitor is your main point of contact and will take your instructions, provide advice, prepare documents and correspondence, negotiate and manage your case.
Although solicitors can appear in Court, and often do for more routine matters, if your matter proceeds to Court, your solicitor may recommend the involvement of a barrister, who specialises in advocacy and legal advice. A barrister is an independent practitioner who is briefed to prepare the case for hearing and present the case to the Court, and will also engage in negotiations and dispute resolution. You may also hear your solicitor use the term “Counsel.” Counsel is simply another word for the barrister (or barristers) working on your case.
Barristers are also referred to by their level of seniority and experience, being either Junior Counsel or Senior Counsel (also called SC, KC or Silk). Junior Counsel is any barrister who is not a Senior Counsel. Barristers who have achieved the title of Senior Counsel have been recognised as demonstrating outstanding skill as advocates and advisers in the administration of justice.
You may need to engage either Junior Counsel, Senior Counsel, or both if the matter is especially complex!
We aim to make the family law process as clear and straightforward as possible. If you are going through a separation or divorce, please do not hesitate to contact us. You can book a free 15-minute clarity call through our website at https://michaelconley.com.au/
[1] https://www.fcfcoa.gov.au/fl/fp/spousal-maintenance
[2] Section 64B, Family Law Act 1975 (Cth)