590:, which applies to any court matters involving children that were in court on or after 1 July 2006. The primary object of this law is to ensure that courts always have the "best interests of the child" as the paramount consideration. An object of this law is to ensure that the best interests of children are met by ensuring that "children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child". Many however argue that such an arrangement actually works against achieving this, and today continue to push for further reform. In the last decade not one Australian father has been given equal parenting access in any case reported on the Austlii website. Instead judges applied the McInstosh-Chisholm doctrine that sought to limit time children spend with children. This approach has now been debunked by academics, even though never challenged by any family court judge.
533:. This is because there must be a nexus between the de facto couple and a state or territory, as the law can only be applied within a state or territory. If a de facto couple moves out of an Australian state or territory they do not take the state or territory with them so the law cannot apply to them. The legal status and rights and obligations of the de facto or unmarried couple would then be recognised by the country's laws of where they are ordinarily resident. See the section on Federal Circuit and Family Court of Australia for further explanation on jurisdiction on de facto relationships. This is unlike marriage, which is legally recognised internationally outside of the country of marriage.
273:
lodged online or using a hard copy form. A fee is payable. If the application is made by one spouse (called a "sole application"), the divorce documents must be served on the other spouse, at least 28 days before the court hearing if the spouse is in
Australia or 42 days if overseas. The spouse can challenge the application in a "response", claiming, for example, that the timeframes set out in the Act have not been satisfied, or that the applicant is not an Australian citizen or resident, etc. The response must also be served on the applicant and filed in court. If both spouses agree to divorce a "joint application" is filed, which does not need to be served and no response can be made.
213:
county from where Mr Jalloh originated, which had his name written as 'Jalloph'. Ms Bown sought to end the marriage due to other personal matters about her husband he had not disclosed to her. However, the Family Court of
Australia noted that misrepresentations that could induce consent to marriage relating to age, wealth, social status or other background were not relevant to whether or not Ms Brown consented to marry Mr Jalloh on the day she did, and so the application was dismissed.
606:. Instead courts have wide powers, taking into account 27 or so statutory factors, to determine what a "just and equitable" division of wealth would be. The vast majority of outcomes result in a division of 55-65% in favour of the wife, or economically weaker spouse, before payment of legal fees. This process is not without its critics: on average the wealth re-allocation process takes between 2 years, or for the more wealthy, up to 4 years.
675:
Agreement is to prevent a Court making orders under Part VIII of the Family Law Act (or the corresponding de facto provisions), meaning that property will be divided and/or spousal maintenance will be dealt with in accordance with the provisions of the agreement. A Binding
Financial Agreement can only be valid if both parties have received independent legal advice before the agreement was signed.
256:
reality, the system was very expensive and humiliating for the spouses, necessitating appointment of barristers, often private detectives, collection of evidence, obtaining witness statements, photographs and hotel receipts, etc. Failure to prove a spouse's guilt or wrongdoing would result in a judge refusing to grant a divorce. The
635:
Contributions made to the relationship include financial contributions (e.g. income, inheritances, assets held at the commencement of the relationship), non-financial contributions (e.g. unpaid labour, assistance running a business) and parenting and homemaker contributions (e.g. domestic duties and
272:
Either party to a marriage may apply to the
Federal Circuit and Family Court of Australia for a divorce, or both parties may apply jointly. However, an application for divorce cannot be filed before the expiration of at least two years since the marriage had been entered into. The application can be
548:
The family law framework also deals with parenting arrangements to ensure the best interests of children, especially in circumstances where they are at risk or where their parents or carers are separating. Although child protection is primarily dealt with on a state and territory basis, under state
337:
Law Act to apply, unless if they have a child together, have registered the relationship, or have made significant contributions to the relationship. Parties to a de facto relationship have only two years after separation in which to file for property and/or spousal maintenance in the Family Court.
212:
the wife (Ms Bown) sought declaration that her marriage was void on the grounds that her husband (Mr Jalloh) had not disclosed his full past to her and so she had married him on grounds of mistaken identity because his name was slightly different. Ms Bown had located a drivers licence issued in the
197:
the husband (Mr
Kallestad) sought declaration that his marriage was void on the grounds that his wife (Ms Brodie) had previously been married to another person with that marriage still being live at the time Mr Kallestad was married to Ms Brodie. The Family Court of Australia found the marriage was
336:
under powers conferred to the
Commonwealth by five of the states. Since 2009, the definition of "de facto couple" under the federal Act has included same-sex couples and applies throughout Australia, except Western Australia. A de facto couple must cohabit for a minimum of two years for the Family
674:
Under Part VIIIA of the Family Law Act (for de facto couples: Division 4 of Part VIIIAB), parties may opt-out of the ability of the court to make orders in respect of property settlement or spousal maintenance by use of a valid
Binding Financial Agreement. The effect of a valid Binding Financial
158:
the parties did not comply with the marriage laws in the jurisdiction where they were married (although a marriage contracted abroad is in general considered valid in
Australia, in certain cases, such as when there are serious contradictions with the marriage laws of Australia, the marriage is
255:
came into operation. The Act continued the fault-based system operating under state authority. Under the
Commonwealth law a spouse had to establish one of the 14 grounds for divorce set out in the Act, including adultery, desertion, cruelty, habitual drunkenness, imprisonment and insanity. In
639:
Section 75(2) ("future needs") factors allow an adjustment to be made between the parties to take account of particular circumstances. Common relevant circumstances include the care of children, a disparity of income, and the impact on the relationship of time out of the workforce.
315:
A copy of the marriage certificate must be provided with the application. The same rules apply if the marriage was entered into overseas, except that if the marriage certificate is not in
English, an English translation must be provided, with an affidavit from the translator.
678:
However, a recent Canstar study found that only 6% of Australian Couples have a Binding Financial Agreement in place, meaning over 90% of Australian couples once separated are still required to divide wealth according to what the family law act sees as "just and equitable".
643:
Under the Family Law Act, a court has the power to "split" superannuation from one spouse to another. A court can make orders for property settlement or spousal maintenance after the death of a party, but only if proceedings were commenced prior to the death of that party.
41:. Australia recognises marriages entered into overseas as well as divorces obtained overseas if they were effected in accordance with the laws of that country. Australian marriage and "matrimonial causes" are recognised by sections 51(xxi) and (xxii) of the
682:
A Binding Financial Agreement that attempts to limit a person's ability to claim for spousal maintenance will be invalid if the party was unable to support himself or herself without a pension when the agreement came into effect.
177:
An application for a decree of nullity takes precedence over an application for divorce, so that if it is found that a marriage is void, then divorce application becomes irrelevant, though other remedies may still be available.
340:
Before March 2009, state and territory laws applied to de facto relationships (and continues to apply in Western Australia). The names for de facto and similar relationships in each state and territory were/are as follows:
853:
319:
After the divorce is finalised, each party can apply to the Federal Circuit and Family Court of Australia (or the Family Court of Western Australia for residents of that state) for a proof of divorce certificate.
614:
Under the Family Law Act a court can make orders dividing the assets, liabilities and superannuation of spouses, and other related orders. The court must approach the decision according to the "4 step process":
731:
250:
Though the Commonwealth had the power since federation in 1901 to make laws affecting divorce and related matters such as custody and maintenance, it did not enact uniform national laws until 1961, when the
66:
in Australia. Since 1975, the only ground for divorce has been irretrievable breakdown of marriage, evidenced by a twelve-month separation. However, a residual "fault" element remains in relation to
572:
301:
If there are children of the marriage aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them. A child of the marriage includes:
1000:"In this situation, both spouses are able to prepare separate affidavits and therefore there would be no need to prepare an affidavit of an independent party (family member or friend)"
234:. Sometimes the couple may still be living together in the same home and be considered separated. If that is the case for any part of the twelve months before filing the application.
985:
895:
849:
294:
Neither spouse can remarry before the divorce becomes final, which is usually one month and one day after the divorce is granted in court. Such a marriage would constitute
655:
Parties to a marriage or a de facto relationship have the right to apply for spousal maintenance from the other party. The party making an application must demonstrate:
1841:
560:, which may require one parent to make payments to the other, depending on the division of care and on each parent's income, among other factors. Since 1989
666:
If made, an order for spousal maintenance is usually for a limited period to allow a party to retrain, return to the workforce or care for young children.
332:
except Western Australia, matters arising from separations of de facto relationships, such as child custody and property rights, are also covered by the
526:
1072:
33:, which affect the family and the relationship between those people, including when those relationships end. Most family law is practised in the
1089:
721:
237:
A sole applicant will need to submit an affidavit containing proof of this separation. additionally an affidavit from a neutral third party.
34:
1189:
1174:
906:
999:
636:
care of children). Contributions as homemaker and parent are not presumed to be of lesser value than financial contributions.
311:
any child who was treated as a member of the family prior to the final separation; for example, a step-child or foster child.
1401:
280:
regards Australia as their home and intends to live indefinitely in Australia and is an Australian citizen or resident, or
1862:
1805:
1016:
953:
804:
387:
329:
287:
by birth or descent or is a naturalised Australian citizen (in which case a citizenship certificate will be required), or
1500:
1485:
831:
230:
with the only ground for divorce being a claim of an irretrievable breakdown of marriage, evidenced by a twelve-month
883:
790:
38:
932:
556:
A government-administered child support scheme enables parents to reach private agreements, or to register with the
240:
For a joint application both parties should file an affidavit, a third party affidavit is NOT needed in this case.
116:. Annulment does not involve termination of a marriage, but rather a declaration the purported marriage is in-fact
954:"FAMILY LAW ACT 1975 - SECT 52 Court not to make divorce order where application for decree of nullity before it"
647:
The court may decline to make any orders, leaving the legal and equitable interests of the parties as they were.
1857:
1438:
557:
130:
25:
and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 as well as in other laws and the
1544:
708:
125:
56:
Australia's laws on divorce and other legal family matters were overhauled in 1975 with the enactment of the
50:
198:
void on the grounds Ms Brodie's original marriage was still valid at the time the second marriage was made.
1698:
1668:
1638:
1577:
1262:
1162:
482:
1792:
1775:
1762:
1746:
1714:
1683:
1606:
1514:
1425:
1334:
1274:
1267:
1146:
1653:
1623:
1593:
1561:
1531:
1471:
1455:
751:
571:
Australian domestic law also enacts some of Australia's obligations under international law, such as the
244:
632:
The relevant date to ascertain the property "pool" is at the time of trial, not the time of separation.
413:
Part IX has now been repealed effective 1 December 2008, now encompassed in the Relationships Act 2008.
542:
772:
625:
assess the relevant factors set out in section 75(2), often referred to as the "future needs" factors;
1296:
42:
405:
1396:
1318:
1246:
1728:
1128:
367:"Domestic relationship", encompassing "de facto relationships" and "close personal relationships"
290:
ordinarily lives in Australia and has done so for 12 months immediately before filing for divorce.
1408:
1373:
778:
602:
country, meaning that on divorce or death of a spouse net wealth is not split evenly (50/50) as
1348:
599:
1292:
1222:
1204:
726:
695:
549:
and territory legislation, parenting arrangements could also be dealt with under the federal
471:"Personal relationship", encompassing "significant relationships" and "caring relationships"
162:
one or both of the parties were under-age and did not have the necessary approvals, (minimum
525:
Because of how the power from state or territory to federal jurisdiction was conferred (see
137:
of marriage as a ground for annulment, so that a divorce application would need to be made.
1314:
1242:
1030:
395:
305:
any child of either spouse, including a child born before the marriage or after separation,
89:
1392:
8:
76:
71:
58:
21:
628:
consider whether the outcome is "just and equitable" and make any relevant adjustments.
603:
503:
284:
231:
1836:
1044:
879:
703:
450:
374:. Since July 1, 2016 all NSW laws also apply to the approximately 2,000 residents on
702:
and enticement of a party to a marriage have been abolished. Claims for damages for
133:
no longer exists. In addition, the 1975 Act also abolished the legal concept of non-
1237:
227:
163:
63:
1309:
434:
358:
170:
247:
for 3 months or more, then the 12-month qualification period has to start anew.
1826:
375:
362:
732:
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011
1851:
1218:
1058:
561:
113:
85:
67:
1349:"Does the Child Support Sacred Cow Milk Parents of Administrative Justice?"
151:
the parties are in a prohibited relationship (i.e. closely related such as
134:
46:
30:
686:
A Binding Financial Agreement may be set aside in limited circumstances.
418:
117:
26:
1103:
573:
Hague Convention on the Civil Aspects of International Child Abduction
276:
An application for divorce can be made in Australia if either spouse:
1832:
Official website of the Federal Circuit and Family Court of Australia
1729:"Prenuptial Agreements in Australia: What You Need to Know | Canstar"
109:
1017:"FAMILY LAW ACT 1975 - SECT 50 Effect of resumption of cohabitation"
619:
ascertain the assets, liabilities and superannuation of the parties;
123:
What constitutes a void marriage is determined by section 23 of the
1387:
699:
466:
152:
400:"Domestic relationship", defined to mean "de facto relationships"
144:
one or both of the parties were already married at the time (i.e.
1498:
Australian Law Reform Commission Report, 30 April 2019, at p. 37
1483:
Australian Law Reform Commission Report, 30 April 2019, at p. 23
1031:"The Divorce Process: 17 Things You Need To Know - DS Family Law"
662:
that the other party has the capacity to pay spousal maintenance.
93:
81:
622:
assess the contributions that each party made to the asset pool;
295:
166:
is 16, but 16 and 17 years-olds need special court approval) or
145:
1374:
Family Law Amendment (Shared Parental Responsibility) Act 2006
588:
Family Law Amendment (Shared Parental Responsibility) Act 2006
1356:
Australian Institute of Administrative Law Forum (AIAL Forum)
529:), de facto couples outside Australia are not covered by the
1831:
328:
Since 1 March 2009 (1 July 2010 in South Australia), in all
1726:
Pre-nup or pre-yup: Pros and cons of prenuptial agreements
1227:(2003) 31(1) University of Western Australia Law Review 19.
129:
The distinction that existed before 1975 between void and
308:
any child adopted by the spouses or either of them, or
1428:(1)(a) Objects of Part and principles underlying it.
805:"FAMILY LAW ACT 1975 - SECT 51 Nullity of marriage"
487:"Domestic relationship" and "domestic partnership"
593:
568:, administered by Child Support Agency Australia.
1837:Federal Circuit and Family Court Rules 2021 (Cth)
527:Section 51(xxxvii) of the Australian Constitution
1849:
1230:
1175:"Norfolk Island Legislation Amendment Bill 2015"
520:
1607:"Stanford & Stanford [2012] HCA 52"
1545:"Grier & Malphas [2016] FamCAFC 84"
1346:
783:
706:to marry were abolished by Section 111A of the
669:
260:was replaced by no-fault divorce system of the
1190:"Territories Legislation Amendment Bill 2016"
722:Federal Circuit and Family Court of Australia
380:Norfolk Island Legislation Amendment Act 2015
35:Federal Circuit and Family Court of Australia
1133:Davoren Associates. Retrieved on 2015-01-15.
659:his or her need for spousal maintenance, and
1842:Withdraw application or response to divorce
896:"Home – Federal Circuit Court of Australia"
1302:
986:"Separated but living under the one roof@"
689:
536:
384:Territories Legislation Amendment Act 2016
1252:
1776:"Thorne v Kennedy [2017] HCA 49"
1415:
1380:
1324:
1136:
1515:"Mallet v Mallet [1984] HCA 21"
1850:
650:
609:
267:
811:
186:
931:al, Sally Cole et (8 January 2015).
791:"Hague Convention on Marriages 1978"
19:is principally found in the federal
1129:"Was I in a De Facto Relationship?"
566:Child Support (Assessment) Act 1989
444:Domestic Partners Property Act 1996
388:Norfolk Island Legislative Assembly
323:
221:
13:
1217:
930:
850:"Applying for a decree of nullity"
14:
1874:
1820:
1059:"The Matrimonial Causes Act 1959"
372:Property (Relationships) Act 1984
39:Family Court of Western Australia
1347:Henderson-Kelly, Sandra (2005).
856:from the original on 27 May 2015
169:one or both of the parties were
1798:
1782:
1768:
1752:
1736:
1720:
1704:
1688:
1673:
1658:
1643:
1628:
1613:
1599:
1583:
1567:
1551:
1537:
1521:
1507:
1492:
1477:
1461:
1445:
1431:
1366:
1340:
1282:
1211:
1197:
1182:
1167:
1152:
1121:
1096:
1082:
1065:
1051:
1037:
1023:
1009:
992:
978:
969:
960:
946:
924:
752:"Family Law Act 1975, s.104(7)"
594:Property and financial outcomes
513:De Facto Relationships Act 1991
492:Domestic Relationships Act 1994
298:and would be illegal and void.
181:
1827:Australian Family Law Act 1975
1501:"Reference at www.alrc.gov.au"
1486:"Reference at www.alrc.gov.au"
1223:"The Referral of State Powers"
888:
868:
842:
824:
797:
765:
744:
558:Child Support Agency Australia
439:"Close personal relationship"
390:was abolished on 1 July 2015.
1:
1045:"Matrimonial Causes Act 1959"
737:
575:, which is dealt with in the
521:Recognition outside Australia
112:can be made if a marriage is
51:Hague Convention on Marriages
49:and conventions, such as the
694:Since 1975, the actions for
670:Binding Financial Agreements
564:has been assessed under the
483:Australian Capital Territory
99:
7:
1439:"Empty days, lonely nights"
1321:513 (14 December 1979).
715:
258:Matrimonial Causes Act 1959
253:Matrimonial Causes Act 1959
10:
1879:
1863:Public policy in Australia
1108:eservices.comcourts.gov.au
1090:"Howdo I serve a divorce?"
1073:"Reference at aifs.gov.au"
543:Parenting Law in Australia
216:
43:Constitution of Australia
1337:What this Division does.
508:"De facto relationship"
455:"De facto relationship"
423:"De facto relationship"
171:forced into the marriage
1293:[2006] VSCA 165
1205:"Norfolk Island reform"
1149:De facto relationships.
779:Australian Constitution
690:Other actions abolished
537:Laws affecting children
140:A marriage is void if:
45:and internationally by
903:Familylawcourts.gov.au
600:equitable distribution
476:Relationships Act 2003
406:Relationships Act 2008
1858:Australian family law
1315:[1979] HCA 63
1243:[2007] HCA 33
727:Marriage in Australia
696:criminal conversation
511:Before 1 March 2009,
490:Before 1 March 2009,
474:Before 1 March 2009,
459:Family Court Act 1997
442:Before 1 July 2010,
428:Property Law Act 1974
426:Before 1 March 2009,
411:Property Law Act 1958
403:Before 1 March 2009,
370:Before 1 March 2009,
330:states or territories
96:and related matters.
17:Australian family law
1393:[2010] HCA 4
1299:(Vic, Australia)
940:State Library of NSW
582:On 22 May 2006, the
496:Legislation Act 2001
243:If the parties have
74:issues. The federal
62:, which established
1789:Family Law Act 1975
1759:Family Law Act 1975
1743:Family Law Act 1975
1711:Family Law Act 1975
1695:Family Law Act 1975
1680:Family Law Act 1975
1665:Family Law Act 1975
1650:Family Law Act 1975
1635:Family Law Act 1975
1620:Family Law Act 1975
1590:Family Law Act 1975
1574:Family Law Act 1975
1558:Family Law Act 1975
1528:Family Law Act 1975
1468:Family Law Act 1975
1452:Family Law Act 1975
1422:Family Law Act 1975
1331:Family Law Act 1975
1259:Family Law Act 1975
1159:Family Law Act 1975
1143:Family Law Act 1975
651:Spousal Maintenance
610:Property Settlement
586:was amended by the
584:Family Law Act 1975
577:Family Law Act 1975
551:Family Law Act 1975
268:Divorce application
262:Family Law Act 1975
195:Kallestad v Brodie,
106:Family Law Act 1975
94:spousal maintenance
77:Family Law Act 1975
72:property settlement
59:Family Law Act 1975
22:Family Law Act 1975
1402:"Judgment Summary"
874:Dickey, A. (2013)
817:Dickey, A. (2007)
604:community property
504:Northern Territory
285:Australian citizen
188:Kallestad v Brodie
131:voidable marriages
709:Marriage Act 1961
704:breach of promise
518:
517:
451:Western Australia
378:, under both the
126:Marriage Act 1961
110:decree of nullity
90:property division
86:children's orders
1870:
1814:
1813:
1802:
1796:
1786:
1780:
1779:
1772:
1766:
1756:
1750:
1740:
1734:
1732:
1724:
1718:
1708:
1702:
1692:
1686:
1677:
1671:
1662:
1656:
1647:
1641:
1632:
1626:
1617:
1611:
1610:
1603:
1597:
1587:
1581:
1571:
1565:
1555:
1549:
1548:
1541:
1535:
1525:
1519:
1518:
1511:
1505:
1504:
1496:
1490:
1489:
1481:
1475:
1465:
1459:
1449:
1443:
1442:
1435:
1429:
1419:
1413:
1412:
1406:
1384:
1378:
1370:
1364:
1363:
1353:
1344:
1338:
1328:
1322:
1306:
1300:
1286:
1280:
1278:
1271:
1256:
1250:
1238:Thomas v Mowbray
1234:
1228:
1226:
1215:
1209:
1208:
1201:
1195:
1193:
1186:
1180:
1178:
1171:
1165:
1156:
1150:
1140:
1134:
1132:
1125:
1119:
1118:
1116:
1114:
1100:
1094:
1093:
1086:
1080:
1079:
1077:
1069:
1063:
1062:
1055:
1049:
1048:
1041:
1035:
1034:
1027:
1021:
1020:
1013:
1007:
1006:
1004:
996:
990:
989:
982:
976:
973:
967:
964:
958:
957:
950:
944:
943:
937:
928:
922:
921:
919:
917:
912:on 17 March 2015
911:
905:. Archived from
900:
892:
886:
872:
866:
865:
863:
861:
846:
840:
839:
828:
822:
815:
809:
808:
801:
795:
794:
787:
781:
776:
769:
763:
762:
760:
758:
748:
598:Australia is an
347:State/territory
344:
343:
324:De facto couples
228:no-fault divorce
222:No-fault divorce
164:marriageable age
64:no-fault divorce
1878:
1877:
1873:
1872:
1871:
1869:
1868:
1867:
1848:
1847:
1823:
1818:
1817:
1804:
1803:
1799:
1787:
1783:
1774:
1773:
1769:
1757:
1753:
1741:
1737:
1733:4 December 2019
1727:
1725:
1721:
1709:
1705:
1693:
1689:
1678:
1674:
1663:
1659:
1648:
1644:
1633:
1629:
1618:
1614:
1605:
1604:
1600:
1588:
1584:
1572:
1568:
1556:
1552:
1543:
1542:
1538:
1526:
1522:
1513:
1512:
1508:
1499:
1497:
1493:
1484:
1482:
1478:
1466:
1462:
1450:
1446:
1437:
1436:
1432:
1420:
1416:
1411:. 3 March 2010.
1404:
1400:
1385:
1381:
1371:
1367:
1351:
1345:
1341:
1329:
1325:
1310:Gronow v Gronow
1307:
1303:
1297:Court of Appeal
1287:
1283:
1273:
1266:
1257:
1253:
1235:
1231:
1216:
1212:
1203:
1202:
1198:
1188:
1187:
1183:
1173:
1172:
1168:
1157:
1153:
1141:
1137:
1127:
1126:
1122:
1112:
1110:
1102:
1101:
1097:
1088:
1087:
1083:
1075:
1071:
1070:
1066:
1057:
1056:
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1852:Categories
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1426:s 60B
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1289:R v Thomas
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860:8 December
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738:References
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419:Queensland
245:reconciled
232:separation
104:Under the
27:common law
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100:Annulment
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467:Tasmania
396:Victoria
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