Divorce & Separation

Assisting you through this difficult time

What is a Divorce?

Divorce is a legal end to a legal marriage.

When you apply for a divorce, the causes of the relationship breakdown are not taken into account.

The conditions that need to be met are:

  • You can evidence a legal marriage
  • You or your spouse are Australian residents or citizens, or regard Australia as your permanent home
  • The relationship has broken down irretrievably
  • The irretrievable breakdown is proven by a minimum 12 month separation
  • If your marriage is less than 2 years old, you will generally require a counselling certificate before applying for a divorce
  • If you have children, you must satisfy the Court that you have made proper arrangements for their welfare. (This does not mean those arrangements are formal, nor that there is no dispute, but rather that at the time of the divorce hearing, the children are being appropriately cared and provided for).

How Do I Apply for a Divorce?

To apply for a divorce, you must complete an Application for Divorce and file it with the Court and pay the application fee. This can be done online through the Family Law Court website.

If you apply for a divorce together with your spouse, it is a joint application and you and your spouse are joint applicants. If you apply for a divorce by yourself, you are a sole applicant and your spouse is the respondent.

Unlike resolving parenting or financial matters, the divorce process is relatively straightforward. You may prepare your own divorce application or ask one of our lawyers to do it for you. The Application for Divorce Kit has instructions for completing the application and filing it. It includes an Application for Divorce form.

While the granting of a divorce order will mark the legal end of your marriage, it will not settle child support, spousal maintenance, parenting and the division of property. These issues are dealt with separately.

Divorce proceedings are usually commenced after all parenting and financial matters have been resolved.

You can apply for a property settlement at any time after separation and prior to Divorce. However once a Divorce certificate has been issued, you will only have 12 months to make an application to the Court by right. After that, any application for a property settlement can only be made with the consent of both parties or with permission from the Court under strict circumstances. That is why it is advisable to finalise all financial matters before applying for a Divorce.

What is Separation?

Separation is the process of bringing a relationship to an end, either de facto or a marriage. While the Family Law Act does not provide for, or require, the registration (or recording) of a separation – it is a factor that must be proven if it is disputed by either party at a later time, or if the separation proceeds to a divorce.

You do not have to leave your home to separate from your partner, you can be separated and continue to live under the same roof. As there may be numerous decisions or outcomes into the future that will be based on when the separation occurred, it is a good idea to confirm the separation in writing.

Once you do decide to separate, you are likely to need to make some immediate practical decisions such as:

  • Whether you will continue to live under the same roof, or not
  • Whether one of you needs to provide ongoing financial support for the other
  • How your property will be divided
  • Where any children will live
  • What arrangements will be made for the financial support of the children
  • How much time the children will spend with each parent.

(The family Law system in Australia encourages separating parents to work out parenting arrangements without going to Court. One way these arrangements can be set into place is to make a Parenting Plan).

Do I have to ‘Prove’ I am Separated?

If the Court becomes involved at a later date, either through formal divorce proceedings (which require the date of separation to be recorded on the application) or in the case of de facto relationships, disputes about children, property or financial matters, it may be necessary to prove when and if the separation took place. The factors considered by the Court can include:

  • Whether either party lodged or signed any documents informing government agencies of the separation, such as Applications for Centrelink or ATO documents as a single person;
  • Whether the parties separated their financial affairs to any extent after the date of separation;
  • Whether the parties performed domestic duties such as cooking and washing for each other after the alleged date of separation;
  • Whether the parties slept in separate rooms or together after the alleged date of separation;
  • Whether the parties continued to be intimate after the date of alleged separation; and
  • Whether it was publicly known (such as by telling friends and family), that the parties had separated.

If you cannot prove you had separated from your spouse at least 12 months before you file your Application for Divorce, the Court will not grant your divorce. In the case of a de facto or same-sex relationship, whether or not a property settlement is available can depend on which side of the two year mark the separation took place.

Regardless of whether your separation is amicable, or not, and whether your separation will be relatively simple or complex – the best thing you can do is be informed. There is a lot of good information available through government agencies that can help you understand the overall process and legal requirements. Once you have a basic grasp of the various options and requirements you will be in a better position to seek legal advice.

 

Do I have to See a Lawyer to Get Separated?

No, it is not a requirement. Just a good idea.

The benefit to seeking legal advice from an expert family lawyer is simply to make sure you understand all your rights and obligations, the potential pitfalls and future risks of decisions you are making now. Separation is a stressful time for you and your entire family, so the additional benefit of seeking independent legal advice is their independence and objectivity.

Additionally, if there are elements to your separation that add urgency to your decision making (i.e. violence, imminent relocation, concerns about children’s safety or abduction) a lawyer can help you to understand what options are available to ensure you can protect yourself and your children both now and into the future.

Any reliable family lawyer will tell you to avoid litigation if at all possible. Our lawyers encourage settlements, not arguments and keep you focused on achieving the best outcome for you in a prompt and cost-effective way. If you have questions about a separation, please don’t hesitate to get in touch with our Family Law team or Ask Us a Question.

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