Family Law – Divorce and Separation
Divorce in Australia
The granting of a divorce order by the Federal Circuit Court legally ends a marriage. Australia has a no-fault divorce system which means that the Court does not need to consider why the relationship has ended or which party is supposedly ‘at fault’.
The requirements for granting a divorce are that:
- the marriage has irretrievably broken down and there is no likelihood of the parties reconciling; and
- the parties have lived separately and apart for a continuous period of 12 months.
If you have been married for less than 2 years, and unless extenuating circumstances exist (such as family violence), a certificate from a family counsellor is also required confirming that reconciliation has been considered.
What If We Still Live Together?
Sometimes because of religious, cultural, financial or other reasons (particularly concerning care arrangements for the children) a married couple may be technically separated but still live under the same roof.
The Court acknowledges these situations and has discretion to waive the requirement that the parties have lived separately and apart.
In such cases, you will need to file with the Court an affidavit setting out your specific circumstances and verifying that your relationship has ended despite the living arrangements.
The affidavit is filed with the divorce application and a lawyer can advise and assist in this regard.
A divorce application can be made individually or jointly.
The application is filed on-line with the Court together with a marriage certificate. At least one applicant must be an Australian citizen or resident and if the marriage certificate is not in English a certified translation must be provided.
If the application is made individually, a copy must be ‘served’ on the other party together with a prescribed brochure about marriage and separation.
If your ex-partner is uncooperative, cannot be located or lives overseas and serving him or her is very difficult, you may be able to apply to have an order for substituted service or dispensation of service.
You will need to prove to the Court that you made all reasonable attempts to serve the documents and the application must be accompanied by an affidavit setting out the efforts made to locate and serve your ex-partner.
After the application is filed and service requirements have been complied with, the Court sets a hearing date to consider the divorce application.
If a joint divorce application is made and / or there are no children of the marriage under 18 years, the parties may not be required to attend Court.
If you have minor children, the Court needs to be satisfied that suitable arrangements have been made for their ongoing care and welfare.
The application must include details of the proposed arrangements for the children’s housing, day-to-day care, contact arrangements with each parent, health and schooling.
Individual applicants with minor children will usually need to attend Court to answer questions regarding the arrangements for their children.
Our divorce lawyers can represent you in Court at the divorce hearing and will assist you in preparing for Court if your attendance is required.
Uncontested applications are generally heard very quickly. If the Court is satisfied with all requirements, it will grant a provisional decree which becomes a final divorce order after one month. The parties are then free to re-marry.
You can apply for a divorce before finalising a property settlement however once a divorce is granted, there is generally a 12-month timeframe within which proceedings for property settlement or spousal maintenance must be commenced.
Obtaining a divorce will likely impact on some aspects of an existing Will so you should have this reviewed to ensure it is valid and still reflects your testamentary intentions.
If you have not already made a Will, now is a good time to talk to a lawyer about having one made, particularly if you are re-partnering or may do so in the future.
Our experienced lawyers can help you prepare a Will and assist with any other aspect of your estate planning such as preparing a Power of Attorney or Appointment of Enduring Guardian.
Child Access (custody)
Parenting arrangements can be documented in a parenting plan or through consent orders. Both are similar in that they set out the arrangements for the ongoing and future care of the children.
Consent orders must be approved by the Court and are therefore legally enforceable. Whilst parenting plans are not legally enforceable, they may be taken into consideration if a party later applies to the Court for orders regarding parenting arrangements.
Parties are required to make genuine attempts to settle any disagreements regarding the care of their children however sometimes this becomes very contentious.
If agreement cannot be reached, the overarching principle that will be considered by a Court is that the best interests of the child or children are paramount.
There are various ways to finalise your property settlement including by financial agreement, consent orders or through Family Court proceedings.
In most cases, a settlement can be finalised without going to Court and our divorce lawyers can advise you of your rights and expectations in this regard.
When determining how property should be divided a range of factors are considered. In family law proceedings, the Court takes the following approach:
- the joint and individual assets, liabilities and financial resources of the parties are established;
- the parties’ respective financial and non-financial contributions are considered;
- the future needs of the parties are assessed taking into account their respective earning capacities, health and need to provide primary care for the children;
- in consideration of all circumstances, orders that are ‘just and equitable’ are made.
Whilst most matters are settled without the need to go to Court, the process above should still be considered when negotiating a fair and reasonable settlement.
Separating couples are encouraged to resolve property issues amicably and must make genuine attempts to do so before resorting to Court proceedings.
They must also give full disclosure regarding assets, liabilities and financial resources.
What About De Facto Couples?
A de facto relationship exists when two people, of the same or opposite sex, who are not legally married or related by family, live together in a genuine domestic relationship.
Matters concerning children of a de facto relationship are dealt with in the same manner as matters concerning children of a marriage.
If a de facto relationship is established, the Family Court can also make property settlement orders if:
- the de facto relationship has lasted for at least two years or is registered under a prescribed State or Territory law; or
- there is a child of the de facto relationship; or
- the party applying for orders made substantial contributions to the relationship and would suffer injustice if an adjustment was not made.
Time limits apply when seeking a property settlement so if you have separated from your de facto partner and wish to formalise the division of your property, we encourage you to contact our experienced lawyers promptly.
Can I Apply For A Divorce Without A Lawyer?
Yes, you can.
Obtaining a divorce order is a relatively simple process provided you and your ex-partner cooperate and take a practical and sensible approach, and the application is properly filed with the Court.
In our experience however, we find that most clients also want to finalise the division of their property as well as ongoing arrangements for the care of their children.
This is when matters can become more involved and complex. In such cases, it is important that the parties are fully advised of their legal rights and obligations and the legal affect of any decisions they are making.
Even if you have already agreed about how your property should be divided, it is important that your agreement is documented in a way that is legally enforceable and, where relevant, accesses any stamp duty exemptions available when transferring property.
Legal Advice and Representation
Effective Legal Solutions provides critical expert legal advice at a time when you most need it and, if necessary, will represent you in Court.
- Applications for divorce
- Property settlements (married and de facto partners)
- Binding Financial Agreements (prenuptial agreements)
- Children’s matters – care arrangements and parenting plans
- Spousal maintenance / child support
- Domestic and family violence (Apprehended Domestic Violence Orders)
- International Family Law Matters
Family law can be highly complex with much at stake. We believe that our clients should understand their legal rights before making decisions that will impact upon their future, their children and their financial security.
We promote an approach that minimises stress and expensive legal fees and, as far as possible, preserves the parties’ relationship.
We take the time to understand your separation issues and provide clear advice and guidance from the outset, allowing you to make informed decisions, finalise your affairs, and move forward.
Our family law team can assist with filing a divorce application, finalising your property settlement and reaching fair and reasonable parenting arrangements that are in your children’s best interests.
We offer a free initial consultation and fixed fees for most of our clients’ legal matters.