Separation and Divorce

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If a relationship has progressed to the point of separation, understanding your rights and obligations becomes crucial. Often in crisis, people rely upon the advice of well-meaning friends and relatives. Yet, each person’s situation is unique, warranting a tailored approach. Financial security in the future often depends upon the outcome of a settlement. Hence, seeking appropriate guidance in the early stages of your separation or relationship breakdown is paramount.

 

Divorce and separation: when should you seek advice?

Individuals facing relationship challenges frequently delay seeking advice until after making significant decisions, leading to potential complications. If you’re in a troubled relationship and separation looms, it’s advisable to seek guidance from an expert before taking action.  Discussing property settlement or children’s issues without professional assistance is ill-advised. Early advice-seeking can often avert prolonged and costly legal battles down the line.

Getting a divorce

Getting a divorce is simply getting unmarried. It is quite separate from arrangements with your ex-partner over property or children.

In Australia we operate under a ‘no fault’ divorce system. This means there’s no need to prove that the marriage breakdown was caused by one partner’s behaviour.  Typically, you only need to demonstrate a 12-month separation period with no chance of reconciliation (different rules apply if the marriage lasted less than 2 years).

For legal purposes, “separation” doesn’t always require living apart; you can be separated while still residing under the same roof. Some clients opt for a DIY approach to divorce, utilizing kits available at Family Law Courts. Others prefer professional assistance, especially in complex cases where a partner’s whereabouts are unknown or important documents are lost.

Regardless of how the divorce is managed, it’s crucial to note that once it’s finalized, you have only 12 months to file for a property settlement in the Family Law Courts.

 

De Facto Relationships

In the past, navigating property and financial matters in de facto relationships posed significant challenges. However, today, these issues are governed by the Family Law Act for most de facto and unmarried partners. This ensures that de facto couples enjoy the same rights and entitlements as married couples.

Before unmarried individuals discuss any proposals regarding financial matters, it’s crucial to seek professional advice to determine which legislation will govern the financial settlement process and how it will impact their individual circumstances.

Frequently asked questions

  • How long do we have to be separated before we can apply for a divorce?

    A minimum separation period of 12 months is required before you can apply for a divorce. For instance, if your separation began on 20 July 2020, you’re eligible to submit the application on or after 21 July 2021. You can apply for an extension of time but it may be difficult and typically, and will add to the cost involved.

  • What if we have been living together during the separation period?

    To meet the requirement of being separated for at least 12 months before applying for a divorce, “separation” is defined as living separately and apart, which can include living under the same roof but leading separate lives. This arrangement is quite common.

    However, if you haven’t physically lived apart for the full 12 months, you’ll need to provide additional information to the Court to establish that despite residing together, you were indeed separated during that time. The Court may request specific details, such as how you communicated to your former partner that the marriage was over and whether your family and friends were aware of the separation.

    To support your claim of separation, you’ll need to submit an Affidavit detailing your circumstances along with an Affidavit from a friend or family member who can confirm your separation while living together. This process helps demonstrate to the Court that you meet the separation requirement for divorce.

  • What happens if my partner doesn’t want a divorce?

    In Australia, we have a ‘no fault’ divorce system. This means that the Court will grant you a divorce if it is satisfied that there has been an irretrievable breakdown of marriage, indicating that there’s no reasonable chance for normal married life to continue. Once this is established and the mandatory 12-month separation period has elapsed, a divorce can be granted, even if only one party desires it.

    How long do I need to wait before I can remarry?

    You’re not permitted to remarry until your divorce is officially finalized. The typical steps involved in applying for a divorce are as follows:

    • Filing an application for divorce along with supporting documents with the Court.
    • Serving the divorce papers on your former partner, either by post or through a process server.
    • Receiving a Court date typically scheduled 4-6 weeks from the application filing date.
    • If all information provided to the Court is accurate and service has been completed on your former partner, the Divorce order will become final one month and one day after the Court date. For instance, if the Court date is 23 August 2020, the divorce becomes final on 24 September 2020.
  • What happens if I was married overseas?

    Even if you were married overseas, you’re still eligible to apply for a divorce in Australia if at least one of the parties:

    • Considers Australia as their home and intends to reside here permanently.
    • Is an Australian citizen by birth or descent.
    • Has been granted Australian citizenship.
    • Typically resides in Australia and has been living here for at least the preceding 12 months.
  • What happens if we have children under the age of 18?

    Before granting a divorce, the Court must ensure that suitable arrangements are in place for any children of the marriage under the age of 18. However, no formal arrangements or orders concerning the children are necessary. The divorce application includes questions about the children, which you must answer, and you’re also required to confirm orally at the Court hearing that appropriate care arrangements are in place for the children.

    These arrangements can be straightforward, such as stating that the children spend time with both you and your former partner by mutual agreement. If there’s disagreement about the care arrangements, you might inform the Court, for example, that you’re engaging in mediation or that there are ongoing Family Court proceedings regarding the children’s care arrangements.

    It’s important to note that parties who have separated can apply for parenting and property orders as soon as they’ve separated; there’s no need to wait until the divorce is finalized.

  • What happens to any joint property or assets?

    Property settlements and parenting arrangements are dealt with separately to the divorce itself. However, it’s crucial to understand that a party to a divorce has only 12 months from the date the divorce is finalized to lodge an application in the Family Court for a property settlement.

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