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Home | Family Law | Separation and Divorce

Separation

Often couples find it difficult to define the date of separation, whilst for others it is clear cut. It is possible to be separated but still living under the one roof. The court will require evidence of this which is provided by way of affidavit about how you arrange your day to day separated lifestyle whilst under one roof including ceasing an intimate relationship, no longer sharing meals or socialising as a couple.

If you have separated or divorced you should update your will, power of attorney and enduring guardianship and change any Superannuation binding nomination that you have previously made in favour of your spouse.

De Facto Relationship

Since 2009, de facto couples across Australia have had similar rights and obligations as married couples, so in many cases, the same rules apply as for any separation or divorce.

When considering whether or not a de facto relationship existed, the courts will look at how long you have been together, the nature and extent of your common residence and whether there is a sexual relationship between parties. Your financial arrangements may also be considered.

A de facto relationship can exist regardless of whether it is same sex or different sex, and even when one of the parties is legally married to someone else or in another de facto relationship.

What is a Divorce?

A divorce is the legal dissolution of a marriage.

Who Can Apply For a Divorce?

You can apply for divorce under Australian law if you or your spouse:

  • Is an Australian Citizen by birth, descent or grant of citizenship, or
  • Ordinarily lives in Australia and have done so for the year immediately before the divorce, or
  • Regard Australia as home and intend to live indefinitely in Australia.

What are the reasons for Divorce?

There are many reasons which lead to divorce. Every case is different with own set of circumstances. Some of the common reasons are:

  • Age
  • Behaviour
  • Expectations
  • Infidelity
  • Lack of Commitment
  • Financial

Applying For a Divorce

Applications for divorce are usually made to the Federal Circuit Court of Australia. There is a no fault system for divorce in Australia. The only thing necessary to prove is the irretrievable breakdown of the marriage by demonstrating that you have been legally separated for at least 12 months and you meet the eligibility criteria listed above.

It is possible to be separated but still living under the one roof. The court will require evidence of this which is provided by way of affidavit about how you arrange your day to day separated lifestyle whilst under one roof including ceasing an intimate relationship, no longer sharing meals or socialising as a couple.

If the marriage is of less than 2 years duration then you must attend counselling to explore the possibility of reconciliation and a Part F Certificate of Family Counselling, signed by a family counsellor should be attached to your divorce application.

What happens after a divorce?

Once a divorce order has been made you must file any application for property settlement in the court within 12 months of the date the divorce order takes effect.

FAQ

How can I get a divorce?

The Family Law Act 1975 operates on a "no fault" basis. This means it is not necessary to establish that either party is to blame for the marriage breaking down, for a Divorce to be granted. The only ground necessary to demonstrate in order for a party to obtain a Divorce Order is an “irretrievable breakdown of the marriage". To establish such that a marriage has irretrievably broken down the husband and wife must have lived separately and apart for a period of at least 12 months. When there is a separation under one roof, evidence may be required to "prove" the separation. The evidence must show that even though the husband and wife continued to live under the one roof that they have in fact lived independent and separate lives for 12 months.

How do I go about getting a Divorce Order?

Once the 12 month separation period has elapsed, either party (the husband or the wife) or both parties jointly may complete and file an Application for Divorce with the Federal Magistrates Court of Australia. At the time of filing the Application for Divorce, the Court allocates a Hearing date, which is normally around 6 to 10 weeks after the date of filing. A filing fee is payable to the Court at this point in time. The filing fee is currently $865.00. If the Application is made solely by one party it will need to serve in accordance with the Court rules. The parties do not need to attend Court at the Hearing of the Divorce Application unless there are children of the relationship who are under 18 years of age.

If there are children under the age of 18, prior to granting a Divorce Order the Court will need to be satisfied that proper and adequate arrangements have been made for the welfare of such children, including as to their housing, education, health, contact and financial support arrangements.

Upon being satisfied that all necessary requirements have been met, the Court will then grant a Decree Nisi of the marriage with such an Order becoming absolute and final one month and one day later (Decree Absolute). A party cannot re-marry until the Divorce Order becomes absolute.

Once the Divorce Order becomes absolute, each party then has 12 months within which to bring an Application before the Court seeking property division and/or spouse maintenance Orders. Thereafter, the parties will become statutorily barred from commencing such proceedings without the leave of the Court.

I am in a de facto relationship and have separated from my partner. What do I do?

Once the 12 month separation period has elapsed, either party (the husband or the wife) or both parties jointly may complete and file an Application for Divorce with the Federal Magistrates Court of Australia. At the time of filing the Application for Divorce, the Court allocates a Hearing date, which is normally around 6 to 10 weeks after the date of filing. A filing fee is payable to the Court at this point in time. The filing fee is currently $865.00. If the Application is made solely by one party it will need to serve in accordance with the Court rules. The parties do not need to attend Court at the Hearing of the Divorce Application unless there are children of the relationship who are under 18 years of age.

If there are children under the age of 18, prior to granting a Divorce Order the Court will need to be satisfied that proper and adequate arrangements have been made for the welfare of such children, including as to their housing, education, health, contact and financial support arrangements.

Upon being satisfied that all necessary requirements have been met, the Court will then grant a Decree Nisi of the marriage with such an Order becoming absolute and final one month and one day later (Decree Absolute). A party cannot re-marry until the Divorce Order becomes absolute.

Once the Divorce Order becomes absolute, each party then has 12 months within which to bring an Application before the Court seeking property division and/or spouse maintenance Orders. Thereafter, the parties will become statutorily barred from commencing such proceedings without the leave of the Court.

Are there any time limits?

You must resolve or commence proceedings for property settlement and/or spousal maintenance within 12 months after you have obtained your Divorce.

Otherwise, you must seek leave of the Court to do so (which is only granted in exceptional circumstances). In our experience, this is a difficult, costly and lengthy process.

A financial claim at the end of a de facto relationship must be filed within 2 years after the date upon which the de facto relationship ended.

You can (and should) commence negotiations or file an Initiating Application for property settlement and/or spousal maintenance immediately upon separation from your spouse as a result of the irretrievable breakdown of your relationship.

What else should I consider?

Updating your Will

If you have separated or divorced you should update your Will, power of attorney and enduring guardianship and change any Superannuation binding nomination that you have previously made in favour of your spouse.

Divorce will revoke a beneficial disposition to a former spouse under a will if the will was made prior to the divorce. You should also update your Power of Attorney and Enduring Guardianship as well as change any Superannuation Binding Nomination that you have previously made in favour of your spouse. You may also need to review the beneficiaries on other insurance policies.

Do I have to wait until I am divorced to have a property settlement?

Do I have to wait until I am divorced to have a property settlement?

No. There is no ‘waiting time’ for commencing proceedings for property settlement or for entering into an agreement dividing the property between partners. Accordingly, a couple does not have to be divorced or even living in separate residences before resolving their property disputes.

If you are divorced, there is a time limit of one year after the divorce order take effect for an Initiating Application for financial orders or an Application for Consent Orders to be filed in the Court.

My partner and I lived together for a year. Am I entitled to anything?

My partner and I lived together for a year. Am I entitled to anything?

The Court will only make an order to alter property interests if:

  • the period, or the total of the periods, of the de facto relationship is at least 2 years; or
  • there is a child of the de facto relationship; or
  • the party to the de facto relationship who applies for the order or declaration made substantial contributions to the acquisition, preservation or maintenance of property or the care of a child; and
  • a failure to make the order or declaration would result in serious injustice to the applicant; or
  • the relationship is or was registered under a prescribed law of a State or Territory.

Can I take my children overseas for a holiday if my ex won't agree?

Can I take my children overseas for a holiday if my ex won't agree?

If you have court orders in place it is an offence under the Family Law Act take or send a child from Australia to a place outside Australia without an Order of the Court or the certified written consent of the other parent. The offence carries a maximum term of imprisonment of 3 years.

If there are no Court orders in place, it is still wise to obtain the other parent's consent to travel. In most circumstances, when parents jointly consult about decisions affecting the children, it is appropriate and desirable that they be given the opportunity to raise any concerns that they might have about the proposed destination, duration or travel or other issues that may affect the children and to know of the children's general whereabouts and safety.

Family Law Enquiry

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