Divorce & Separation

Divorce represents the legal termination of a marriage, officially ending the marital relationship between two parties under the law. In Australia, the divorce process is governed by the Family Law Act 1975 (Cth), which sets out the requirements and procedures for legally dissolving a marriage. Unlike an annulment, which declares a marriage null and void as if it never existed, a divorce acknowledges the existence of the marriage but brings it to an end.

To apply for a divorce in Australia, certain criteria must be met:

Irretrievable Breakdown of Marriage: The court must be satisfied that the marriage has broken down irretrievably. This is demonstrated by the couple having lived separately and apart for at least 12 months prior to filing for divorce.

Intention to Separate Permanently: At least one party must intend to separate and live apart permanently from the other. If the couple has lived together under the same roof during part or all of the 12-month separation period, they must provide additional evidence to prove that they were indeed separated during this time.
Australian Connection: Either party must regard Australia as their home and intend to live in Australia indefinitely, or be an Australian citizen by birth, descent or by grant of Australian citizenship, or ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

The process of obtaining a divorce in Australia involves several steps:

1. Filing for Divorce: The divorce application can be filed by one party individually or jointly by both parties. The application can be submitted online through the Commonwealth Courts Portal.
2. Serving the Divorce Application: If the application is made by one party, they must serve the divorce application on their spouse, following specific service requirements.
3. Court Hearing: For applications made individually, especially when there are children under 18 involved, attending the court hearing may be necessary. For joint applications, attendance might not be required.
4. Granting of Divorce: If the court is satisfied that all of the above requirements are met, it will grant a divorce. The divorce becomes final one month and one day after the order is made, at which point the court issues a Divorce Order.

Although the divorce process itself terminates the marriage, issues related to the division of property, spousal maintenance, and child custody and support are dealt with separately. Parties are encouraged to reach an agreement amicably regarding these matters, but if this is not possible, they may seek orders from the court. It’s important to note that applications for property settlement and spousal maintenance must be made within 12 months of the divorce becoming final.

Having a divorce lawyer is not a legal requirement in Australia. However, divorce cases are often complicated by property settlement and child custody arrangements. Under these circumstances, it is highly recommended that you consult with a divorce lawyer to help you navigate the complexities involved in the process.

When parents decide to divorce in Australia, the wellbeing and arrangements for any children under the age of 18 years are of paramount concern to the Court. The Family Law Act 1975 (Cth) emphasises the importance of prioritising children’s interests during divorce.

Before granting a divorce, the Court requires evidence that proper arrangements have been made for the children’s care, welfare, and development. This doesn’t mean parents must have formal agreements or court orders regarding custody, visitation, or child support. However, a clear plan is required to ensure that the children’s needs are met during the divorce hearing.

The Court considers several factors when assessing whether appropriate arrangements have been made for children, including but not limited to:

• Living Arrangements: Where and with whom the child will live.

• Financial Support: How the children’s financial needs are being met, including provisions for food, clothing, and education.

• Health and Emotional Well-being: How the children’s health and emotional needs are being addressed, including medical care and emotional support.

• Education: Plans for the children’s education and how both parents will be involved in decision-making.

Parents are encouraged to develop a parenting plan outlining how they will share parental responsibilities and care for their children post-divorce. If parents can agree on the arrangements, they can make their parenting plan formal by applying for consent orders, which the Court can then enforce.

If parents cannot agree, they may need to participate in family dispute resolution (FDR) before applying to the Court for parenting orders. FDR is a type of mediation aimed at helping separated parents come to their own agreements regarding children. If FDR doesn’t resolve the issues, a family law court can make decisions on behalf of the parents, determining arrangements based on the children’s best interests.

The central principle guiding the Court’s decisions regarding children in divorce cases is the “best interests of the child.” This principle is the paramount consideration and encompasses ensuring the child’s safety, providing for their physical and emotional needs, and maintaining their relationships with both parents and other significant individuals in their lives, as long as it is safe.

If you need advice on the impact of divorce on children or you want to know more about how to reach an agreement with your former partner, the team at AJB Stevens can help. We’ve dealt with many cases over the years reflecting our professional expertise and experience within the Family Law domain.

Filing for divorce in Australia is governed by the Family Law Act 1975, which introduced the principle of no-fault divorce. This means that the Court does not need to consider the reasons behind the marriage’s breakdown. The process involves several steps, and understanding these can help you navigate the legal landscape more effectively.

1. Ensure Eligibility: Before applying for a divorce, you must meet the eligibility criteria. You or your spouse must:
   • Be an Australian citizen by birth, descent, or by grant of Australian citizenship;
   • Regard Australia as your home and intend to live in Australia indefinitely; or
   • Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
2. Separation Period: You must have been separated from your spouse for at least 12 months and one day. This period must be continuous, and any reconciliation attempts that last for three months or less do not restart the separation period but are subtracted from the total time. Parties generally have one attempt at reconciliation which will not reset the separation period. Any subsequent attempts at reconciliation may reset the 12-month separation period.
3. Application Form: The divorce application can be filed individually or as a joint application with your spouse. The application form is available on the Federal Circuit Court (FCC) website and can be completed and submitted online through the Commonwealth Courts Portal.
4. Filing Fee: There is a fee for filing a divorce application. The current fees can be found in the fees section of the Family Law Courts website. In certain circumstances, you may be eligible for a reduced fee if you hold certain government concession cards or are experiencing financial hardship.
5. Serving the Application: If you are making a sole application, you must serve the divorce application on your spouse. This ensures that they are aware of the divorce proceedings. The court outlines specific rules about how the documents must be served and the timeframe for serving them.
6. Court Hearing: If children under 18 years of age are involved in sole applications, you will need to attend a court hearing. For joint applications, attendance at the hearing may not be required unless there are specific circumstances that the Court needs to consider.
7. Proper Arrangements for Children: If there are children under 18, the Court must be satisfied that proper arrangements have been made for their care, welfare, and development before granting a divorce.
8. Granting of Divorce: If the Court is satisfied that all requirements have been met, it will grant a divorce. The divorce order becomes final one month and one day after the hearing. You should obtain a copy of the divorce order as proof of your divorce.

Given the complexities involved in the divorce process, consulting with a divorce lawyer is highly recommended. A lawyer can provide tailored advice, help you understand your rights and responsibilities, and ensure your application is correctly filed. They can also assist you in making arrangements for property settlement and child custody if necessary.

Every divorce case is unique, and costs vary according to variables such as if there are children involved if there are outside business interests, and what assets or liabilities might need to be settled. AJB Stevens has divorce lawyers that specialise in all aspects of divorce and can better advise you as to costs involved during a consultation.

There are many things to consider before filing an application for divorce, including:

• How you will divide assets, debts, and property
• If there are business interests that need to be considered
• How you will share the custody of children under 18
• If there is child support or maintenance payments that should be considered
• etc.

Divorce lawyers can help you sort through everything that needs due consideration and help you navigate your rights to find a fair and amicable resolution.

The division of property during a divorce is not based on a strict mathematical formula or assumption of equal distribution. Instead, the Family Law Act 1975 provides a framework for determining how property should be divided fairly between parties. This process aims to achieve an equitable outcome, considering the unique circumstances of each case. It includes:

1. Assessment of the Asset Pool: The first step in any property settlement is to identify and value all the assets owned by both parties, either jointly or individually. This includes real estate, bank accounts, investments, superannuation, businesses, and personal property. Liabilities such as loans and credit card debts are also considered to determine the net asset pool available for division.

2. Direct Financial Contributions: The Court considers each party’s direct financial contributions to acquiring, maintaining, or improving the marital assets. This includes income from employment, business profits, and other earnings during the relationship.

3. Indirect Financial Contributions: Contributions that indirectly benefit the asset pool are also considered. These may include financial gifts or inheritances received by either party that have been used to increase marital assets.

4. Non-Financial Contributions: The law recognises the value of non-financial contributions to the relationship and the family’s welfare. This includes roles such as homemaking, parenting, and unpaid labour that contribute to maintaining and improving family assets.

5. Future Needs: The Court assesses each party’s future needs, taking into account factors such as age, health, financial resources, the need to care for children, and future earning capacity. The aim is to ensure that the settlement adequately provides for both parties’ future financial security.

The Court exercises wide discretion in applying these principles, aiming to reach a fair and equitable outcome. Factors such as the length of the marriage or de facto relationship, the effect of the relationship on each party’s financial circumstances, and any agreements made by the parties (such as prenuptial agreements) can influence the division of property.

Parties are encouraged to agree on property division through negotiation or mediation. If an agreement is reached, it can be formalised through consent orders approved by the Court or a binding financial agreement. If parties cannot agree, an application can be made to the Court for a property settlement order, where a judge will decide based on the evidence presented. You can do this through a reputable solicitor, like the team at AJB Stevens.

If you were married outside of Australia, applying for a divorce within the Australian legal system is possible under certain conditions. The Family Law Act 1975 (Cth) governs the divorce process in Australia and does not exclude marriages honoured overseas. However, specific criteria must be met to ensure Australian courts have jurisdiction over your divorce application. This includes:

1. Australian Citizenship: At least one partner must be an Australian citizen by birth, descent, or by grant of Australian citizenship. This establishes a clear connection to Australia, allowing its legal system to have jurisdiction over the divorce proceedings.

2. Residence in Australia: You must demonstrate that Australia is your main country of residence. This involves more than just living in Australia; you must show that you intend to reside there indefinitely. This can be evidenced through various means, such as employment, housing, and familial connections within the country.

3. Living in Australia for 12 Months: Before filing for divorce, you or your spouse must have lived in Australia for at least 12 months. This period does not need to be continuous but must total 12 months within the last few years before applying. This requirement ensures a substantial connection to Australia and that the Australian legal system is an appropriate venue for divorce proceedings.

Additional considerations include:

• Recognition of Overseas Marriage: The Australian legal system generally recognises marriages conducted overseas as long as they are valid according to the country’s laws. However, if there are doubts about the legality of the overseas marriage under local laws, it may be necessary to provide additional documentation or evidence.

• Divorce Certificate: If your divorce is granted, the Australian court will issue a divorce certificate. It’s important to note that while this certificate is legally recognised in Australia, its recognition in other countries depends on their specific legal systems and any relevant international agreements.

Given the complexities involved in divorces, especially those concerning overseas marriages, it is highly advisable to seek professional legal advice. A qualified family law solicitor, like the team here at AJB Stevens, can help you understand your rights, guide you through the application process, and ensure all necessary documentation is accurately prepared and submitted. We can also advise on any potential issues that may arise due to the overseas nature of the marriage and how to address them effectively. If you have any concerns, get in touch with our team today to discuss and we’ll be happy to arrange a time to meet.

If you have been married for less than 2 years, you will only be permitted to apply for a divorce after both parties attend counselling. However, if there are unique circumstances involved, or if counselling cannot occur, you can file an affidavit with the Court explaining the extenuating circumstances.

In cases where you are seeking a divorce after less than 2 years of marriage, it is advisable to speak with a divorce lawyer who can assist in navigating the law to help advise you on your rights and obligations.

The divorce order is not final until one month and one day after the court finds the separation requirements have been met in a hearing.