Divorce is one of the most emotional experiences that one can go through in life. It disrupts regular routines within a family and throws the parties into uncharted territory marred by uncertainty.
Even worse, a couple must also deal with the legal aspects of divorce. Some of the legal issues that one may encounter during a divorce includes property settlement, financial matters, and parenting arrangements.
The Australian law outlines specific requirements that you must fulfil before you can get a divorce order. There are also set timelines within which you should submit the required paperwork.
Divorce Requirements
To be granted a divorce order in Australia, you must meet the following conditions:
- You must be an Australian citizen, permanent resident, or be living in Australia indefinitely.
- You must have a legally recognised marriage. If you got married overseas, you must provide a translation of your marriage certificate.
- You must be separated from your partner for a minimum of 12 months.
In Australia, the law recognises what is called a ‘no-fault’ divorce, which means that the court does not concern itself with why the marriage did not work or who was at fault. Instead, you only need to prove that the marriage has irretrievably broken by showing that you have been apart for 12 months.
Interestingly, a couple can separate and file for divorce while still living under the same roof. This might be in consideration of the children or even due to financial constraints. Whichever the case, when this happens, the couple must be able to prove that they are living separate lives, for example:
- Sleeping in separate bedrooms
- Stopping sexual activity
- Ceasing all socialization
- Clearly showing friends and family that they are separated
- Opening different bank accounts
- Living in separate rooms and cooking separate meals.
Such a couple might require an affidavit from a third party evidencing that they have indeed separated despite living under the same roof.
In the case that you have been married for less than two years, you cannot file for a divorce right away. Instead, the law requires that you participate in counselling with a court-approved counsellor. If you still cannot reconcile, you will receive a counselling certificate to present to the family court for the divorce to proceed.
Property Settlement
In Australia, the divorce process- that is ending a marriage legally- is a separate process from a property settlement. These two aspects, although intertwined, are handled individually.
The family court goes as far as allocating different court numbers for divorce applications and property settlement applications. While it may make sense to conduct the two processes concurrently, there is no legal requirement for you to do so. Property settlement proceedings must, however, be filed within 12 months of the divorce being final.
According to the Family Law Act of 1975, “Property, in relation to the parties to a marriage or either of them, means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.”
This may include assets such as cars, houses, bank accounts, and items such as jewellery and artwork. Occasionally, one spouse may be tempted to sell, destroy, or hide some property. Doing so would only rock an already unsteady boat, or even cause the other to take out an injunction.
It is advisable to wait for the final ruling by the family court as this ensures enforceability.
Parenting Matters
One of the most significant issues during a divorce is the welfare of the children. Once you decide to separate, your shared responsibility for your children does not cease. It is essential to start thinking about the children’s welfare as you will be required to show this in your divorce application.
Some of the issues to consider include:
- Who the children will live with
- Whether they will see the other parent and when
- Plans for special occasions such as birthdays and Christmas
- Matters relating to schooling and medical care
- Limits to domestic and international travel
- Financial support
Before the family court can grant you a divorce order, it will need to be satisfied that you have made proper care arrangements for the children. In case of a dispute, the court can intervene or appoint an independent Child Lawyer.
While mediation might work, especially in cases where both parents are open and flexible, it comes with a risk of enforceability. One parent might fail or refuse to adhere to the agreed-upon parenting plan after some time. To prevent this, it is advisable to formalize the parenting plan at the family court. This allows for the court to intervene if one parent fails to meet their end of the bargain.
Depending on the family dynamics, the family court recommends that all parties try mediation first. If this fails or one partner refuses to cooperate, then the other partner can file an application with the court giving their recommendation for the children’s welfare.
The reluctant partner will then get a chance to respond, and if there is still no agreement, the court will make orders based on the interest of the children.
If one of the partners does not comply with the orders, the court can apply any number of sanctions to force compliance.
What You Need to Know About Divorce in Australia- FAQs
Q. How long do divorce proceedings take in Australia?
A. Typical divorce proceedings take about four months from the date of filing, but you must prove to the court that you have been separated for a minimum of 12 months. The process can take slightly longer however, if there are problems such as difficulties in serving one spouse.
Q. Can my spouse oppose the divorce?
A. Technically no, as the only grounds required for a divorce is proof that the marriage has broken down by being separated for 12 months. One partner can, however, file a response to the divorce before the hearing if there is a dispute on the duration of separation, or if they have already filed for divorce in another jurisdiction.
Q. What happens to children in a divorce?
A. If you have children under 18 years, the court will ensure that a welfare plan is in place for them. This can be arrived at in mediation where the parents agree to a parenting plan or through a legally binding court order. Both options are concerned with the children’s welfare regarding education, health, recreation, etc. The court will also consider all factors carefully in deciding which parent to award custody of the children.
Q. How long should I wait to remarry after the divorce?
A. You must wait at least one month and one day to elapse after receiving your divorce certificate. This is because your divorce is not final until one month after the certificate has been issued. Please note that re-marrying before one month is over is illegal.
Q. How will our assets be divided after the divorce?
A. You can decide what happens to your assets by settling it amicably with your partner, perhaps with the help of a lawyer. If there is a dispute over the division of assets, then you can apply to the court to grant orders. The court will consider the financial evidence before it and make a decision based on what is just and equitable based on the set of facts given.
Q. How much does the divorce process cost?
A. Currently, the filing fee payable to the court is $910. The cost may be less if you hold a Health Care Card or similar. If you have legal representation, this will be an extra cost. Divorce lawyers, like medical negligence lawyers, property lawyers, tax lawyers, and others, will bill you based on a variety of factors. It is best to discuss costs with your lawyer before you proceed.
Q. I got married overseas. Can I get a divorce in Australia?
A. Yes. If you got married overseas, you would be required to provide a translation of your marriage certificate. This is in addition to proving that you are an Australian by birth, a permanent resident or that you intend to live in Australia indefinitely.
Q. I have an adopted child. What happens to my child during the divorce?
A. The court will not treat an adopted child any differently from a biological child as long as the child was treated as and considered to be a member of the family before the divorce. All relevant documents must show the child as a child of the family, and the child must be included in all welfare arrangements.
