Expert-Led Divorce Filing and Separation Process in Australia: A Legal Perspective

Courts, Divorce
December 11, 2024

Divorce and separation are difficult life events that often come with emotional, financial, and legal challenges. Understanding the legal process of divorce in Australia, especially the requirements under the Family Law Act 1975, is crucial for individuals seeking to move forward. This article provides a comprehensive guide to the divorce process, including key steps, legal obligations, and considerations to help you navigate the system efficiently and effectively. If you are in a de facto relationship, then different considerations apply and this will be dealt with in a subsequent paper. However, it is important to note that property settlements must be completed within two years of separation.

Introduction: Understanding Divorce and Separation in Australia

In Australia, divorce and separation are governed by the Family Law Act 1975, which provides the legal framework for family-related matters, including marriage dissolution, child custody (parenting arrangements), and property settlement. Australia operates under a no-fault divorce system, meaning that the court does not require one party to prove the other’s fault (such as adultery or cruelty) to obtain a divorce. Instead, the only ground for divorce is the irretrievable breakdown of the marriage, which is typically established by living separately for at least 12 months.

Divorce can be a complex and emotional process, but understanding the steps involved can help make the transition smoother.

Step 1: Meeting the Legal Requirements for Divorce

Before you can apply for a divorce, you must meet certain legal requirements under Australian family law to be eligible to apply for divorce in Australia:

To apply for divorce in Australia, you must meet certain residency or citizenship requirements. You need to either:

Regard Australia as your home and intend to live indefinitely in Australia;
Be an Australian citizen by birth or descent;
Be an Australian citizen by grant of Australian citizenship; or
Ordinarily live in Australia and has done so for 12 months immediately before filing the application.

If you or your spouse are living overseas, there are additional requirements for applying from abroad if you meet the above criteria.

Has your marriage broken down and there is no reasonable likelihood that you will get back together? Only one of you need regard the marriage as over on the date of separation and in some way have communicated this to your spouse.

Living Separately for at Least 12 Months and 1 Day: This does not necessarily mean physical separation. In some cases, couples may be able to live under the same roof while maintaining separate lives, which is referred to as separation under one roof. However, this can complicate the divorce process, and you may need to provide evidence that your separation is genuine.

Step 2: Filing for Divorce

Once you meet the legal requirements, you can file for divorce.

Applying for Divorce through the Federal Circuit and Family Court of Australia: Divorce applications are processed through the Federal Circuit and Family Court of Australia (FCFCOA). You will need to submit an Application for Divorce, which can be done online.

Individual vs. Joint Applications: A divorce application can be filed either individually or jointly. If both parties agree on the divorce, a joint application is simpler and usually faster. However, if there is any disagreement, an individual application is required, and the other party will be notified of the application through service of the application on them.

Relevant Forms and Documents: The main document you need to file is the Application for Divorce form. You will also need to provide supporting documents, such as A marriage certificate

Step 3: Serving Divorce Papers

Once your divorce application is filed, you are required to serve the divorce papers on your spouse.

This is a legal requirement, and failure to properly serve the divorce documents can delay the process.

Serving the Divorce Papers: You or your lawyer must ensure that the other party receives the divorce application. This is typically done through personal service (handing the documents directly to your spouse), but in certain cases, other methods may be approved by the court.

Serving Domestic and International Situations: If your spouse is living overseas, additional steps must be taken to serve the divorce papers. International service can be more complicated, and you may need to seek guidance on the proper procedure.

Affidavit of Service: Once the papers have been served, you must file an Affidavit of Service, which is a sworn statement confirming that your spouse has received the divorce application.

Step 4: Attending Court Hearings (if required)

In certain situations, your attendance at the hearing may be required:

When a Court Appearance is Necessary: If there are children under the age of 18 or if ther

e are contested matters (e.g., disagreements about the date of separation).

Confirming Arrangements for Children: The court will focus on ensuring that there are appropriate arrangements in place for any children of the marriage under the age of 18 years.

Contested Divorce Matters: If there are disagreements regarding the divorce, such as one party contesting the application, you may need to attend a hearing to resolve the matter.

Step 5: Finalizing the Divorce

Once the court has considered your divorce application, the next step is finalising the divorce:

Waiting Period After Divorce Hearing: If everything is in order and the divorce is granted, the court will issue a Divorce Order. There is a mandatory one-month andone day waiting period from the date of the hearing before the divorce is legally final.

Issuance of Divorce Order: After the waiting period, the court will issue the official Divorce Order, and the marriage is legally dissolved. The divorce becomes final one month and one day after the Divorce Order is issued.

Legal Separation Without Divorce

It’s important to note that separation and divorce are not the same under Australian law. Couples can be separated for years before applying for a divorce, and legal separation does not automatically result in the dissolution of the marriage.

Property Settlements: After separation, married couples may choose to resolve their property settlements in a timely manner, but there are time limits for doing so once a divorce has been granted. You must apply for a property settlement within 12 months of your divorce becoming final.

Parenting Arrangements: Parenting arrangements can be made at any time, and it would be prudent to obtain some legal advice as to whether legally enforceable orders suit your circumstances.

Financial and Property Settlement After Divorce

Once a divorce is finalised, the division of assets becomes a priority.

Division of Assets: In Australia, assets are divided based on a just and equitable principle, which means that the court considers both parties’ financial contributions as well as non-financial contributions (such as homemaking and child-rearing).

Formal Orders : It’s crucial to have your financial settlement formally documented in orders.

Superannuation Splitting: Superannuation (retirement savings) is considered a part of the property pool and may need to be divided between the parties.

Child Custody and Parenting Arrangements

When children are involved, the court’s primary focus is the best interests of the child.

Best Interests of the Child: The Family Law Act guides courts in making decisions based on what is in the best interests of the child, including considerations such as safety, emotional well-being, and the child’s relationship with both parents.

Importance of Legal Assistance in Divorce

Navigating the complexities of divorce law can be daunting. Having an experienced family lawyer by your side is crucial in ensuring that your rights are protected and that you are compliant with all legal obligations.

Family Lawyers can assist with divorce applications, parenting arrangements, property settlements; including superannuation splitting. They can provide guidance throughout the entire process and represent your interests in court if necessary.

Divorce Lawyers and Family Law Solicitors specialize in these matters and can help you avoid costly mistakes, ensuring that all aspects of your divorce and post-divorce arrangements are handled professionally.

Conclusion

Divorce is a significant life event, and understanding the legal requirements and steps involved is essential. From meeting eligibility criteria to finalizing property settlements and parenting arrangements, the divorce process in Australia can be complex. Seeking professional legal assistance from experienced Family Lawyers Central Coast can make a difference in ensuring a smooth process and protecting your rights.

Frequently Asked Questions

1. What is the minimum separation period required before filing for divorce in Australia?

You must live separately and for at least 12 months before applying for a divorce. If you’re living under the same roof but separated, additional proof may be required. Our Family Lawyers Central Coast can assist with this process.

2. Can I file for divorce without a lawyer?

Yes, you can file for divorce without a lawyer, but legal advice is recommended, especially if there are children or property disputes. Moreover, our divorce lawyers can guide you through the process to ensure everything is handled correctly.

3. What documents do I need to file for divorce?

You’ll need an Application for Divorce, marriage certificate, and details of any children under 18.

4. What happens if my spouse does not agree to the divorce?

If your spouse disagrees, you can still proceed with the divorce under Australia’s no-fault system provided you meet the requirements for a court to grant the divorce. Our Lawyers Central Coast can assist in serving the divorce papers and handling contested matters.

5. How is property divided after a divorce?

Property is divided based on a just and equitable principle, considering both financial and non-financial contributions.

Separation or divorce – Things to Consider…

Divorce
October 24, 2024

Going through a marital separation or divorce can be an emotionally draining time and can effect everyone in different ways. If you are going through a separation or divorce there are some immediate decisions you may need to make regarding your children and finances. The first step is to try to reach an agreement with your former partner, however, if a mutual decision cannot be reached, engaging with an independent third-party may be the best step forward.

It is important to take care of yourself and your children’s physical and mental health the dependents in the early stages of a parent’s separation or divorce. Some of the things you will need to think about when first separating from a marriage include;

Where your children live and who will take care of them?
How you and your former partner will support yourselves and your children?
What, how and when you will tell the children, other family members and friends?
Who will pay outstanding bills or debts?
Who will stay in the house?
How will the rent or mortgage be paid?
What will happen to any joint bank, building society or credit union accounts?
What will happen to the house, car, furniture and other property?

Decisions Concerning Your Children

If you have dependent children at home, it is especially important to ensure practical steps are taken for their well-being. The first step would be for you and your former partner to sit down and talk with a view to reaching an agreement which focuses on the best interests of the children. If that fails, or communication between you breaks down, it may be worthwhile to engage with an independent, third party to help mediate.

Decisions Concerning Your Finances and Assets

The financial aspect of a separation can be daunting. Living arrangements, assets, debts and joint accounts are just some of the financial decisions that will need to be considered. Coming to a amicable agreement with your former partner is without doubt the best outcome. However even a mutual agreement should be documented in black and white to ensure everyone is in agreement and will avoid any unneccessary disputes in the future. Seeking advice from a qualified and experienced family lawyer may be the best option.

Whichever way is the right option for you, reaching an agreement early will help ease the stress of going through a separation or divorce.

There are several options you can consider to help with a separation or divorce, they include:

Speaking with Loved Ones.

Speaking with family and friends who may have already experienced a divorce or seperation. It is great to speak with someone who cares for you, though it is advisable to get legal advice too.

Family Relationship Centers.

To find a Centre near you, or to find out about other services in your area, call 1800 050 321 or visit Family Relationships online

Reconciliation Counseling

Reconciliation counseling may help you understand more about your feelings and help you decide whether to stay together or not.

Separation Counseling or Mediation.

Separation counseling or mediation may help you to sort out any problems you have about settling your arrangements if you decide to separate.

Legal Advice

Legal advice will help you understand the law relating to family disputes and help you understand your legal rights and responsibilities. Obtaining legal advice right at the beginning could not only save you time and money but could assit you and your former partner preserve your relationship for the future benefit of the children. CopperTree Family Law are experienced Family Lawyers who can help. Our team are here to listen, provide you with informed and independent legal advice and we can help you reach an an agreement with your former partner. We can also assit you document the agreement reached, so as to be enforceable if your former partner later decides not to comply with his/her obligations.

Separation is never easy, focusing on what matters for you and finding a solution early will help ease the pressures and allow you to come to terms with the separation, allowing you to find your feet to move forward again.

Call CopperTree Family Law today for an obligation free chat on 02 4369 6838.

Psych Nurse Likens Divorce for Men to PTSD

Courts, Divorce
October 17, 2023

Too often, a person’s mental health is neglected during the breakdown of a relationship. For me, this article not only brings to the forefront a mans perspective on such matters, but also outlines the importance of obtaining legal advice at the outset, no matter whether you are the husband/father or wife/mother.

Obtaining legal advice will enable you to think practically and logically about your situation. We can then work together to devise a plan that best suits your needs moving forward. Call us at CopperTree Family Law on (02) 4369 6838 today for an initial consultation.

Aaron Stevenson’s painful separation led him to write a practical guide for men dealing with the trauma of divorce.

With more than 30 years’ experience in the mental health system, Mr Stevenson regularly saw people in the throes of a relationship break-up.

Then, three years ago, it happened to him.

The psychiatric nurse’s 10-year marriage ended leaving him “blindsided”, just as his 50th birthday approached.

ABC Article – published 12 October 2018

Likening a divorce to a trauma like post-traumatic stress disorder (PTSD), Mr Stevenson said the response was the same.

“You don’t have to have fought in Afghanistan or got run over by a car to have PTSD; basically it’s about having trauma and, in some way, feeling you’re at risk“, Mr. Stevenson said.

Paul Wiseman from Relationships Australia, Victoria, with more than 20 years’ experience as a counsellor and mediator in family dispute resolution, agreed that for a some men this was the reality, particularly in the early stages of separation.

“Symptoms can escalate into extreme situations when people’s willingness and or capacity to seek help and support is poor,”, Mr. Stevenson said.

While both men and women suffer during the experience, Mr Stevenson said men tended to fall apart in “spectacularly destructive ways”.

“They go out and drink, do drugs, smash things, break things, get IVOs (family violence intervention order) against them, which causes another set of problems”, Mr. Stevenson.

While there are many services for men and plenty of books, articles and blogs about relationships, Mr Stevenson struggled to find any clear practical guidelines.

So Mr Stevenson compiled all his research into a guidebook, including his own experiences and his 32 years of clinical work.

The secret art of breaking up: Surviving and thriving is a guidebook for men trying to navigate the crisis of their relationship, which he co-wrote with his friend, former ABC reporter Corey Hague.

The first part outlines options for saving a relationship and the second part is how to make it through the “brutal process” of an inevitable break-up.

More women initiate divorce

The 2016 Census found that 41.5 per cent of divorces were from joint applicants while 32.5 per cent of single applicants were initiated by women.

“There’s a significant percentage where it’s women initiating and a lot less where it is men initiating”, he said.

While the initiator may have spent much time thinking about the separation, the non-initiator was quite often taken by surprise.

“It will come somewhat out of left field and it can be quite a period of crisis and distress when it’s done in that way because they then have to start dealing with it, whereas the other person is much further down the path,”, Mr. Stevenson.

“When that break up happens — you’re sort of out on your own.”

Mr Stevenson said he felt the same when his own marriage ended.

“Things were slowly deteriorating, and I didn’t realise it until one day the writing was on the wall and it hit me — it was like ‘boom’,”., Mr. Stevenson.

Divorce ‘harder on men’

Mr Wiseman said divorce was harder on men largely due to the higher levels of social isolation many men experienced.

He cited a 2015 survey by Beyond Blue that revealed that 25 per cent of men between 35 and 65 had few or no social connections.

Often in a relationship, Mr Wiseman said, the woman would play the role of social secretary, so when a relationship did end men tended to re-partner much sooner with little time to process their emotions.

Of those relationships men did have with friends, many of them tended to be “active” relationships.

“They might go off to the football together or the pub together or play golf together, but they may not necessarily talk about what’s going on in their lives and how they’re managing or not managing,”., Mr. Stevenson.

Because men generally tended to be solution-oriented, Mr Stevenson used a crisis intervention model in his book as well as worksheets.

Some of the immediate strategies involved making a commitment to the need for change including strategies in being proactive, finding support, and planning responses.

“What to say, what not to say,”, Mr. Stevenson.

He said language was a crucial strategy that formed part of acceptance.

One piece of advice for men was to relinquish control by agreeing with their partner’s opinions instead of automatically defending themselves.

We find out what matters for you and your family. Please contact us to make an appointment (02) 4369 6838 or email enquiries@coppertreefamilylaw.com.au. We are conveniently located in Erina.