Getting a Divorce in Australia
In Australia, “divorce” is not to be confused with the property settlement and parenting arrangements. Divorce, Property Settlement and Parenting Arrangements are separate legal processes and applications. “Divorce” refers to the legal termination of a marriage. On the other hand, “Property Settlement” refers to the formal division of a couple’s properties and “Parenting Arrangements” refers to arrangements relating to children.
“Divorce” - Dissolution of Marriage
In order to file for a divorce, these are the requirements you and your spouse have to meet:
· Separated for at least 12 months and 1 day
o The couple must have been separated for at least 12 months and 1 day. This may include continue living together in the same residence although you no longer live as a married couple.
o Separation happens when at least one person has the intention to permanently end the marriage, informs the other person of his/her intention and acts on it.
o You would have to prove to the Court that you were separated.
· Marriage has broken down irretrievably
o In Australia, the only ground for an application for a divorce is that the marriage has broken down irretrievably.
o Divorce is on a no-fault basis in Australia. Hence, the Court does not consider why the marriage has ended.
· Residential/Citizenship Requirements
o In order to file for a divorce in Australia, either you or your spouse have to:
Regard Australia as your home and intend to live in Australia indefinitely, or
Be an Australian citizen; or
Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
If you have been married for less than 2 years:
· You and your spouse have to attend counselling and obtain a counselling certificate.
After the application for divorce has been filed (filing can be done by one party or both parties), it will be listed for a hearing.
· If only one party made the application, that party (the applicant) has to serve the application on the other party.
At the hearing, the Court may grant or dismiss your application. They may also wish to clarify some issues. If your application is granted, the divorce will become final one calendar month and one day after the date the Court grants the application.
The granting of the divorce does not make decisions on Spousal Maintenance, Property Settlement and Parenting Arrangements. You would either have to:
· Come to an agreement with your spouse and file it to the Court; or
· Make an application to the Court to make orders.
Parenting Arrangements
This is relevant if you have children under the age of 18.
If you agree on parenting arrangements, you can either:
· Make a parenting plan; or
o i.e, have a written agreement between you and your ex-spouse setting out the arrangements. You need not go to court. However, a parenting plan is not a legally enforceable agreement.
· Obtain a consent order approved by a court.
o If you wish for the parenting arrangement to be legally enforceable, you may consider seeking a consent order from the court.
If you are unable to agree on parenting arrangements:
1. Participate in the Pre-Action Procedure by attending Family Dispute Resolution sessions with your ex-spouse
2. If there is no resolution, you would then have to write to the other party on the issues in dispute, your intention to make an application to the court, the orders you are seeking and a genuine offer to resolve the issues. You should also give the other party sufficient time to reply.
3. If no agreement is reached after reasonable attempts to resolve it by written correspondences, you may then make an application to court.
Spousal Maintenance and/or Property Settlement
Spousal Maintenance and/or Property Settlement applications must be made within 12 months from the date the divorce becomes final. In the case of de-facto relationships, the applications must be made within 2 years from the time of separation.
Similar to the above, if you are unable to agree on spousal maintenance and/or property division, you would have to participate in the Pre-Action Procedure before making an application to court, i.e.:
1. Participate in the Pre-Action Procedure by attending Family Dispute Resolution sessions with your ex-spouse
2. If there is no resolution, you would then have to write to the other party on the issues in dispute, your intention to make an application to the court, the orders you are seeking and a genuine offer to resolve the issues. You would also have to give the other party sufficient time to reply.
3. If no agreement is reached after reasonable attempts to resolve it by written correspondences, you may then make an application to court.
Spousal Maintenance
Under the Family Law Act, each spouse has a right to seek maintenance. However, before the Court decides whether a spouse is entitled to maintenance and the amount they are entitled to, the Court considers a few factors, including:
· Whether their living expenses are reasonable;
· Whether they are unable to adequately support themselves, including whether they have been caring for the children during the marriage and whether the person has any incapacities;
· Whether the other party is able to reasonably maintain them;
· How much they are receiving from the property settlement.
Property Settlement
How does property division occur?
1. Identify the couple’s Assets, Liabilities and Financial Resources and make a valuation
o These include items acquired before the marriage, during the marriage and after separation.
o Assets include any property of value such as: Real Estate, Vehicles, Bank Accounts, Shares, Stocks, Inheritances, Redundancy Pay, Superannuation Benefits, Jewelries, Watches.
o Liabilities include: Debts, Loans (Personal or business), Tax Liabilities, Mortgage Loans.
o Financial Resources refers to property where the person would receive a future benefit, such as: future pension entitlement, interest in a trust, anticipated inheritance, etc.
2. Financial and Non-Financial Contributions
o Equal consideration is given to both financial and non-financial contributions.
o Financial contributions refer to direct or non-direct contributions towards the acquisition, maintenance and improvements of properties such as housing, vehicles, monies, etc. This could include, the monies spent on purchasing furniture and on renovation.
o Non-financial contributions include homemaking, caring for children, personally carrying out works towards maintaining and improving properties.
3. The couple’s future needs
o Consideration is given to how the children is being cared for, possibilities of a new relationship and having to support it, the couple’s age and health, the couple’s income.
4. Whether the proposed division is just and equitable
o The Court also considers whether the proposed division would be just and equitable.
DISCLAIMER
These information reflects the state of the law at the time of publication. The information is for general information purposes only and not intended to be relied upon as legal advice in respect to your particular circumstances. For specific and up-to-date legal advice regarding your situation, please contact one of our qualified lawyers.