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We understand that ending a marriage is not easy. We understand that these things can be stressful, time consuming, a logistical nightmare even, but this is where we are here to help. Speaking with a lawyer removes the guesswork from what is already a difficult time and replaces it with clear facts and an easy to understand breakdown of what your obligations and options are.
Family law is a critical aspect of the Australian Law system and divorce is only one small component of which it covers. Other aspects which may be linked to your application for divorce include the following;
- Property settlements;
- Spousal maintenance;
- Parenting orders or parenting plans; and
- Dispute Resolution;
So why try to navigate this system of your own?
Let us help you through this difficult time and take away the stress of manoeuvring your way through the Australian Family Law system.
What criteria do I need to meet to be able to get a divorce?
There are only limited criteria which need to be when seeking a divorce and those criteria can be found in section 48 of the Family Law Act 1975.
First and foremost, there must have been an irretrievable breakdown of your marriage. To get a divorce in Australia, there is no need to provide any additional reason other than there has been an irretrievable breakdown of the relationship and there is no chance of a reconciliation.
The other great aspect you might have noticed is that there is no need for the other party to agree to the divorce. You only require one party to seek a divorce for the ball to start rolling and you cannot be locked into a situation which you are uncomfortable or unhappy with.
The second criteria which needs to be satisfied in order for a divorce is that of separation for at least, if not longer than, 12 consecutive months from the day after separation. This is an important criteria because an application for divorce when the separation period has been less than 12 months will automatically be dismissed. This requires that the parties have been living separately and apart for the duration of this period.
What if we have been separated for 12 months but we have been living under the same roof?
This is a more common occurrence than people may think because it is not always financially viable for each party to pay for their own respective houses following separation. If you find yourself in this situation there is nothing to worry about, there is always exceptions to the rule.
If you have been separated for 12 months, or longer, but you have been living under the same roof for that time or for part of that time then all you need to do is file an affidavit with the court. The onus of this falls to the applicant because they are the one actually seeking a divorce and therefore they need to prove that they satisfy the criteria for one to be granted. The applicant must file an affidavit with the court that explains the situation but more specifically, explains that there was no romantic or sexual relationship occurring during the time of separation. You need to be able to prove that during the time you were separated, you were living separate lives. You may have still be financially entangled, i.e, paying for the costs of children and maintenance of the family home, but you were not in a dependant relationship with one another.
It is further required that you provide a supporting affidavit to the court which corroborates your version of events. This may be from a family member or close friend who knows about your personal situation and can confirm that you have been living separately and apart during the time you were separated.
Please note, affidavits are official court documents and when you lodge one with the court you are swearing, or affirming, that the content is true and correct. It is very important that you do not mislead the court in any way and risk receiving a monetary penalty or term of imprisonment as a result.
What is the difference between the “Applicant” and the “Respondent”?
The applicant is the party who have made the application for divorce. This is the party who has initiated the proceedings. The respondent is the party who is responding to the application. In the event you have filed or are going to be filing a joint application for divorce, then you will just pick who is going to be the applicant and who is going to be the respondent but we will discuss this further later when we consider joint applications.
What is the divorce application process and what will I need to know?
The application for divorce is an online form which can be downloaded from the Federal Circuit Court of Australia website. The link to the website has been provided here for your convenience.
There are two different formats by which you can apply for a divorce; you can file either a sole application or a joint application. Keep in mind that there is no right or wrong answer when choosing which format to use, it is merely a circumstantial decision.
If you choose to file a sole application for divorce then you are choosing to file the application on your own and without consultation with the other party. This is usually the option chosen when one person has decided they wish to get a divorce and the relationship between the parties is either not amicable or not cooperative. If you choose to file the application jointly, then you are both mutually seeking a divorce and are most likely more cooperative in your approach to your separation.
Neither option is more or less effective than the other and both will achieve the desired result.
It is important to have some specific information in front of you when you go to complete this form so that you can minimise any disruptions to the process. You should have in front of you:
- A copy of your marriage certificate;
- A copy of your health care card (if you have one);
- A copy of your driver’s licence; and
- Details of any parenting orders or plans which are already in place.
It is important to remember that what you are seeking is a court order or rather a divorce order, so it is essential that you provide all necessary information and that you take care to be as precise, detailed and accurate as possible in your application.
Will I need to go to court in order to get a divorce?
The application for divorce is completed online and then lodged with the Commonwealth Courts portal; it is a relatively simple process. A court date will be provided to you and normally it is only the applicant that will need to make an appearance. You can either appear on your own or have your lawyer do it on your behalf. It is merely a formality to check that the paperwork is complete and, in the event there are children of the marriage, that appropriate arrangements have been made for their continuing care and living circumstances.
The court you would attend is the Federal Circuit Court of Australia, which you may also know to be called, the Family Court of Australia. It is always best to seek legal advice if you are unsure about any of your obligations throughout this process or if you simply just do not want to deal with the stress of managing the process on your own.
It is important to note that due to the Covid-19 situation, many courts are conducting matters by telephone. You will need to check with your local court whether or not you need to attend court in person or whether you can attend via telephone. You will need to have provided the court with your best direct contact number prior to your court date.
If your divorce application is granted on the date you attend court then it will be effective 30 days after that date.
Are there any fees associated with my application for divorce?
As with everything, there will be fees associated with your application for divorce. If you choose to seek legal advice then you will need to pay the fees and expenses provided by that law firm, however, in the event you choose to complete the process by yourself, there is still a filing fee which needs to be made to the court.
This is a one-off fee associated with the application which must be paid so that the application for divorce can be physically filed with the court.
The fantastic news is that if you hold a health care card then you can receive a discount on this filing fee! Unfortunately, if you do not hold a health care card then you will be required to pay the full amount.
The current filing fees for the Federal Circuit Court are as follows;
Without a health care card – $930.00
With a health care card – $210.00
These filing fees are subject to some fluctuation every few years but are accurate at the present time.
Will I need to do my property settlement as part of my divorce?
Your property settlement is a separate aspect of the separation process and does not need to be done in conjunction with your divorce. You can contact a lawyer at any time following the date of separation to begin your property settlement meaning you do not need to be separated for 12 months first. It is important to note, however, that from the date your divorce is effective you only have 12 months to complete your property settlement before you are considered out of time. This time limit is essential to remember because once that 12 months has passed you will no longer be able to go back and complete your property settlement.
A similar time limit is imposed on the separation of de facto couples. From the date of separation, you will have two years to complete your property settlement before you are considered out of time.
It is prudent to seek legal advice when wishing to do a property settlement so that you are fully aware of both what your obligations are and what entitlements you have.
What information should I provide my lawyer with?
Simply put, your property pool can be divided up into four categories;
- Non-financial contributions; and
- Financial contributions.
So, you will need to provide your lawyer with all the information about what contributions you and the other party made so that a settlement can be determined which is fair to both. This takes into account all future financial needs, i.e. medical bills for ongoing treatment or future working capacity, as well as all present financial needs, i.e. loan or mortgage repayments and living costs.
The following list of documents serve as a rough guide of what information you should provide your lawyer so they can best help you:
- Current bank statements;
- Superannuation statements;
- Mortgage documents;
- Recent property valuations or appraisals;
- If there is a business involved, then business valuations; and
- Documentations regarding any other personal or joint loans.
If there is any other information you think might be useful given your personal financial situation, then it is best to give that to your lawyer as well. Being as prepared as possible will eliminate the need for too much running around and, as an added bonus, it will lower your legal fees because you will be providing your lawyer with everything they need right from the beginning.
How will my property settlement be formalised?
Once you have negotiated a settlement, your lawyer will have documents completed which formalise the agreement, these are called consent orders. The orders lay out the agreement and make clear exactly what obligations are imposed on each party, i.e. the husband is to transfer all his interest in the matrimonial home to the wife. Each party will need to sign the orders to confirm that they agree with what has been proposed.
The consent orders are then brought before the court and, if the court is satisfied that the orders are fair and equitable on both parties given the circumstances, then the court seal will be applied to them and they will be considered binding. This will mark the end of your financial matters because once property orders have been made, there is no opportunity to go back and re-negotiate the settlement.
As with everything, there are some exceptions to this rule, however, those exceptions only exist in circumstances where people have mislead or deceived the court about their financial capacity or financial contributions and there is in fact additional money in existence which was not disclosed.
What is spouse maintenance and will I have to pay it?
Spouse maintenance is a form of financial support that often needs to be explored when undertaking a property settlement. During a marriage, or a de facto relationship, there can be a myriad of family relationship setups which may see one party not working. This may be because that party looks after the children, has an incapacity that prevents them from working, etc, and they are financially supported by their spouse as a result. When the marriage or relationship ends, that person might have no financial means of supporting themselves without their spouse.
This is where the idea of spouse maintenance has come from. It is a weekly, fortnightly or monthly payment, made to the other party for their continued living maintenance. This is an agreement which can be short term, if the other party is able to return to work in the future or their financial situation is likely to change in the future, or it can be a long term requirement if the party s unable to financially support themselves moving forward.
Spouse maintenance is separate to child support obligations as it is not a payment designed for the maintenance of the child/children, but rather a payment which is designed solely or the maintenance of the spouse.
But make no mistake, it is not a payment so that your spouse can live a life of luxury, or so that they can get out of work when they are fully capable of it. It is only a payment to help them with living expenses that they could not otherwise meet, i.e. rent, groceries, etc.
Spouse maintenance can also be awarded to a party if they have suffered significant domestic violence or family violence resulting in psychological or physical incapacities which prevent them from working or being able to earn a consistent income.
It is always best to seek legal advice when considering spouse maintenance as the process can be both stressful and complicated. The maintenance payments will also be formalised by way of your financial agreement in the event the payments are agreed between the parties.
Will I have child support obligations?
If you are leaving a marriage where there have been children, parenting arrangements will need to be put in place for the children and detailed to the court upon your application for divorce. Child support arrangements are not a specific part of the divorce settlement and are considered to be an additional family law matter.
Child support can be arranged by way of two separate formats:
- A private child support agreement; and
- An assessed rate based on income done by the child support agency.
If you choose to enter into a private agreement, you will decide between you what amount will be paid, weekly, fortnightly or monthly, for the ongoing maintenance and support of your child/children.
If you choose to go by the assessed rate then you will simply contact child support and provide them will the income details of both parties and all other personal and familial information they require. They will then assess all the factors and inform you what rate you or the other party will have to pay.
Will we need to have Parenting Orders in place to get divorced?
When filing an application for divorce, it is important to detail what parenting arrangements or care arrangements have been worked out so that the children can spend time with both parties and maintain a relationship with both parents.
It is assumed that given you will have needed to be separated for over 12 months before getting a divorce, that in that time you will have put some arrangements in place. If the agreement has been made in the form of parenting orders then those orders should be provided alongside the application. If the agreement has been made informally by way of a parenting plan, then details of that plan should be provided also.
There is no need to be alarmed though if your parenting arrangement is not fully finalized yet. The court does not mind if you are engaged in an interim family arrangement which might be subject to change, they are only concerned with whether appropriate arrangements exist at the time of divorce.
Do I really need to get a lawyer when I get divorced?
It is quite possible that you could easily manage the divorce application aspect on your own with no need to engage a lawyer however, as you can see, the situation can become very complicated very quickly.
It is best to seek legal advice before you make any life-changing decisions as it is always prudent to explore both your obligations and your options when proceeding with a family law matter.
A divorce order is only one small aspect of a much larger situation.
Frequently Asked Questions.
Yes! You can absolutely still get divorced even if you have already reverted to your maiden name. You are not considered legally untangled from your spouse until a divorce order has been made.
You only need to have a copy of your marriage licence to get a divorce. Some people have the original, some people have copies of the original and others have to get an entirely new certificate from the Births Deaths and Marriage registry. So long as it is a true copy of your registered marriage licence, you are good to go.
If you choose not to have a lawyer help you with the process, it is unlikely that you will need to know sections of the Family Law Act. The judge will explain the process to you if you are unsure and will guide you through the procedural steps. When in doubt though, it is always prudent to seek legal advice.
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