Divorce and Separation

Recently separated? What next?

Separating from your spouse or partner is seldom easy. In addition to the emotional upheaval there are practical aspects to consider. Ironically, the time that a clear head is most needed is the time that emotions run high and balance is difficult to find.

We encourage clients to seek legal advice as soon as possible so we can explain your rights and help you move forward in settling matters between you and your ex-partner. We will guide you through the separation process and help you reach agreement with your ex-partner. If agreement cannot be reached, we will advise you on starting proceedings to have appropriate orders put in place.

What are some of the things I should do after separating?

The following are some issues to consider when separating.

• Personal safety is a priority. Unfortunately, some separations result from or end in violence. We urge you to put safety first and contact your local police if you are experiencing violence or harassment.
• We can represent you in matters involving an Apprehended Violence Order (AVO) or if you wish to oppose an AVO that has been ordered against you. Please see our separate section on ‘Apprehended Violence Orders’.
• If possible, talk to your ex-partner about arrangements for the children to ensure their wellbeing is paramount. Let your ex-partner know that an amicable breakup is desirable and try to come to some resolution regarding children and then property.
• Arrange to see your Lawyer as soon as possible. Even if the decision to separate is mutual, you need to be aware of your rights. Sometimes parties are agreeable at the beginning of a separation but emotions escalate once discussions about children and property start.
• If possible, obtain legal advice before leaving the family home. If you do move out, make sure you notify authorities of your new address. You might consider renting a post office box for privacy reasons and so your mailing address does not need to be changed again if you subsequently move.
• Ensure that you have access to bank accounts, home loan accounts and investments. Keep originals or copies of important documents such as passports, marriage certificates, superannuation and insurance policies and update passwords for email accounts and internet banking.
• Make sure that any property registered in joint names remains insured.
• Start a journal and keep written records of relevant dates, events and conversations.

When and how can I obtain a divorce?

A divorce is the legal process of ending a marriage. You can apply for a divorce individually or make a joint application through the Family Court. Divorce Online applications are encouraged and a copy of the marriage certificate and relevant filing fee must accompany the application. Additional documents are required if you are not an Australian citizen.

The primary requirements for granting a divorce order are that:

• the marriage has irretrievably broken down; and
• the parties have lived separately and apart for a continuous period of 12 months; and
• there is no reasonable likelihood the parties will live together again.

If you have been married for less than two years, a certificate from a family counsellor confirming that you and your ex-partner have considered reconciliation must be provided, unless there are special circumstances such as the existence of domestic violence.

The Court acknowledges that parties may be technically separated however, due to a range or circumstances, continue to live under the same roof. These circumstances are generally related to the responsibility for children, religious, cultural or financial matters.

You do not need to attend court if the application is made jointly, or if made individually and there are no children of the marriage under 18 years. If you are the sole applicant with a child of the marriage under 18 years, then you will need to attend Court. An individual application needs to be served on the ex-partner.

After the divorce is granted

The divorce order is effective one month after it is granted provided that suitable arrangements are in place for any children under the age of 18 years. The parties to the former marriage are thereafter free to remarry.

The granting of a divorce order triggers a 12 month timeframe within which to commence proceedings for a property settlement or maintenance order. A divorce order also affects a previously made Will. If you have not already done so, property proceedings should be started and your Will revised.

Our Lawyers are sensitive but knowledgeable in family law property and children’s matters and will provide valuable assistance with the intricacies of divorce, separation and property settlement.

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