Divorce is common in Australia, with one in three marriages ending this way. However, divorce doesn’t simply spell the end of a relationship, as legal issues inevitably arise. These issues concern the dividing assets and the care of any children.
Ending a marriage can be emotionally and financially draining for everyone. However, knowing your rights can make resolving these issues easier to manage. Protecting yourself financially and legally is important as you commence the divorce process.
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What do I need to do?
To apply for a divorce in Australia, you need to:
- Have been separated for 12 months and a day
- Prove the irretrievable breakdown of your relationship and that there is no chance of reconciliation
However, if you have been married for less than 2 years you need to provide evidence that you visited a marriage counsellor.
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No fault divorce
Prior to 1975, divorce in Australia was only granted where there had been marital fault. Some of these grounds included adultery, desertion, cruelty, habitual drunkenness, imprisonment, and insanity. In order to be granted a divorce, a spouse had to prove ‘marital fault’. However, an overhaul to the family law system in 1975 made the sole ground for divorce an ‘irretrievable breakdown’ of the relationship.
Subsequently, divorce has become less costly, fairer and more accessible. These reforms have also provided women with more legal rights. Below we will outline the things you need to know before applying for a divorce.
Serving a divorce application
A divorce application can be served in Australia or overseas. When a divorce application is served, it must also be accompanied by the ‘Marriage, Families and Separation’ brochure, which is available on the Family Court website.
Do not serve the application yourself
Serving a legal document on someone is a formal process. Due to this, you cannot serve them on your spouse yourself. Documents can be served by post or by having a process server serve them in person. If the documents are served in person, then the server must complete an affidavit of service to prove that the documents have been served. It is common for someone to be served by more than one method, such as post and electronic service by email. This ensures that the intended receiver of the documents receives them.
Your spouse needs to be served at least 28 days before the hearing date if they are in Australia. If they are overseas, this limit increases to 42 days.
Overseas marriages
If you were married overseas, you can apply for a divorce in Australia if you regard Australia as your home and intend to live in Australia indefinitely, are an Australian citizen, or ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
Settlement
Many people assume that each party claims half of the property, but complicating factors (such as children, income, etc.) can mean that it may not be that simple. Equal custody of children is common, depending on what the Court sees as the child’s best interest. Given the complex nature of property settlements and child custody, it is best to consult with your lawyer.
Most importantly, if you feel that yourself or your children are at risk of violence or assault, call the police on 000. You may also apply for an apprehended domestic violence order (ADVO) via police or your Local Court.
Although settling a divorce can be tough, it is important to remain strong and smart. Always refer to your lawyer before making any significant decisions that could impact the legal process. Get the right information from a trusted lawyer to avoid costly litigation and start a new chapter of your life.
Assessing each partner’s contribution
The Court will assess each partner’s contribution to the marriage. Beyond financial income, domestic duties also carry significant weight. For example, if you didn’t work due to raising children, the Court will deem your contribution to be just as significant as your spouse’s.
Spousal maintenance and child support
Spousal maintenance is different to child support in that the money payable goes towards helping the spouse. This is often awarded in cases where only one spouse worked. Child support is a set amount that a non-primary care giving parent pays for their children’s day to day expenses. This is calculated based on the parent’s income, the income of the other parent, and the needs of the child.
Practical tips
1. Choose your Lawyer carefully and make sure family law is their area of expertise. Specifically, family law is a niche area of law which requires experience and familiarity with the family law process.
2. Source information about your finances. Pull together your household budget, know exactly what and where you spend your money.
3. Forecast your future living costs and anticipate unexpected costs. If you need financial assistance, contact Centrelink and your state Housing Authority.
4. Locate your passport, birth and marriage certificates and any other key legal documents. Find a safe place to store your legal and financial documentation. It may be best to ask your lawyer when and how to gather this information first.
5. Make sure that you have the support you need. Women’s Health organisations and your GP are useful. Reach out to social workers through the Family Law Court and school counsellors if you see such behaviour present in your children.
6. Carefully consider what you want out of the divorce. It’s also good to give some consideration to how you will communicate with your ex partner, especially if you have children. What type of relationship do you want to have moving forward?
7. If your situation becomes violent, it may be necessary to apply for an Intervention Order. Prepare a Safety Plan. If you are going to remain at home and your spouse moves out, change the locks and consider home security and duress alarms
8. As soon as you separate, make a new will.
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