What is Divorce?
Divorce is the termination of your marriage. It is separate to any arrangements about your children or property/finances.
How soon after separating can I apply for a Divorce?
For a Divorce to be granted, there must have been an irretrievable breakdown of the marriage and the parties must have been separated for at least 12 months immediately prior to the Divorce Application being made.
Am I eligible to apply for a Divorce in Australia?
The following three (3) criteria apply:
- You or the other party must answer yes to one of the following:
- You were born in Australia or have become an Australian citizen by descent; or
- You are an Australian citizen by grant of Australian citizenship; or
- You are lawfully present in Australia and intend to continue living in Australia.
- The marriage has broken down and there is no reasonable likelihood of reconciling.
- You have been separated for at least 12 months and 1 day.
Do I have to provide a reason for applying for a Divorce?
No. In Australia, divorce is on a “no fault” basis. You only need to satisfy the three (3) criteria listed above.
What documents do I need?
- A copy of your marriage certificate.
Overseas marriage certificates are accepted. If the certificate is not in English it must be translated into English by an authorised translating service with an affidavit from the translator.
- 2. If you were not born in Australia, a copy of your citizenship certificate, or proof that you are legally in Australia and have lived in Australia for at least the last 12 months.
Do we have to apply for a Divorce together?
You and your spouse can apply for a divorce together (a joint application) or you can apply by yourself (a sole application). The process is slightly different for each.
The parties are known as joint applicants. Both parties must sign the application. The Application for Divorce does not need to be served on the other party if you make a joint application.
If you file a sole application, you are known as the Applicant and the other party is known as the Respondent. Only you are required to sign the application. After you file the application it must be served on the Respondent.
What if we are separated but still living together?
If you have been living in the same residence as your spouse for any part of the 12 month period prior to filing an Application for Divorce then you will need to provide extra evidence to prove that you and your spouse have separated. This is done by filing an affidavit with your Application. If you are filing a joint application then both parties should file an affidavit. You should also ask a third party to file an affidavit to corroborate your evidence (for both sole and joint applications).
Evidence in your affidavit may include that you and your spouse: sleep in separate bedrooms; have separate bank accounts and finances; don’t do things around the house for each other; act in such a way that your friends and family can tell that you’ve separated and your marriage as ended; don’t attend social activities together.
What happens if we were only married for a short period of time?
A short marriage is a marriage of less than 2 years. The 2 year period is calculated from the date of your marriage to the date of your application for divorce.
If your marriage is less than 2 years, then before applying for a divorce you are required to attend counselling with your former spouse to discuss if there is any prospect of reconciling. The counsellor must complete a counselling certificate (available from www.federalcircuitcourt.gov.au). The completed certificate will then need to be filed with the Application for Divorce.
If you do not attend counselling then you will need to file an affidavit with your Application for Divorce seeking the Courts permission to apply for a Divorce and explaining why you and your spouse have not attended counselling.
How do I apply for a Divorce?
PWB Lawyers can assist you in an Application for Divorce, including preparing the Application and any supporting documents (if required), filing the Application and arranging for it to be served on the other party (in the case of a sole application).
You can apply for a divorce yourself without a lawyer by registering for the Commonwealth Courts Portal at www.comcourts.gov.au and completing the electronic application. If you file a sole application you must pay special attention to the specific requirements for serving the Application for Divorce on the other party. See the Federal Circuit Court website for more information.
There is a fee to file an Application for Divorce in the Federal Circuit Court. Ask PWB Lawyers for up to date information or see the Federal Circuit Court website.
Do I need to attend Court?
You are not required to attend Court if you file a joint application or if you file a sole application and there are no children of the marriage (or children under the age of 18 years). You can however, elect to attend Court even if your attendance is not required at the time of completing your application.
You are requiredto attend Court if you file a sole application and there are children under the age of 18 years.
If you instruct PWB Lawyers to represent you in an Application for Divorce then we will always appear in Court on your behalf so as to ensure the Divorce Order is made on that day.
Does a Divorce deal with my property and children’s matters as well?
You do not have to wait until you are divorced to ask the Court for orders about your children, your property or spouse maintenance. However, once you are divorced you have 12 months from the date your divorce order becomes final to file an application for property settlement or spouse maintenance.This timeframe can be waived by the Court only in certain circumstances. If you have been divorced for more than 12 months but have not finalised the division of property you will need urgent legal advice. PWB Lawyers can assist you.
How long will it take?
Time frames may vary depending on whether an Application is filed solely or jointly with another party. If you a file a sole Application and there are issues locating or serving the other party then the process may take longer. Generally however, a straightforward Divorce Application filed jointly, or a sole Application where there are no issues as to service be filed and listed in Court in a bit over a month.
What happens after the Divorce hearing?
Once the divorce is granted it will become final one month and one day after the date of the divorce hearing.
PWB Lawyers will provide you with a copy of your sealed divorce order once it is made final and made available. If you have applied for divorce without a lawyer then your divorce order will be made available to you through the Commonwealth Courts Portal.
What is a Property Settlement?
A property settlement is the division of property owned and acquired during a marriage or de facto relationship.
Is the process the same for married and de facto relationships?
The same general principles apply in determining the entitlements of a party regardless of whether you were married or in a de facto relationship.
What is a de facto relationship?
A de facto relationship is defined in Section 4AA of the Family Law Act 1975. The law requires that you and your former partner, who may be of the same or opposite sex, had a relationship as a couple living together on a genuine domestic basis.
How are property settlements determined by the Family Court?
There is no formula used by the Family Court to divide property and no one can tell you exactly what orders a Judge will make as every case is different. As lawyers we can provide you with estimates only as the Courts have a wide discretion in making orders that may alter the interest of parties in property.
The Family Law Act 1975 sets out the general principles the Court considers when determining financial disputes arising out of the breakdown of a marriage or de facto relationship.
- To identify and value all the property that is available for division. This includes all assets, liabilities and superannuation benefits of each spouse. The value attributed to each item of property is the current value of the asset and the current amount owing on debts;
- To consider the financial and non-financial, both direct and indirect, contributions made by and on behalf of each party to the acquisition, conservation or improvement of property;
- To consider the future needs of each party including:
- whether either party has the care of a child to the relationship;
- the age and state of health of each party;
- the income, property and financial resources of each party;
- the physical and mental capacity of each party for appropriate, gainful employment;
- the disparity in the income earning capacities of each party;
- instances of family or domestic violence;
- commitments that are necessary for each party to support themselves or any other person.
Do I have to go to Court?
No. You may be able to reach agreement as to the just and equitable division of property by negotiation, mediation or other means outside Court. Our lawyers regularly represent client’s in property mediations with successful outcomes.
What do we do if we have reached agreement?
At PWB Lawyers we strongly recommend entering into Consent Orders or a Binding Financial Agreement (BFA) so as to formalise any agreement you have reached with your former spouse.
What are Consent Orders?
A Consent Order is a written agreement approved by the Court. It has the same effect as if it had been made by a Judge after a Court hearing.
Filing Consent Orders with the Family Court involves the preparation of two documents – the proposed Terms of Settlement (a document setting out what the agreement is and what is to happen with each item of property) and the Application for Consent Orders. If the Court is satisfied with the proposed Terms of Settlement, then it will issue a sealed Order. You do not need to attend Court.
Formalising your agreement by entering into Consent Orders has a number of advantages, including:-
- It finally determines the financial relationship between former spouses so neither can make a further claim on the existing or future assets of the other party;
- It avoids further proceedings;
- It will avoid the payment of stamp duty upon the transfer of any real estate from joint names into the sole name of one party; and
- It makes the agreement legally binding and enforceable at law.
What is a Binding Financial Agreement?
A Binding Financial Agreement (BFA) sometimes just referred to as a Financial Agreement is a written agreement dealing with any of the property financial resources and/or maintenance of the parties to a marriage or de facto relationship.
Approval from the Family Court is not required for Binding Financial Agreements to be binding. However, very specific conditions as set out in the Family Law Act must be met and both parties are required to obtain independent legal advice.
Binding Financial Agreements can be entered into following the breakdown of a marriage or de facto relationship. They can also be entered into at other times including before marriage (often known as a pre-nup), before cohabitating with a partner, or during the marriage or relationship. There are particular sections of the Family Law Act relevant to each of these scenarios, and each Agreement must be expressly made under the relevant section.
What makes a Binding Financial Agreement legally binding?
- BFAs must comply with strict legal guidelines as outlined in the Family Law Act (1975).
- They must be in writing.
- Each person must have received independent legal advice before signing the BFA about the advantages and disadvantages of entering into the Agreement and the effect of the Agreement on their rights.
- Each person must have signed the BFA voluntarily (free from coercion, duress or undue influence). For example, this means one person cannot tell the other that they will not marry them unless they sign a BFA.
- The BFA should contain full disclosure of each person’s financial situation.
Can I get a prenup?
A prenuptial agreement or “prenup” is a Binding Financial Agreement between couples made before parties marry or enter into a de facto relationship. It generally covers financial matters but may include other issues as well (such as spousal maintenance). In Australia’s family law system, the term prenup is not normally used.
These Agreements address how to divide the assets and resources if a marriage or relationship breaks down, and effectively excludes the Courts and the principles set out in the Family Law Act from determining how the property pool should be divided.
I only want my Binding Financial Agreement to deal with some of property. Is this possible?
Yes. A BFA can deal with only some of the assets and financial resources of a marriage or de facto relationship.
Parties often wish to quarantine a particular asset or resource (such as premarital property, business interests or family heirlooms) or deal with it in a particular way. This is particularly common for parties entering into a second relationship who want to ensure that their assets are preserved for the benefit of their children, rather than their new partner or the new partner’s children.
Can my Binding Financial Agreement be set aside by the Court?
Yes. It is important to note that a Court may set aside an Agreement if there has been fraud (such as non-disclosure of a material matter); an intention to defeat or reckless regard of the interest of a creditor; any duress; undue influence or unconscionable conduct (taking advantage of any weakness of a party); or circumstances have arisen making it impracticable for the agreement to be carried out.
In what situations would it be necessary to go to Court about a property settlement?
If you cannot come to an agreement with your ex-partner, the Family Court or Federal Circuit Court has the power to make orders for property and financial settlements.
After filing an Application for property or financial Orders the Court will ordinarily refer the parties to Conciliation in an attempt to resolve their dispute. If no Agreement is reached at Conciliation a Court can determine the division of assets and liabilities after hearing evidence from both parties and any supporting witnesses.
Do I have to reveal how much money I make and disclosure everything I own?
Yes. Each party has an obligation to make full and frank disclosure of their financial position to the Court and the other party. It is an ongoing obligation.
Is there a time limit to bring a property application?
You do not have to wait until you are divorced to ask the Court for orders about your property or spouse maintenance. However, once you are divorced you have 12 months from the date your divorce order becomes final to file an application for property settlement or spouse maintenance.This timeframe can be waived by the Court only in certain circumstances.
If you were in a de facto relationship, your applications for property or financial settlement must be made within 2 years of the breakdown of your relationship.
How does the law deal with superannuation?
Superannuation forms part of the property pool. The law allows for superannuation to be divided or “split” between parties. Splitting superannuation between parties does not convert it to a cash asset and the usual rules relating to the release of superannuation apply (such as reaching preservation age or satisfying requirements for early release such as hardship or illness).
What is spouse maintenance?
Spouse maintenance is the responsibility a party might have to financially support (maintain) the other person after separation or divorce. It is different to child maintenance and child support.
Generally, a party will only have to pay maintenance if the other party cannot support themselves and the first party has the capacity to contribute to their support. Payments can be made regularly (periodic) or as a lump sum. Periodic payments will not be for an indefinite period.
Does getting married affect my will?
Yes. Your existing Will is revoked upon marriage, unless it was made in contemplation of the marriage.
Any provision made for your spouse will be valid but not any provisions made for children or other people.
Do I need to change my will when I get divorced?
If you have a Will and get divorced your Will is still valid but any provisions for your ex-spouse will be invalid.
If you have a Will and are separated but not divorced, the Will remains valid including any provisions for your ex-spouse.