Divorce

The only legal requirement to apply to the Court for a Divorce is if you want to re-marry. We suspect that at this time you are not thinking of marriage! Generally speaking, people tend to apply for a Divorce for emotional closure and also for certainty around their matrimonial property division.

Another good reason to apply for a Divorce order is to ensure that your spouse has no entitlement to your Estate upon your death.

A Divorce Order will also “activate” the time limitation as there is generally only12 months from the date of a Divorce Order for either party to initiate proceedings in the Family Law Courts with respect to property division.

Divorce and Property settlements are not dealt with at the same time. You can (and probably should) commence negotiations of your property division immediately following separation. You do not need to wait 12 months to do so.

Property division is generally dealt with by either agreement of the parties (by way of Consent Minutes of Order of a Binding Financial Agreement) or by initiating proceedings in the Family Law Courts. Property division is completely separate from a Divorce Application. We advise that you get legal advice either before you separate or soon after separation to work out which approach is best for your situation.

Yes.

The Family Law Act stipulates that you have 12 months from the date of a Divorce order being made to apply to the Court in relation to your property division.

There are some exceptions and it’s best to get some legal advice even if you are outside of the time limitation.

Generally speaking, it is relatively easy to obtain a Divorce in Australia.

The Application can be a joint application or sole application.The Court needs to be satisfied that you have been separated for 12 months and that there are arrangements in place for any children under the age of 18.

If you have been married for less than 2 years you will need to obtain a mediation/counselling certificate.

The Application can be a little bit more tricky if you do not know the location of your spouse. We can give you further information in relation to service and applications for substitute service or to dispense with service.

We are able to prepare your Divorce Application but generally speaking these Applications are easy to prepare yourself and are a good way to save monies in terms of legal fees. We can provide you with the relevant documents but of course are able to prepare the documents for you if your matter is a little tricky or you are time poor. You’re generally better off using your finances towards instructing us to prepare your Will and for advice in relation to parenting/property matters.

Yes.

As long as the separation period has been 12 months or longer. It is becoming more common to be separated but living under the same roof for financial reasons. The Court will need to be satisfied that at least one party has informed the other of their intention to separate. The Court will also look at things such as whether you have told your family/friends of the separation, if you are sleeping in a separate room and whether you are now cooking your own meals etc. These are only some examples.

At the time of writing, the Court’s filing fee is around the $990 mark (with the filing fee reduced to around $330 on the grounds of financial hardship). Check the Court website for current fees.

As mentioned, it is generally a good way to save in legal fees to prepare your own Divorce. If you would like us to prepare the documents for you then please get in touch.

If your spouse is the main income earner or is denying you access to assets you should immediately get legal advice.

If you are in the position of financial hardship and have money in a joint bank account then you should be able to access all/some of those monies to help you get by. The fact that you have taken funds would, however, be considered in the overall property division at a later date.

You should be able to justify drawing all of the money and should not do so simply to make life more difficult for your spouse.

A Solicitor can assist you initially by negotiating in writing to your spouse. If there is no success then your Solicitor can also assist by applying to the Family Law Courts for an interim court order for things such as urgent spousal maintenance or an occupancy order.

A Solicitor can also assist you to apply for an injunction to prevent your spouse from disposing of property and can also assist to register a Caveat to prevent sale/transfer with the Lands Titles Office in relation to any property that your spouse has in his or her sole name.

If both of your names are on the Certificate of Title then you are both legally allowed to remain living at the property. It is not uncommon for separated parties to remain living at the property for financial or other reasons.

This of course is not always practical, particularly if there has been domestic violence in the relationship. If there has been family violence or if you fear for your safety then please speak to a solicitor immediately (preferably prior to leaving the house if it is safe to do so). An Intervention Order may allow the protected person to have sole occupancy of the property even if it is in joint names. At The Family Law Project we work closely with domestic violence and emergency accommodation services and are able to assist with those referrals. We can also provide information in relation to Intervention Orders for your protection.

Put simply: if you are either the sole or joint registered owners on the Certificate of Title then you are legally entitled to change the locks. Be mindful, however, that if the property is under joint tenancy then your ex-partner is able to have them changed back! Things can start to get messy and you need to think about the practical implications and the effect of any arguments in front of children.

One difficulty at separation can be the upkeep of mortgage repayments. This is particularly difficult if the main income earner has left the matrimonial home and the spouse remaining does not have capacity to continue meeting mortgage repayments by themselves. If a mortgage is in joint names then both parties remain jointly liable for that mortgage until the mortgage is discharged. Commonly, however, the person remaining in the property will become responsible for mortgage repayments as if they were effectively renting the property.

If the spouse leaving the property continues to make mortgage repayments or contributions towards the mortgage, they may be able to negotiate a higher percentage of the capital gain on the property post separation.

It is not uncommon for financial institutions to approve a short term suspension/break on all mortgage repayments on grounds of financial hardship and also upon separation. You should approach your bank directly to discuss this option.

To keep your legal costs to a minimum, it is always a good idea to talk to
your spouse generally about what you want to do with your assets. It can help to have that conversation so that you are both clear as to what you are each wanting (for instance one party may be very keen to remain living in the matrimonial home if they can afford to do so).

Ideally you will also exchange information such as the balance of any sole bank accounts and details of any assets in sole names such as superannuation. It is always a good idea to obtain photocopies or details of this information before separation if possible.

You should make a list of all of the assets at the date of separation whether they are held in sole or joint names and give an estimate value of each item. It is very helpful to provide this list along with a chronology of critical dates to your solicitor. If you book a meeting with our office then we will give you more information in relation to what you can bring to your appointment to assist to keep your legal fees to a minimum.

No.

It is very common for matters to settle without the need to attend Court. Often, when you instruct a Solicitor, they will negotiate with the other party or their solicitor and also exchange relevant documents. It is quite common for proposals to be exchanged. If an agreement is reached then this may be drawn up as a Binding Financial Agreement or by way of Consent Minutes of Order which is registered in the Family Law Courts. The Orders are simply sent by mail to the Court for a Registrar to sign off on and seal (stamp). They have the effect of legally binding Court orders without the need to personally attend Court.

At The Family Law Project, our preference is always to have your matter settled outside of Court as it is generally less stressful for the parties and also more cost effective for you. If our negotiation is not fruitful then we can discuss other options such as arranging an informal conference with your ex partner and their solicitor using a genuine approach to resolve all matters whilst avoiding Court.

If no agreement can be reached by negotiation then either party can apply to the Family Law Courts to have the Court assist to make orders about property division.

If the other party is being a pain in the backside then let’s not beat around the bush trying to negotiate. In those circumstances it is usually more cost effective to get your matter before the Court for a quicker resolution.

Often at the first hearing date the Court will make an order for the mutual discovery and exchange of documents and for valuations of any assets where the value has not been agreed. The matter is usually referred to a lawyer assisted Conciliation Conference and many matters will settle at that point.

Ultimately, if your matter proceeds it will at some stage be given a final hearing date for judicial determination. There is always the opportunity throughout proceedings for final agreement to be reached and for your matter to be removed from the Court list.

The Court is guided by the Family Law Act and also case law to determine property division. It can be quite a complex process.

Generally speaking, there are 4 steps that the Court must take when determining property division.

Step 1: What is the Asset Pool?

The Court will look at all property/debt that exists at the time you make the application – they will also consider what property/debt each of you had before the marriage/relationship,  during the marriage/relationship and after separation. It is irrelevant whether an asset is held in sole or joint names – it can all be divided, as can superannuation.

Step 2: Contributions

The Court then considers both the financial and non-financial contributions that the parties have made during the relationship.

Step 3: Future Needs & Capacity

The Court must factor in the future needs and earning capacity of both parties  –  factors such as employment, difficulties around earning capacity, care of children and likelihood of payment of any child support.

Step 4: Just & Equitable

Finally, the Court must consider the overall fairness of any order that it makes. The Court will not make an order for property division unless it is satisfied that it is equitable to do so.

The time limit to file an application for property adjustment or for maintenance for a de facto claim must be made within 2 years of the date of separation. There are some exceptions to file out of time and you should seek legal advice around that.

The time limit to file the same application for a married person is 12 months from the date of an or for Divorce being made by the Court.

It is becoming increasing common for people to have strong attachments to their pets. Separation from your partner is often a stressful situation and can be even more difficult where your pet is no longer in your care.

Even though people can feel these strong attachments to their pets, it’s important to understand that if there can be not agreement around pets, then eat Court must consider the put pursuant to an application around property division. It is very independent to an application being dealt with in relation to children! Realistically, the Judge will not be too impressed if “Martha” is included in your property application!

Ideally, you and your ex partner should try to reach an agreement between yourselves if you can. If there are children in the relationship keep this at the forefront of your mind as the children will be experiencing many changes and it’s always good to keep consistency for them with any attachments they have with their pets. If you can’t reach an agreement then be mindful of the legal costs that may be involved. We have been instructed previously to negotiate on behalf of a client disputing the ‘custody’ of their $30 turtle. The money spent on legal fees well exceeded the cost of the turtle!

As frustrating as some of the judiciary find these applications, the fact is that the Court is more increasingly being asked to make a determination about the family pet.