Do I have to get Divorced?
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 & Property Settlements
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.
Are there any Time Limits?
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.
Do I need a Lawyer to apply for a Divorce?
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.
Separated but living in the same house. Can I still apply for a Divorce?
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.
How much does a Divorce cost?
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.