Separation and Divorce

Separation

Provided you have separated, it is possible to resolve your property and financial issues without getting divorced. The separation date can be an issue in marriage if there is disagreement over the twelve-month waiting period before you can apply for a divorce. To put the fact of separation beyond dispute, you must inform your partner of your decision to separate. It is preferable to have evidence of informing your partner that you consider the marriage to be over and you wish to separate.

Defacto and Same Sex Relationships

The Family Law Act recognises your relationship if you live together as a couple regardless of your sex. The Act treats such relationships differently from marriage in that if the existence of such a relationship is disputed, proof will be required and a Court may have to decide the issue.

Even if the Court finds that the parties were in a defacto relationship, the simple fact of being in a defacto relationship is not sufficient to give the Court the power to make an order dealing with the property of the parties. There are the other following requirements:

  • the period of the relationship must be at least 2 years;
  • at least one of the parties to the relationship was ordinarily resident in a participating jurisdiction (i.e. all states and territories except West Australia); and

either

  • both parties were ordinarily resident during at least one third of the period of the relationship; or
  • the applicant for the order made substantial contributions, either financial, non-financial or to the welfare of the family comprising the defacto parties and their children.

Parties in a defacto relationship also have a different time limit within which they must commence court proceedings for a property settlement. Where it is 2 years for a defacto relationship, in a marriage parties have twelve months from the date their divorce order comes into effect to commence court proceedings for a property settlement. Therefore, as long as married couples do not divorce, there is no time limit imposed on them to finalise a property settlement.

Once a defacto relationship is found to exist and the other requirements referred to above have been met the Family Law Act  treats those parties no differently to parties who are married when it comes to dealing with property and financial issues. As the process for undoing your financial relationship is the same, you should refer to the information on our web site regarding financial issues and asset division.

To learn more about what is defined as a de facto relationship, please visit our Frequently Asked Questions.

None of the requirements for a defacto relationship apply to children and parenting issues.  The same law applies to all parents regardless of the kind of relationship they are in.

Divorce

It is a very stressful time when a marriage ends and everyone is different in the time they take to come to terms with a separation. Therefore, separating parties are often not ready at the same time to take the final step of getting divorced.  This means that unless your divorce is amicable and straight forward it is highly advisable to engage a family divorce lawyer to alleviate some of the inevitable stress that arises at this time.

Subject to a limited exception, you need to have been separated for twelve months before you can apply for a divorce. When you make the application, it can be either jointly with your former spouse or your application alone. If your application is made jointly, you can both avoid having to attend the divorce court for the hearing of your divorce application. You also avoid the need to serve your former partner with a copy of the application.

If it is your application alone then you are responsible for seeing that the application is served on your former spouse and also ensuring that evidence of that service is lodged with the Court. This must be done before the date of the hearing. This can be a stressful process especially if the other party tries to avoid service or they cannot be located in which case you will most always require the assistance of a family lawyer.

The divorce process can also be complicated if you have children under the age of 18 years. In this circumstance you will almost always require legal assistance to complete the divorce application and if necessary represent you at the divorce hearing.

Where a country other than Australia is also be able to deal with your divorce, this creates a ‘competing jurisdiction’ issue requiring legal advice. In the event that you have been married overseas and want a divorce in Australia, we can provide specialised advice about this process.

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