The Basics of Divorce Applications
When a marriage breaks down, it can be difficult to wade through a sea of different information looking for the facts, your legal responsibilities, how to go about property and financial division and parenting arrangements. At a time of inevitable stress, it’s important you can lean on someone you can trust, who can support you, fight your corner if necessary and ensure you get the best outcome for you and your family.
Today, we’ll be talking through the basics of divorce applications and what your likely next steps may be. This blog is particular to divorce, however we’ve covered other family law disputes and considerations here.
Starting a Divorce Application
Before filing a divorce application, you need to decide whether it is a sole or joint application, as there are different steps and obligations in each case. In a sole application, you are the applicant and your former partner is known as the respondent.
A joint application is signed by both parties and applied for together. In this case you do not need to serve the other party with filing papers.
You must also make sure you’re eligible to apply for divorce in Australia. To determine if this is the case, you or your spouse must be able to answer ‘yes’ to one of the following;
- Were born in Australia or have become an Australian citizen by descent (born outside Australia and at least one parent was an Australian citizen and your birth is registered in Australia).
- Are an Australian citizen by grant of Australian citizenship (a citizenship certificate will be required).
- Are lawfully present in Australia and intend to continue living in Australia. You must have been living in Australia for at least the last 12 months.
If you’ve been married for less than two years you need to file a counselling certificate. You can find more information on the Federal Circuit Court website. If you have been separated but living in the same residence within 12 months of filing the application, you will also need to provide additional evidence by preparing an affadavit.
Once a divorce application has been submitted and the Courts are satisfied there has been an irretrievable breakdown of the relationship, the court will proceed with an order for divorce. Court attendance will be required if a sole application was submitted and there is a child of the marriage aged under 18. We have broken down the steps to divorce in our article here.
Financial and Property Settlements
A key element of any divorce is the settlement of both financial and property assets, including real estate, cars, superannuation, debt and more. The complexity of each settlement will vary from couple to couple, with some being fairly straightforward and agreed without having to go to a Judge. Others are more complex, and if an agreement can’t be reached, court action may commence.
In circumstances where an agreement can’t be reached, it is advisable to work with a specialist family lawyer who is able to attempt a resolution during Pre-Action procedures. You will generally need to demonstrate you have explored other methods of resolution prior to going to Court.
If the matter goes to Court, the Judge will consider the following (but not limited to);
- The financial contributions of each party to the relationship
- Non-financial contributions of each party
- The future financial position of each party, including providing for children
You do not have to be divorced to organise a property settlement, but you must apply within 12 months of a divorce order taking effect. It is important to note that financial and property settlements are a completely separate process to divorce. You can find out more about the property settlement process here.
Another key factor that separated couples with children must consider is how to make parenting arrangements and responsibilities in the best interests of the children. Under the Family Law Act, there is a presumption that both parents have shared parental responsibility for their children until they reach eighteen years of age. This responsibility normally doesn’t change if the parents’ relationship breaks down.
The main consideration in any parenting arrangement by law is that any decision is taken in the best interests of the children, not necessarily the desire of the parents. Both parents must decide where a child will live, how much time will be spent with each parent and when, extending to special events such as birthdays, Christmas and other holidays. If an agreement can’t be reached, legal assistance should be sought. Find out more here.
De facto Relationships and Same Sex Couples
De facto relationships (between two adults of the same or opposite sex who live together but are unmarried) are also recognised in Australian law. Under current laws, couples separating from a de facto relationship may be eligible to pursue financial and property settlements in an identical way to married couples in most states. The are also similar rights where children are involved. Many de facto couples are unaware of their rights and obligations, so if in doubt, contact us today or read more here.
Seeking Legal Advice
Here at Daykin Family Law, you can find a wealth of resources on our blog to assist in deciding the best course of action for you and your family. It is important to seek independent legal advice to help you understand your rights and responsibilities, and where possible, avoid going to Court. If you are seeking legal advice about your separation, or just need to understand your divorce application options further, Daykin Family Law can help.
Shannon Daykin is an experienced Family and Divorce Lawyer, named as a Leading Family & Divorce Lawyer (Recommended, Brisbane) and Leading Parenting & Children’s Matters Lawyer (Recommended, Queensland) in the prestigious Doyle’s Guide 2018 and 2019. In 2019, Daykin Family Law was named in the Doyle’s Guide as a Leading Family & Divorce Law Firm (Recommended).
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us on (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.
The blog published by Daykin Family Law is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Daykin Family Law on any legal queries concerning a specific situation.