10 things to know about divorce

10 things to know about divorce

When a married couple separate, the whole event is often described as a divorce.

However, divorce has a very specific meaning under Australian law. It is not a property settlement, it is not a separation, it is not sorting out the arrangements for children. A divorce is a court order ending a marriage. It is like the official tearing up of your marriage certificate. There are a lot of myths and misunderstandings around divorce, so here’s 10 key things to know about divorce.

1. For a divorce order to be made, your marriage must be broken down irretrievably.

That is, you will not resume married life. You’ve made up your mind and it is final.

2. You do not need to provide the court for a reason for your divorce.

The Family Law Act 1975 established the principle of no-fault divorce in Australia. Therefore, the court does not need to hear or judge the reason why the marriage has irretrievably broken down, that can stay between the two of you.

3. You must have been living ‘separate and apart’ for at least 12 months.

This is easiest to prove when one of you has moved out of the former matrimonial home and you have been separated ever since. It is common for people to been separated but have lived separately under the one roof for all or some of the 12 months of separation. To prove you were separated during this time, you must show there was a change in the way you related to each other after separation in comparison to beforehand. This could include:

  • Sleeping in separate bedrooms;
  • No sexual relations or intimacy;
  • Not helping each other out with household chores such as cooking each other dinner or doing the other persons laundry;
  • Having separate finances ;
  • Not attending social functions or events together;
  • Not socialising together.

Periods of Reconciliation

It is also common for people to attempt reconciliation after they have separated.

If the reconciliation lasts for a period of less than 3 months, you may add the periods before and after the reconciliation together to obtain the necessary 12 months.

However if the reconciliation lasts for a period longer than 3 months, the clock starts again for the 12 month period at the end of the reconciliation period.

4. You must demonstrate to the court that there have been reasonable arrangements made for the care and welfare of any children under the age of 18.

This involves explaining the arrangements made for the child in line with their:

  • Living needs
  • Schooling needs
  • Health needs

5. If you are applying for a divorce within two years of when you got married, you will need to prove that you have attended counselling.

Visit the Family Relationship Centre website for a list of court certified counsellors that can give you a certificate demonstrating to the court you and your spouse have attended counselling.

6. You must have a jurisdictional connection to Australia in order to apply for a divorce here.

Either you or your to be ex-spouse must either:

  • Regard Australia as their home and intend to live here indefinitely after the divorce; or
  • Be an Australian citizen by birth, descent or by grant of Australian citizenship; or
  • Ordinarily live in Australia and have done so for 12 months immediately before filing the divorce application.

As long as one of the above criteria is satisfied the Court will be able to hear your Divorce Application, regardless of where you were married or where you previously lived.

7. The Court will only focus on your divorce application.

Many people come to us thinking a divorce application also encompasses a property settlement, spousal maintenance, child support and interim orders. Although this may be the case on US TV shows, it doesn’t work that way in Australia. The court will only consider whether or not it should grant a divorce. The court does not have to have any regard for if both parties of the marriage want to get a divorce or if only one party does.

Property and children’s matters are separate court applications.

8. A divorce is not obtained overnight.

When the application is filed the Court will list it in court for a hearing. The date of the hearing will most likely be a couple of months away.

Provided that the court is satisfied that you have met all of the requirements a Divorce Order will be made but it does not take effect until one month and one day after the hearing.

9. Until your divorce is final, neither of you are able to get married to anyone else.

If you do, you will be committing bigamy which is a criminal offence in Australia. Perhaps just put a few more months into the wedding planning and wait for after the divorce has taken effect.

10. The Will you made during your marriage will now be invalid.

If you have a Will at the time the divorce is obtained certain clauses will be revoked because of the divorce. These clauses include any provision you have made for your former spouse, any grant of power you have given them or if you appointed them as an executor of your will.

Any clauses that appoint your former spouse as a trustee of a trust in which the beneficiaries of the trust include children of your former spouse will not be revoked. This means your former spouse will have control over money or property you have your children.

If you separate from your spouse and do not have a Will, your former spouse may still inherit if you die before a Divorce Order is issued by the Court. If you have never made a Will, only a Divorce Order will ensure that your former spouse will not be able to inherit your assets.

Rather than leave these matters to chance it is best to be on the safe side and make a new Will after your divorce to ensure your intentions concerning your former spouse are crystal clear.

Family LawOFRM LawyersO'Farrell Robertson McMahondivorce, property settlement, child support, will, wills, family law act