Making the decision to divorce is not an easy one. Separating from a spouse is a big transition in your life, particularly if you have children together. At Rose Lawyers we are experienced Family Lawyers and we are here to provide legal advice and support during what can be a very difficult time.
This guide to the divorce process in Australia provides you with the information you need to ensure your divorce is straightforward, and as hassle-free as possible.
What exactly is a divorce?
A divorce is the name for the official end of a marriage. In legalese, it’s known as Decree Nisi. When you are separated but still married, you cannot marry another person under Australian Law. When a divorce is finalised you can marry someone else.
- To apply for divorce, you need to have been separated for 12 months or more. You can be separated but living under the one roof and make a successful divorce application.
- You can apply for divorce on your own (sole application), or you can apply for a divorce together (joint application).
- If you are making a joint application, you do not need to go to Court.
- If you are making a sole application with minors, then you must go to Court on the hearing date to answer any questions the Judge may have about the children.
- If there are no children, or the children are independent adults, then neither party needs to attend the divorce hearing.
You do not have to divorce when you separate from your spouse, but if you do not separate there are certain areas of your life—such as financial matters and your Will and Estate—that can be affected. Keep in mind that you cannot marry anyone else in this separation period.
How do I start the divorce process?
The Family Court of Australia has information on divorce available on their website. If you are making a sole application, you need to arrange for your spouse to be served with a copy of the divorce application. You can personally serve documents to your ex-partner, or you can post these divorce documents to serve them by mail.
- You can file for divorce on your own, or you can work with a Family Lawyer to assist you.
- It is possible to apply for a divorce electronically.
- Once the Order for Divorce is made, the official date of Divorce will be one month and one day later.
If you cannot file your divorce electronically, you can fill in a form and lodge this with the Court.
How do I manage splitting up our assets and property?
One of the biggest concerns when couples separate and consider divorce is how to divide assets. In many cases, you will own property with your spouse as joint tenants. You may also have bank accounts with joint funds, cars that are in both of your names, and a range of other assets.
- It is in your best interests to split up your property as soon as possible.
- If you can reach an agreement with your ex-spouse about how to divide your property, then you can make an Informal Agreement, a Financial Agreement or a Consent Order. However, we would not advise an informal agreement, as it is not legally binding.
- If you cannot reach an agreement, you can use family Dispute Resolution services or seek the help of the Court to make a Consent Order or a Financial Order in relation to property.
If you involve the Court, the Court can order a person to pay money to someone, transfer or sell property, split superannuation, sign certain documents or pay maintenance. If you cannot reach an agreement about the family home, the Court may order that it be sold and the sale funds divided on a percentage which is decided by the Court.
How can I be sure that I will get to spend enough time with my children?
When you have children with an ex-partner, you may be concerned about getting to spend enough time with them. In some cases, young children will spend more time with their mother and see their father on weekends or fortnightly. In other cases, children will stay more with their father. Every family is unique, and your separation requires an individual approach based on your particular needs.
- If you can decide on how you and your ex-partner will care for your children, you can make a Parenting Plan.
- If you cannot choose how to care for your children, then you can apply to the Court for a Parenting Order.
- If you or your children are experiencing family violence, then it is important to get Legal advice and guidance to ensure that you achieve the best possible outcome for you and your children.
Considering your child’s best interests is the most important thing when you are going through divorce, regardless of how you personally feel about your ex-spouse.
Call Rose Lawyers today
We are here to stand by you during your divorce, to ensure that your property and assets are divided equitably, and to make sure that your rights are protected. Whether you need advice and guidance on dividing property, making a Parenting Agreement, putting a Consent Order in place, or making the Application for Divorce, we are here to help.