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Family law in Australia: facts to know

By July 28, 2020February 23rd, 2024No Comments

Family Law: A lot of what we know about divorce we seem to pick up on the grapevine somewhere, and sometimes a few myths get into the mix as well.

Below, we clarify certain facts about divorce and family law.

Can I get a “quickie” divorce in Australia?

Not in the sense of it being instant or fast. Spouses have to have been separated 12 months or more before they can apply for a divorce. If reconciliation is attempted for three months or longer, the 12 month period begins anew. And the process of applying for a divorce and receiving the actual documentation usually takes around four or five months.

Can my spouse refuse to divorce me?

Your partner can oppose your divorce application on very limited grounds, as long as they file a response in time. Mainly if there’s disputes over facts like jurisdiction or dates of separation.  But not just if they do not want to divorce or because you disagree over parenting and property matters, which are dealt with separated to a divorce application.

What happens if I can’t find my spouse to serve them my divorce papers?

Your spouse needs to be made aware of your divorce application and you need to file evidence of service with the courts before your divorce hearing. But if you don’t know the exact location of your spouse, you can still apply for divorce, as long as you can prove to the courts that you have used your best endeavours to try to serve your spouse. Sometimes, you can proceed with an application for substituted service instead. This may enable a close associate or family member of your spouse to be served instead of your spouse, or you may be able to serve your spouse via digital means, such as by email or sometimes even Facebook.

Do I need to be divorced to finalise parenting and property issues?

No. You can make arrangements for parenting and property issues at any point following separation, and before you are able to file for a divorce. The time limit for property settlement is only triggered once a divorce becomes final, in that you only have 12 months from the date of your divorce to file an Application in court for property settlement matters.

What happens to the kids?

Your divorce is separate from making arrangements for children. You can make arrangements for the kids as soon as you separate. If they are under 18, the courts will need to be satisfied about arrangements for their care and welfare. Parties are directed to mediation on parenting matters prior to being allowed to go to court. Parents might choose to enter a Parenting Plan as an informal way of documenting their agreements about the children, or they could make an Application for Consent Orders in the courts, which is legally binding.

Although the divorce process is distinct from parenting arrangements, courts still obtain information in the Divorce Application about current children’s custody arrangements, because the courts need to be satisfied that arrangements are in place for the children before granting the divorce. The exact arrangements may still be in dispute and contested further down the track.

Does the divorce finalise parenting and property issues?

No, a divorce ends the marriage but you still need to make arrangements for children and assets separately. But if you want the courts to divide your marital assets, you’ll have to apply within 12 months of your divorce being finalised.

I have rights to my children

No, under the law you actually only have responsibilities. It’s the child who has a right to a meaningful relationship with both of their parents, barring issues of violence, abuse or other safety concerns.

Can we live together during separation?

You can be “separated under one roof” but this means providing the court with evidence that you have actually been separated. Such evidence might include details of new living arrangements (such as moving into different rooms, opening separate bank accounts, cooking and dining apart, etc). You may also have to obtain third party evidence (such as from a neighbour, family member or friend) that the separation is legitimate.

If it was only a short marriage, will divorce be quicker?

No. If you have been married for less than two years, spouses have to attempt counselling and receive a certificate from the counsellor. In some instances, this can be omitted. But afterwards, the usual divorce process applies—being that you need to be separated for 12 months before you can apply for a divorce.

How soon after I divorce can I remarry?

After you receive your divorce certificate, you’ll need to wait one month before your divorce comes into effect and is officially recognised. If you married immediately, it would be regarded as bigamy. So if you intend to remarry, allow sufficient time for your divorce to be finalised, especially if your spouse is overseas or may be difficult to locate.

What about joint applications for divorce?

These are typically faster and less expensive, with no service fees involved and lower legal fees generally. It also means you do not have to attend the divorce hearing.

Do the courts care about infidelity?

Australia is a “no fault” jurisdiction so nobody needs to be blamed for the divorce. The courts here don’t moralise, but impose the 12 month separation period to ensure the marriage has “irretrievably broken down”.

How long do I have to wait after my divorce to revert to my maiden name?

You may be able do so before your divorce by sending a letter of notification to banks or other places. Some authorities will require a copy of your divorce order before they will update your name in their records.  

If I was married overseas, can I get a divorce here?

Residents and citizens of Australia can apply for divorce here. If your original marriage certificate isn’t in English, you’ll have to get it translated.

Who does superannuation belong to?

Superannuation is considered to be “property of the marriage”. Superannuation entitlements can therefore be counted in a property settlement (there are exceptions) and can be “split”. Splitting super does not make it a cash asset but instead, it’s a transfer of funds between super balances, making it more of a long term interest.

Everyone who starts litigation ends up in court

Only a small number of cases go through litigation all the way to trial. This is thanks to compulsory mediation where kids are involved, how long it takes for people to proceed through the system, and the costs involved in litigation. There are many opportunities throughout the court process to help parties try to settle their matter.

Are the family courts biased against men?

Our family law is gender neutral and is guided by fairness and the best interests of children.

My ex will spring surprises on me in court

Ambush style antics are not possible in the family court as each party has a duty of full and frank disclosure – that is, providing all documents and information up to the court and the other party if they are relevant to the matter. In most cases, each party has to put their evidence into writing, in an Affidavit, before any Court hearing, so you each know what evidence the other person will be relying on prior to the hearing.

I’m not in a de facto relationship – or am I?

You might think you’re not in a de facto relationship because you only live together physically for less than half the year, but this is a misunderstanding. There are many factors the courts look at to decide if a couple has been in a genuine domestic relationship and living together is only one aspect. Even the lack of a sexual relationship has not held courts back in determining spouses were de facto. It’s important to be aware of what the Australian law regards as de facto as there may be unexpected legal consequences.

If you’re de facto can you enter a BFA (Binding Financial Agreement)?

Yes. They can be made by people intending to marry, intending to live in a de facto relationship, married and not separated, married and separated but not divorced, living in a de facto relationship and not separated, living in a de facto relationship and separated, and even when you’re already divorced.

I’m out of time…

Getting a divorce will trigger a statutory time limit to apply to the courts for property orders and spousal maintenance. Make sure you check the time limits for filing applications in the courts. These vary for de facto and married couples. Even if you are officially “out of time”, you may still be able to seek the leave (permission) of the courts to proceed, depending on how good your reasons are for the delay in finalising matters.

Do I even have to get divorced?

Legally, no, and many people opt to stay legally married even if separated. But it’s important to remember the complex legal obligations that continue until divorce.

If you have any other questions about divorce or another aspect of family law, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information about how to obtain the correct legal advice, please contact Alliance Family Law.


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