The process involved with separating and applying for divorce can be one of the most difficult and emotionally draining times in your life, but it doesn’t need to be with Forge Legal on your side. Our family lawyers will be right there with you to help you get on with your life.
How to get a divorce:
Divorce is the formal recognition by the Court that a couple is no longer married. When applying for divorce, Australia has a 'no-fault' system which means that neither party has to provide reasons as to why they wish to separate and obtain a divorce. The legal requirement the couple must show when getting a divorce is that they have been separated for 12 months and 1 day. The Court may also take into account if you have been separated but living under the same roof.
To be eligible to apply in Australia, either you or your spouse must meet one of the following criteria:
- Were born in Australia or have become an Australian citizen by descent
- Are an Australian citizen by grant of Australian citizenship (if so, you will need your citizenship certificate when filing your application)
- 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 (in some cases you may need to show your passport showing the date of arrival at least one year prior and/or a valid or current visa)
Our Brisbane divorce lawyers can help you with your application for divorce to make sure the process goes as smooth as possible.
Applying for divorce:
- Federal Circuit Court of Australia: You don’t need to apply to the Family Court of Australia to obtain a divorce. The Federal Circuit Court is a division of the family law courts and is able to grant applications for divorce. The process to apply for divorce is cheaper and quicker through the Federal Circuit Court than applying through the Family Court.
- Joint Applications: Making a joint application means that both your spouse and yourself sign the divorce application before filing. This avoids the necessity of having to serve the divorce application on your spouse and show the Court proof of service. It also means that neither your spouse or yourself need to attend the hearing. However, it is advisable that one party attends the hearing to ensure you can address any questions if the Court requires clarification or has any issues with the divorce application or documents that have been filed. Otherwise, your application may be adjourned or dismissed entirely.
- Sole Applications: If your spouse refuses to sign an application for divorce, you can still obtain a divorce order by applying to the Court with you being the sole applicant and your spouse as the respondent. This means that once you have filed the application you will need to serve a sealed copy of the divorce application on your spouse and file documents proving service has been effected. Attendance at the court hearing is mandatory if there are children under the age of 18 years, but not if there are no children under 18 years of age. However, again it is advisable that one party attend the hearing to ensure you are able to address the Court if there are any issues with your application.
- Marriage Certificate: If your spouse has your marriage certificate which is required in order to apply for a divorce, you can easily obtain another copy through the Births, Deaths and Marriages registry.
- Counselling Certificate: If you have been married less than 2 years you need to file a counselling certificate (See also Factsheet – If you have been married for less than 2 years).
- Filing Fees: The current Court filing fee for a divorce is $900. However, if you have a health care card, pensioner concession card, seniors health card or any other card issued by the Department of Families Housing Community Services and Indigenous Affairs or the Department of Veterans’ Affairs that certifies your entitlement to Commonwealth health concessions; or have been granted Legal Aid; or are receiving youth allowance, Austudy or ABSTUDY payments; or are under 18 years of age; or an inmate of a prison or legally detained in a public institution; or are otherwise in financial hardship, you may be eligible for a reduced filing fee of $300. However, you should note that in order to be eligible for the reduced filing fee, if you are filing a joint application, both applicants need to meet the criteria to be eligible for the reduced filing fee (See Guidelines for Reduced Filing Fee for Divorce).
We recommend you seek advice from one of our divorce lawyers before filing your application for divorce so we can review your documents to ensure you have prepared your divorce application correctly, and have all the necessary supporting documents.
Our divorce lawyers can help you to understand the court process including explaining the service process (required if you are filing a sole application). We can also refer you to process server agents who are familiar with the requirements for servicing divorce documents and prepare the necessary affidavit documents that are required to be filed for proof of service.
Our team at Forge Legal can assist you so as to avoid any potential issues you may have during the court process which may cause your divorce application to be adjourned or in some cases dismissed entirely, meaning you would have to reapply to the Court again causing delays and/or additional costs associated if your application needs to be re-filed and served.
Who gets what in a divorce:
Property settlement is a separate process to applying for a divorce. This is one of the most common misconceptions. Property settlement is the formal division of assets and liabilities between parties and is usually negotiated shortly after separation, prior to applying for a divorce. One of the main reasons for this is that parties who are married have 1 year from date of a divorce order becoming final (known as a ‘decree absolute’) to apply to the Court for property settlement orders, after which time there is a statute of limitations preventing parties from doing so unless the ‘leave of the Court’ (i.e. special permission by the Court to proceed out of time) is granted which can be difficult to obtain and is usually only granted in exceptional circumstances. For couples in a de-facto relationship, this limitation period is 2 years from the date of separation.
Here are some tips that may help you with your property settlement:
Property able to be divided:
Parties are often mistaken in thinking that ‘property’ is limited to real property i.e. land or houses. Property settlement takes into account all assets owned by both parties (or in which they have an interest) including but not limited to real property, bank accounts, motor vehicles, boats, aircrafts, shares, superannuation, pensions, contents and chattels, collectables, loans that are owed, life insurance policies, brokerage accounts and any other items that may be considered of value
- It may be necessary to have certain property valued by a registered valuer as if value attributed to an asset is not accurate, you may be receiving more or less than your likely entitlements when property is divided
Dual signatures on accounts:
- If there are monies held in joint bank accounts, you may wish to contact your bank or financial institution to ensure all access to the account/s requires the signatures of both yourself and your partner. All too often, we see clients who are in the situation where the other partner has removed large sums of money from joint bank accounts without their knowledge. If you can avoid this situation, it will save you a lot of time and money of having to trace the whereabouts of the money taken, or have your partner repay the money - particularly if your partner refuses to make disclosure or is trying to hide the funds
- Conversely, if you are being supported financially by your partner and you do not have an income stream or other cash available to you, you may wish to consider withdrawing money from the joint bank accounts to meet your living costs in the event of separation, prior to your partner potentially arranging dual signatures to be placed on joint accounts. You will still need to account for this money, however, it may eliminate some of the stress with being left in the dire situation of having no money. Our team at Forge Legal can also assist you with seeking your spouse pay spousal maintenance i.e. money to meet your usual and everyday living expenses, in the event you are in this position
- If you have any loan accounts which have a redraw facility, you may wish to arrange with your bank or financial institution to cancel that redraw facility or reduce the credit limit to prevent your partner withdrawing money without your consent or knowledge. Similarly, with credit cards you may wish to reduce the credit limit on joint credit card accounts or cancel any access your partner may have as a secondary cardholder to credit card accounts in your sole name. Again, this may potentially save you a lot of time and money of tracing money taken, or seeking that money be repaid
- On the other hand, as with joint bank accounts, if you are being supported by your partner with no income or cash available to you, this may be another means from where you can redraw money to meet your everyday living costs
Copy financial documents and records:
- If possible you should take a copy of all financial documents and records (for both yourself and your partner) such as bank statements, credit card statements, loan documents, superannuation statements, valuations, tax returns and notices of assessments, employment contracts, payslips, contracts and settlement statements for the purchase and sale of assets, any documents as to the value of assets or debts held by each of you at the commencement of your relationship, documents relating to any inheritances, payouts or gifts received by either of you during the relationship, or any other financial records you may be able to locate relating to assets, liabilities, income or financial contributions made by either you or your partner
- This information is important to enable lawyers to give you proper and accurate advice as to your likely property settlement entitlements. If you obtain as much of the financial documents as you can before you separate, you are likely to have a better knowledge of both yours and your partner’s financial circumstances and be better placed to give instructions to our lawyers so they can give you more detailed advice as to your likely entitlements at the outset of your matter. This may save you time and money of trying to find out certain information through other means
- Nevertheless, if you are unable to obtain this information there are other means by which our family lawyers can help you such as obtaining disclosure through your partner directly or through their lawyer, conducting searches that our lawyers are able to access through various online systems or issuing of subpoenas
Secure valuables, cash and sentimental items:
- We often see cash, valuables or sentimental items being removed from the marital home without agreement when parties separate, or sometimes these items ‘disappear’ altogether with neither party seeming to know of their existence
- If you are concerned your partner may remove cash, valuables or sentimental items from the home you should ensure they are placed somewhere safe including items that you know may be sought after by both parties so you can be certain of their whereabouts
Change the locks:
- If you are a joint owner of a property and your partner has moved out, you can change the locks so you feel secure and safe where you reside and so your partner doesn’t just come and go from the property without your knowledge
- However, you also need to be aware that your partner may attend at the property with a locksmith to gain entry and is entitled to do so being a co-owner, but in our experience, this rarely occurs
Caveats, injunctions (restraining orders) and undertakings:
- Property settlement takes into account all assets regardless of whose name they are held in i.e. whether assets are in joint names or either parties’ sole name (or your partner’s name with someone else) or in the name of an entity operated or controlled by your partner
- Even though you may not be a registered owner on the title of a property, you may have still made indirect, financial or non-contributions towards the property and thus have an equitable interest in the property. This means you may be able to register a caveat against the property to ensure your partner is not able to sell, transfer, encumber or otherwise deal with the property contrary to your interests
- Similarly, you may wish to consider obtaining an injunction or restraining order and/or suitable undertaking to prevent your partner disposing of, or dealing with marital assets you have an interest in (regardless of whether such assets are in your name) so as to protect the asset pool available for division
- We recommend you seek advice from one of our expert Brisbane family lawyers before taking any of these types of action as you may be liable for damages or compensation if such action is commenced without reasonable grounds
Update your Will and Enduring Power of Attorney:
- You should update your Will and Enduring Power of Attorney following your separation as should anything happen prior to your divorce being granted, your assets are likely to pass to your partner/spouse upon death and/or your partner/spouse may still be able to act as your attorney, regardless of having been separated
- We recommend you seek advice from one of our expert lawyers who handle Wills and Estate matters to ensure your Will and Enduring Power of Attorney is up to date and legally binding as your divorce may affect the validity of your Will and/or Enduring Power of Attorney
To avoid the stress and difficult times that can come with a separation, you need a team that are experts in family law matters because the legal advice you get during your property settlement can seriously affect the rest of your life. We have helped thousands of people just like you through this process and more importantly, our expert team of family lawyers can get the outcome you deserve. Don't be left struggling through a property settlement, or after a divorce, like so many people are that were underprepared for what was involved with the family court process.
Here is an article on how property settlement differs from a divorce. You can read for further clarity.
Remember, knowledge is power and how early you seek advice can be critical in some cases, so don’t delay in seeking legal advice from one of our expert family lawyers and have the team of Forge Legal behind you. Contact us here.