What is a divorce?
A divorce is the legal step required to end a marriage. It does not change your name, deal with your property or set up the care arrangements for children. It is simply the end to the legal connection that a marriage creates.
In Australia, we have a no fault divorce system. This means that the Court will not ask how your relationship ended. They are interested only in when it ended. To be able to apply for a divorce, you must be separated for 12 months or more. That is the only ground for divorce in Australia.
Most divorce applications are not difficult. They can however, be time consuming, and there are a few rules that you must be able to comply with. If you are comfortable with Court forms and can be ready to deal with issues like service, then this is likely to be something you can handle yourself. There are self-help kits available on the Family Court website.
Of course, you can choose to leave it to us. We are happy to assist with these applications.
What does a Divorce do?
Getting divorced has some legal implications:
- you then have only 12 months to ask the Court for any Orders you may need for property settlement
- any provisions in your will to “my wife” or “my husband” are now invalid. Your will must be urgently reviewed
- you become free to marry again
- your legal connection with your former spouse is now severed
We find that some people need to see this application signed as soon as their 12 months is up, and others will come in many years down the track to “tidy things up”. As with most things, an early application is simpler. The other party will be easier to locate making service issues simpler.
I wasn’t married. Do I have to do anything to be legally separated?
The law for de facto couples has been through some transitions through the years and is now the same as that for married couples regarding parenting, property and financial issues.
There is however, no separation paperwork needed that is like a divorce for married couples.
We’ve separated. What happens with the children?
Our current legal landscape can be summed up in two words, shared parenting. The emphasis from the Family Law Act is on the importance for children of the involvement of both of their parents. This philosophy is laid out in the Family Law Act.
It is therefore, important that you look to maximise the way in which both parents can be involved in your children’s lives.
The need to keep children safe from harm can significantly change the way that shared parenting is put in place for some children. The Family Law Act requires us to consider safety issues, including any family violence that has happened in the past. Please make sure that you are honest and frank with us about safety, family violence and any risks you are concerned about.
What will we need to talk about for our children?
The things that will need to be resolved are things like:
- what time the children will spend with you
- what time will the children spend with their other parent
- how will you and the other parent make decisions about the children’s care, including long-term issues
It is worth discussing these issues with both your counsellor, and your legal adviser, to draw on as much experience as possible. After all, whilst you may be going through this for the first, or possibly the second time, your advisers will have seen many families resolving these same issues in a wide range of ways. We can raise things you may not have thought of yet and can give you advice on what we have seen working for other families (or not working, as the case may be).
What do we do if we sort it out?
If you can work well with your former spouse, it may be that a Parenting Plan is all that you will need. This written document has no special format and is simply a record of your arrangements. A Parenting Plan is sufficient for Centrelink and the Child Support Agency purposes, and can act as a working guide for you both. It however, has no legal effect in a Court and you cannot access the Court’s enforcement processes if the other parent fails to comply with your agreement.
It may be that you believe that you would benefit from the concrete framework of a Court Order, in circumstances where you have been able to work out your parenting arrangements by agreement. If that is the case you can make a paperwork based application, and never go to Court, for a Judge to make Consent Orders. These Orders confirm the agreement that you have reached (only if the Court is comfortable with the arrangement). Consent Orders have the same effect as if they had been made by a Judge at the end of the trial.
In other words, if the other parent fails to abide by the terms of those Orders, then you can apply for the Court for them to deal with that contravention.
I’d like to know more
If you would like to read some of the law for yourself (and we would encourage you to do that), then you might like to start with the objects of the Family Law Act parenting provisions and s60CC. Click here to view this Act.