Do You Need A Lawyer to Divorce?

Do You Need A Lawyer to Divorce?

Do You Need A Lawyer to Divorce?

You are not legally required to engage a lawyer to deal with your divorce, but it is recommended, especially if children and property are involved. Certain parts of family law can be tricky to traverse, so professional advice and direction can’t hurt. According to Part 6 of the Family Law Act 1975, divorce falls under the jurisdiction of the Federal Circuit and Family Court of Australia (the Court). 

What is Divorce?

Divorce is the dissolution, or legal termination, of a marriage. It is the formal recognition of that marriage breakdown.

When granting a divorce in Australia, the Federal Circuit Court is not concerned with the cause of the marriage breakdown because it has a ‘no fault’ divorce. Neither party is required to prove that they did or didn’t cause the marriage breakdown. The sole grounds for divorce in Australia are that it is unreasonable to suppose that the couple will get back together, mending their broken marriage. 

Are Separation and Divorce the Same Thing?

No, they’re not the same thing at all. Separation is when a couple remains legally married but are living separately. When you divorce, you legally change your status from married to unmarried. Sometimes separated couples continue to live in the same dwelling. This co-habitation can complicate things when you are separated, but sound legal advice about family law matters can help. If you’re separated from your spouse but don’t plan to divorce, family law solicitors specialising in your situation can help you protect your assets. 

Engaging a Lawyer is an Advantage

As we’ve already mentioned, you don’t have to engage a lawyer, but it is certainly an advantage if you do. A qualified lawyer can ensure that you know what you are entitled to in the divorce settlement. 

What Do I Need to Apply for a Divorce?

First, you need to be eligible to apply for a divorce in Australia. You or your spouse must:

  • Recognise Australia as home and intend to live here indefinitely, 
  • Be an Australian citizen (born, descended or granted Australian citizenship), or
  • Live in Australia ordinarily for 12 months immediately preceding your application for a divorce.

You must supply evidence that you have lived separately from your spouse for at least one year and that the likelihood of married life resuming is not on the cards. Under the law, same-sex couples are treated the same as other married couples. So long as their marriage is recognised in Australia and they’ve met the requirements set out within the Family Law Act 1975, they can file for divorce. 

For couples who married overseas, the Marriage Act 1961, Part VA states that they must provide the Federal Circuit Court with a copy of their marriage certificate if their foreign marriage is recognised in Australia. In addition, an English translation, along with an affidavit translation of the marriage certificate from a certified translator, must accompany the certificate of marriage if the original is not in English. 

Is it Possible to Live Separately But Still Share the Same Dwelling?

In a nutshell, yes. So long as you can provide evidence that you lived separate lives while living in the same house, you can still file for divorce. When determining whether to grant your application for divorce, the Court will ask questions such as:

  • Do you still share the same bed?
  • Do you maintain a sexual relationship?
  • Do you share domestic duties and meals?
  • Do you share bank accounts and money?
  • Do your nearest and dearest know you’ve separated?
  • Do you still introduce yourself as a couple?

Seeking legal advice before filing for a divorce is an excellent idea, particularly if you’ve been living under the same roof. 

What Do I Do About My Children, Property and Finances?

Property division, financial support and arrangements for any children of the marriage must be dealt with separately because the granting of a divorce is merely a formal acknowledgement that the marriage is dissolved. 

If your dependent children are younger than 18 years of age, you must satisfy the Court that you’ve made proper arrangements for them. When applying for divorce, you must supply information about the natural children of the marriage and any other children who may have been treated as family members. It is important to provide adequate information about health, education, financial support, how the children spend their time and how they relate or communicate with each parent.

You can do a few things to deal with child custody and maintenance issues and the equitable division of assets. They include:

  • Agreeing to attend conflict resolution sessions to resolve the issues under dispute,
  • Drawing up an agreement between yourselves and filing the document with the Court. (Such agreements are consent orders.) 
  • Creating a financial agreement or parenting plan. 
  • Seeking orders from the Court if you aren’t able to agree. 

You can also contact the Family Relationship Advice Line (FRAL) with help to settle arrangements for financial and child-related issues. 

Remarrying After Divorce

Divorces are not automatically granted by the Courts, particularly not at your first court appearance. In addition, divorce is a legal process that can take time, so don’t hurry into any plans to remarry before the ink is well and truly dry on that certificate of divorce. As a general rule, it takes a month and a day to finalise a divorce order. 

Of course, you must follow the usual legal rules regarding marrying in Australia. These include:

  • issuing your marriage celebrant with a Notice of Intended marriage at least a month before the wedding date. (You can do this while you are in the process of finalising your divorce, but the actual new wedding cannot take place until the marriage celebrant has sted a copy of the finalised divorce order.)
  • Complying with requirements set out in the Marriage Act 1961.

Do I Really Need to Get a Divorce?

That is entirely up to you. There are a few things for you to consider, though, when deciding whether to go ahead with divorce proceedings. 

  • There is only one reason you would have to get a divorce, and that is if you wish to remarry. 
  • Child support and other arrangements for your children, spousal maintenance and property settlement can all be taken care of as soon as you separate. You do not need to wait for a divorce.
  • Once your divorce order has taken effect, you have 12 months to commence court proceedings for spousal maintenance and property settlement. Otherwise, you will need to request special leave from the Court. 

What If We Reconcile for a Brief Period?

It is quite common for couples to attempt a reconciliation. Just remember that the law requires a separation period of at least 12 months to be eligible to file for divorce, so if your reconciliation lasts for longer than three months, the required year must begin again. 

Can We Get A Divorce in Australia If We Were Married Overseas?

If you were married overseas and now wish to file for divorce, you need to prove that Australia is your primary place of residence by providing evidence that you’ve lived in this country for at least a year before you apply for divorce. Again, some legal advice wouldn’t go astray here. 

Do I Have to Agree to a Divorce?

Well, the only legal opposition to a divorce application is if the separation period of 12 months hasn’t passed or if the Court doesn’t have jurisdiction. Then, you’ll need to complete and file a Response To Divorce Form and attend the hearing in person. 

Can I Get a Divorce Online?

Suppose you’ve separated from your spouse after being married for at least two years and have lived apart for at least 12 months. You may be eligible for an online divorce if your spouse agrees to the divorce and you’ve organised proper arrangements for the care of all children of the marriage under the age of 18. Both of you must also have an Australian mailing address. 

Spousal Maintenance

Spousal maintenance is when one spouse provides financial support to the other. It is sometimes called spousal support. This financial support is generally paid when there is an imbalance between the spouses regarding earning ability. The Court may order this financial support payment to be made after careful consideration of factors such as:

  • Ability to work.
  • Age.
  • Health.
  • Investments and assets.
  • Current income. 
  • Standard of living.
  • Parenting arrangements.
  • Whether your ability to work was affected by the marriage. 

This type of binding financial agreement ceases if you marry again. There are often severe penalties if you breach these agreements. 

Child Custody

When it comes to family law matters, you can’t get much more severe than child custody. The Court considers the situation in the children’s best interests before making any ruling regarding parenting and custody arrangements. There are numerous options available for child support payments, including:

  • Self-managed child support is where you and your spouse agree on financial support for the children of your union without legal assistance. You can ensure the agreement is legally enforceable by applying to the Court for consent orders
  • Application for a child support assessment where both of you provide details about your finances, the children’s expenses and how much you both earn.
  • Limited child support agreements are based on the government assessment. These agreements continue until both parties request it to end or one of you ends it after more than three years. 
  • Where both parties make a binding child support agreement by agreeing to specific amounts without government assessment, paperwork for this type of agreement needs to be submitted to the government.
  • Court-ordered child support payments to be paid for children while they remain dependent on you. 

How Long Does a Divorce Take?

If everything is straightforward and agreed upon, the process takes around four months from filing to the final order. It can be longer when dealing with the division of property, child support and parenting issues. 

What Does a Divorce Cost?

You will be asked to pay a $910 application fee to the Court. There will be other legal costs if you engage a solicitor, but they depend on the individual situation. Generally, the cost of the divorce falls to the person filing. You can share costs if you both agree. 

What is Annulment?

An annulment is when it has been decided that the marriage was not legal even though a marriage ceremony took place. Annulments make marriages null and void, as though they never happened. An application for annulment can be made if:

  • Someone forced or tricked you into marrying.
  • Either of you was legally married to someone else at the time of the wedding. 
  • One of you was under 18 years of age.
  • You didn’t understand what the marriage ceremony was because you didn’t speak the language, etc. 
  • You didn’t comply with the marriage laws in the place where you were married.
  • You are close relatives, for example, a sibling, child, grandparent or parent.
  • You or your spouse didn’t give genuine consent to the marriage due to one of the following reasons: 
    • Someone forced you into marrying against your will. 
    • You were confused or misled about the identity of your spouse.  
    • The nature of the ceremony entered into.
    • One of you was incapable of understanding the effect and nature of the ceremony. 

You can’t have a marriage annulled in Australia simply because you changed your mind. Nor can the marriage be nullified if you didn’t live together, didn’t consummate the vows, or one of you committed severe crimes, including domestic violence. In these instances, you need to apply for a divorce. 

If you want to annul your marriage, you will need to file an Initiating Application, including an affidavit outlining:

  • Your reasons for the annulment. 
  • Details of the marriage ceremony, including a copy of the marriage certificate.

You must give your spouse a copy of the important documents for your annulment. These can be hand-delivered, posted or through your family law solicitors. They must be served 42 days before a court hearing for a spouse in Australia and 56 days for one abroad. Once you have done this, you must file an Acknowledgement of Service to prove service. 

The fee for applying for an annulment is $1290. Concession cardholders may be eligible for a reduced price. 

Family Relationship Advice

Family Relationship Advice Line (FRAL) is a national telephone service helping families affected by separation or relationship issues, including information on parenting arrangements after separation. FRAL can also refer people to local services that can assist. You can contact Family Relationships Advice Line on 1800 050 321 or +61 7 3423 6878 if you’re abroad. Learn more at www.familyrelationshps.gov.au

Frequently Questions About Divorce

1. Does the Length of My Marriage Matter if I wish to Apply for a Divorce?

Answer: Yes, the length of time you’ve been married has a bearing on divorce proceedings. You and your spouse must have been to counselling if your marriage is less than two years old. Where counselling cannot occur for any reason, you must prepare an affidavit and file it with the Court explaining why. 

2. Do I Need Evidence of My Divorce?

Answer: If you plan to remarry, you will definitely need to supply your marriage celebrant with a copy of your divorce order. 

3. What Qualities do I Want in a Family Law Lawyer?

Answer: Choose a lawyer who takes the time to listen to you and make sure they understand your wishes and situation. You’ll want them to communicate with you in plain language rather than legalese, especially when explaining legal concepts. Above all, you want them to be experienced in family law so that you can rest assured of getting the legal advice you need. 

4. If I Decide to Engage a Family Court Lawyer, What Documents Should I Take to Our First Meeting?

Answer: Take along your marriage certificate and identification documents. You can ask your family court lawyer if they require anything else when you make your appointment.

5. What Should I do After Being Served with Divorce Papers?

Answer: You have to respond. If served with divorce papers in Australia, you have 28 days to serve your response to divorce and 42 days if you were served abroad. This response is not just for those who are in opposition to the divorce. If you need to correct any mistakes or dispute facts in the divorce application, it is essential to respond. The divorce application must be truthful and accurate because it will remain in a court file. 

6. Can I Make Arrangements for Child Support and Custody Before the Divorce?

Answer: Yes. You can make these types of decisions as soon as you separate. You can begin negotiations about where the children will live, and with whom, and how they will share their time between their parents. You can alter some agreements through the courts over time. Sometimes, a court may hold off on finalising a divorce until proper arrangements can be made for the children that it deems satisfactory.

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