How to get a Divorce in Australia
Divorce is an unfortunate reality for many couples, and navigating the legal process of divorce can be challenging. In Australia, divorce is a no-fault jurisdiction, meaning that neither party has to prove that the other has wronged them. However, certain requirements must be met, and when searching for the best “Divorce Lawyers near me”, it is essential to seek the Family Law advice of a Divorce Lawyer or Separation Lawyer that understands the process and your rights.
In this article, Seitz & Pepper Divorce Lawyers Melbourne will explore the legal requirements for divorce applications in Australia, including how the Court handles applications, what happens during service of documents, and whether you need to attend Court. Seitz & Pepper Divorce Lawyers Melbourne will also discuss some common issues that arise in divorce applications, including the impact of the COVID-19 pandemic on separated couples and same-sex divorces.
No-Fault Divorce in Australia
In Australia, obtaining a divorce is a straightforward process that is governed by the Family Law Act 1975. One of the unique features of Australia’s Family Law system is that it is a “no-fault” jurisdiction. This means that when applying for a divorce, one party is not required to prove that the other party has wronged them. Instead, the Court needs to be satisfied that the relationship has irretrievably broken down, without the possibility of reconciliation.
It is important to note that getting a divorce does not resolve any outstanding Family Law issues that may exist between the parties, such as child custody or financial and property settlements. These issues will need to be resolved separately through the divorce process with our Divorce Lawyers and Separation Lawyers.
Requirements for the Application for Divorce
To apply for a divorce in Australia, the Federal Circuit and Family Court of Australia has jurisdiction and authority to handle divorce applications.
The Court requires that one of the parties to the marriage regards Australia as their home and intends to reside there indefinitely, one of the parties is an Australian citizen by birth, descent, or grant of Australian citizenship, and one of the parties has resided in Australia in the 12-months prior to the Divorce Application being filed.
Additionally, in granting a divorce, the Court needs to be satisfied that the parties have lived separately and apart for a period of at least 12 months. This can include situations where parties have lived separated under one roof.
Separated but Living under one roof
As a result of the COVID-19 pandemic, there has been an increase in parties that have lived separately under one roof. While the Court will still consider a divorce application in these cases, additional information will be required. This includes the provision of affidavits, prepared by our Divorce Lawyers and Divorce Attorneys, that outline the circumstances of the breakdown of the relationship.
The affidavit should explain the circumstances as to why the parties continued to live under the same roof after separation. Additionally, it should show that the separation and breakdown of the marriage was effected by a cessation of a sexual relationship, change in sleeping arrangements, reduction of shared activities, and reduced involvement with the other party’s family members and events. It should also show any government bodies that have been advised of the marital breakdown such as Centrelink or Services Australia, division of finances, including separation of bank accounts, and any other relevant matters that provide evidence that the relationship has irretrievably broken down.
Same Sex Divorce
Same-sex married couples seeking to apply for a divorce are treated the same as heterosexual couples under the Family Law Act 1975, and the same rules and regulations apply.
Service of Divorce Documents
If you have made a solo application for divorce, documents will need to be served on your spouse by post or by hand, or directly to their legal representation. Proof of service of divorce documents must be filed with the Court.
If you are unable to locate your spouse, even after you have taken all reasonable steps to locate him/her, you can apply for an order to dispense with service or for substituted service.
If your spouse is in Australia, the documents must be served at least 28 days before the Court hearing. If your spouse is overseas, the documents must be served at least 42 days before the Court hearing.
Do I have to attend Court?
If you have made a solo application for divorce and there are children of the relationship that are under the age of 18, a Court attendance will be required. This is to ensure that the best interests of the children are being taken into account.
If you have made a solo application for divorce and there are no children of the relationship or children that are over the age of 18, then no Court attendance will be required.
If you make a joint divorce application with your former spouse, no Court attendance will be required, regardless of whether there are minor children of the relationship.
Property and Financial Settlements
Obtaining a divorce in Australia does not resolve any issues related to property and financial settlements. In most cases, the division of property and financial assets is resolved through negotiations between the parties or with the help of a mediator. If an agreement cannot be reached, the Court can make orders for the division of property and financial assets.
Seitz & Pepper Divorce Lawyers Melbourne will provide you with the Family Law advice you need to enable you to negotiate a fair and equitable property settlement. The Family Court of Australia also offers a Property Settlement Guide that provides helpful information and guidelines for parties negotiating property settlements.
Child Custody and Support
Like property and financial settlements, obtaining a divorce does not resolve any issues related to child custody and support. Parents are encouraged to work together to develop a parenting plan that outlines arrangements for the care and support of their children.
If an agreement cannot be reached, the Court can make orders for the care and support of children. In making these orders, the Court considers the best interests of the children, including their views and the nature of their relationship with each parent.
Obtaining Legal Assistance in your Divorce Application
It is recommended that you seek legal assistance when going through a divorce. Our Divorce Lawyers and Separation Lawyers can provide Family Law advice and assistance with the divorce application process, property settlements, and child custody arrangements.
If you are unable to afford a lawyer, you may be eligible for legal aid, which provides legal assistance to people who cannot afford a lawyer. The eligibility criteria for legal aid varies depending on the state or territory in which you live.
Conclusion
Going through a divorce is a difficult time for any couple, and navigating the legal process and obtaining the best Divorce Lawyers and Divorce Attorneys can be challenging. In Australia, the Family Law Act 1975 (Cth) governs divorce applications, and it is essential to understand the legal requirements and procedures involved.
As we have explored in this article, the Federal Circuit and Family Court of Australia has jurisdiction over divorce applications and requires certain criteria to be met, including living separately and apart for at least 12 months. When searching for the best “Divorce Lawyers near me”, is also important to understand the impact of the COVID-19 pandemic on separated couples and the same-sex divorce process. By understanding these legal requirements and procedures, you can ensure that your divorce application proceeds smoothly and that our Divorce Lawyers and Separation Lawyers will protect your rights throughout the process.
The division of assets after separation is a complex and sensitive issue that arises when a de facto relationship or marriage comes to an end. This process in Australian Family Law involves the separation of all assets and liabilities that have been accumulated during the relationship, and it is critical to ensure that this division is just and equitable for both parties.
While many people assume that an equal distribution of assets is always the fairest approach, the reality is that it is often more complicated than that.
In this article, Seitz & Pepper Family Lawyers Melbourne will explore the factors that the Court considers when assessing property settlement and why a 50/50 split may not always be the best option. We will also look at the future financial needs of each party and how they can impact the division of assets. Ultimately, the goal of this article is to provide a comprehensive understanding of how marital assets are divided. Our Family Law solicitors are ready to assist the reader to make informed decisions during this challenging time when searching for “the best Family Lawyer near me”.
Non-Financial Contributions
The Family Law Act 1975 (Cth) takes into consideration many factors when assessing what is just and equitable in a Family Law property settlement.
When assessing contributions, the Court considers not only financial contributions but also non-financial contributions. Non-financial contributions refer to the domestic tasks during the marriage, including childcare, cleaning, paying regular bills, and household maintenance and improvements.
The Court also takes into account the time parties spent out of paid work during the marriage to raise and care for the children of the marriage. These particular variables are also assessed when considering a party’s future financial needs, because the primary caregiver of the children of the relationship has often spent an extended period of time out of the workforce, thereby increasing their financial vulnerability post-separation and divorce.
Financial Contributions
Financial contributions are also assessed, including in circumstances where one party has brought significant financial assets to the relationship. Financial contributions include direct or non-direct contributions to the acquisition, conservation, or improvement of marital property of the parties, including assets that are held jointly or solely, and can include real estate, cars, income, gifts, inheritances, stock portfolios, redundancy packages, injury compensation, and more.
It is important to note that all debts and liabilities held by the parties may be taken into account when assessing the overall asset pool, including mortgages, auto finance, personal loans, and credit card debt. If one party has needlessly accrued substantial debt and negatively impacted the marital asset pool needlessly, this may be assessed as wastage and credited back to the other party.
Future Financial Needs
In determining the division of marital assets in a financial property settlement, the parties’ future financial needs must be taken into consideration. The key factors that determine the future financial needs of a party are detailed below.
Age
The age of the parties is a significant factor that the Court considers when determining future financial needs. Older parties may require a larger portion of the asset pool to be awarded to them as they have fewer opportunities to generate future income.
Health
Health is a critical factor in determining future financial needs. If a party has health concerns, this may impact their ability to work and earn an income. They may require a larger portion of the asset pool to compensate for their reduced earning capacity.
Income and Financial Resources of a Party
The Court takes into account the income and financial resources of the parties to determine their future financial needs. If one party has significantly higher earning capacity than the other, the Court may award a larger portion of the asset pool to the party with the lower earning capacity.
Care of Minor Children
The care of minor children is a crucial factor in determining the division of marital assets. The primary care of the children is the most common and significant factor that will cause the division of marital property to deviate from an equal split. This is based upon the premise that the primary caregiver for the children will have limited employment opportunities when compared to the party without primary care. Of course, this adjustment will vary when taking into consideration the income earning potential of the parties and the ages and needs of the children.
Responsibilities of a Party to Care for Another Person
If a party has the responsibility to care for another person, such as a parent or grandparent, this may impact their ability to work and earn an income. They may require a larger portion of the asset pool to compensate for their reduced earning capacity.
Length of the Relationship
The length of the relationship is another important factor that is considered when dividing marital assets. In general, the longer the relationship, the greater the financial settlement is likely to be. This is because longer relationships typically involve greater financial interdependence between the parties, including joint ownership of property and joint financial accounts.
For example, if a couple was married for 20 years and owned a home together, the Court may award a greater percentage of the marital assets to the party who contributed to the mortgage payments and home maintenance over the course of the marriage.
Wastage
Wastage refers to the unnecessary dissipation of marital assets by one party. This can include excessive spending on non-essential items, gambling, or other reckless behaviour that has a negative impact on the marital asset pool. When wastage is identified, the Court may adjust the financial settlement in favour of the party who did not engage in wasteful behaviour.
For example, if one party spent a significant amount of money on gambling during the marriage, the Court may credit back the amount of money that was lost to the other party when dividing the marital assets.
Other Considerations
In addition to the factors listed above, there are a number of other considerations that may impact the division of marital assets. For example, if one party received an inheritance or a gift during the marriage, the Court may consider whether that asset should be included in the marital asset pool.
Similarly, if one party brought significant assets into the marriage, such as a large inheritance or a business, the Court may consider whether those assets should be excluded from the marital asset pool.
Conclusion
In conclusion, even for the best Family Lawyers, the division of marital assets is a complex process that requires careful consideration of all factors to ensure a just and equitable outcome for both parties. While it is easy to assume that an equal distribution of assets is always the fairest approach, this is not necessarily the case. Instead, the Court shall consider a range of factors, including contributions and future financial needs, when making decisions about property settlement.
Understanding these factors can help individuals navigate the process with confidence and make informed decisions about the division of assets. Ultimately, seeking Family Law advice and working collaboratively with a former partner can help to ensure that the property settlement is fair and reasonable, and that both parties can move forward with financial security and peace of mind.
