Divorce In Australia?
In Australia, there is no need to provide any reasons for divorce other than that the relationship has broken down irretrievably. If you’ve been separated for more than 12 months the court takes this as evidence of the fact, and even if you still live under the same roof you can still obtain a divorce provided you swear to the separation in your divorce application.
What do I need to apply?
What about the children?
What about property?
How long does it take?
Family Law Property Settlement
Do I have to be divorced to split the property?
Do we have to go to Court?
What if we can’t agree?
If this doesn’t resolve the matter then an application for property orders must be filed with the Family Court or Federal Magistrates Court. This application must be made within 12 months of your divorce becoming final.
The matter will be set down for hearing and a legally binding decision will be made by the court.
How does the court decide?
Next the court will weigh up the contributions from both parties, including financial, non-financial, inheritances and assets brought into the relationship.
Then the court will look at the future needs of both parties, including factors such as your capacity to earn money and your parental responsibilities.
Lastly the court will make a decision based on what is just and equitable to both parties.
Equal & Shared Parental Responsibility
Australian law focuses on the rights of children to have an ongoing relationship with both parents so that separating from your partner or spouse doesn’t mean that you are separating from your child or children.
Although the terms ‘custody’, ‘residence’, ‘contact’ and ‘access’ are no longer used much by lawyers today, the issues behind the jargon are still on the top of the list of concerns for separating couples, namely:
- Who will the child or children live with?
- How will they spend time with the other parent?
- How will both parents be kept in the loop in regard to important decisions such as education and health?
Shared responsibility means that both parents have legal rights and responsibilities towards the child. It doesn’t mean that the child will spend half of their time with one parent and half with the other, but that each parent has an equal say in decisions relating to the child in areas such as health and education. Even if the child lives with the other parent you may still have joint parental responsibility.
But doesn’t the law now say that children have to spend equal time with each parent?
No, it doesn’t. The law ensures that the best interests of the children are served first. When considering what is in the children’s best interests, the court has to consider facilitating a meaningful relationship between the children and both of their parents and also to protect the child from harm.
If the court is to provide equal shared responsibility then it will also consider whether equal time is in the best interests of the children and whether it’s practical. Rather than equal time, for example, the court may order substantial and significant time be spent with the other parent, which might translate to be 4 nights per fortnight rather than 7.
Where do I start?
If your differences are unable to be settled, then you will need to commence on the path to having parenting orders issued by the Family Court or Federal Magistrates Court.
Recent changes to the Family Law Act 1975 mean that you will need to attend family dispute resolution before applying for parenting orders. The accredited family dispute resolution practitioner will issue a certificate which must be filed with the court application and simply states that your differences were unable to be resolved.
If your case does end up in court, a legally binding decision will be made through a hearing where the judge will decide what is in the child’s best interests.
Why use a lawyer?
Child Support
If your children spend most of their time with you, you are likely to be entitled to child support payments. The amount of child support payable varies according to your specific circumstances and is decided upon and monitored by the Child Support Agency.
How can I work out what child support I’m entitled to?
You might also benefit from reading the Parent’s Guide to Child Support.
Can I overturn a decision made by the Child Support Agency if it’s not fair?
You can also continue to appeal if the original decision was upheld by applying for a review through the Social Security Appeals Tribunal.
What if my ex-partner doesn’t pay?
We can help
Dealing with the complexities of family law is stressful but the consequences of not doing it properly can impact on the rest of your life. We are experienced lawyers, and will make sure that you get the best possible outcome.
Contact us to discuss your particular family law circumstances with an experienced family law lawyer.