DIVORCE AND SEPARATION. THINGS YOU NEED TO KNOW
This page concerns the legal aspects of separation and divorce in Australia. We discuss the meaning of separation. We also talk about how to prepare yourself for separation and divorce, file a divorce application, obtain evidence of divorce, and answer frequently asked questions.
THE MEANING OF DIVORCE
Divorce is a legal process that allows a married couple to end their marriage. A court grants divorce if the couple can prove that their marriage has irretrievably broken down. Once the divorce comes into force, the couple is no longer considered married and each person is free to remarry.
THE MEANING OF SEPARATION
Separation, on the other hand, occurs when you stop living together as a couple. With married couples, they will remain married for at least 12 months before they can apply for a divorce.
HOW DO I KNOW THAT WE’VE BEEN SEPARATED?
There are no specific legal requirements for separation. Generally, you separate when you stop living together as a family. Thus, one person may move out of the family home, or both can continue living together but lead separate lives. The latter is known as ‘separation under the one roof.’
You and your partner do not need both to agree for separation to take place. Therefore, when at least one of you takes a decision to separate, acts on that decision and communicates this to the other, the separation commences. In some cases, it is best to communicate the decision to separate in writing. Later, particularly in the situations of separation under one roof, you may be asked to prove the date when the separation occurred.
While no single factor is conclusive, the separation generally occurs when you stop:
- sleeping together
- having a sexual relationship
- sharing meals and domestic duties the way it used to be before
- sharing money and bank accounts
- socializing together as a couple.
HOW DOES LAW THE DEFINE SEPARATION?
Separation may occur:
- from the action or conduct of one of the parties: s 49(1) of the Family Law Act 1975; or
- under the one roof (“notwithstanding that the parties have continued to reside in the same residence or that either has rendered some household services to the other”): s 49(2).
Generally, the word “separation” does not mean physical separation, but simply the effective breakdown of the matrimonial relationship: Todd (No. 2)
’Separation’ means more than physical separation – it involves the breakdown of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships, and the nurture and support of the children of the marriage.” Pavey [1976] FamCA 36 at [7]-[23].
The Full Court in Falk [1977] FamCA 46 added the requirement of communication of the intention to sever the marital relationship to the meaning of “separation”. The court also said: “It also seems necessary to comment upon the fact that so often evidence in a case of this kind turns upon cooking, washing and housework…(It) is not possible to apply some mathematical formula to these activities and determine whether a ‘separation’ has occurred. Rather the evidence should examine and contrast the state of the marital relationship before and after the alleged separation.”
WHO SHOULD I INFORM THAT WE SEPARATED?
Overall, there is no requirement to notify any authorities of the separation. Thus, you don’t have to apply to a court, any government organisation, or fill out any forms. Equally, you won’t get any ‘separation certificate’, but you may need to:
- tell organisations such as Centrelink, the Child Support Agency and Medicare;
- make proper arrangements for any children involved;
- tell your family and friends and surround yourself with a support network;
- sort out your financial affairs—work out how you will pay your debts and loans, whether you have joint bank accounts, what your superannuation or insurance entitlements are and change your will. You may need to tell your bank/s, superannuation and insurance companies that you’ve separated.
These actions will help prove that you’re separated.
WHO CAN HELP ME?
Separation is a major step for everyone. It is also a time when you need help and information the most.
It is no doubt a stressful experience, and it is very important to have the support of your friends and family. For some, it is not enough or even available. What are your options then? Professional assistance, psychologists, your GP, and community legal centres, may help you and your kids cope better with the changes. There are numerous support groups you can reach out to online and in person. Of those we especially recommend:
SUPPORT FOR SEPARATED FAMILIES
- Relationships Australia (1300 364 277)
Support groups and counselling on relationships, and for abusive and abused partners.
- 1800RESPECT (1800 737 732)
The National Sexual Assault, Family & Domestic Violence Counselling Line for any Australian who has experienced, or is at risk of, family and domestic violence and/or sexual assault.
- Lifeline (13 11 14)
A national number which can help put you in contact with a crisis service in your state.
SUPPORT FOR MEN
- Mensline Australia (1300 78 99 78)
Supports men who are dealing with family and relationship difficulties.
SUPPORT FOR CHILDREN
- Kids Helpline (1800 55 1800)
Telephone, email and web counselling for children and young people.
TECHNOLOGY SAFETY FOR WOMEN
- eSafetyWomen
The eSafetyWomen resources aim to help women manage technology risks and abuse by giving women the tools they need to be confident when online.
https://www.esafety.gov.au/women
HOW CAN I PREPARE FOR SEPARATION AND DIVORCE?
According to the Australian Institute of Family Studies, approximately 1 of 3 of marriages in Australia end in divorce. If you’re facing a divorce or separation, it’s important to be prepared for what lies ahead.
Accordingly, your first step should be to seek legal advice. You need to understand your rights and obligations under the law. Once you have a clear understanding of the legal process, you can begin to make decisions about your future.
Here are a few issues to consider and discuss with your lawyer during divorce or separation:
If there are children involved, custody arrangements will need to be made:
- Who will care about your children?
- Who will the children primarily live with?
- What type of visitation schedule will you follow?
One of the major issues during divorce or separation is family finances:
- Which party will pay what bills?
- How will you divide the property?
- Who will stay in the house and who will move out?
- Which party will pay daily expenses, particularly if one of you does not have sufficient income?
- Who will pay the mortgage? The rent? The bills?
- What will happen to the joint savings? The car?
These are important questions that you need need to answer before you finalise your divorce or separation.
Unfortunately, the decision to divorce or separate is never easy, and the process can be emotionally and financially draining. It’s also important to take care of your finances. Importantly, you’ll need to figure out how to support yourself and your family financially. This may mean making some tough choices about your spending, saving funds and remaining in control of your own and/ or joint finances.
WHAT IF WE AGREE ON PARENTING AND/ OR PROPERTY ISSUES?
When emotions are high it may be very difficult to agree on all these issues. With that in mind, try to take one step at a time and reach at least a temporary agreement.
Getting a legal advice is a good idea. We can help you understand your legal rights and responsibilities, explain you the usual legal process involved in separation how the law applies to your situation. We can also explain and help you reach an agreement with your former partner without having to go to court.
If you managed to achieve a compromise we can help you formalise it in Consent Orders.
THE GRANT OF DIVORCE
Can you divorce straight away in Australia?
In Australia, there is no such thing as an instantaneous or fast divorce. In order to apply for divorce, partners must be separated for a period of at least 12 months. If there is a period of failed reconciliation for three months or more, the 12-month separation restarts.
What happens in the divorce hearing?
After the Judge or Registrar has heard from you and your spouse, they will usually grant a divorce. Once the court makes a Divorce Order, your marriage termination will be finalised one month and one day after the hearing, unless there are special circumstances.
How long does Australian divorce take?
In Australia, a divorce will typically take 2-3 months before the court will officially grant it. This time is from the point you have first applied for divorce in court until the court has issued the divorce order.
When can I remarry after divorce in Australia?
One month after your divorce hearing, your divorce order becomes final. Once your divorce order becomes final, your marriage legally ends and you can remarry. The Court can shorten the one-month period.
How do I check the status of my divorce in Australia?
You can obtain official proof of divorce at no cost from the Commonwealth Courts Portal if you were a party to the proceedings and the divorce took place after 13 February 2010. This proof of divorce is a digital order with an electronic seal and signature and is the only proof of divorce provided by the courts.
It is Never Too Early To Get Legal Advice
Getting legal advice is a good idea. We can help you understand your legal rights and responsibilities, and explain to you the usual legal process involved in separation and how the law applies to your situation. We can also explain and help you reach an agreement with your former partner without having to go to court. Call us today for a free consultation.
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