Family Lawyers and Divorce Lawyers:
Divorce, Division of Property (Property Settlements) and Children

1. Relationship break down

Divorce is an option for married couples who have been separated for 12 months or more and feel that the marriage has irretrievably broken down. To be granted a divorce, you need to apply to either the Family Court or the Federal Magistrates Court.

The granting of a divorce does not deal with property or parenting matters. When any type of relationship breaks down, including de facto and same sex relationships, these issues will need to be dealt with separately.

With offices in Melbourne, Sydney and Brisbane, our family lawyers and divorce lawyers can assist you with all of your family law and divorce matters.

2. Divorce

Can I apply for divorce in Australia?

The Family Law Act 1975 (Cth) establishes a principle of no-fault divorce. This means that the Court will not consider which partner was at fault in the marriage breakdown and either party may initiate proceedings for divorce.

What are the requirements to apply for divorce?

The main ground for divorce is the irretrievable breakdown of the relationship, which can be demonstrated through 12 months of separation. You are also required to show that there is no likelihood that you and your spouse will reconcile your relationship.

You can still be considered to be legally separated if you and your spouse are living in the same home. If this is the case, you will be required to submit additional evidence to show that you were actually separated during this time. Our family lawyers and divorce lawyers can assist you in compiling this evidence if required.

What happens if I have been married for less than 2 years?

If you want to apply for divorce but have been married for less than 2 years, you are also required to:

  1. Attend counselling with a Family Counsellor to discuss the possibility of reconciliation; or
  2. Seek permission of the Court to apply for a divorce if you have not attended counselling.

If you have not attended counselling, you will need to explain why. The Court may grant permission to apply for a divorce in special circumstances. For example, if you made attempts to invite your spouse to counselling and they refused to attend, you may seek permission to be excused from counselling on this basis.

The two year period will be calculated from the date of your marriage to the date you apply to the Court for divorce.

What is the divorce process?

Our divorce lawyers and family lawyers understand that divorce can be a stressful experience. To assist you to better understand the process of divorce, please see below:

  1. Application – Our divorce lawyers will prepare the divorce application for you after ensuring that all eligibility requirements have been met. You will need to satisfy the Court that you have a valid marriage which can be done by providing your Marriage Certificate. If your Marriage Certificate is not in English or if you do not have a copy, our divorce lawyers can arrange to obtain this for you. In the event that you are unable to provide a Marriage Certificate, you may be required to put forward alternate evidence of the marriage.
  2. Filing – Our divorce lawyers and family lawyers will file the application with the Court and a time and date for a divorce hearing will be allocated. The divorce will usually be granted approximately 3 months from the date of filing.
  3. Service – Our divorce lawyers and family lawyers will serve your spouse with the divorce application in accordance with the legal requirements for service. If there is difficulty in locating your spouse, we may make an application to dispense with service or an application for substituted service. This means that the Court will deem your spouse to have been aware of the divorce hearing. The requirements in these circumstances may differ based on individual circumstances and we will advise you then if required.
  4. Hearing – Our divorce lawyers will attend the divorce hearing and if the application is successful, the Court will grant a divorce order. Where there are no children of the marriage under 18 and no other complicating factors, you will not be required to attend the hearing.

It is important to note that if you have children under the age of 18, the Court will only grant a divorce if proper arrangements for the care, welfare and development of the children have been made. These arrangements are not necessarily required to be formalised at the time of divorce.

With offices in Melbourne, Sydney and Brisbane, our family lawyers and divorce lawyers can assist you should you have any questions in relation to your divorce.

3. Division of Property

Property and financial settlements can be very complex. Our family lawyers are experienced in analysing property settlement issues and can advise you on your entitlements and the likely outcome of a property settlement if your matter proceeds to Court.

There are several financial and property matters that should be considered when a relationship has broken down:

  1. What assets are owned by the parties? e.g. real estate, shares, cars, savings, jewellery, furniture and effects, etc.
  2. What contributions (financial and non-financial) have the parties made to the relationship?
  3. How will these assets be divided?
  4. How will superannuation be divided?
  5. Will one partner provide maintenance to the other?
  6. How will the children be financially supported?

To make arrangements for the division of property, you can either:

  1. Come to an agreement with your spouse and convert this into a Financial Agreement or to Consent Orders filed with the Court; or
  2. Where you and your spouse are unable to agree on property division, seek Orders from the Court.

Both parties are required to attempt to come to an agreement outside of court before filing an application for property Orders. This includes undergoing certain ‘pre-action procedures’ which requires participation in dispute resolution. You may not be required to carry out pre-action procedures in certain cases e.g. where there is violence, refusal to negotiate, etc.

To apply to the Court for division of property, you are required to file a separate application within 12 months of your divorce becoming final. For de facto or same sex couples, an application must be made within 2 years of separation. After these timeframes, you will need the Court’s permission to apply.

Our family lawyers and divorce lawyers in Melbourne, Sydney and Brisbane have the necessary skills and expertise to ensure that your rights are well protected at all times and that you achieve a desirable outcome. We have a long and established track record in preparing and successfully finalising a significant number of property settlements. If it is possible to come to settlement without going to Court, you can be rest assured that we will exhaust every possibility of negotiation or mediation. If settlement is not achievable, we have the knowledge and expertise to litigate your matter and to secure a favourable outcome for you and your future.

4. Children

If you have children, parental responsibility and living arrangements for your children need to be considered and decided after a relationship breakdown.

There are a number of issues that will be raised including:

  1. Where your children will live?
  2. How much time will your children spend with each of their parents?
  3. How will the parents make decisions about the care and welfare of their children?
  4. Where will your children be on birthdays, Christmas and school holidays?

The law places a strong emphasis on parents reaching an agreement about the arrangements for their children and the view is that court proceedings in relation to children should be a last resort.

Our family lawyers and divorce lawyers are mindful of the delicate nature of parenting matters and are committed to assisting you in the process of dispute resolution outside of Court. Reaching an agreement outside of Court will save you time, stress and money. However, in some more complex matters, this may not be feasible. In these cases, the ultimate consideration for the Court is the best interests of the child.

Before filing an application with the Court for parenting orders, parties are required to undergo ‘pre-action procedures’ which includes participating in dispute resolution. You may not be required to undergo pre-action procedures in certain circumstances e.g. where there is violence, child abuse, etc.

To make formalise parenting arrangements, you can either:

  1. Come to an agreement with your spouse and convert this into a Parenting Plan or to Consent Orders filed with the Court; or
  2. Where you and your spouse are unable to agree on parenting arrangements, seek Orders from the Court.

Our family lawyers and divorce lawyers in Melbourne, Sydney and Brisbane can assist you with negotiating and formalising a Parenting Plan or with formal Legal Proceedings and the drafting of appropriate Consent Orders if the matter settles.

5. Life after separation

The breakdown of a marriage affects each person differently. It is a very difficult and stressful time where you will need to consider several matters and make some immediate and significant decisions. It is important to ensure that you are well advised prior to making any decisions in relation to property or parenting matters.

Although you need to be separated for 12 months to file an application for divorce, you can deal with property and parenting issues immediately following separation. In these circumstances, it may be also necessary to file a separate application with the Court to deal with parenting and property issues if you are an unable to come to an agreement with your spouse.

We have dedicated family lawyers and divorce lawyers in Melbourne, Sydney and Brisbane who are committed to resolving your family law and divorce matters in a timely and cost effective manner. Our lawyers will help you know your legal rights, understand your options and not be overwhelmed by the Court process.

To discuss your matter in confidence at no charge and without any obligation, please contact one of our family lawyers or divorce lawyers in Melbourne, Sydney or Brisbane.