Going through a separation and deciding to apply for a divorce is a very emotional time in anyone’s life. Here are some of the main considerations if you are contemplating divorcing your spouse.
Firstly, seek legal advice. Even if the separation has been entirely amicable up until this point it is still important that you speak with a legal professional who can firmly advise you on your rights and responsibilities. If finances are difficult then you may be eligible for Legal Aid assistance in your state, and you can contact the relevant Legal Aid office for further information.
Australia has a “no-fault” divorce policy, which means that the divorce can be applied for on the grounds that the marriage has broken down irretrievably. Before applying for a divorce, you must have been separated for 12 months. Completing the Divorce Application through the Family Court itself is fairly straightforward, however there are several things to be aware of.*
Completing the Application
You can complete the Application for Divorce form jointly with your spouse or by yourself. If you complete the application by yourself you will be wholly responsible for the filing fees (currently $845.00, reduced fees for financial hardship are available) and must arrange service of the filed application on your spouse.
If you have been married for less than 2 years
If you have been married for less than two (2) years at the time of your application then it is compulsory to attend relationship counselling and obtain a certificate from a registered professional.
If you are separated under the same roof
Given the rising costs of housing affordability in Australia, it may be difficult to maintain two separate residences immediately upon separation. You are still able to apply for a divorce if you and your spouse are separated under the same roof. Affidavits from yourself, your spouse and two other adults who can verify your separate living arrangements must be submitted with the application.
Children aged under 18 years
Where there are children involved the separation and divorce process immediately becomes more complicated. Before a divorce will be granted, the Court must be satisfied that the children of the marriage are well provided for and that any arrangements made are in their best interests. This is in relation to their health, schooling, where they will live, time spent with the other parent, how they will financially be supported, travel and any other significant issues.
There are two ways that you can formalise your parenting agreements and these are a Parenting Plan and Consent Orders. A Parenting Plan can be drawn up between the parties, however is not binding on the parties. Consent Orders can be enforced by the Court should they be breached by a parent.
If you cannot reach agreement with your spouse then you may apply to the Court, by way of an Initiating Application, to have parenting orders determined by the Court. Before applying you must have made genuine attempts to reach agreement with your spouse and you are required to attend Family Dispute Resolution prior to filing.
A child must be financially supported by both parents and this can be done by way of child support, which is an amount paid (usually by the parent who the child does not live with) to the other parent for the benefit of the children. This amount is to assist with food, living, clothing and educational expenses of the child.
If the parents agree to an amount between themselves then they may formalise this by way of a Binding Child Support Agreement. If the parents do not agree then you may apply to the Department of Human Services for an assessment of the amount to be paid, or for a review if your circumstances have changed and you do not agree with the amount.
Monetary assets, superannuation balances, real estate, chattels and debts of the spouses are all taken into account and it is often advisable to resolve the property issues prior to applying for a divorce, so that way once the divorce is granted there are no outstanding matters.
If both spouses reach agreement then division of property can be formalised in two different ways. Consent Orders which are formalised by the Courts, or a Binding Financial Agreement which can be agreed between the parties and drafted by a lawyer. Each spouse must have their own separate legal representation and advice with respect to property matters and for the documents to be signed off on.
If you cannot reach agreement with your spouse then you may apply to the court, via an Initiating Application, to have the division of property determined by the Court. Before applying to the Court you must have made genuine attempts to reach agreement with your spouse and you are required to attend Family Dispute Resolution prior to filing.
Many different factors will be taken into account to ensure arrangements are in the children’s best interests and that there is an equitable division of property. It is strongly recommended that you speak with a lawyer so that you may be advised on what exactly your rights are and what you are entitled to.
Attendance at the Hearing
You must attend the divorce hearing if you made the application by yourself or you have children who are aged under 18 years at the time of the application. If you do not have children aged under 18, or you made a joint application then you may elect not to attend the hearing.
The hearing is generally quite quick and the judge will simply ensure that they are satisfied that all of the information is correct, that the other spouse was served correctly (sole application) and that the children are well provided for.
After the Hearing
If the divorce is granted then both spouses will be sent a divorce order which comes into effect 1 month and 1 day after the hearing.
* Important to note that the process in WA is different to all other states in Australia.
The above is just information and no substitute for legal advice. If you are planning for a divorce or need assistance please contact us. We can help you find a good lawyer if you need one (and if you don’t have one already). As mentioned on our about us page, we have a good network of different lawyers will help you find a lawyer that can assist you. As we work with a number of lawyers, we are able to negotiate better rates for you.