Divorce Law & Divorce Lawyers
from Specialist Lawyers
Divorce applications, property settlement, and parenting arrangements.
Considering divorce or separation is a very difficult time; trying to assess the impact on your children, your life, pensions, superannuation, finance and property, as well as the emotional turmoil for yourself.
If you need legal help regarding divorce law, then complete our free legal enquiry form on the right or click here.
Divorce lawyers or Family Lawyers as they are more commonly known as, are well versed with all aspects of divorce law including:
- annulment,
- separation,
- cohabitation and civil partnership disputes,
- preparation of prenuptial agreements, and
- most related issues, but particularly financial issues arising from the breakdown of relationships.
Divorce Lawyers realise that these are sensitive issues and will try to handle them in a sympathetic, civilised and positive manner and by advising clearly and acting firmly and decisively to resolve them, if possible by agreement.
Divorce lawyers, or family Lawyers also often deal with complex and high value divorce and separation arrangements (usually by agreement but sometimes in court), which apart from those mentioned above, also include the following issues in relation to divorce and separation:
- family businesses,
- property and trusts,
- issues for children including parental responsibility, residence and contact, and
- inheritance claims.
If you need legal help regarding divorce law, then complete our free legal enquiry form on the right or click here.
DIVORCE PROCEEDINGS
Divorce proceedings cannot be started until the couple have been married for a year.
The Family Court can divorce a couple if the marriage is recognised as being valid in Australia.
Most divorces are undefended, allowing the divorce to proceed on paper through a relatively simple procedure.
Only if one partner does not consent to the divorce will the couple have to attend Court.
Whether the divorce is consented to or not, the divorce can only proceed if one partner can show that the marriage has irretrievably broken down.
To do this, the person applying for the divorce must prove one or more of the following general facts:
1.Their husband or wife has committed adultery. If their partner does not admit the adultery, evidence must be obtained to show that the adultery has taken place. The person applying for the divorce must confirm to the Court that they can no longer tolerate living with their partner.
2.Their husband or wife’s behaviour has been unreasonable. Often, there are relatively mild examples, which are agreed by both. One incident of unreasonable behaviour can be sufficient if the behaviour was particularly severe. The person applying for the divorce must confirm to the Court that they cannot be expected to go on living with their partner.
3.Their husband or wife has deserted them. The person applying for the divorce must show that their partner left them without their consent over 2 years ago.
4.They have been separated from their partner for at least two years and their partner consents to the divorce.
5.They have been separated from their partner for at least five years. Their partner’s consent to the divorce is not needed.
A straight-forward divorce can usually be obtained within a matter of months of the proceedings beginning, provided neither husband nor wife delay matters.
If you need legal help regarding divorce law, then complete our free legal enquiry form on the right or click here.
DIVISION OF FINANCES AND PROPERTY ON DIVORCE
The division of finances on divorce is usually by agreement between divorce lawyers or family lawyers, endorsed in a Court Order rather than following a court hearing. There should be no discrimination between husband and wife, or between the money-earner and the home-maker.
The law governing the Courts’ approach (and therefore the approach of divorce lawyers or family lawyers advising and negotiating on behalf of clients) to financial settlements on divorce is based on the Family Law Act 1975 (cth).
Generally speaking, the courts will determine what is a fair division.
If you need legal help regarding divorce law and the division of finances and property on divorce, then complete our free legal enquiry form on the right or click here.
Behaviour in financial proceedings is not considered on the basis of moral or emotional conduct. Infidelity or domestic violence is only taken into to account if it has a financial impact.
The aim of the law is to arrive at “fairness”. Although a starting point may be 50% each the overall situation of the parties may mean a departure from equality in certain circumstances. For example, consideration is given to the facts in each case including:
1.age of the parties (including life expectancy of each party in respect of future income) and length of the marriage
2.contribution both in financial and other ways (including bringing up children and inheritance)
3.resources and needs of the parties
4.standard of living during the marriage
If there are children, the first consideration is their welfare, including their housing needs, and this may impact on the overall financial settlement. Children are of paramount consideration.
If you need legal help regarding divorce law, then complete our free legal enquiry form on the right or click here.
PARENTS WHO SEPARATE - SOME HELPFUL INFORMATION
When parents separate, and there are children in the family, it is important to remember that it is a stressful time for everyone, and potentially most confusing for the children. Whilst it appears from research that the best outcome for children is for the adults involved to try to help the children to maintain contact with both parents, and to minimise hostility whilst promoting harmony, it is clear that there are some things that parents can do which help children to cope:
Parents should:
- try to give the children as much information as you can about what is happening, and what is likely to happen next, particularly if either the child or the other parent is going to live in a new home. Be reassuring;
- encourage the children to go on having a relationship with the other parent, and the rest of their extended family and other important people;
- listen to the children, giving them time to express feelings and worries;
- try to agree with the other parent what the children will be told (if possible, talk to them together if you can), what the school will be told and what any other important people will be told; and
- think about a plan for their independent parenting.
Parents should try not to:
- blame the other parent in front of the children, or undermine their relationship with the children
- allow the children to feel that it is their fault
- involve the children as “go betweens”, or burden them with information that should remain confidential to the adults only
- assume that a quiet child is OK – he or she may be finding it hard to express concerns when you are upset yourself. Perhaps someone else can help and listen to the child.
If you need legal help regarding divorce law, then complete our free legal enquiry form on the right or click here.
Additional Topics 1 - Divorce Law & Divorce Lawyers
Additional Topics 2 - Divorce Law & Divorce Lawyers
DIVORCE LAW NEWS & FURTHER INFORMATION - DIVORCE LAW
Can I apply for a divorce?
You can apply for a divorce in Australia if either you or your spouse:
- regard Australia as your home and intend to live in Australia indefinitely, or
- are an Australian citizen by birth, descent or by grant of Australian citizenship, or
- ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated.
If you need legal help regarding any aspect of divorce law, then please complete your free legal enquiry form on the right.
To apply for a divorce, you must complete an Application for Divorce and file it with the Court and pay the application fee. You may be eligible to a reduced fee.
If you apply for a divorce together with your spouse, it is a joint application and you and your spouse are joint applicants.
If you apply for a divorce by yourself, you are a sole applicant and your spouse is the respondent.
To request help from a divorce lawyer, please complete your free legal enquiry form on the right. Your free legal enquiry form will be treated as private and confidential at all times.
What a court considers in divorce applications
The Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that a court does not consider why the marriage ended.
The only ground for divorce is that the marriage has broken down irretrievably. That is, that there is no reasonable likelihood that you will get back together. You must have been separated for at least 12 months and one day in order to satisfy the Court that the marriage has broken down irretrievably.
If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them.
What will a divorce cost?
You will need to pay a fee. You may be entitled to a reduced fee. You can apply to pay a reduced fee by filing an Application for a reduction of Court Fees form – general or Application for a reduction of Court Fees on the basis of financial hardship. This fee is set by regulation and is generally only adjusted every two years.
In some cases; for example, if you hold certain government concession cards or you are experiencing financial hardship, you may be eligible for a reduced fee. To be eligible for a reduced fee for a joint application, both you and your spouse must qualify for the same reduction. If only one spouse qualifies for the reduction, then the full fee applies.
To request help from a divorce lawyer, please complete your free legal enquiry form on the right. Your free legal enquiry form will be treated as private and confidential at all times.
Can I oppose a divorce application?
If you have been separated for more than 12 months, there are few opportunities to oppose a divorce application. You can only oppose the divorce where:
• there has not been 12 months separation as alleged in the application, or
• the court does not have jurisdiction.
If you do not want the divorce granted, you must complete and file a Response to Divorce and appear in person on the hearing date. You need to set out the grounds on which you seek the dismissal in the Response to Divorce. It is strongly recommended that you engage the services of a divorce lawyer to represent you in Court. To request help from a divorce lawyer nearest to you, please complete your free legal enquiry form.
If you file a response, you should attend the divorce hearing. If you do not attend, the Court may decide the divorce application in your absence. If it is difficult for you to attend in person, you may ask the Court to appear by telephone.
If you need legal help regarding any aspect of divorce law, then please complete your free legal enquiry form on the right.
What if the application has errors of fact?
If you want the divorce granted but disagree with the facts in the Application for Divorce, you may file a Response to Divorce. You need to state which facts you disagree with in the Response to Divorce. The errors might, for example, be that dates of birth are incorrect or the details regarding the children are no longer correct. You may attend the divorce hearing.
When should I file the Response to Divorce?
If you want to file a Response to Divorce, you need to file it at a family law registry:
• if served in Australia – within 28 days of the application being served on you, or
• if served outside of Australia – within 42 days of the application being served on you.
Do I have to attend the divorce hearing?
If there is no child* of the marriage aged under 18 years, you are not required to attend the court hearing. This applies for both sole and joint applications.
If you have made a joint application and there is a child of the marriage aged under 18 years, neither you nor your spouse are required to attend the court hearing.
If you have made a sole application and there is a child of the marriage aged under 18 years, you must attend the court hearing unless circumstances prevent you from attending.
If a respondent has completed and filed a Response to Divorce, he or she should attend the divorce hearing. If you do not attend, the Court may decide the divorce application in your absence.
It is strongly recommended that you engage the services of a divorce lawyer to represent you in Court. To request help from a divorce lawyer nearest to you, please complete your free legal enquiry form.
If a respondent has, in a Response to Divorce, opposed the application, the respondent must appear in person on the hearing date.
If it is difficult for you to attend in person, you may ask the Court to appear by telephone. You must request in writing a hearing by telephone if you are unable to attend because of reasons such as distance from the Court or incapacity.
* A child of the marriage includes:
• any child of you and your spouse, including children born before the marriage or after separation
• any child adopted by you and your spouse, or
• any child who was treated as a member of your family prior to your final separation; for example, a step-child or foster child.
We are getting divorced – will decisions about future arrangements for our children, property and maintenance be made at the same time?
The granting of a divorce does not decide issues about property and maintenance or parenting arrangements for your children. If you want to make arrangements about these issues you can:
• make an agreement with your spouse and file it with a court, or
• seek orders from a court, where you and your spouse cannot reach an agreement.
For parenting cases, you also have the option to make a parenting plan.
If you need legal help regarding any aspect of divorce law, or parenting plans, then please complete your free legal enquiry form on the right, or click here.
If you want to apply for maintenance for yourself or a division of property, you must file a separate application within 12 months of the date the divorce becomes final. Otherwise, you will need the Court’s permission to apply.
I have applied for a divorce, is it safe to set a wedding date for my new marriage?
You should not plan to remarry until the divorce order is finalised. In most cases, this is one month and one day after the divorce hearing, however, you should not assume the divorce will be granted at the first court hearing. For example, you may be told at the hearing that you need to provide more information.
If you intend to remarry, you must give the marriage celebrant a Notice of Intended Marriage at least one month before the wedding date, and comply with other requirements of the Marriage Act 1961.
As soon as the divorce order is granted, the marriage celebrant may accept the Notice of Intended Marriage. You must show a copy of the divorce order to the marriage celebrant before the wedding can take place.
What is meant by separation under the one roof?
It is possible for you and your spouse to be separated but to continue living in the same home during the 12 months before applying for divorce. This is known as ‘separation under the one roof’. If this applies to your situation, you need to prove to the Court that you were separated during this time.
If you are filing a sole application for divorce, you need to prepare an affidavit. The Court also requires another person (not your spouse) to prepare an affidavit that contains as much information as is known to them about the separation. If you are filing a joint application, both you and your spouse need to prepare separate affidavits. If only one of you is able to file an affidavaitm the Court may require an affidavit from an independent person as above. In your affidavit, you need to prove that there has been a change in the relationship, gradual or sudden, demonstrating you and your spouse have separated.
It is highly recommended that you have a divorce lawyer prepare your affidavit and application for divorce together with any any other court documents.
To request help from a divorce lawyer nearest to you, please complete your free legal enquiry form on the right, or click here.
We want to divorce but have been married less than two years. We understand we have to do certain things, what are they?
If you have been married less than two years and want to apply for a divorce, you must either:
•attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse, or
•if you have not attended counselling, seek permission of the Court to apply for a divorce.
The two years are calculated from the date of the marriage to the date of applying to the Court for a divorce. You and your spouse must also have been separated for at least 12 months before applying for a divorce.
To request help from a divorce lawyer nearest to you, please complete your free legal enquiry form on the right, or click here.
I married overseas – can I get a divorce in Australia?
If you were married overseas, you can apply for a divorce in Australia if either you or your spouse:
•regard Australia as your home and intend to live indefinitely in Australia are an Australian citizen or resident, or
•are an Australia citizen by birth or descent
•are an Australia citizen by grant of an Australia citizenship
•ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You must provide the Court with a copy of your marriage certificate. If your marriage certificate is not in English, you need to file:
•an English translation of it, and
•an affidavit from the translator which:
•states his or her qualifications to translate
•attaches a copy of the marriage certificate
•attaches the translated marriage certificate
•states that the translation is an accurate translation of the marriage certificate, and
•states that the attached copy of the marriage certificate is a true copy of the marriage certificate translated.
To request help from a divorce lawyer nearest to you, please complete your free legal enquiry form on the right, or click here.
I can’t find my spouse to serve a divorce application, what do I do?
If you have made a sole application, you need to serve the divorce application on your spouse. If you have taken all reasonable steps to serve your divorce application on your spouse and you are unable to do so, you can apply to the Court for:
•substituted service, or
•dispensation of service.
It is highly recommended that you have a divorce lawyer prepare any court documents, including the divorce application, on your behalf.
To request help from a divorce lawyer nearest to you, please complete your free legal enquiry form on the right, or click here.
Getting divorced? Below you will find some useful links to websites providing information on issues pertaining to divorce law.
Child Support Agency (CSA)
The Child Support Agency (CSA) is responsible for administering Australia's Child Support Scheme, supporting separated parents to transfer payments for the benefit of their children.
http://www.csa.gov.au/
Divorce
The Family Law Court site contains Information about divorce in Australia, including laws, fees and answers to common questions.
http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Separation+and+Divorce/Divorce/
Family separation: a guide for teens
This guide aims to give teenagers some tips and help to understand and cope with family separation.
http://www.csa.gov.au/publications/1333.php
Online Application for Divorce
Complete and submit your Online Application for Divorce. You can also pay the fee by credit card (or seek an exemption); and select your own hearing date. Information links on the page include Step by Step Divorce Guide and an Application for Divorce Kit.
http://www.divorce.gov.au/
Separation and divorce
Family Court page with information on how to apply for a divorce, costs, proof of a divorce, nullity, separation and serving papers on another party.
http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Separation%20and%20Divorce
Separation resources
Separation Resources section of the Child Support Agency contains information and links to books, publications, websites, DVDs and other resources for separated families.
http://www.csa.gov.au/services/separation_resources/
youth.csa.gov.au
Things in your life change when your parents decide not to live together anymore. Like most kids whose parents separate you’ll feel different things and have lots of questions. Find helpful information including books, a game and activities.
To request help from a divorce lawyer nearest to you, please complete your free legal enquiry form on the right, or click here.
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