We understand that the breakup of a relationship is often an extremely difficult and sometimes even frightening time. The emotional and financial impact on an individual and those around one can be immense. Our approach is to handle your matter with sensitivity, focussing on your individual situation. We provide realistic advice; experience has taught us that seeking agreement at an early stage between parties is often the best way. If at all possible, we attempt to avoid pursuing litigation, which can be both lengthy and expensive.
DIVORCE LAW IN AUSTRALIA
Unlike many countries throughout the world, Australia has for many years had “no fault” divorce. Prior to 1975, if someone wanted a divorce in Australia, it had to be proven that one spouse was “at fault” for the breakdown of their marriage. However, the Family Law Act 1975 established the principle of no-fault divorce in Australian Law. This means that the Court does not consider why a marriage ended, it must only be satisfied that “the marriage has broken down irretrievably”.
It is sometimes difficult for clients, especially if he or she comes from a country where “at fault” divorce exists, to come to terms with the reality here that even if it is one spouse’s so-called ‘fault’ that the relationship has broken down, the other spouse’s behaviour will not impact on the property settlement upon divorce.
Accordingly, the party in other countries judged to be “at fault” may not fare as well in regard to property settlements or child-support arrangements. It is further important to be aware that in Australia, divorce is separate from both property and arrangements for children (for example, child-support payments).
Are you eligible to apply for a divorce?
The Federal Circuit Court of Australia has the jurisdiction or power to deal with the dissolution of marriage under Part VI of the Family Law Act 1975.
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 that there is no reasonable likelihood of resuming married life. [Note: It is possible to live together in the same home and still be separated].
If you have been married less than two years, you are required to try marriage counselling before you apply for a divorce. Although the court may allow you to file your divorce application without attending counselling in certain circumstances, for example, if you have experienced domestic violence or cannot find your spouse, you will need to file an Affidavit explaining your situation.
An Australian Court also has the power to dissolve marriages that occurred outside of Australia, but if the Marriage Certificate is in a language other than English, you will need to provide an official translation with your application. We can assist you in doing this.
Do you need to attend the Divorce Hearing?
Sometimes we find that clients can be (understandably) anxious about what to expect at the Divorce Hearing. Our role is to help explain what will happen; frequently clients find attendance at the Hearing far less stressful than they at first thought that it would be.
If you made a joint-application, you do not need to attend the hearing.
If you made a sole application and have no children under 18, you do not need to attend the hearing.
If you made a sole application and have children under 18, you will need to attend the hearing because the court will need to make sure that steps have been taken to ensure the continuing care of the child or children.
The court may adjourn your case if it feels that some of the information supplied was not sufficient – for example, if you have not provided sufficient proof that you have been separated for a minimum of 12 months.
Can you stop your spouse being granted a Divorce?
There are only two ways to stop the application for divorce. The first is to argue that both of you have not been legally separated for at least 12 months and the second is to argue that the court does not have any jurisdiction over the divorce.
After the Hearing:
If the court grants your divorce, it will take effect (become final) one month and one day after the order is made. You will then receive your divorce order in the post.
It is important to be aware that the Divorce Hearing is only about ending your marriage. You will need to make a separate application if you want orders about children or property.
PROPERTY SETTLEMENT AFTER SEPARATION
When you separate from your spouse (married or de-facto), it will normally become necessary to divide up your property and to finalise a property settlement. Property refers to the parties’ current assets, liabilities and financial resources; it will also include both parties’ superannuation and pension entitlements,
If both parties can agree on how your property should be divided without any court action, they can either divide their property by entering into a financial agreement or have an agreement formalised by applying for Consent Orders, in which you ask a court to make orders in the terms of your agreement.
The main differences between a Binding Financial Agreement and a Consent Order are:
- A Consent Order is a written agreement that is approved by a court. Signing a Draft Consent Orders means you that you agree with the Orders sought and will follow the terms stated in the document. When the Consent Order is made, it will have the same effect as a Court Order made by a judicial officer after a Court Hearing. The Court will only make Orders that you and your former partner/spouse have agreed upon, if it is satisfied the terms of the Orders are “just and equitable” to both parties.
- A Binding Financial Agreement is a form of contract between you and your spouse (or ex-spouse) and does not come under the scrutiny of a Court. The Family Law Act 1975 provides that parties to a marriage or to a de facto relationship can enter into a binding Legal Agreement about the financial arrangements should their marriage or de facto relationship break down. For a financial agreement to be legally binding, you must both have:
- signed the agreement, and
- received independent legal and financial advice before signing.
You can make a financial agreement before, during or after a marriage or de facto relationship.
Our policy at AZ Legal is to work with our clients to obtain Consent Orders rather than Binding Financial Agreements. The reason for our approach is that we believe Consent Orders give our clients an added level of protection, with the Court scrutinising the document from the outset.
Further, if you need to enforce a Binding Financial Agreement, you must first apply to the Court for a declaration that the Agreement is valid. This can be additionally time-consuming and stressful.
Time-Limits for Property Settlement:
There are strict time limits that apply to Family Law Property Settlements.
Under the Family Law Act an application to the Court for a Property Settlement must be filed within either:
- 1 year of a divorce becoming “absolute” for married couples (a divorce becomes absolute, or final, when the Court issues a certificate of divorce which is usually 1 month and 1 day after the divorce matter has been heard); or
- 2 years after separation in regard to a de-facto relationship.
In certain limited circumstances where the time limit has expired, you can still make an application to the Court and seek “leave to proceed ‘
What the Court considers when dealing on Property matters:
- working out what you have, as well as what debts you have;
- looking at the direct financial contributions by each party to the marriage or de facto relationship;
- looking at indirect financial contributions by each party such as gifts and inheritances from families;
- looking at the non-financial contributions to the marriage or de facto relationship such as caring for children and homemaking, and
- future requirements – a Court will take into account things like age, health, financial resources, care of children and ability to earn.
CHILDREN AND SEPARATION
After separation decisions need to be made about where the children of the relationship (under the age of eighteen) will live, when and how much time the children will spend time with the other parent, and whether there are any specific issues that need to be addressed to support the welfare of the children.
Under the Family Law Act 1975 there is a presumption that both parents will have an equal parental responsibility. Note, this does not necessarily mean that each parent will have the children for fifty percent of the time, rather it means both parents will share responsibility for important issued in respect to such things as the medical care and educational needs of the children.
If you and your former partner can agree on the future arrangements for your child/ren after separation you do not have to go to court, you can:
Make a Parenting Plan which is a formal written agreement that is decided by you and your former partner that sets out parenting arrangements for your child/ren. Or
Apply for Consent Orders; these are Orders that are made by of the Family Court on the terms you and your former partner have agreed upon.
If you cannot come to an agreement via a Parenting Plan or Consent Order, you may need to file Court proceedings. Before doing so, you must participate in Pre-Action Procedures -unless there is violence (or a perceived threat of violence) in the family. If this exception applies, you can file a document called a ‘Non-Filing of Family Dispute Resolution Certificate’. If not, pre-action procedures mean that parties must attend Family Dispute Resolution mediation at an approved centre.
What is the Court’s view on parenting arrangements?
The primary concern of the Court when it comes to parenting cases is whether “the best interests of the child” are being served.
- The Court encourages parents to make arrangements that meet the needs of the children and family and wherever possible, it encourages families to make their own decisions in respect to the needs and welfare of the child/ren.
- Arrangements that allow contact with family members are considered a right of a child.
- Where children are of sufficient maturity, their views should be taken into account.
- The Court usually considers that it is in the child’s best interest to maintain contact with both parents. In accordance with this denial of contact with the other parent may be viewed adversely by the Court.
Orders made by the Court:
An Interim Hearing will usually take place a couple within the filing of the documents regarding the case. A judge will make a decision about the child/ren based on the parties respective applications made by each party. At an Interim Hearing the Court will not make rulings on disputed facts because the evidence will not be tested by cross- examination. This is done at the Final Hearing, when all witnesses who have given sworn statements will normally be required to attend court to be cross- examined. Final Orders will bring a matter to a close.
It is imperative that adequate time, skill and effort goes into preparing and presenting an Interim Hearing, to best present your case. Our experienced team are committed to helping you achieve the best possible outcome in respect to the Hearing- as indeed with all other work they undertake to do for you.