What are the main requirements for obtaining a divorce?

Australia has a ‘no fault’ divorce system, which means that courts do not allocate blame to any party for the marriage breakdown.

In Australia , you can only apply for a divorce in the case of an ‘irretrievable breakdown of marriage’ and after you have been physically separated from your spouse for a period of at least 12 months.

In your divorce application, you need to show that the marriage has broken down and that there is no reasonable likelihood that you will get back together.

Which laws apply to me in relation to my divorce?

Under the Australian Constitution, the Commonwealth Government has the jurisdiction to make laws in relation to divorce and matrimonial causes, including parental rights and custody issues.

Because the Constitution does not expressly give the Commonwealth Government jurisdiction over de facto relationships and ex-nuptial children, these matters generally fall within the jurisdiction of state governments. However, most states refer some or all of their jurisdiction over de facto relationships and ex-nuptial children to the Commonwealth Government. An exception to this is Western Australia has retained its law making authority in this area.

Can I apply for a divorce even though I have not lived physically apart from my spouse for 12 months?

In some circumstances, it is possible to apply for a divorce even though you have not lived physically apart from your spouse for the required 12-month period. For example, the family law system is designed to encourage couples to reconcile their differences. If a couple gets back together for one period of up to three months for the purpose of reconciliation, it is possible to use the periods before and after the period of reconciliation to calculate the twelve month separation period.

In some circumstances, it might be possible to apply for a divorce where you and your spouse have lived under one roof for all or part of the 12-month period. It is necessary, in these situations, to satisfy the court that you and your spouse lived separate lives despite being in the same home.

If you intend to live separate lives under the same roof as your spouse, it is a good idea to consult a solicitor for advice on how to structure your relationship and your daily affairs in a manner likely to satisfy a court that you and your spouse have lived separate lives.

When would I be eligible to remarry?

It is against the law to remarry until a divorce becomes final.

A delay of approximately 3 months occurs between the date of filing for divorce and the date of the divorce hearing, at which a ‘decree nisi’ is granted. One month later this becomes a ‘decree absolute’.

Marriage celebrants usually require the production of a decree absolute document one month prior to the intended marriage date. It is therefore best to allow at least two months after the date of a divorce hearing before planning to remarry.

How is property usually divided in the case of a divorce?

Spouses getting divorced can finalise a property settlement at any time after separation and before either spouse has applied for a divorce.

Once a divorce has been obtained, however, you only have one year within which to apply to the court for a property settlement order. If more than a year has passed since obtaining your divorce, it is necessary to obtain the court’s permission to bring the application.

In most cases, parties are able to agree on how property will be divided, and can seek to have their agreement formalised by asking the court to make a consent order in the terms of the agreement.

Sometimes, however, spouses cannot agree on how property will be divided and it then is necessary to apply to the court, which will consider all the property and financial resources of the parties. This may include real estate, investments, interests in companies, family trusts, life insurance and superannuation.

In making a fair division of property, the court will consider each spouse’s contribution to the family, and contribution to the acquisition, conservation and improvement of the property. The court will also consider both the present and future income of each spouse, as well as their needs and responsibilities.

How are property issues dealt with in the case of a de facto relationship breakdown?

On the breakdown of a de facto relationship, property issues are dealt with by state laws. State courts (rather than the Family Court of Australia) have jurisdiction.

If you are in a de facto relationship, it is therefore important to understand the laws that apply in your state.

In New South Wales , for example, it is usually necessary to demonstrate that you have lived in a de facto relationship for at least two years, although in some situations it is possible to make a claim for a property settlement if the relationship lasted less than two years.

Once an application for a property settlement has been made, the court will consider the financial and non-financial contributions of each de facto partner in making a property settlement.

For matters involving ex-nuptial children of de facto couples, it is still necessary to make an application to the Family Court of Australia, the Federal Magistrates Court or the Family Court of Western Australia.

How do you get spousal maintenance?

Spouses are generally expected to be self-supporting following separation.

However, in some circumstances spousal maintenance may be payable where one spouse is unable to meet his or her own needs and the other spouse has the capacity to assist. For example, a high income earner may have to pay spousal support to a former spouse who is unable to work because of a physical disability or where the former spouse is responsible for caring for young children.

Applications for spousal maintenance must be brought within one year after obtaining a divorce.

What is a financial agreement?

Financial agreements are agreements about financial arrangements in the event of marriage breakdown.

Since December 2000, these agreements can be legally binding, provided that they are signed and provided that each person received independent legal and financial advice before signing. In limited circumstances, courts can declare the agreement to be invalid.

Financial agreements can be made before, during or after a marriage. They often cover matters such as the division of assets after the marriage and the financial support of one spouse by the other after the marriage. They are intended to impact the division of property and the payment of maintenance.

What about children?

Both parents have full responsibility for all their children until a child is 18. The family law system strongly encourages parents to reach an agreement regarding the care of their children. The court can formalise these agreements by making a consent order.

Where agreement cannot be reached, an application may be made to the court for a parenting order. In the past, orders were categorised as being residence, contact or specific issues orders. However, following recent legislative amendments introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006, all of these orders are now referred to more broadly as parenting orders. Child maintenance orders have remained a separate category of parenting order.

In making a parenting order, the court will always consider the best interests of the child, having regard to a number of factors set out in the legislation. Those factors include the benefit to the child of having a meaningful relationship with both parents, and the need to protect a child from physical or psychological harm.

Recent legislative changes also require parents to attend family dispute resolution to resolve disputes about children prior to lodging an application with the court. These changes are intended to promote the sharing of parental responsibility in the event of family breakdown.

What is a family violence order?

A family violence order is an order made under a law of a state or territory to protect someone from family violence.

Family violence orders have different names in different states: apprehended domestic violence orders (NSW), intervention orders ( Victoria ), protection orders ( Queensland and ACT), restraining orders ( South Australia , Western Australia and Northern Territory ) and restraint orders ( Tasmania ).

Family violence orders typically prohibit one parent from coming within a set distance of another parent, or prohibit one parent from stalking or harassing the other parent. Sometimes family violence orders can contain limited exceptions, such as allowing contact between parents for the purpose of delivering or collecting a child.

Children can sometimes be included on family violence orders made for a parent. More commonly, child protection orders are made by a state Children’s Court where there are grounds for believing that a child is in need of protection.

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