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Family Law Divorce in Australia: Our Top 15 FAQs

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Family Law Divorce in Australia: Our Top 15 FAQs July, 2014 By Alan Wright


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Legal Disclaimer This presentation is offered for general information purposes only. It does not constitute specific legal advice or opinion. You should not act or rely upon any of the information contained within this seminar without seeking the advice of a qualified solicitor who specialises in the particular area of expertise and jurisdiction that you require.


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Presentation Outline Do I need to get a divorce? 7 When is divorce final? 9 How long do we need to be separated for before applying? 10 What happens if we get back together for a brief period of time? 11 Can separated couples live separately, but in the same house? 14 Are shorter marriages treated differently to longer marriages? 17 If we separate, do we legally have to get a divorce? 19 After we separate, when can I remarry? Is there a waiting period? 21 Do I need a lawyer to get a divorce? 24 If we weren’t married in Australia, can we still get divorced here? 25 Can I oppose a divorce application? 27 What is the FMC? 29 How will divorce impact my Will? 30 What do I need to know before filling out a divorce application? 31 What is an uncontested online divorce? 34 Slide #


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Introduction Getting a divorce is a simple procedure. So long as you can satisfy the Federal Magistrates Court that you and your spouse have lived separately and apart for at least 12 months, and that there is no reasonable likelihood of getting back together, the divorce should be granted.


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Introduction Living separately and apart does not require you and your spouse to be living in different houses, so long as you can show that the relationship has ended. Home


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Introduction Where there are children under eighteen years of age you generally have to show the Court that “proper arrangements” have been made for them. For example, their living arrangements are satisfactory and that the parent with whom the children are not living is spending time with the children. Home


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1. Do I need to get a divorce? The only reason you must get a divorce is if you want to remarry; Immediately upon separation you can take action about all other matters i.e.. property settlement, spousal maintenance, arrangements for children and child support. You do not have to wait until you are divorced. Home


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1. Do I need to get a divorce? Court proceedings for property settlement and/or spousal maintenance need to be commenced within 12 months of the divorce order taking effect. Outside of this period you need to seek special leave from the Court to proceed with a case for property settlement and/or spousal maintenance. Home


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2. When is divorce final? The divorce is not usually final at the Court hearing. If the Court finds that the separation requirements are met it makes a divorce order but this does not usually take effect until one month and one day after the hearing. You cannot marry until the divorce order takes effect. Home


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3. How long do we need to be separated for before applying for divorce? In Australia we have a ‘no fault’ divorce system. This means the behaviour of parties, in the lead up to divorce, is not relevant, the only thing that matters is that the relationship has completely broken down and cannot be saved. The main indicator of this break down is a separation period of 12 months. Home


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4. What happens if we get back together for a brief period of time? A divorce application requires that you have been separated for at least 12 months. You must be able to provide proof of this. During this 12 month period it is common for separated parties to decide to re-connect and give their relationship another chance… Home


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4. What happens if we get back together for a brief period of time? However, they could only do this for up to 3 months without re-starting the 12 month period again. For example, if they’ve been separated for 4 months, then get back together for 3 months and separate again for a further 8 months, this will count as a 12 month separation period and they will be able to apply for divorce. Home


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4. What happens if we get back together for a brief period of time? However, if they get back together and stay together for longer than 3 months, the initial 4 month separation period would no longer count towards the total number of months apart. Home


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5. Can separated couples live separately, but still reside in the same house? Yes. This is becoming quite common because more and more couples are finding it hard to financially survive living apart. The most important factor to consider is that the Court requires proof that you have been separated for 12 months. Home


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5. Can separated couples live separately, but still reside in the same house? If it can be proved that you lived in the same house, but still led separate lives, this would suffice. There are a number of things that the Court will take into consideration in making a decision on this issue: Whether you still sleep together Whether you still have regular sex or engage in sexual activity Whether you still share meals and domestic duties Whether you still share money and bank accounts Whether your friends and family think of you as separated Home


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5. Can separated couples live separately, but still reside in the same house? In any situation, we recommend seeking legal advice before applying for divorce. If you have already made the decision to separate, and are planning on living in the same house, you should immediately seek legal advice to ensure you do this in a way that would satisfy the Court down the track when the time comes to apply for divorce. Home


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6. Are shorter marriages treated differently to longer marriages? Yes. If you’ve been married for less than two years, you will be treated differently by the Court. If this is the case you will only be able to apply for divorce after both parties agree to go to a counselling session, or if there are special circumstances (criminal etc.). Home


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6. Are shorter marriages treated differently to longer marriages? If one party refuses to participate in the counselling session, there are still avenues to take that would allow you to get divorced. If you’ve been married for less than two years and are thinking about separation, immediately seek legal advice. Home


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7. If we separate, do we legally have to get a divorce? No. There is no law that forces separated couples to get a divorce. However, you will not be able to remarry someone else until you get a divorce. Home


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7. If we separate, do we legally have to get a divorce? Staying married also impacts your rights and obligations in relation to financial matters and any Wills & Estates related documents that are in place. If you are planning on separating without getting an official divorce you should immediately seek legal advice to get an understanding of your rights and obligations moving forward. Home


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8. After we separate, when can I remarry? Is there a waiting period? You will not be able to remarry until the Court processes your divorce and the divorce order becomes final. In most cases, the divorce order becomes final 1 month and 1 day after the divorce application is heard by the Court. Home


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8. After we separate, when can I remarry? Is there a waiting period? It is common for people to plan their next wedding very close to the date that they expect their divorce to be finalised. Home


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8. After we separate, when can I remarry? Is there a waiting period? We recommend avoiding this at all costs because there are a number of factors that could delay the process and force you to re-schedule your wedding plans. However, once your divorce order is finalised, there is no waiting period. You will be able to legally remarry the following day. Home


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9. Do I need a lawyer in order to get a Divorce? No. In straightforward cases that don’t involve any conflicts, disputes about finances, kids and property, it is sometimes easier for the couple to apply for divorce without the involvement of a lawyer. However, the majority of divorces in Australia do involve one or more of the issues listed previously, which is why legal advice is always recommended. Home


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10. If we weren’t married in Australia, can we still get divorced here? Yes. Even if you were married overseas you may still seek an application for divorce in Australia if you (or your spouse) are an Australia citizen, can prove Australia is your main place of residence, and/or you can show that you have lived in Australia for at least 12 months prior to applying for divorce. Home


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10. If we weren’t married in Australia, can we still get divorced here? If you were married overseas and are thinking about separating in Australia we recommend you immediately seek legal advice to determine if you are eligible. Home


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11. Can I oppose a divorce application? You can only legally oppose a divorce application if the 12 month separation period has not yet passed, or the Court does not have jurisdiction. Home


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11. Can I oppose a divorce application? In order to oppose the divorce you must complete and file a ‘Response to Divorce’ and appear in person on the hearing date. It’s important that you appear in person on the date of the hearing, as the Court may decide on the divorce application in your absence. If you are planning on opposing a divorce we recommend you seek legal advice immediately. Home


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12. What is the FMC? FMC stands for the Federal Magistrates Court. Divorces are dealt with by the FMC rather than by the Family Court. For step-by-step instructions on how to apply for a divorce go to: www.familylawcourts.gov.au Home


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13. How will divorce impact my Will? The changes in your circumstances brought about by separation and divorce means that reviewing your Will is essential. We recommend that you read our Fact Sheet “Wills & Family Law”. Home


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14. What do I need to know before filling out a divorce application? In all Divorce Applications, we are required to provide to you the Court’s brochure entitled "Marriage Families and Separation”. Home


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14. What do I need to know before filling out a divorce application? A Divorce will also have an impact upon the time limits for making an Application for property settlement. If you and your spouse are divorced, you have 1 year from the date of the Divorce to finalise your property settlement. If you wish to apply to the Court for property or maintenance, you must file a separate Application within 12 months of the date of the Divorce becoming final. Otherwise, you will need the Court's permission to apply and such permission is not always granted.


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14. What do I need to know before filling out a divorce application? The granting of a Divorce does not decide issues about property, maintenance or parenting arrangements for your children. If you wish to make arrangements for these issues: If you and your spouse come to an agreement, make an appointment thereafter so that such agreement can be filed as a separate Application; or Attend upon a Mediator to assist you in reaching an agreement in these matters. Home


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15. What is an uncontested online divorce? An uncontested online divorce is a divorce service we offer that is suitable in situations where: You have separated from your spouse; You have been living separately and apart for the last 12 months; Your spouse consents to the divorce; and Any arrangements for children and property have been agreed upon. Home


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Turnbull Hill Lawyers – Contact Us If you have any further questions about divorce in Australia or you'd like to discuss a related matter, please do not hesitate to call me: Alan Wright on: 1800 994 279 or email I will endeavour to respond to your enquiry within 24 hours.


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