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The Law and You: Five things you might not know about divorce

Watts McCray Lawyers

‘Divorce’ is often used when married couples separate.

Couples mention ‘divorce‘ when they negotiate a property settlement, or when they’re working out arrangements for their children. However, ‘divorce’ has a much more narrow meaning than most understand. Here are five things you might not know about divorce.

What exactly is divorce? 

A Divorce Order is an order of a Family Law Court. It formally and legally ends a marriage in the eyes of the law. This is different from a Court declaring that a marriage never existed, and it’s different from proceedings in a Family Law Court about property matters and parenting arrangements.

What are the grounds for a divorce?

We’re lucky in Australia. Our divorce law, set out in the Family Law Act 1975 (Cth), is predicated on a modern, progressive ‘no-fault’ idea of marriage breakdown and relationships. This isn’t the case in all countries, where wrongdoing in a marriage can be considered.

Before 1975 in Australia, parties wanting to divorce had to prove the other party was at fault and had broken the marriage contract through things like adultery, cruelty, insanity or habitual drunkenness. Now, the only ground for divorce is that the marriage has irretrievably broken down. If a Court is satisfied of this, you’ll be granted a Divorce Order.

You prove irretrievable breakdown to the Court by being separated for 12 months. This can include a period where you and your partner live separately but under one roof, though the Court will require evidence about this.

What are the processes for obtaining a Divorce Order?

The philosophy behind Australian divorce law is that obtaining a Divorce Order should be accessible and straightforward.

One party or both parties can apply to a Family Law Court for a Divorce Order by completing the correct form. If just one party applies, important steps must be taken to ensure the other party is served with the application.

The Court will hear the Divorce Application to determine if there is jurisdiction (whether the parties live in Australia, even if they were married overseas), that the other party has been served with the application, that there has been 12 months of separation, and that appropriate parenting arrangements have been made for any children.

When does the divorce order become final?

If the Court is satisfied, the judicial officer, on the day of the hearing, will make a provisional order—called a decree nisi—which is in place for one month. Following that, a final order—called a decree absolute—is made. Neither party can remarry during that month, as the marriage is still in ‘legal limbo’ until the final Divorce Order is made. This is to allow for a ‘cooling-off period’, in case the decree nisi was unlawfully obtained.

How does divorce affect the other aspects of my separation?

After 12 months of separation, parties can apply for a Divorce Order at any time, before or after a property settlement. The order is entirely separate from property settlement matters.

There is one really important connection between a Divorce Order and a property settlement, however. Once a Divorce Order is final, parties only have 12 months to apply to a Family Law Court for a property settlement (de facto couples have two years from the date they separate to apply). After this 12 months, separated couples will be statute barred from approaching the Court to determine financial issues or will need the Court’s leave (that is, permission) to ask a Judge to make a decision. This means it’s important to always seek legal advice for a property settlement within 12 months of being granted a Divorce Order.

Similarly, whether a Divorce Order has or hasn’t been made doesn’t have much bearing on parenting arrangements. As part of the divorce process, the Court wants to know if proper arrangements have been made for the care, welfare and development of children. The Court will declare this is the case unless proper arrangements aren’t in place. If they aren’t, the Court may adjourn the matter until more information is known. This is separate from what the Court looks at when deciding what arrangements will be best for the children if the parents (divorced, separated, de facto or same sex) can’t agree and need a Judge to decide.

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Watts McCray Lawyers

Watts McCray is a leading firm of family and relationship lawyers. We have the largest number of accredited family law specialists in Australia and are backed by years of experience. Our lawyers have the skills to provide you with sound, practical advice about issues such as relationship changes and separation, property and financial matters, parenting arrangements after separation, child support and divorce. Watts McCray can also provide you with legal help if you want to resolve matters without having to go through Court. We can help with negotiation, mediation, collaboration and arbitration services as well as the traditional Court litigation process. We can also help with your estate planning and wills. Call us on (02) 6257 6347 for more information and for tailored services to meet your specific legal needs. More about the Author

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