Get Help With Your Divorce Application

The law does not say that you must have a lawyer to finalise your divorce and financial settlement.

However, it is highly recommended that you seek advice from a lawyer for these reasons:

• Even if you have reached an amicable agreement before signing any papers you should know your rights and obligations

• The application for divorce is only one aspect of a permanent separation. Other matters to consider are property settlement, parenting, child support and spousal maintenance. These are complex areas of the law and you should receive advice about advantages and disadvantages of the proposed agreement

• Any agreement about parenting must take into consideration the best interest of your children. The Family Court may consider that your proposed arrangements are not in the best interest of your children. Your lawyer should be able to spot any potential problems before the agreement reaches the Family Court for lodgement

• A property settlement must be fair and equitable and a lawyer can advise you if your agreement satisfies the criteria. If you have reached an agreement which is not fair and equitable the Family Court may reject your proposal

• There are court documents, such as application forms and minute of consent orders, that must be lodged at the registry of the Family Court. If the documents are not drafted correctly they will be rejected by the Court or returned with a requisition for significant changes.

Depending on the size and complexity of your assets you may also require an accounting advice about the possible tax effects resulting from the division of the assets.

You can negotiate with your lawyer the scope of their involvement in your matter so that you can feel comfortable and know what to expect.

Suggested way forward

Retain a lawyer specialising in family law and instruct them to advise on the terms of the proposed separation agreement with your spouse.

The disadvantages of a sole divorce application are:

• the applicant pays 100% of the filing fee

• the applicant must arrange to serve your Application and any supporting documents on their spouse which will incur additional costs

• if the applicant has children under 18 or if their spouse objects to the divorce, the applicant must attend the divorce hearing.

The advantages of a joint divorce application are:

• the spouse may agree to share filing fee with you

• you do not need to serve your spouse the divorce application, which will avoid the costs associated with service

• you will not need to attend the divorce hearing, even if you have children under 18.

In a sole divorce application one spouse applies for divorce on their own.

In a joint application both spouses to the marriage apply for divorce together.

For a sole divorce application you do not need your spouse's consent and you do not need them to sign any documents.

In a joint divorce application you and your spouse must sign the same application.

Yes, you can apply for divorce without your spouse’s agreement. The Family Court has jurisdiction to hear your divorce application if you or your spouse can answer yes to one of the following:

• one of you is an Australian citizen; or

• you or your spouse regard Australia as home and intend to live in Australia indefinitely; or

• you or your spouse ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

The procedure is that after you file the application for divorce you must serve a sealed copy to your spouse. You will need to file an application to dispense with service because you have not been able to locate your spouse.

If the court is satisfied that you have exhausted all options to locate your spouse the court will order that service be dispensed with. After that the court will hear your application for divorce.

It is easier and quicker if you and your spouse apply for divorce jointly. Your divorce will not become final until one month after the hearing.

It is very important to remember that you will have 12 months to file for property settlement orders after the divorce order has been granted. It is also important to remember to make a fresh will.

This is a complex area of the law and you should seek further legal advice.

To divorce your spouse you must show to the Family Court that your marriage has broken down irretrievably. This is proved by establishing that you and your spouse have been separated for a period of 12 months or more prior to filing the Application for Divorce.

Identifying the date of separation on your Application for Divorce form is not always easy because separation is not a short event but usually a process which can take place over a period of weeks or even months.

Section 48 of the Family Law Act states that a divorce order will be made only if “the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order”.

Separation under the same roof

To be separated does not mean that you and your spouse have to live in different homes. You may be separated but continue to live under the one roof for a number of reasons such as financial reasons or circumstances relating to the welfare of children.

In such circumstances the court may have difficulties establishing the separation date. That is why the court will need evidence to support your application. Such evidence by affidavit must be provided by you. In Western Australia an independent witness must also corroborate that you and your spouse have lived separated but under one roof.

Evidence about proper arrangements for the children of the marriage

If you have children with your spouse under the age of 18 you must satisfy the court that certain arrangements are in place for the children. The court will consider:

• the living arrangements for the children;

• the time the children spend with each parent;

• whether the children are being financially supported by you and your spouse;

• the health and education of the children.

Married for less than 2 years

If you have been married for less than 2 years the court cannot hear your Application for Divorce unless you and your spouse have been to a family counsellor to consider the prospects of reconciliation or the court dispenses with the requirement for counselling. Evidence that you have attended counselling must be given to the court.

Yes, you can live separated and not divorced. The law does not say that you should divorce if you plan to separate permanently. It is generally advisable to divorce rather than remain separated for an indefinite period because of following reasons:

• You cannot remarry without first obtaining a divorce order

• Staying married affects your rights and obligations regarding property and financial matters

• If your spouse is getting into debt you might be getting into debt too without even knowing it

• You may lose control over the management of some jointly owned assets but you will still have duties and obligations in relation to those assets

• Your spouse may find a new partner and start a new family. This will result in more expenses for the new family and therefore less assets left for property settlement with you

• Your spouse may dispose or hide some of the assets of the marriage so less assets will be available when it finally comes time to negotiate the terms of your property settlement

• If your spouse’s circumstances change after a long separation your final settlement could be a lot less. Loss of employment, sickness and care of children are only some examples that may affect your property settlement outcome.

• You may lose track of the location of your spouse and lose an opportunity to negotiate a divorce settlement. Instead, you may be left with no option but to seek a determination by the court which may be more expensive

• It may be more difficult to negotiate a divorce agreement with your spouse after a long separation

• In property settlement proceedings the court will assess the future needs of the parties and will consider the standard of living that is reasonable in the circumstances. Your circumstances might be significantly different after a long separation than soon after separation.

Suggested way forward

Beware of the risks of long separation. Seek advice from a family lawyer about your particular circumstances.