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Divorce – Frequently Asked Questions

by | Jun 15, 2021 | Family Law

Many legal commentators have noted the spike in Australian couples seeking Divorce since the commencement of the COVID-19 pandemic. It is suspected that extended lockdown periods have either forced couples to be apart from each other or spend 24/7 at home together. In many cases, these circumstances have highlighted and exacerbated issues that couples may have previously ‘swept under the rug’ or avoided addressing with their partner. Given the current increased demand for divorce, we have put together a list of some of the most frequently asked questions that we receive from clients. When can I get Divorced? If you consider your relationship to be ‘irretrievably broken down’ and you have been separated for a consecutive period of no less than 12 months then you will be eligible to apply for a Divorce. How do I obtain a Divorce? You can apply for divorce on the Federal Circuit Court website and complete the documents yourself. The paperwork and explanation however are somewhat lengthy. As with most legal matters it is always best to seek advice from a Lawyer to ensure that the paperwork is completed correctly and that your rights and best interests are being protected. How do I prove that we have been separated whilst living under the same roof? If you have been living separately under the same roof you will need to provide two Affidavits to the Court (from you and from a third party) which provide evidence that you were just cohabitating with your spouse and no longer engaged in a relationship. This may include, ceasing all sexual activity, living in separate rooms, having separate bank accounts, doing your own washing, paying for your own personal expenses, re-partnering, cooking your own meals and being open about your separation to friends and family. Can I get a Divorce without my spouse’s agreement? Your spouse does not have to ‘agree’ to the Divorce application. Once you make the application, the Court will have to notify your spouse of the application and the deadlines for certain documents that they need to file. If your spouse wants to challenge the Divorce they would need to provide significant evidence to prove that neither of you consider your relationship to be permanently over or that you have not been separated for a period of 12 months, or that for some other reason the Court does not have the ability to make the divorce order (for example, if there is no connection to Australia). Is cheating considered by the Court when making a Divorce Order? Australia is a ‘no fault’ Divorce jurisdiction. This means that no blame is placed on either party when a Divorce is requested. Instead, the Court requires the parties to have been separated for a consecutive period of 12 months to prove that the marriage has ‘irretrievably broken down’. The Court will not at any stage of the Divorce process ask for details regarding the level of monogamy during the relationship. What the difference between Divorce and Property Settlement? When you apply for a Divorce you are essentially asking the Court to legally recognise you as Divorced. This will provide you each with the right to legally re-marry in the future. It is important to note that a Divorce does not deal with the distribution of your matrimonial assets and liabilities. To arrange for the legal distribution of assets between yourself and your ex-spouse you will need to obtain a legally binding property settlement. This can be achieved by way of either Consent Orders or Binding Financial Agreement or by an Order from the Court. You do not need to be Divorced to obtain a property settlement. Once you consider yourself to be permanently separated you can begin the process of obtaining a property settlement. If you are already Divorced and you intend to initiate Court proceedings relating to the distribution of matrimonial asset the application needs to be filed with the Court within 12 months from the date of your Divorce. If you are seeking further information about Divorce or property settlement and would like advice about your rights and entitlements then please contact our experienced Family Law Team on (03) 9614 7111.