Some perceptions about divorce may have been sown by following celebrity divorces completed, more often than not, in other jurisdictions such as the USA. Here we look at some misconceptions that may have formed in people’s minds about divorce.
To be clear, to be granted a Divorce Order, you need to be an Australian citizen, a permanent resident or call Australia your permanent home. There are, of course, procedural requirements for the filing and service of the necessary documentation. Also, it is important to be aware that a divorce can have significant consequences for other aspects of family law, most notably property settlements and spousal maintenance.
Myths about Divorce
1. I haven’t been married long so I can get a “quickie” divorce
There is no such thing as a fast or “quickie” divorce in Australia. An application for divorce may only be made after the parties have been separated for at least 12 months. Moreover, you have to have been married for more than 2 years, or else have attended the necessary counselling arranged with the Family Court. Only then can you file an application, together with a certificate completed by the counsellor. If you and your spouse cannot undergo counselling, you will need to seek permission from the Court to apply for a Divorce. This usually requires you to file an affidavit with your divorce application setting out the reasons why you cannot attend counselling, such as family violence.
Obtaining a final Divorce Order generally takes up to 4 months from the date of filing the application, but it can be longer depending on the volume of cases within the Court. Once the divorce is granted, there is a further wait of one month and one day until the divorce becomes final. You cannot remarry before the divorce is final.
2. I was married overseas so can’t divorce in Australia
As long as either you or your partner are Australian citizens, or permanent residents, or regard Australia as your permanent home, you can apply for a divorce in Australia. You will require a copy of your overseas marriage certificate, which will need to be professionally translated if not in English.
3. I will be badly treated by the Court because of my affair
Australia is a "no-fault jurisdiction". A no-fault divorce does not require blame to be applied to either party and this means it is not necessary to establish a reason for separating, other than confirming the marriage has "irretrievably broken" down.
Former grounds for divorce such as unreasonable behaviour, adultery, or desertion have been invalid since the Family Law Act 1975.
4. I can’t get divorced if we continue to live together during the separation period
For practical or economic reasons, the parties may have to continue living under the same roof. Divorce is still possible, but there will be a need to provide evidence of "separate lives". You must be able to demonstrate a total break down of the marital relationship which may involve demonstrating, for example, sleeping in separate bedrooms, living in different rooms, not sharing meals, not giving the impression to family, neighbours and friends that the marriage is continuing, and operating separate bank accounts.
Third party evidence may be required from a neighbour, friend or family member that the parties are in fact separated despite living in the same property.
5. The Court favours wives over husbands
Australian law is guided by "fair" principles. Where there is disagreement over the allocation of the marital assets, the court will take into account both the financial and non-financial contributions made by each party.
In parenting matters, the court will concentrate on what is in the best interests of the children.
6. I won’t be able to use my maiden name until the divorce is final
You may use your maiden name at any stage if you like, even during marriage. There is no legal obligation upon you to either retain your married surname after divorce or change it.
There is no formal process necessary to revert to your maiden name and a short letter of notification to banks and government bodies will suffice.
7. Property and parenting matters must be decided at the same time as the divorce
There is no requirement for parenting and property matters to be determined at the same time though many prefer if they are. You have 12 months after the divorce to apply for property settlement orders.
As for parenting matters, where there are children under 18, the court will need to make sure that proper arrangements have been put in place for their care and welfare. Care arrangements for children can be done at any stage after separation but the sooner the better. Before a divorce is granted, the Family Court will have to be satisfied that appropriate arrangements are in place.
8. I do not need a lawyer to handle my divorce
Although a divorce application can be made electronically through the Commonwealth Courts Portal, it is strongly recommended that independent legal advice is obtained from an experienced family lawyer before you consider applying for divorce and/or property/parenting orders which can be complicated and a source of dispute. With appropriate representation, you can ensure your rights will be adequately represented and protected. Further, getting advice early on can reduce the issues in dispute which in turn can lead to a speedy resolution.
It should be noted that divorce can have an impact on other legal matters. Divorce will revoke an existing Will. On the other hand, separation has no impact on a Will, which means that any assets bequeathed to a spouse from whom you are separated would still be distributed to them if you died before the divorce. It is advisable to update a Will quickly after separation.
Divorce does not revoke a Power of Attorney or your Appointment of Enduring Guardian which you may wish to reconsider.
Contact our Family Law Solicitors, Sydney, NSW
Retaining a lawyer is not a decision that should be taken lightly but in the case of divorce and separation it is highly recommended. Moreover, who you retain and the way in which they handle your matter may have significant consequences for you.
Changing your lawyer part way through a matter can be stressful, costly and time-consuming, so it is important that you retain a lawyer that has the right experience and understands your needs.
You have nothing to lose and only something to gain by meeting with one of our experienced lawyers.
Book a consultation with our Family Lawyer today or call (02) 9281 5088 for a free 10-minute consultation.
At Szabo & Associates, Solicitors, we want you to get to the point where you can say, I feel ok now, I have spoken to a lawyer and I know exactly what my options are.”