People might require a divorce lawyer for a number of reasons:
Becoming legally divorced is just one of many steps the parties might need to take to disentangle themselves from the relationship and is not actually a prerequisite to getting these other things done.
When any relationship comes to an end, it’s difficult, but it’s important to at least speak to a divorce lawyer. Emotions run high and the separation itself takes a toll on both parties.
Believe it or not, a divorce is merely a formality. It won’t sort your property or your parenting matters out. What it will do is dissolve your legal connection with your spouse and enable you to become remarried. It also started a year long timer for the parties to resolve their property matters.
If the parties don’t sort their property matters out before the timer expires, the might lose the ability to file proceedings. It is very important to be aware of any time limits and we encourage you to seek legal advice if you have already been divorced and have not already finalised your property matters.
Divorce is the legal dissolution of a marriage. It is separate from a property split and separate again from parenting matters. It is something that can be done on its own before or after property or parenting proceedings have been resolved. Sometimes ‘divorce’ is used as a colloquial term that lumps all of these things together eg ‘I’m sorting out my divorce settlement.’
The Federal Circuit Court has jurisdiction to deal with divorce applications. Your divorce application will be heard by a Registrar of the Federal Circuit Court.
To be eligible to be granted a divorce, the parties must be able to show they have ceased cohabitation for 12 months. Most of the time, one spouse moves out, so this is easy to prove. You will simply count 12 calendar months after the date your spouse moved out and you can get divorced, it’s that simple.
Sometimes, spouses separate under the same roof and remain living together for a period of time. In these cases, the party applying for a divorce needs to file supporting affidavits which satisfy the Court the parties separated under the same room and started living separate lives. There are a number of factors you will need to address. Some of them are:
– change in sleeping arrangements
– reduction in shared activities or family outings
– a decline in performing household duties for each other
– division of finances; for example, separate bank accounts, and
– any other matters that show the marriage has broken down; for example, if you have notified family and friends of your separation.
If you notified Centrelink of your separation, you might want to include some evidence about this as well, such as the date you indicated to Centrelink you became separated.
Being misleading about being separated under the same roof is one of the reasons an Application for Divorce can be opposed. You should seek legal advice if this might be an issue for you.
The court needs to be satisfied that suitable arrangements have been made for the care of your children. Generally, the court just wants to know the parents have come up with common sense arrangements once the divorce takes effect.
It is not a requirement that parenting orders are finalised or a parenting plan be agreed to. Often parties put the interim parenting arrangements down, even if the children are not spending time with the other party. The court simply needs to be satisfied the children are being clothed, fed and are going to school (if applicable).
The filing fee for a divorce at the date of this article is $865. It is quite expensive compared to other types of Application. If you have a lawyer prepare your Application, you can expect legal fees on top of this. Cudmore Legal provides fixed-fee divorce applications. Get in touch with us now to discuss.
Once your application is filed, you will need to ‘effect service’ of the application on another party. We use organisations called ‘Process Servers’ whose job it is to find and give people documents. Once they have effected service, they complete an ‘Affidavit of Service’ swearing that they delivered the documents to the other party. The affidavit will then need to be filed with the Court. This is what is called ‘Proving Service.’
Yes, both parties can file an application together. This is called a ‘Joint Application for Divorce.’ This makes things a lot easier (if you former spouse will agree).
If the parties have no children or children over the age of 18, or if the parties file a Joint Application for Divorce, you don’t need to go to Court. If the parties have children together under the age of 18 and only one party makes the Application for Divorce, you have to go to Court.
Whether you are going to court or not, the court will hear your application around 4 to 5 months after your application is filed. Once your application is heard, you won’t be legally divorced until a month and a day after the divorce order is made.
It is important to take these delays into account if you are planning a wedding to a new partner, for example, and give yourself plenty of time. It is actually a criminal offence to be married to two people at once in Australia called ‘Bigamy.’ (People are rarely/never prosecuted for this).
Once your divorce takes effect (a month and a day after the court makes the divorce order) you have 12 months to resolve your property matters with your former spouse. If you leave things beyond this date, you might be ‘statute barred’ from bringing an application to resolve property issues. If you leave things beyond the 12 month limitation date, you’re not doing yourself any favours, so get in touch with us now.
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