Advice Market Blog

I’m going through a separation, what do I need to know about getting divorced?

July 22, 2016

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One in three marriages in Australia end in divorce. It’s a difficult time, but in Australia we are fortunate enough to have legal services and the Family Court to help finalise the legal side of divorce. Sean & Alice were high-school sweethearts, and after years in a committed relationship they decided to tie the knot. Due to irreconcilable differences, they decided to divorce. Although they were both aiming for an amicable divorce, there was a list of difficult decisions that needed to be made.

Alice was particularly anxious as to where this would leave her financially as they had always had joint accounts. The first thing she did was go online to try and find out what to do. First and foremost she was advised to seek legal advice before making any decisions. She needed to start by answering some big questions like ‘Do you want / need to apply to the law courts?’, and she didn’t even know what that meant.

She learned that she could apply for the divorce herself or with Sean, by completing an Application for Divorce form from the Federal Court of Australia. After looking at the form, Alice decided it would be best to seek legal advice as she already had some questions about the Application for Divorce.

Once you have obtained a divorce order from the Family Law Court Registry, your marriage has been formerly ended, and either party can choose to remarry. Sean and Alice were worried that they were going to have to prove someone a fault for a divorce applications, as they felt this was an amicable separation. However, this is not the case in Australia, the only ground for divorce is the irretrievable breakdown of the marriage, and this is proved by showing that you have a) been separated for a period of at least 12 months immediately before you ask for the divorce, and b) that there is no chance of marital reconciliation.

They owned a home together, so Sean started to look into dividing the property. Turns out the Family Court doesn’t deal with property (or arrangements for children), so this would have to be handled independently or with legal representation for each of them. Turns out though that they cannot get divorced for another few months as they have only been separated for nine months, but they realised they could get their real estate and financial affairs in order before the divorce goes through.

Turns out ‘property’ includes a lot more than just real estate. It includes:

  • cash and investments
  • real estate as well as personal property (e.g. cars, furniture)
  • property owned before the marriage
  • gifts, inheritances, lottery wins received by one partner or spouse
  • redundancy payouts
  • superannuation

If a decision about any of these matters could not be decided upon, Sean learned that The Court would determine how the property was to be divided. This would be based on the following considerations:

  • Property owned before the marriage or relationship. The extent to which this is considered the property of an individual partner will depend on the length of the marriage or relationship and what contributions the other partner made (if any) towards the accumulation and upkeep of property.
  • Contributions made by both partners during the marriage or relationship. This includes direct contributions (e.g. wage earnings, maintaining assets and property), indirect contributions (e.g. gifts, assistance from family members), non-financial contributions, do-it-yourself home renovations and contributions made to the welfare of the family as a caregiver or homemaker.
  • Future needs (e.g. whether one partner will be supporting a child, the age and health of each partner and their ability to obtain employment and earn income).
  • Generally, contributions to the welfare of the family would be considered to be just as important as the contribution of the primary wage earner.

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They decided to come to an informal agreement, and skirted around the issue of whether or not to have consent orders, which would mean that neither party could take the other to court to try and get more. However after a little more research they learned that having court orders would also make them exempt from paying stamp duty on many property transfers. So they decided to get legal advice to help make consent orders.

Alice and Sean both discussed and decided to seek legal advice to help them come to an arrangement outside of the courts. They felt that having independent legal advice made the process less stressful as they each had someone to explain the legal jargon to them and help them devise matters in an amicable manner. Divorce isn’t easy, and it involves a great change to the lives of two or more people. It is therefore advisable to seek legal and financial advice to properly get your affairs in order to help you both start the next stage of your lives.

Advice Market has an extensive list of independent advisors that you can browse through at your leisure to help you find the person who can best help you in your current situation.

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By AdviceMarketeditor