How does separation and divorce work in Australia?
When going through a divorce or separation following the breakdown of a relationship, the way that you go about finalising all arrangements between you and your ex-partner can be a little unclear.
The Federal Circuit Court and Family Court of Australia, which is responsible for orders under the Family Law Act 1975, has 3 different spheres within family law that may apply to you:
- Applications for Divorce;
- Applications for Parenting Orders;
- Applications for Financial or Property Orders.
Within these areas there are more discreet offshoots such as spousal maintenance, enforcement, location and recovery orders or orders relating to establishing parentage of a child.
If you haven’t experienced the process of divorce before, then read below for some key information that can help you understand the process.
Divorce is a separate process from obtaining orders for parenting or finances. Although obtaining a divorce may be dependent on you having sorted out parenting arrangements for your children, you will have to make a separate application for divorce and parenting orders.
To obtain a divorce in Australia, there are a few key things that you have to establish for the Court:
- You were married, this is usually done by providing your marriage certificate;
- Either you or your spouse are Australian Citizens, ordinary live in Australia or regard Australia as your home and intend to live here indefinitely.
- You have been separated for at least 12 months and there is no reasonable likelihood of the relationship being resumed;
- If there are children, then you must establish that there are either:
- No children of the relationship who are under 18 years; or
- There are children of the relationship who are less than 18 years of age but:
- proper arrangements have already been made for their care; or
- circumstances are such that the Court should grant the divorce even though proper arrangements have not been made. For example, where current family law proceedings waiting to be finalised in relation to the children.
- If the application for divorce is not supported by both parties, the Court must be satisfied that you have served the other party with the application and that they are aware of it.
Sorting out your parenting and property arrangements before divorce
As you cannot obtain a divorce until you have been separated for at least 12 months, it is not uncommon for people to sort out parenting and financial agreements first and then obtain a divorce later as these things generally can’t wait 12 months to be negotiated.
From the time you obtain a grant of divorce, you will have 12 months to start your financial proceedings. For de facto relationships you will have 2 years from the date of separation to start financial proceedings. This includes filing for consent orders or filing an application for financial orders where there is a dispute between you and your ex-partner. If you have not applied for financial/property proceedings within 12 months of obtaining your divorce then you will have to ask the court for leave/permission to file your application which will only be granted in certain circumstances.
Separated, but living under one roof
It is important to note the date that you separated from your partner because many people separate but remain living under one roof until they sort out living and financial arrangements. In this situation, the time that you are separated but still living together will count towards the 12-month timeline that the Court requires you to be separated for.
You can find the brochure from the Family Court about being separated under one roof HERE.
When will my divorce take effect?
A divorce order takes effect 1 month after the making of the order for divorce which means you are not legally divorced until 1 month and one day after the making of the order.
For more information from the Court about Divorce see the Family Court page HERE.