The breakdown of a family is commonly a very emotional time. This makes it particularly important to have the assistance and advice of a dispassionate legal advisor who can properly advise you of your rights and assist you through any legal proceedings.
Divorce
Obtaining a diorce is quite technical in nature. The legal process begins with lodging an application at the Federal Magistrates Court.
As part of a divorce application, there are a few things that it is necessary to show, including:
- you were married;
- you have been separated for at least 12 months;
- your marriage has broken down and there is no reasonable likelihood that you will get back together; and
- at least one spouse is an Australian resident or citizen or you regard Australia as your permanent home.
The family law system is designed to encourage couples to reconcile their differences and couples may be required to demonstrate that they have attempted mediation or counselling.
In Australia the general rule is that you can only apply for divorce after you have been separated physically from your spouse for a period of at least twelve months. Although twelve months may seem like a long time to wait, it often takes time to resolve other issues related to finances or children.
There are two main exceptions to the requirement of living separate and apart for twelve months. The first exception is where a husband and wife get back together (for up to three months) during that twelve month period for the purpose of reconciling their differences.
A second exception allows some couples, in limited circumstances, to apply for a divorce where they have lived completely separate lives even though they lived under one roof.
Once the divorce proceeding is before the court, the divorce will not necessarily be granted at the first court hearing. This is particularly the case where children are involved. If there are children under 18 years, the court can only grant a divorce if it is satisfied that proper arrangements have been made for their care. In some cases, the court may require parents to produce more information before granting the divorce. In the meantime, it is against the law to remarry until a divorce becomes final.
Children
Although a judge must be satisfied as to child care arrangements before granting a divorce, it is actually not necessary to go to court about the arrangements for your children after separation. Parents may work out the arrangements themselves. The court must, however, agree that these arrangements are satisfactory.
It is important to remember that parenting is a shared responsibility and each parent has responsibility for their children until aged 18. The responsibility does not end if parents separate, divorce or remarry.
Sometimes when parents have reached an agreement regarding their children, they wish to make it legally binding. They can do this by asking the court to make a “consent order”. This consent order is an order of the court and can be enforced through the legal system.
Unfortunately parents cannot always reach an agreement themselves regarding arrangements for their children. In these cases, it is possible to apply to the court for a parenting order. There are four main types of parenting orders, depending upon the kind of relief being requested:
- residence – who the children will live with;
- contact – who the child will have contact with;
- child maintenance – how the child will be financially supported; and
- specific Issues – any other aspect of parental responsibility such as education, holidays, sport, religious or medical matters.
Parenting orders are enforceable. However, in order to change them, it is necessary to bring an application before the court and demonstrate that the change is in the best interests of the child.
Financial Issues
Another major issue relates to finances. Separation and divorce generally make it necessary for couples to divide their property and assets. Debts are also taken into account. When settling financial disputes, courts typically look at each spouse’s direct and indirect financial contributions to the marriage (including gifts and inheritances), as well as any non-financial contributions to the marriage (such as caring for children and homemaking). The court will also consider factors such as standard of living during the marriage, the length of the marriage, future needs (such as health or age considerations), and the future resources of the parties (including financial resources, child care obligations, ability to earn income, child support payments, and even the financial situation of a new partner).
A family law practitioner can assist you through the legal process of divorce and provide advice that is specific to all of your circumstances. Legislative changes are common in this area of the law and it is highly desirable to obtain the services of a competent and experienced family law practitioner.
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