Divorce

OVERVIEW

Divorce is only one aspect of family law. It is the process of finalising a marriage and is quite separate from sorting out future parenting arrangements and dividing up property.

OUR EXPERTISE AND APPROACH

We encourage you to apply for your own divorce, as this is an area where lawyers are not generally required. We will advise you if there are particular traps in your case.

Hidden First Field

Divorce

You cannot obtain a divorce unless you have been separated for more than 12 months. The only ground for applying for a divorce is the breakdown of the marriage. Proof of this is that you have been separated for 12 months.

If you have lived under the one roof with your spouse during part or all of your 12 months separation, you will need affidavits to prove your separation.

If your marriage is less than two years in duration, it is a requirement that you and your spouse attend marriage counselling prior to filing for divorce. The two year period is calculated from the date of the marriage to the date of the divorce application. If you do not attend counselling, you will need to seek leave of the Court before you are able to file your divorce application. Leave is usually only granted in circumstances where, for instance, you do not know where your spouse is or your spouse refuses to attend counselling.

As divorce imposes a time limit on settling property matters and applying for spousal maintenance, we recommend that you not apply for divorce until your property and/or spousal maintenance matters have been finalised.

You can finalise your property settlement and/or spousal maintenance matters at any time before you obtain a divorce.

An Application for Divorce can be filed by one party or by both parties. If an application is made by one party, it must be served on the other party. Proof of service must be provided to the Court.

In most cases an Application for Divorce will be listed for hearing 2-3 months after it has been filed, and the divorce will become final one month and one day after the hearing.

Many of our clients choose to apply for their own divorces. We encourage you to do that, based on our advice about whether you meet the requirements, whether you should apply for property and spousal maintenance orders first, and any other possible traps. If you want us to apply for the divorce, we can, of course, do that. It is your choice how much we are involved.

Divorce is only one aspect of separation for married couples. For some of our clients, it is the most important part, and for others it is less important. Regardless of how important it is to you and how much help you need with it, we can give you essential advice about timing, the process, and related matters.

Religious Divorce

For some of our clients, separation and divorce have religious implications.

A Jewish gett, a Sharia talaq and a Catholic annulment are of no effect in Australian civil law.  A divorce under the Family Law Act will also be necessary.

Jewish Gett

Under Jewish law, a civil divorce is not recognised without a gett.  A gett is generally drawn up by a Beth Din (Rabbinical council).  A marriage is dissolved by the husband granting a gett voluntarily and the wife voluntarily receiving it.  Without this, the religious divorce is not recognised.

The Family Court or Federal Circuit Court may try to phrase the orders to assist a wife to obtain a gett from a husband who may otherwise be reluctant to give it.

Sharia Talaq

The aim of Islamic law is to establish a healthy family unit through marriage.  However, if this fails then divorce is permitted. The husband must pronounce ‘talaq’ for the divorce to be effected.  The general principle is that when the husband pronounces ‘talaq’ three times divorce is effected.  A wife who seeks a divorce will usually need the consent of her husband.

If a wife has a genuine objection she may also obtain a divorce without the husband’s consent.  Reasons to ask for a divorce include a wife’s disliking of a husband’s treatment of her or him having failed to meet his responsibilities of the marriage.   Divorce can be requested by a wife and is granted by a husband upon the wife paying a husband a sum of money. The amount is limited to the amount provided by a husband as a gift to a wife during the marriage.

Catholic Annulment

An annulment, or decree of nullity, is an official declaration made by the church.  It declares that some of the necessary elements of a marriage were missing at the time of the wedding.  A decree of nullity declares the marriage as recognised by the Catholic Church did not exist as it was invalid.  The Catholic Church requires that a divorce under the Family Law Act is obtained before a marriage is annulled.

Your Will

If you have a Will, we recommend that you make a new Will reflecting the fact that you have separated. Your current Will remains valid unless you sign a document revoking it. If you do not have a Will, we recommend that you obtain one immediately. The law of intestacy mean that if you were to die without a Will, your spouse is entitled to a share of your assets.

If you divorce, any provisions relating to your spouse become invalid. In some circumstances you may not want this to occur. You need to ask your wills & estates lawyer to draft a will in terms which ensure it is still valid.

If you remarry, your will automatically becomes invalid – unless your will is made in contemplation of marriage.