The first thing that you need to know about divorce, is that it is a separate legal process than deciding how to divide your assets or share care of your children. Often property and children’s issues are sorted between parties prior to them even being eligible to apply for a divorce but not always. Where divorce does come first though, it starts a clock ticking – providing a time limit as to how long you have to issue court proceedings for property matters (if court is required that is). We will discuss this further below.
To obtain a divorce, you must have been separated from your partner for at least 12 months prior to making an application for divorce. If you have been married for less than two years, or if you have been separated for less than 12 months, you may need to complete marriage counselling before your application can be considered by a Court.
The process of applying for a divorce is usually completed online through the Federal Circuit Court of Australia. You will need to provide your lawyer with a copy of your marriage certificate, and if it is in a foreign language, an English translation of it also.
Where there are children involved…
If you have children under the age of 18, you will need to ensure that proper arrangements have been made between you and your ex-partner about shared care of the children. At Bersee Legal, we recommend this agreement to be formalised in either a parenting plan (non-legally binding document), or a Court order (legally binding document).
If the parties have reached an agreement regarding care of their children, it is preferable to make a joint application for divorce; as this will mean the parties are not required to attend a hearing in Adelaide (in person or by telephone). If one party is not cooperative, the application can be made by one party alone, however they may be required to attend the hearing and explain the current arrangements for children. The other party cannot refuse a divorce application without proper cause – which is difficult to demonstrate.
Where there is property involved…
You also need to consider whether jointly owned property will need to be divided between you and how this may occur. An application to the Court for property orders must be commenced within 12 months of your divorce becoming final. You can apply for a time extension in certain circumstances however you shouldn’t rely on this being granted. Instead, we recommend that you start trying to negotiate a property split between you and your ex-partner prior to being eligible to apply for a divorce so that you maximize your opportunities to resolve things without the need for Court intervention. .
After a divorce, what else do I need to consider…
Did you know that divorce can affect the validity of your will? This is probably a good thing as your priorities post separation are likely to change significantly. Ensure that post-separation and divorce you update your will, and any succession planning documents such as Advance Care Directives or Enduring Powers of Attorney. You should also consider who is the beneficiary of your superannuation monies – as this too may have changed.
If you have questions about divorce, you can contact one of our helpful staff to discuss what might be right for you.
Brittany graduated from Flinders University with a Bachelor of Laws and Legal Practice and a Bachelor of Commerce (Accounting). She has been admitted to the Supreme Court of South Australia and the High Court of Australia.
Brittany specialises in the areas of family law, divorce, personal injury claims, wills and estates and criminal law. Brittany is a member of the general panel of the Legal Services Commission of South Australia.
(08) 8725 6969
Legal Secretary: Ms Karen Howard