When a couple separates, there’s a common belief that divorce is the first step. Generally speaking, a couple has a lot to get through before getting divorced.
Divorce is in fact usually the final step in the family law process. The result being the legal termination of the marriage, and an emergence into the world as an individual.
Separation, Divorce & De Facto
Separation is the emotional and physical “splitting up” of a couple and can occur without getting divorced. It’s usually the first practical step after a break up, where one or both parties move out of the home, or otherwise begin living separate lives under the same roof.
Divorce is the formal and legal termination of a registered marriage. Once a divorce has been granted, parties only have one year to make an application to the Court for a property settlement. The main practical benefit of divorce, is that either party can remarry once the Divorce Order becomes effective.
A de facto separation does not require a formal termination, however there is a time limit of two years for the parties to make an application to the Court for a property settlement from the date of separation. This means that for de facto couples there is more time pressure in relation to the negotiation period for property settlement than that of a marriage if the parties require Court intervention.
Managing your Property and Parenting settlement during Separation and Divorce
We generally suggest that separated parties resolve their property settlement prior to filing for divorce. Property and divorce are essentially dealt with separately. The separation period is already stressful enough for those involved, and obtaining a divorce imposes a somewhat unnecessary time pressure of 12 months for the parties who have yet to finalised their property settlement.
A couple needs to be separated for 12 months before applying for a divorce, however separation can take as long as is needed. During the separation period a couple will usually attempt to settle any outstanding property and parenting issues which may arise out of the separation.
A property settlement occurs when the parties negotiate the division of their property. This may include decisions such as, ‘is somebody keeping the home?’ or ‘is it to be sold?’, ‘does the car registration need to be transferred?’ and ‘how do we divide the furniture and contents of the home?’. These negotiations can take anywhere between six months to many years, depending on the cooperation of the parties and the complexity of the property involved. Parties should answer these questions before filing for divorce, or before two years after separation for de facto couples.
It is helpful to determine parenting arrangements during separation as well, however there is no time limit for parenting to be finalised in the event parties require assistance from the Court.
How do I apply for a Divorce?
When the time comes to divorce, applying for a divorce is a relatively easy and quick process. The application can be done online through the Federal Circuit Court’s website.
Do I have to attend Court for my Divorce?
Where there are no children under the age of 18, or where the Application for Divorce is filed jointly, there is no requirement for either party to attend Court. If there are children under 18 and the application is a sole application, only filed by one party, then the person applying for the divorce will need to attend the Court on the date provided.
Timeline of Divorce
Date of Separation – the day a person expresses their intention to end the relationship.
Separation Period – where the parties negotiate the division of their property.
Application for Divorce – 12 months after separation – either party can apply for divorce.
Divorce Hearing – the day the Court hears your application and grants the divorce, this is generally four to six weeks after the application for divorce is filed.
Officially Divorced – A divorce will become effective one month and one day after the divorce is granted.
If you would like further advice on separation, property settlement, parenting arrangements, or divorce please call Family Law Matters on 02 9523 3007 or complete the contact form to arrange an initial consultation with one of our Solicitors.