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FAQs
You are able to apply for a divorce in Australia if:
> There is sufficient connection to Australia, which is the case if you or your spouse:
– Regard Australia as your home and intent to live here indefinitely;
– Are Australian citizen; or
– Ordinarily reside in Australia and have done so for the past months.
> You have been married for over two years or have the required counselling certificate;
> You have been separated (including under the same roof) for at least twelve months and there is no reasonable likelihood of reconciliation; and
> If there are children under the age of eighteen, that appropriate arrangements have been made for their care and support.
An application for divorce can be made solely or jointly.
If you have children under the age of eighteen, an advantage of a joint divorce is that neither party (or their lawyer) is required to appear in court. If you apply solely, you or your lawyer will be required to attend court to answer any questions the judicial registrar mays have about the arrangements which have been made for your children.
If there are no children under the age of eighteen, then neither party is required to attend court.
This is a very common concern for mothers and fathers alike. The threat of preventing time with children, relocating with children, or “getting custody” can be used to apply pressure to stay in an unhappy or abusive relationship.
If your children are spending time with you at the moment, and there have been no issues raised about risk of harm in your care, a court would typically consider it to be in your children’s best interests to continue to spend time with you after separation.
If your children are young and you have been the parent caring for them, these arrangements are likely to continue for the time being even if the other parent is pressing for equal time or for the children to live with them.
If you are worried your ex-partner will move away or relocate with your children, you should seek urgent advice before they move, especially if you suspect they could be moving overseas. You may have to file an urgent application with the court seeking orders preventing your ex-partner from relocating with the children.
If there is a concern they may leave the country, you may wish to apply to have the children placed on the airport watch list which will prevent them leaving Australia. Most family lawyers will arrange an urgent appointment if you have these concerns.
This is an issue we see quite frequently. The matrimonial home is sold, parties agree on how they will divide the proceeds of sale, and they put off their divorce because it doesn’t seem urgent. They assume everything has been finalised and that financial ties have been severed.
A few years down the track when they have moved forward in their lives, they file for divorce and receive a letter from a lawyer asking for a formal property settlement.
Yes, this happens. A court order (or binding financial agreement) settles property matters on a final basis. Unless certain defined conditions are met, there is no second bite of the cherry.
This is commonly called the ‘clean break principle’. It is codified in section 81 of the Family Law Act, which says that “the court shall, as far as practicable, make such orders as will finally determine the financial relationship between the parties to the marriage and avoid further proceedings between them”.
If there is no court order (or binding financial agreement), there is nothing to prevent you or your ex-partner coming back for that second bite. This usually involves superannuation which requires a
formalised agreement to split.
Other issues that arise are where one party is retaining the matrimonial home or other property jointly owned by the parties. If you are retaining a property, you will incur stamp duty on that transfer unless you have consent orders or a binding financial agreement. The cost of stamp duty may be lower than the cost of preparing consent orders or a binding financial agreement.
Importantly, if either party is seeking to refinance an existing mortgage over a property, the bank will require the agreement to be formalised by way of consent orders or a binding financial agreement.
No. These days Consent Orders are filed online with the court with no appearances required. If the Court isn’t satisfied with the terms of the orders that have been signed and filed by the parties, they will send a requisition which details the specific issues with the orders so there is an opportunity to amend and refile the orders.
Final parenting orders can be changed with the agreement of both parties, but it is much more difficult where the parties do not agree they should be changed. In that case, the parent wishing to change the final parenting order must prove to the court that there has been a significant change of circumstances since the final orders were agreed.
It is important that you take the time to consider whether the arrangements formalised in a consent orders will work for your children into the future. You may also want to consider including future schooling arrangements in the order, however; its important you seek advice about child support and payment of school fees if private schooling is on the table.
In most cases the answer is yes, but the question is often whether you should. We recommend you obtain advice in Australia before you start the process overseas.
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