The Divorce Guide You Need to Read
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The divorce process is a tough time for most people. Emotions are running high and there are so many aspects to deal with that it can all feel quite overwhelming. If you are going through this process, it will help you considerably to understand how the process works, what you need to consider and where you can get help to guide you through it.
In years gone by, Divorce was a messy process where you had to prove that there was a serious reason (like adultery or criminal behaviour) why you wanted the divorce to occur. This changed in 1975 when the concept of a “No Blame Divorce” was introduced. Now, couples do not need to prove that there was a serious offence going on, just that one or both of the parties want to get divorced.
When applying for a divorce, the Court does not take into account of the causes of marriage breakdown. It only requires that the marriage has broken down irretrievably and that you have been separated for 12 months.
Tell me more about Separation
You don’t need to physically move out of the matrimonial home to be considered separated as this is not always practical for many people. What you need to do is demonstrate that, for practical purposes, you are leading separate lives. For example, if you set up separate bank accounts, sleep in different rooms, and stop going to events as a couple, these actions can all indicate that you are no longer a couple.
How long do I have to be Separated before I can Divorce?
If you are married and you have been separated for at least twelve months, you can apply to the Federal Circuit Court for a divorce.
If you have been married for a period of less than two years, you will normally require a counselling certificate before applying to the Court for a divorce.
What about the Kids and the Home?
If you have children, the Court must be satisfied that you have made proper arrangements for your children’s welfare before granting a divorce. This means that you need to have plans in place for their financial support, education, health and wellbeing and how they will spend time with each parent.
Divorce marks the legal end of your marriage. However, your divorce will not settle the parenting of your children, child support, and the division of the property of your marriage. Where no agreement can be reached between you and your former spouse, these may require separate court proceedings.
Agreement for Division of Property and Assets
The formal separation of property and other assets can be determined either by:
- a “Binding Financial Agreement”, which is an enforceable agreement between yourself and your ex, or
- A Consent Order, which is an agreement that is ratified by the Courts and is legally enforceable.
Both documents have strengths and weaknesses so it is essential that you speak with someone who can review your specific circumstances and provide accurate guidance.
One of the big problems that we see is that people don’t understand their rights and obligations and they end up signing documents without proper guidance. Once documents get signed, it can be difficult to undo the agreements, so our recommendation is that people get advice before things get finalised.
One important factor to note is that there is a 12-month window after divorce to finalise an application for a Property Order. You don’t need to wait until a divorce is finalised to put a Property Order in place so better to move quickly here before assets get bought or sold and things get messy.
While parent’s wishes are considered by Courts, those wishes will always come second to the best interests of the children. Kids are entitled to have a relationship with both parents however, not if there is risk of any sort of physical or psychological harm to them in doing so.
If you can come to an agreement with your ex-partner, a “Parenting Plan” can be drawn up between you and your ex however, a Parenting Plan is not legally enforceable.
A Consent Order can be created that is legally enforceable.
We can assist with the negotiation and preparation of either of these documents.
Normally the Department of Human Services (DHS) assesses the amount required to pay, arranges for the collection and for the payment to the other spouse. This is done by a formula which is applied and depends on the income of you and your spouse, the care arrangements for the children and the estimated cost of raising children. If you are looking to not use the DHS formula, you can create a “Binding Child Support Agreement”.
Spousal Maintenance is where one person makes regular payments to the other to cover the day-to-day living expenses of their ex partner.
Spousal maintenance can either be temporary or permanent depending on circumstances.
To process a divorce Adelaide Family Law charges $520 (plus GST) if there are children involved in the separation, or $420 (plus GST) if there are no children from the marriage. Court filing charges and service fees will also apply. Other charges may apply depending on individual circumstances.
If you would like to understand more about Parenting Plans, Binding Financial Agreements, Consent Orders or any of the other issues involved in separation and divorce, our highly-experienced lawyers will ensure you are treated fairly and equitably during this time.