Separation and Divorce for Married Couples

If your enquiry relates to general Family Law issues and/or separating from a de facto relationship, then please refer to the notes at the base of this paper.

If you and your partner are separated from each other and you were originally Married, you will eventually need to apply for a divorce.

A divorce is granted from the Australian Family Court and cannot be applied for until the couple have been separated for One (1) year and a day. If the couple were married for less than Two (2) years (Including the separation period) then the couple must at least attempt marriage counselling before the divorce application can be filed.

The divorce application can be completed by one of the couples individually or by the couple together as a joint application.

If there are children who are either born to the marriage or ordinary members of the couple’s household (for example children born to earlier relationships) then:

  • the divorce application must set out what arrangements are currently in place for the care and welfare of those children because the divorce order will not be granted if the court is not satisfied that those arrangements are appropriate;
  • the divorce application itself steps out the information, which is required and in short, it covers the time which the child/children spend with each parent, schooling, health and financial support;
  • if the divorce application is being made by one member of the couple alone, then that person will be required to attend personally before the court on the day of the hearing;
  • if however the application is being made jointly between each of the parents then the requirement for personal attendance is removed.

The divorce order, once made, initially only functions as a provisional order and in fact only becomes fully operative (that is taking full legal affect) after a period of one month has expired. The one month delay is arguably antiquated but is there to allow the couple a grace period within which they can change their mind and cancel the divorce if they want to.

Once the divorce order takes effect, some important legal consequences activate which in summary are:

  • Either member of the couple are freed up to marry another person under Australian Law if they choose to do so.
  • If either spouse is named as a beneficiary under the will of the other spouse, the granting of the divorce order disqualifies them from that beneficial entitlement , and
  • In some areas under superannuation and general deceased estate law, the obtaining of a divorce order closes off rights that might otherwise have been available to make a claim against either a superannuation fund or an estate.

Another important feature of a divorce order is that it activates a countdown of a limitation period for the commencement of property division proceedings. The time limit is twelve (12) months and if formal court proceedings for property settlement have not been commenced or the full property division exercise not otherwise fully agreed and properly documented by the expiration of this twelve (12) month period, the result will be that the assets effectively stand where they fall because the doors to the family court to commence a case for an alternate division of the assets will now be closed. Importantly, the limitation period is not an absolute bar because the court can grant leave (permission) to commence proceedings out of time but this leave will not be granted if the court cannot be convinced that there is a reasonable excuse for the delay and financial hardship will be suffered if leave is refused.

Note: If your enquiry relates to:

  • Division of assets [property settlement];
  • Division of care arrangements for children;
  • Periodic financial support for yourself or your children;
  • Updating your Will or Superannuation Death Benefit Nominations

then please feel free to contact our office from where we can provide you with more information concerning these topics.

If your enquiry relates to separation from a de facto relationship, then please feel free to view the article on our website entitled separation for persons in de facto relationships.