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Divorce in Australia: Who Gets What?

Written by Leanne Abela
28 August 2020

If you are in the process of separating from your partner or are thinking about separating, it is important to be fully informed about your rights and entitlements from the start. This includes having a good understanding about the Divorce process in Australia and in what circumstances you can make an application to the Court for a Divorce. 

A Common Misconception

Many people are often confused about the term “Divorce.” Some people believe that a Divorce is the same as separating your financial assets from your ex-partner, however this is not the case. If you are seeking a division of your financial assets, then you are seeking what is called a “Property Settlement.” On the contrary, a Divorce marks the end of a relationship which is proven by a Divorce Order issued to you by the Court.

Although both processes are different, it is still possible to sort your Divorce and Property Settlement simultaneously. In fact once a Divorce Order is made, you have twelve (12) months to make an application to the Court for a Property Settlement, after which time you will be required to seek permission from the Court.

Grounds for a Divorce 

You do not need to provide a reason as to why your marriage ended. The Court only needs to be satisfied that your marriage has broken down irretrievably, that you have lived separately and apart from your ex-partner, either physically or under the same roof, for a continuous period of not less than twelve (12) months at the time of filing the Divorce Application and that there is no reasonable likelihood of resuming cohabitation.

Satisfying a Connection with Australia

To be able to apply for a Divorce in Australia, either you or your ex-partner will need to meet at least one of following criteria:

  • You regard Australia as your home and intend to live in Australia indefinitely; or
  • You are an Australian citizen by birth or descent; or
  • You are an Australian citizen by grant of Australian citizenship; or
  • You ordinarily live in Australia and have done so for 12 months immediately before applying for a Divorce

What if I dispute my ex-partner’s Application for Divorce?

There are limited circumstances where a Court will refuse a Divorce Application, particularly as only one partner needs to consider that the relationship has ended. However if you dispute any facts in the Divorce Application, it is best to seek legal advice as you will be required to file a Response document with the Court and there are specific time requirements to do so.

What if I Married Overseas?

To apply for a Divorce, you will need to provide proof that you are married. Therefore, ensure that you have a copy of your marriage certificate ready to be filed with the Court at the time of filing your application. You can obtain a copy from the Registry of Births, Deaths and Marriages.

If you and your ex-partner married overseas, you will still be required to provide your Marriage Certificate. If the Marriage Certificate is in a foreign language, you will need to provide an English version of your Marriage Certificate by way of interpretation.   

Children of the Marriage

If there are children of the Marriage, which includes children treated as family members at separation, then the Court will need to be satisfied that proper arrangements have been made for the children. That includes details about their spend time and communication with the parents and details about the financial support provided, the children’s health needs and their education.

How Long Does a Divorce Take?

Once your application for a Divorce has been filed with the Court, it will take a couple of months for your matter to be listed for a Court Hearing depending on whether you are seeking a joint application or sole application and whether your ex-partner is residing in Australia or overseas.

If you have satisfied all requirements by the Court, then the Court will grant your Divorce on the day of the Court Hearing, however your Divorce only comes into effect one (1) month and one (1) day after this date.

The process may take longer if there are issues with serving your ex-partner with the Divorce Application. Therefore, it is recommended that you obtain the services of a professional network process server in cases, particularly in circumstances where you believe your partner will avoid service.

Can I remarry?

You may be in a situation where you are planning to remarry but you have not settled your Divorce with your ex-partner. It is important to understand that you cannot remarry until your Divorce Order comes into effect. In other words, you can only remarry after one month and one day from the date that your Divorce has been granted.

When can you finalise your property settlement?

To obtain a divorce in Australia couples need to be separated for a total of 12 months either under the same roof for part or all of that time or physically separated.  However, many couples are unaware that they can finalise their property settlement dividing financial matters between them prior to obtaining a divorce.  The separation of their finances and property can occur immediately and a divorce can come later.

How can you legally divide up your property after separation?

  1. Agreeing on your division and finalising it in consent orders (filed with the court);
  2. Agreeing on your division and finalising the agreement in a binding financial agreement (not filed in court); or
  3. Applying to Court for property orders when no agreement can be reached.

Is it necessary to obtain legal documentation?

Yes, you can agree on who gets what between you and your former partner. However, for this agreement to be binding and enforceable it needs to then be drawn up into either a binding financial agreement or consent orders.

If you can your former partner simply agree on an agreement and do not formalise the agreement your agreement is not binding. There is no certainty for you and no clean break. Either of you can make a claim against the other in the future.

There are considerable risks involved if you choose not to document the agreement reached between you and your former spouse

The asset pool might change and post separation assets you have worked hard for may be up for grabs by your former partner

The property pool meaning your assets, liabilities and superannuation will be assessed at the time your matter is listed for trial and not at the date of separation.  This means that if you don’t finalise your property settlement and you accumulate more wealth, that wealth might be up for grabs.  This means that if either you or your former spouse has accumulated significant assets post separation either by way of business opportunities, inheritance, lottery wins or simply by good money management and investment, those assets will be available for division with the other party.  The fact that property was acquired after separation will not necessarily save it from being considered by the Court as matrimonial property and therefore “up for grabs” by your former partner.

Someone may re-partner

If either you or your former spouse re-partner or re-marry and that relationship is considered to be a de facto relationship (which means that you have been living together on a genuine domestic basis for more than two years) then either your former partner’s new partner, or your new partner might be entitled to any asset held by you (and vice versa).  Not only does this add complexity to your case, but it increases issues that require attention in any future negotiations which can cost you more money and more time.

A party may die

When property settlements are left open for long periods of time, there is always a possibility that either you or your former spouse may die before your property settlement is finalised.  This means that the assets of the party who has passed away will be distributed in accordance with their Will. Also of importance is that any asset that is owned as joint tenants will be automatically transferred to the other joint tenant.  This is regardless of what is stated in a Will. So if you are both on the house title and one passes away without a Family Law settlement, the other party will automatically inherit the house.

How are binding financial agreements different from consent orders?

A binding financial agreement is a specific written agreement, which you can enter into to divide property or define financial support. The requirements for a binding financial agreement are set out under the Family Law Act 1975.  They include the following:

  1. Each party needs a separate independent lawyer.
  2. Full disclosure of assets and liabilities needs to be provided.
  3. Each lawyer will need to give independent advice to their client on the advantages and disadvantages of the agreement; and
  4. Each lawyer certifies on the agreement that they have done so.

For consent orders, there is no need for your partner to obtain legal advice (although it is recommended). There is a filing fee for the application for consent orders. Once filed, the Court maintains oversight when the draft orders are filed and needs to be satisfied that the proposed orders are “just and equitable” before making the orders.  Access the court documents here.

Consent orders can be a better option in some cases, as they are easier to enforce if one party fails to do something under the agreement (for example, transfer assets to the partner).

Who gets what?

As to “who gets what” following a separation this depends upon a number of factors including:

  • How long the parties have lived together;
  • Whether there are any children and if so, the ages of the children;
  • The income and income earning ability of each of the parties;
  • Parties’ health;
  • The size of the asset pool to be divided; and
  • The contributions from external sources such as inheritances, compensation, gifts and loans of money.

How can we help?

If you and your former partner have reached an agreement and you would like assistance on:

  1. whether your agreement is fair and reasonable; and/or
  2. finalising your agreement with legally binding documents protecting you against the many pitfalls

If you would like advice on your Family Law matter and want to “know where you stand” please contact one of our lawyers at Pearsons Lawyers for your free consultation on 1300 699 688.

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