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Mistakes made in Child Custody Proceedings – Watch Your Behavior
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Women and Family Law
This is the tenth edition of Women and Family Law. It states the law as at April 2014 that applies to married and de facto couples (including same sex de facto couples) after relationship breakdown. This booklet provides a starting point for finding out information about the law. It provides some answers to comm...
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An Invitation to Split!! Binding Financial Agreement / Pre-Nuptial Agreement
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DIVORCE AND SEPARATION
At GMH Legal, we understand that the process of separation and divorce can be one of the most physically and emotionally draining experiences in one’s lifetime. Our expert family lawyers strive to make the process of divorce or separation as pain-free as possible. By providing sound legal advice and progressive solutions, we seek to ensure that former partners do not become hostile and bitter toward each other during their divorce settlement, and rather view their separation as leading to the possibility of newer and healthier relationships between themselves, and with others.
We actively promote alternative methods of resolving disputes surrounding divorce and separation, such as facilitated negotiation and mediation. We firmly believe that these avenues of resolving disputes will result in more mutually satisfactory outcomes for all parties involved. By placing control back into the hands of you and your former partner, with the assistance of an experienced legal professional, you can achieve the sort of tailored outcome you may not get in a court. This will in turn ensure that both you and your former partner, and by extension your children, maintain the maximum amount of financial security possible.
However, there are times when attempts to reach a voluntary settlement cannot be realized and litigation becomes the only realistic option. There is no formal process for separation of de facto couples in Australia, though there is a formal court process for the divorce of married couples. Couples cannot legally apply for divorce until they have been separated for 12 months and proper arrangements have been put in place for the care of any children involved.
Australia has a ‘no fault’ divorce system. This means that you are not required to prove any type of wrongful action on behalf of your former partner in order to obtain a divorce. Rather, all that needs to be proved is that your marriage has irretrievably broken down. We view this as a last resort, though should you require us to represent you in the Family Court or Federal Magistrates Court, we have the skill and expertise necessary to ensure that your financial interests are protected and secure to the greatest degree possible.
Can I Apply For A Divorce?
To apply for a divorce in Australia, 3 requirements must be satisfied:
- There must be a valid marriage
- There must be an irretrievable breakdown of the marriage
- Australian Court must have jurisdiction over the marriage
Please note that the other partner does not have to agree to the divorce.
In relation to the marriage:
- The Court must be satisfied that the parties have a valid marriage.
- A marriage certificate, with a sworn translation into English, if necessary, will suffice.
- If no marriage certificate is available, the Court may require that the parties give some alternate evidence of the marriage prior to granting divorce.
- That the parties have been separated for a period of at least 12 months immediately before filing an application for divorce, and
- That there is no chance of reconciliation between the parties
- Regards Australia as his/her home and intend to live in Australia indefinitely, or
- Is an Australian citizen by birth, descent or by grant of Australian citizenship, or
- Ordinarily lives in Australia and has done so for 12 months immediately before filing for divorce.
In relation to the ground for divorce:
The only ground for divorce is irretrievable breakdown of the marriage, and this is proved by showing:
Please note that it is possible to live together in the same home and still be separated provided the parties can satisfy the Court that they are not living as husband and wife.
If a couple reconciles during the period of separation, the separation does not have to recommence provided any reconciliation(s) do not total more than three months and those three months do not count as part of the period of 12 months of separation
In relation to the jurisdiction of the Court:
The Court only has power to grant a divorce if either party has one of the following attributes:
For more information, please refer to the Family Court’s ‘Divorce’ section.
Arrangements For The Children
The granting of a divorce does not automatically decide issues about parenting arrangements for your children, however in Australia Courts are unlikely to grant a divorce unless it is satisfied that appropriate arrangements for any children are in place.
The Court will want to know:
- Where the children will live
- How they will be financially supported
- Information about the children’s health and education
- How they will maintain a relationship with both of you and other significant people
The parenting arrangements do not need to be formal rather they must show that the children are being appropriately cared and provided for.
Can You Apply For A Divorce Yourself?
Divorce is a relatively simple legal process, provided that all three requirements (valid marriage, irretrievable breakdown of the relationship, and jurisdiction of the court) are met.
Application for divorce can be filed at the Federal Circuit Court by one party (sole application) or together with the other spouse (joint application). Please refer to the Family Court’s ‘Application for Divorce Kit’.
Once a sole application has been filed in Court, if the other party is in Australia a copy of the application must be served on him/her at least 28 days before the hearing date. If the other party is overseas then the application must be served on him/her at least 42 days before the hearing date.
If there is no children involved in the divorce application or the other party does not object to the divorce application, then the presence of the parties in Court is not required.
Australia has a ‘no fault’ divorce system. This means that you are not required to prove any type of wrongful action on behalf of your former partner in order to obtain a divorce. Rather, all that needs to be proved is that your marriage has irretrievably broken down. At GMH Legal we view this as a last resort, though should you require us to represent you in the Family Court or Federal Magistrates Court, we have the skill and expertise necessary to ensure that your financial interests are protected and secure to the greatest degree possible.
We actively promote alternative methods of resolving disputes surrounding divorce and separation, such as facilitated negotiation and mediation. We firmly believe that these avenues of resolving disputes will result in more mutually satisfactory outcomes for all parties involved.
By placing control back into the hands of you and your former partner, with the assistance of an experienced legal professional, you can achieve the sort of tailored outcome you may not get in a court. This will in turn ensure that both you and your former partner, and by extension your children, maintain the maximum amount of financial security possible.
Service Of The Divorce Application And Notification Of The Spouse
Service is the process of delivering or posting court documents to a party after they have been filed, in accordance with the rules of the Court. Services ensures that all parties have received the documents filed with the Court and are aware of the legal proceedings.
Upon filing the application form in Court, a staff member of the Registry will inform the applicant of the hearing date (approximately 8 weeks later) and provide him/her with a sealed copy of the divorce application. That copy must be given (‘served’) on the respondent at least 28 days before the hearing date.
There are only two ways documents can be served on the spouse:
- Posting it the spouse at their last known address
- Arranging another person over 18 years of age to hand it to the spouse. Upon service that person must sear an Affidavit (sworn statement) to that effect that the application was given to the respondent.
Once the Court is satisfied that all the above requirements were met, the Court will grant a decree ‘ninsi’ (Stage 1). A month and a day after the decree was granted the latter will become absolute (Stage 2) and the divorce between the parties will be official.
For more information, please refer to the Family Court’s ‘Service of documents’ section.
Timeframes Of Divorce Applications
It takes approximately 12 to 13 weeks from the filing of a divorce application in Court to the finalization of a divorce decree.
Step by step chronology:
- Filing of application – Hearing will be 8-9 weeks later
- Service on respondent – 28 days before Hearing date (42 days if overseas)
- Hearing – Grant of decree ninsi
- Decree of divorce becomes final – 1 month and 1 day after decree ninsi
Unable To Locate Spouse
Please note that every effort should be made to locate your spouse to serve the application for divorce.
If after all reasonable attempts the applicant cannot serve the divorce application on the spouse, then the applicant must apply to the Court for:
- Substituted service
- Allows the applicant to serve Court documents on a third person who is the Court is satisfied will bring the Court documents to the attention of the spouse
- Dispensation of service
- The applicant will not need to serve the Court documents on the spouse if the Court is satisfied that the applicant has made all reasonable attempts to find his/her spouse.
The court will then order that either your spouse is aware of the divorce hearing by virtue of your efforts to serve the application or that your spouse will be deemed to be aware of the application if you have carried out certain steps to serve it.
For more information, please refer to the Family Court’s ‘Having trouble serving your divorce application’ section.
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