When Should I Apply for a Divorce?
It is of course a very personal decision as to when you take the step to apply for a divorce.
It can be very positive for you to take the steps you need to take as soon as possible following separation so that you may finalise your affairs with your former partner and move forward with your life, knowing where you stand financially and able to plan more effectively for your future.
You must be separated for a period of 12 months before you may obtain a Divorce Order. The Court must be satisfied that you and your former partner have separated and thereafter lived separately and apart for a continuous period of not less than 12 months. The day on which separation occurred is ignored in the calculation of that 12 month period.
Sometimes after a period of separation, couples decide to try to reconcile and may resume living together. If you have resumed cohabiting together on one occasion but within a period of 3 months after doing so, you again separate and then live separately and apart up to the date of filing an application for divorce, the periods of living separately and apart before and after the period of cohabitation may be aggregated as if they were one continuous period. However, the period of cohabitation cannot be included in the calculation of the total time that you and your former partner have lived separately and apart before filing for divorce.
You may prefer for personal reasons not to apply for divorce once you have been separated for that 12 month period. For other people, it may be important to obtain a divorce as quickly as possible, for example, where they wish to marry their new partner.
You should be aware though that once your divorce becomes final, there is a period of 12 months within which you should endeavour to settle the division of property with your former partner on a final basis. That will mean obtaining a court order or entering into a binding financial agreement within that time.
A court order may be obtained without actually having to go to court if you and your former partner reach agreement and apply through the Registry of the Family Court of Australia for a consent order.
If you cannot obtain a final court order for the division of property or enter into a binding financial agreement within that 12 month period, you should ensure that you initiate a court action in the family courts seeking property orders on a final basis before that period expires. If you do not do this and you wish later to obtain court orders, you will need to first make application to court seeking leave of the court to be permitted to bring an application seeking property orders. However, there is no certainty that you will obtain that leave.
It is for this reason that many people will choose not to apply for a divorce until they have obtained final property orders or are at least close to be in a position to file an application in the Registry signed by both parties seeking that consent orders be issued. In that way, they ensure that that 12 month period does not start running and potentially adding to the pressure of obtaining property orders by agreement with their former partner.
We recommend that you do act as soon as you feel able to settle the property division with your former partner. If you are able to do this on an amicable basis and there is broad agreement in principle, it is possible to finalise the documents and file an application for consent orders at the Court Registry within a few weeks. Provided that the Registrar of the Family Court is satisfied that the orders that you are seeking are within the range of what the law would regard as just and equitable for your circumstances, the orders may actually be issued within a further two to three weeks. Sometimes, it may take longer depending upon the Court’s work load.
It can however take much longer to obtain consent orders if negotiations with your former partner become protracted. If that happens, you will want to consider going to mediation with your former partner rather than becoming bogged down in ongoing correspondence between solicitors.
The sooner then that you begin the process towards obtain court orders or entering into a binding financial agreement with your former partner, the sooner you can fully embrace moving forward with your life.
It is very helpful then for you to obtain early legal advice about what your likely entitlement is for the division of property. Our Brisbane Divorce Lawyers at LGM Family Law are ready to provide you with that advice and to assist you in obtaining a final property settlement with your former partner.
Contact us today, and receive a free 15 minute consultation. Let our Brisbane Divorce Lawyers assist you in moving forward in life.
A Claim for Property Settlement Following the Breakdown of a Relationship
Q: Will I have a claim for property settlement following the breakdown of my relationship?
This is an important question and particularly where you have not been married to your former partner.
We have seen in last week’s blog that the Court may only make an order dividing property where the persons affected are not married, after the breakdown of a de facto relationship.
In order for a relationship to qualify as a de facto relationship at law, not only must the parties not be married or related by family, they must be a couple living together on a genuine domestic basis, having regard to all the circumstances of their relationship.
The term “genuine domestic basis” is not a term of art but is to be given its ordinary meaning.
We outlined for you in our blog last week some of the factors or circumstances that will be of relevance where a court is determining if a de facto relationship existed.
It is not necessary that any particular circumstance is found in order to determine that a relationship is a de facto relationship. The Court may have regard to any matters that seem appropriate to the Court in the circumstances of a particular relationship and may attach what weight (or importance) that the Court considers appropriate to any particular circumstance.
The Family Court of Australia in a decision in 2011 has said that for a de facto relationship to be found to have occurred, there must be the manifestation of “coupledom”, which involves the merger of two lives.
The Court found that a continuing cohabitation in a common residence is not necessary to establish the continuation of a “de facto relationship”, at least where the parties have lived together and have not effected a permanent separation. Nevertheless, the definition of “de facto relationship” suggests that, usually, the parties should have, at some stage, been “living together as a couple on a genuine domestic basis”.
The Court took the view that the fact that the parties have never lived together in a common residence was an indication that they have not “lived together as a couple on a genuine domestic basis”. The Court considered that that indication would be “especially significant where parties have not shared the common burden of maintaining a household”.
The fact that one or both of the people involved may have at some stage intended eventually to marry would not in itself lead to a conclusion that they were involved in a de facto relationship.
The Court considered that there must have been a manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”.
In next week’s blog, we will look at some examples of relationships where the Court has found that a de facto relationship did not exist. Remember, it is very important to know whether or not you are or have been in a de facto relationship. Unless you have been, you will not have a claim for property settlement following the breakdown of the relationship.
Family Lawyers Brisbane
What next?
Contact us for advice whether your relationship is likely to be considered a de facto relationship at law and what is your likely entitlement for the division of the net assets that you and your former partner hold, whether together or in your separate names.
Our experienced team of Family Lawyers Brisbane, can offer you tailored legal advice, to help you move forward in life. Give us a call today to receive a FREE 15-minute consultation.
Are You Really in a De Facto Relationship?
Are you really in a de facto relationship? If you are not truly de facto, you have no claim for family law property settlement.
In Australia today, de facto relationships are on the rise. It can become especially important for you to know whether or not your relationship is considered a de facto relationship at law if you wish to make a claim for property settlement following the breakdown of that relationship.
The Court may only make an order dividing property after the breakdown of a de facto relationship where the Court is satisfied that:
- the period or the total of the periods of that relationship is 2 years; or
- there is a child of the de facto relationship; or
- the party seeking property orders made substantial contributions to the property of either or both of the parties to the relationship or to the welfare of the family and the failure to make an order would result in serious injustice to that party; or
- the relationship is or was registered under a prescribed law of a State or Territory.
What is a de facto relationship?
- Parties must not be married/related by family (although they may be married to other persons)
- They must be a couple living together on a genuine domestic basis
Where one party disputes that there was a de facto relationship with another person, it is often on the basis of a claim by that party that he or she was not a couple with the other person living together on a genuine domestic basis.
If you were before a court, no particular finding determines whether or not that requirement is met but the following factors will be of relevance where a court is determining if a de facto relationship existed:
- Duration of the relationship
- The nature and extent of any common residence
- The existence or otherwise of a sexual relationship
- The degree of financial dependence or interdependence and any arrangements for financial support between the parties
- Ownership, use and acquisition of their property
- The degree of mutual commitment to a shared life
- Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
- Care and support of children
- The reputation and public aspects of the relationship
Brisbane Property Settlement Lawyers
Is it worth your while to make a claim for property settlement or to seek order for division of property?
Even if at law you can say that you were in a de facto relationship with your former partner, it is very important before you ever embark on negotiations with your former partner or legal action seeking orders for division of property that a careful cost/benefit assessment is made for your circumstances. You will want to be clear that the end result (obtaining court orders) will have been worth not only the financial cost but also the emotional toll it may take on you.
In making that assessment, you will want to take into account:
- The likely range of your entitlement for the division of property and how that translates in dollar terms., ie., the aggregate amount that you are likely to receive or retain pursuant to court orders for the division of property
- What amount are you likely to spend in legal fees in pursuing your claim?;
- how long it can take to resolve the matter, particularly where a court action may be involved. If your former partner disputes that a de facto relationship existed, a discrete court hearing to determine whether there was a de facto relationship at law will add considerably to the cost of obtaining final orders for division of property (assuming the court finds in your favour that a de facto relationship existed) and the time taken to obtain those orders. It is not uncommon for it to take some 12 months or more before a matter reaches a trial and there can then be further delay whilst the Courts are congested before final orders are issued.
- The risk (where you do not seek final orders now for the division of property) that your former partner may make a claim in the future seeking final orders and at a time when your net asset position has increased. You may not at this time be able to assess the relative merits of such a future claim and whether or not it would be likely to succeed. However, if you obtain final orders, it is less likely that your former partner would be able to later have those orders varied or set aside.
Still not sure or need help?
Know where you stand. Contact our Brisbane Property Settlement Lawyers today and receive tailored legal advice. Our experienced team can help give you the confidence
Care Arrangements for My Child
The simple answer is “no”. There is no requirement that separated parents obtain a court order addressing care arrangements for your children. You and your former partner may choose to seek that consent orders be issued by the Family Court. However, if relations with your former partner are amicable, then court orders would not seem necessary.
Court orders provide certainty for parties as to when children are in each of their care. On the downside though, orders are not generally as flexible as a parenting plan which may be more easily varied. After orders are issued, if you wish to vary their terms, you may need to seek that the Court makes further orders varying the terms. That can be a time consuming and costly exercise, often with no certainty as to the variation that the Court may be willing to make.
A Parenting Plan on the other hand has the advantage of flexibility. A Plan is any written, signed and dated agreement made without any threat, duress or coercion between parents of a child. It may deal with various matters including:
- The person/s (normally a parent) with whom a child is to live;
- The time that a child will spend with another person/s (normally the other parent);
- How parental responsibility for a child is to be allocated;
- The frequency and manner of communication that a child is to have with another person/s (often the parent who does not at the time have care of the child);
- The manner in which disputes concerning the operation of the plan are to be resolved;
- Any aspect of the care, welfare or development of the child.
A parenting plan is not enforceable but can assist parties to clarify their intentions for the care arrangements for their children.
A parenting plan may exist alongside a parenting order. The order may address significant issues such as the parent with whom the child lives and the time that the child spends with the other parent. The parenting plan may deal with other issues such as how disputes are to be resolved although that issue may also be addressed in a parenting order.
Do you need to get a court parenting order for care arrangements for the children?
You should be aware though that parenting orders will be subject to later parenting plans (unless the plans were made under threat, duress or co-ercion).
Our child custody lawyers at LGM Family Law understand that working out parenting arrangements for your children after a separation is often very stressful for a parent. We are able to assist you in determining whether a parenting order or Court order will be in the best interests of your child and preparing terms that will suit your family’s circumstances. Contact us today for a free initial telephone consultation and have the peace of mind that you deserve.
Process for Divorce in Australia and the steps to follow
The Process for Divorce in Australia needs to observed in order to avoid unnecessary delays and costs. Our divorce lawyers North Brisbane and Brisbane divorce lawyers provide a guide to the process.
In Australia, we have a “no fault” divorce system. Unlike other countries, in the process for divorce, you do not have to prove any wrong doing on the part of your husband or wife to be able to file for Divorce.
The main requirement in Australia, is that the marriage has broken down irretrievably, that it is not reasonably likely that the parties will resume cohabitation. To demonstrate that there is no likelihood of reconciling, you must live separately and apart from the other party for a period of at least 12 months.
There are a few different variations of this, such as parties who live separately and apart, but “under the one roof”, and parties who reconcile for a short period before again separating, but who have lived separately and apart for a total period of more than 12 months. It’s important to remember though, that if you get back together for more than 3 months and then separate again, the 12 month separation period will start again.
Contact our divorce lawyers North Brisbane if you would like a free 15 minute phone consultation regards your divorce and enquire about our fixed fee divorce.
You are welcome also to read on for more information about the process for divorce in Australia…..
Apart from living separately and apart for a period of at least 12 months, the process for divorce in Australia requires that at least one of the parties to the marriage must be:-
- An Australian citizen; or
- Ordinarily resident in Australia, and has been so resident for at least one year prior to filing the Application; or
- Domiciled in Australia.
The next question then, is whether you and your ex are going to file the Application together, i.e. a “joint application”, or if just one of you is filing the Application.
If you are filing for divorce, and the application is not a joint application, then you must serve the Application on the other party. The Court website provides some useful tips on serving a Divorce Application here.
Once you have filed the Application, the Court will set down a date.
If the Divorce Application was a joint application, or if you have served the other party with the documents and they have signed the Acknowledgment of Service (Divorce) and this document has been filed, neither of you are required to attend at Court for the divorce hearing.
Once the Registrar makes the Order, your divorce becomes effective 1 month after the Order was made.
If you need assistance with the process for divorce or if you would like us to handle the Application for Divorce for you, give our Divorce Lawyers Brisbane Northside team a call and we will help you what can otherwise be a stressful time.
Contact our Divorce Lawyers Brisbane Northside or divorce lawyers Brisbane today to receive a free 15 minute phone consultation and information about our fixed fee divorce.
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