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.