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Separation & Divorce
The breakdown of the family unit is a difficult and stressful time for individuals and families. The finalisation of this separation often occurs when the Family Court grants a Divorce. We understand that this process is overwhelming and sometimes confusing, that is why we take the time to explain to you the way family law works.
A Divorce is the application that is made to the Court to end a marriage (known as dissolution of marriage). A Divorce does not affect a property division nor make arrangements for the children of the marriage. These two issues are separate legal matters. Please see Property Settlement and Children’s matters for further information regarding each of these areas.
Can I get Divorced?
To apply for a Divorce, you must:
- have been separated for at least 12 months. To calculate this time period, you add the periods of separation before and after any reconciliation (as long as it was no longer than 3 months).
- Be an Australian Citizen or live in Australia and regard it as your permanent home or have ordinarily resided in Australia for the 12 months prior to separation
Same-sex married couples are treated the same as other married couples and can apply for divorce if the marriage is recognised in Australia and you meet the requirements for divorce under the Family Law Act 1975.
Separation generally means living apart from each other. This can be unilaterally initiated by either spouse or agreed jointly.
It is important that if it is unilateral decision to separate is made by only one spouse, that a record of when they indicated their intention to separate is kept.
Yes – You can be separated but living under the same roof, however, you will need to satisfy the Court that you are truly separated.
This will mean providing the Court with evidence from yourself, the other party and frequently a third neutral party that although you are living together under the same roof you are in fact separated.
No, Australia has a “No-Fault” Divorce system. This means neither party has to show or explain why the relationship has broken down.
As long as you have been separated for 1 2months one party (or both) can apply for a Divorce
If you have been married for less than two years, you will need to attend counselling with a family counsellor and file a counselling certificate or get permission from the court to apply for a divorce without the certificate.
Yes, you can. As long as you meet the above requirements and your foreign marriage is recognised in Australia (in accordance with Part VA of the Marriage Act 1961). When applying you must provide the Court with a copy of your marriage certificate.
If your marriage certificate is not in English, you need to upload an English translation of the marriage certificate, together with an affidavit translation of marriage certificate from a certified translator.
Yes – Divorces must be served in person, unless an Order for substituted service is made by a court allowing service via email.
At Amanda Little & Associates we arrange for our process servers to attend to service of your divorce on the other party. The application be served at any premises including home, work or even the gym!
We also then attend to having them prepare and we will file the required Affidavit of Service.
If we are unable to serve the other party as they cannot be located, we can then make an application to the curt for substituted service – which can include service via email or even social media!
At Amanda Little & Associates our lawyers are Accredited Specialists in family law who are available to assist you in obtaining a Divorce.
Divorce can affect a person’s legal status in Australia – however each person’s case is different and advice must be sought.
It is important before proceeding with a Divorce application that immigration advice is sought from an immigration lawyer.
Other important Information regarding obtaining a Divorce
If you have children under the age of 18 years the court will only grant your Divorce if it is satisfied that there are proper arrangements in place for your children. We generally advise our clients not to apply for a Divorce until children’s arrangements are agreed and formalised.
It is also important to know that there is 12-month statutory limitation period that commences from the date of Divorce to undertake a property settlement.
Cost of getting Divorced
The Court currently charges a filing fee of $940.00; this is paid directly to the Court at the time of making an application.
Legal fees associated with obtaining a Divorce depend on many factors including; if the Divorce is joint, if you resided under the same roof, or if it is a single application requiring personal service and Court attendance.
At ALA Law (formally Amanda Little and Associates) we can assist you to obtain your Divorce and with our fixed-rate fees, you know what your legal costs are upfront.
Does divorce void a will?
A divorce will affect or even void a will in the circumstances set out below.
s.13 of the Succession Act 2006 (NSW) sets out that a Divorce will revoke:
- Any gift made to the spouse in any current and valid will and
- Any appointment as Executor, Trustee or guardian under the will.
However, it will not revoke:
- the appointment of the testator’s former spouse as trustee of property left by the will on trust for beneficiaries that include the former spouse’s children, or
- the grant of a power of appointment exercisable by the testator’s former spouse exclusively in favour of the children of whom both the testator and the former spouse are the parents.
It is important that when drafting your estate planning documents, that if you do not wish for your will to be revoked on Divorce that a clause is included to ensure this does not happen. It is not uncommon for our clients to include such a clause in contemplation of Divorce to ensure that their wishes are not revoked.