What Do I Do When I File For Divorce?

WHAT TO DO WHEN YOU DIVORCE?

46,498 divorces granted in Australia in 2014

(Statistic obtained from the Australian Bureau of Statistics, 3310.0 – Marriages and Divorces, Australia 2014)

DID YOU KNOW?

Almost 1 out of 3 marriages would result in divorce and the median duration from marriage to divorce is about 12 years.

The statistic may sound depressing but the reality is that you or one of your friends may one day need to face the prospect of divorce and it is helpful to equip yourself with some knowledge about that process.

HOW TO APPLY FOR DIVORCE?

In Australia, we have adopted the principle of no-fault divorce. This means that the court does not require to consider which partner was at fault in a marriage breakdown. In order to apply for divorce, you will only need to prove an irretrievable breakdown of the relationship which is demonstrated by 12 months of separation.

Once you have been separated for more than 12 months, you can apply for a divorce through the Family Court by filing an Application for Divorce (Form 3). You do not need the consent of your partner to apply for divorce. Generally, you are not required to physically attend court.

You may apply for a divorce in Australia even if you were married overseas, as long as you or your partner meets certain requirements.

It is important to understand that divorce application does not resolve children and financial matters.

WHAT WILL HAPPEN TO OUR ASSETS?

First of all, there is NO automatic split of assets on a 50/50 basis and each case is different.

If you and your partner cannot reach an agreement regarding property division, the decision will have to be made by the court. In doing so, the court will adopt a 4 steps process:

Step 1: Identify and determine the net value of all properties
Step 2: Assess the contributions (including financial contribution, non-financial contribution and contributions to the welfare of the family) made by each partner and divide the assets according to the contributions

Step 3: Identify the respective needs of the partners by taking into account factors such as age, health, income, earning capacity and number of dependents and adjust the assets division accordingly

Step 4: Determine whether the resulting division is “just and equitable” and determine the final assets division

Whilst you cannot make an application for divorce until 12 months after separation, you do not need to wait for any period before you are entitled to have the assets divided between you and your partner.

WHAT ABOUT OUR CHILDREN?

If you and your partner cannot reach an agreement about your children, similarly, the decision will have to be made by the court.

In Australia, the term “child custody” is no longer used. Instead, it is referred to as parental responsibility. In deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration. In deciding what is in the best interests of the child, the primary considerations are the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm.

In addition, the Court will also consider other factors including views expressed by the child, the child’s relationship with other persons (e.g. grandparents and siblings), the likely effect of any changes in the child’s circumstances, the child’s background, the child’s attitude and any family violence.

The types of parenting orders you may seek from the court include:

· who a child live with;

· who a child will spend time with;

· who a child will communicate with;

· whether you can take the child to overseas holiday; or

· who has responsibility for major decision about the child.

SO WHAT SHOULD I DO WHEN DIVORCE IS IMMINENT?

It is undoubtedly a very stressful experience for anyone to have to go through separation of relationship. The first thing you should do is to calm down and don’t allow your emotions to get in the way of rational thinking. You need to understand that most family law disputes can be resolved amicably without determination by the court. Once you are ready, you should, at the earliest opportunity, obtain legal and financial advice about your rights and financial standings as a result of the separation.

About the Writer

Kelvin Tang

Kelvin has over 14 years’ experience practising law in Western Australia. He is the founder and Principal Partner of Tang Law based in Perth, Western Australia. Kelvin is a Registered Migration Agent (MARN: 1386452) and has extensive experience in providing family law advice to clients, making divorce applications and applying for Consent Order. Kelvin is able to offer his clients clear and practical advice in relation to children’s disputes, property settlements between married and de-facto couples, spousal maintenance and child support.

Perth Office

What To Do When You Divorce?