Separation and Divorce

Getting Through Separation and Divorce:

When a relationship breaks down, it can be a difficult and emotional experience. You might be facing uncertainty or have a lot of questions. You might be wondering what to do next or be feeling overwhelmed or unsure about your future.

The Family Law system is designed to settle disputes and resolve issues related to divorce with minimum distress to either party. While the aim is to settle these matters out of court, this is not always possible.

Our role at Lees and Givney is to support you as you make decisions and to guide you through the process of separation and divorce. Each case is different and we will work with you on achieving the best outcome for your situation. Lucille Lees is our Family Law specialist and she will be happy to answer any questions you have.

What Is Separation?

Separation is recognised as the breakdown of a marriage partnership with no reasonable prospects of reconciliation. During separation, you may:

• Separate Without Moving Out

  Continue to live under the same roof. The court will take into account living arrangements, financial arrangements and the division of household responsibilities to determine that separation has occurred.

• Use Joint Bank Accounts

  Continue to share financial arrangements even if not living under the same roof

• Separating Assets Before Divorce

  Make decisions regarding the division of property and the care of children and pets. You do not need to wait for a divorce to make these arrangements.

• Kiss And Make-Up Clause

  Undergo a “kiss and make up” period of up to three months without affecting the date of your separation. This means that you can suspend the separation while you attempt reconciliation. If reconciliation fails, the end date of separation is up to three months later than the original date.

Getting It In Writing

When you separate, you can file an affidavit with the court to advise that you are separated. An affidavit is a written statement by a party or witness that is recognised by the court as a legal document. Your affidavit will contain details of why the relationship has broken down, your current living arrangements and anything else that helps the court determine that your separation is genuine. You may include affidavits from third parties to support your claim, and each party who is involved will receive a copy.

What Is Divorce?

The legal system recognises divorce as:

• The permanent breakdown of a marriage relationship
• A legal end to a valid marriage

To obtain a divorce, the court must be satisfied that you have met the following conditions:

• You need to provide a marriage certificate to prove that your marriage is valid. If your marriage certificate is in another language, you may provide a certified translation.
• You must be an Australian citizen, a permanent resident of Australia, or have lived in Australia for the twelve months prior to your divorce application.
• The court needs to be satisfied that the relationship breakdown is permanent. A period of twelve months’ separation is required before a divorce can be granted.

Children and Divorce

Before the court will grant a divorce, it needs to be satisfied that any children of the marriage are being adequately cared for. If the parties cannot reach an agreement, the court may make provision for the care of children with an interim custody hearing. This arrangement is not permanent, nor does it take into account all the details of the case.

Permanent arrangements for child custody are made at the final hearing. This hearing considers the case in more detail and determines the best care arrangements for the children.

How Soon Can I Divorce?

You can apply for a divorce twelve months or more after the date of your marriage. You will need to be separated for a further twelve months before your divorce can be finalised.

Related topics

Dividing Assets
Who gets the Children?   What are the financial arrangements for child support?
Separation where domestic violence is involved