One of the first things many people say when I ask them, why they have come to see me, is that they “want a divorce”.
To a lawyer, the word “divorce” has a very specific legal meaning. It means the formal ending of a marriage.
What confuses many people is that they associate this word “divorce” with all the other things that need to be done when couples separate such as dividing up their property and working out the parenting arrangements for their children.
This becomes quickly apparent after asking the first question…, when did you and your partner separate?
Unlike a divorce, property and children’s matters can be dealt with immediately.
To obtain a formal end to your marriage, the court needs to be satisfied of certain things.
Prior to the introduction of the current Family Law Act 40 years ago, to get a divorce a party had to show fault. This led to some interesting outcomes including the growth of the private investigation industry where a private I, was engaged by one party to investigate the other in the hope to find some indiscretion.
Under the current system there is no account taken as to why the marriage has broken down, you only need to show that it has broken down irretrievably. In other words there is no need to show that one party is at fault.
To achieve this you must:
- Have lived separately and apart for a period of at least 12 months.
- There is no reasonable likelihood of reconciling.
- And where there are children, that in all the circumstances of your situation, proper arrangements have been put in place for the children’s care and welfare.
In some cases you may have lived separately even though you have remained living in the same home. If this is what is happening to you, there will need to be some further proof to show that you are actually separated during this time.
Some examples of what you need to show include: telling family and friends that you have separated, no longer socialising as a couple, separating your bank accounts, only preparing meals for yourself or similar such things.
Funnily enough, sleeping together once or twice does not necessarily mean you have resumed your marriage relationship and does not mean you have to start the clock ticking on the 12 month period of separation again.
In certain circumstances you can even resume your relationship and separate again without having to start the calculation of the 12 month period from the beginning of your first separation, so long as there is only one resumption of the relationship and that resumption period was no more than three months.
It is also very important to be aware that a divorce only ends your marriage, it does not finalise other aspects, like property settlements or parenting arrangements that you may wish to put in place for your children.
It is also important to note that:
- The only reason you must get a divorce is if you wish to remarry.
- Once divorced, time limits apply. You have 12 months after your divorce to commence property proceedings or make a claim for spousal maintenance. If you have not resolved these issues and don’t commence proceedings within the 12 month period you will need to obtain the court’s permission to commence proceedings out of time.
Obtaining the court’s permission cannot be taken for granted.
Finally once you have been divorced it is essential that you review your Will as usually it would have you will former spouse as an executor and main beneficiary. Needless to say you wouldn’t want that to continue.
Also you should contact your superannuation fund and change the nominated beneficiary there.
Obtaining a divorce in the formal sense is 99% of the time a very straightforward process. It can be a bit sad and emotional, it is certainly a cold process and oftentimes clients come out of court and go “whoopee” or shed a tear.