I am separating from my partner!

Please be aware that the following information may specifically relate to South Australian law and may be of no assistance to those in interstate jurisdictions. This information is supplied by the Riverland Community Legal Service however Riverland Community Legal Service takes no responsibility for its contents. Every attempt has been made to ensure the accuracy and currency of this information at time of publication however individuals must take care to ensure that this information has not become out of date. Persons with legal disputes are urged to seek qualified legal advice wherever available.
 

When can I get divorced?

To divorce your partner you will need to demonstrate that:

  • There has been an irretrievable breakdown of marriage (evidenced by at least 12 months continuous separation)
  • There is no likelihood of reconciliation
  • That one of the parties is connected to Australia (either they are an Australian citizen, are a permanent resident of Australia, or have been living in Australia for the last 12 months and ordinarily reside in Australia)

Additionally, if you have been married for less than two years you will need to provide a counsellor’s certificate demonstrating that you and your partner have considered reconciliation, or you will need to otherwise satisfy the court as to why you cannot obtain such a certificate.

 

What if my partner doesn’t want a divorce?

Divorce applications can be filed jointly (i.e. both husband and wife apply together), or by only one of the parties. It does not matter if one party opposes the divorce application.

 

What does “separation” mean?

Separation usually means that you have been living in separate locations for the requisite period. In some circumstances you can be legally separated despite still living in the same home. If this is the case you will need to prove that you have been living independently of one another. You will ordinarily need to show that:

  • You have been living separate domestic lives
  • There is no sexual relationship
  • You have been sleeping in separate rooms
  • You no longer socialise together
  • You perform individual chores around the house

You will need to provide the court with an affidavit from an independent witness who can attest to these facts.

 

What if we get back together at one stage?

If you and your partner resume cohabitation on one occasion but within a period of three months you separate again (and then remain separated from then on), these two periods of separation can be calculated together for the purposes of 12 months separation. Any time spent together will not be counted towards the 12 months separation.

 

What documents will I need to apply for divorce?

To file an application in the Federal Magistrates Court you will need:

  • A certified copy of your marriage certificate (not the original)
  • The application form (the original plus two copies)
  • A self-addressed stamped envelope
  • The requisite fee (at time of writing this is $550.00, or $60.00 for concession card holders)
 

What happens next?

The Federal Magistrates Court will stamp the documents and set a date for your hearing. The Court should also supply you with a pamphlet outlining the effects of divorce. You are then required to serve a stamped copy of the documents together with a copy of the pamphlet on your partner at least 28 days before the hearing date. Note that you cannot personally serve your partner yourself (but you can get a friend or relative to do it on your behalf).

Once your partner has been properly served you will need to prove to the Court that you have done so by filling out the relevant form (which form to use will depend on your method of service).

If your partner is overseas you will need to serve the documents at least 42 days before the hearing date.

For detailed information on how to properly serve the other party see: Service of documents

 

What if I don’t know where my partner is?

There are procedures in place for this situation. The Court will generally waive the requirement for service so long as you can prove you have taken reasonable steps to find your partner. This will usually mean:

  • Contacting their family and friends
  • Contacting their last known residence and place of employment
  • Searching the electoral role
  • Placing an advertisement in the newspaper
 

Will I have to go to court?

You will only need to attend the hearing if the application was not made jointly and there are children of the marriage still under the age of 18. If you live over 250km away from the Court and you cannot attend the hearing you can ask for permission to appear via telephone. To do so you must fax the correct form to the Court.

 

What happens in court?

Divorce applications are simple and will usually take less than five minutes. The Court will just need to confirm that service has been properly executed and that the parties have been separated for the relevant period.

If there are children under the age of 18 the Court will also need to know what arrangements have been made for their care. This information should have already been provided in the divorce application, however the Court may want to ask further questions.

 

What happens if the application is successful?

You should receive a decree nisi on the day. One month later you will receive the decree absolute which will allow you to remarry.

It’s always a good idea to redraft your will at this time.

 

My ex-partner and I can’t agree on arrangements for the children, what happens now?

Before you can make an application to the courts for parenting orders you must first attend mediation and obtain a certificate from a registered Family Dispute Resolution practitioner. In the Riverland region this certificate is ordinarily obtained from Relationships Australia.

In some circumstances it may be possible to obtain a certificate stating that mediation is not appropriate. This may be where:

  • It is an urgent matter (eg. one parent is threatening to abscond with the child or the child is currently at risk)
  • It is not practical for one or both of the parties to attend mediation (due to geographical remoteness, etc)
  • There is a history of family violence
  • Attending mediation will place one of the parties at risk

Additionally, if the application relates to consent orders (where the parties are in agreement) a certificate can be obtained without attending mediation.

 

Do we have to use the courts?

Absolutely not. Many separating parents are able to make suitable arrangements without ever using the court system. These arrangements can be based on verbal agreement between the parties, or can be more substantive. Even if you are in agreement it is still recommended that you and your ex-partner attend Relationships Australia to draw up a formal parenting plan. This should hopefully help to ensure that both parties are on the same page.

Parenting plans are not legally binding documents, however it is still encouraged that both parties sign the plan immediately after drafting. Parenting plans can be made legally binding only after they have been filed in the courts, at which point they become consent orders.

 

How do the courts determine disputes relating to children?

The paramount consideration that the courts are obligated to keep in mind at all times when dealing with parenting matters is the best interests of the child.

What is in the best interests of the child is assessed via reference to the following primary considerations:

  • The benefit to the child of having a meaningful relationship with both parents
  • The need to protect the child from physical or psychological harm or from being exposed to abuse, neglect or family violence

There are also a number of additional considerations that help the courts to determine what is in the best interests of the child. These are:

  • The views of the child (depending on their maturity)
  • The nature of the relationship between the child and each parent, and between the child and any other person (eg. the child’s grandparents)
  • The willingness and ability of either parent to facilitate and encourage a close relationship between the child and the other parent
  • The effect that changing the status quo will have on the child
  • Any practical considerations that would make it difficult for the child to retain regular contact with both parents
  • The capacity of either parent (or other relevant persons) to provide for the child’s emotional and intellectual needs
  • Any characteristics of the child (eg. cultural background, maturity, ordinary lifestyle) that the court thinks relevant
  • If the child is Aboriginal or Torres Strait Islander, anything that might affect the child’s ability to enjoy and maintain their culture
  • The attitude towards the child, and the existing parental responsibilities adopted by either parent
  • Any family violence involving the child or involving persons in the child’s family
  • Any existing family violence order that applies to the child or persons in the child’s family
  • The effect a proposed order will have on the likelihood of future proceedings being initiated in relation to the child
  • Any other relevant circumstances

The courts are also required to make the following presumptions:

  • That it is in the best interests of the child for each parent to have equal shared parental responsibility
  • That it is in the best interests of the child to spend equal (or otherwise substantial and significant) time with each parent
  • That it is in the best interests of the child for each parent to be involved in the child’s daily routine
 

What are parenting orders?

Parenting orders are court orders that may stipulate:

  • Where the child is to live
  • The amount of time the child is to spend with any person
  • How the child may communicate with any person
  • Who is responsible for the child
  • How the parents (or other persons) are to communicate and make decisions relating to the child
  • Maintenance of the child
  • Conditions regarding the child’s care, welfare and development
  • The steps to be taken, and the ways in which disputes are to be settled, before the court will agree to vary the orders

Parenting orders last until the child turns 18 years old, marries or enters into a de facto relationship. Both parents can apply to the court to vary existing parenting orders, however unless both parties agree, the parent making the application must show that there has been a substantial change in circumstances necessitating the variation.

 

Who can apply for parenting orders?

Parenting orders can be sought by either or both of the child’s parents, the child, the child’s grandparents, or any other person concerned with the child’s care, welfare or development.

 

What if it’s a matter of urgency?

Urgent applications can be heard by the court in situations where the child is at risk or one parent is threatening to take the child out of the state or country.

 

What happens if my ex-partner doesn’t comply with the parenting orders?

A person will be taken to have contravened an order if they:

  • Intentionally fail to comply with the order
  • Make no reasonable attempt to comply with the order
  • Intentionally prevent someone else from complying with the order
  • Aid or abet someone else to contravene an order

In the event of a contravention the courts may order that the parenting orders be varied. Additionally, the courts may require the party in breach of the orders to:

  • Attend a post-separation parenting program
  • Compensate the other parent for time lost with the child
  • Enter into a bond
  • Pay the legal costs of the other parent
  • Compensate the other parent for expenses incurred as a result of the breach
  • Complete a community service order
  • Pay a fine
  • Complete a sentence of imprisonment

If you believe your ex-partner is in contravention of the parenting orders you must file an application alleging the contravention together with a supporting affidavit.

A recovery order can be sought when one party refuses to return the child, or when the child is currently at risk. A recovery order is an order of the court requiring a person to return the child to the other party. A recovery order authorises police to forcibly remove the child from that person if necessary.

 

How is property divided after separation?

Property division can occur in accordance with an agreement reached between the parties, or as a result of court orders.

If you and your partner are in agreement as to how to divide up the property there is no law requiring you to see a lawyer or to make an application with the courts. It is highly advised however that you do speak to a lawyer to finalise the agreement and to reduce the likelihood of future litigation.

If you and your partner are in agreement, you can either elect to prepare a binding financial agreement or make an application with the Court for consent orders. It is very important that you both receive legal advice before taking either option.

If you and your partner cannot reach an agreement there are a number of pre-action procedures that must be complied with before an application can be lodged with the Court. These procedures involve inviting the other party to dispute resolution, attendance together at a dispute resolution service and providing the other party with written notice of your intent to file a claim in the courts. For more information see Pre-action Procedure for Financial Cases.

The most important thing to always keep in mind regarding property division is the relevant limitation period. This is the time limit in which an application for property division must be filed in the courts. At time of writing the limitation periods are as follows:

  • For married couples – one year after divorce (meaning the decree absolut)
  • For de facto partners – two years after separation if applying under the Family Law Act (separation must have occurred after 1 July 2010)

There is no limitation period for married couples who have separated but are yet to divorce, however it is strongly advised to finalise property division as soon as possible. This is because the longer you and your partner wait the more difficult it will be to ascertain what property existed at the time of separation.

 

How is property divided by the Court?

The usual starting point of property division is to determine the assets and liabilities of the relationship.

The assets of the relationship are determined by considering:

  • What you had at the very beginning of the marriage (i.e. what you both brought in)
  • What you had at separation
  • What property was obtained during the relationship

Typical assets of the relationship include:

  • The house and contents
  • Vehicles
  • Investments such as stocks, shares and bonds
  • Furniture, jewelery, art, china, antiques and heirlooms
  • Books, cameras, records, CD’s and DVD’s
  • Electronic equipment and appliances
  • Superannuation

If you and your ex-partner can’t agree on how much a particular item is worth it may be necessary to arrange for independent valuation. Where any assets were acquired after 1985 there may also be potential capital gains tax issues.

The liabilities of the relationship are determined in much the same way; that is:

  • What debts you had at the very beginning of the marriage (i.e. what you both brought in)
  • What debts you had at separation
  • Any debts incurred during the relationship

This includes things like the mortgage and any tax debt, credit card debt or money owing to third parties.

Once the assets and liabilities have been agreed upon it is possible to determine the equity of the marriage by subtracting the liabilities from the assets – this is the amount that will be divided between the parties. Sometimes where the parties are greatly in debt it may be the case of them having to divide the debts of the relationship rather than the property.

 

What principles govern property division?

There are a number of factors that the Court will take into account when determining property claims. These include:

  • The future earning capacity of each party
  • The financial contributions of each party to the acquisition (and maintenance) of the property of the marriage
  • The non-financial contributions of each party to the acquisition (and maintenance) of the property of the marriage
  • If there are children of the relationship, which party the children will live with

Non financial contributions may include maintaining the family home or other actions that have allowed the “breadwinner” to better contribute to the property of the relationship.

As a general rule, the party that the children usually live with will receive a greater share in recognition of the expenses and reduced earning capacity that this may entail.

Where the relationship did not last for longer than five years it can usually be expected that both parties will take out what they took in. However this is subject to other considerations (such as the birth of children) that may impact on this assessment.

See also: Family Law

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