Fam­i­ly Law | Top 5 ​‘Did you knows’ about get­ting a divorce

1/ Did you know that you do not actu­al­ly need the con­sent of your for­mer spouse to get a divorce? 

In New South Wales, you can apply for a divorce togeth­er (with your for­mer spouse) or by your­self (sole appli­ca­tion). There are dif­fer­ent oblig­a­tions in each case par­tic­u­lar­ly with respect to ser­vice so be sure to get legal advice if you are unsure. While your spouse does not need to con­sent to the Divorce Appli­ca­tion, they can object to the divorce by fil­ing a Response to Divorce Appli­ca­tion if;

• the sep­a­ra­tion peri­od for you and your spouse is less than 12 months. For exam­ple, if you sep­a­rat­ed on 15 May 2019 you can­not file for a divorce until 16 May 2020; 
• there was not a valid mar­riage; and 
• the Court does not have juris­dic­tion to hear the Application.

2/ Did you know that get­ting a divorce is not the same as a prop­er­ty set­tle­ment nor does a divorce bar your spouse from access­ing your prop­er­ty or assets you accrue post separation? 

This equal­ly applies to par­ent­ing mat­ters. A divorce is mere­ly the legal recog­ni­tion that the mar­riage is over. A prop­er­ty set­tle­ment can occur any time after sep­a­ra­tion whether you are divorced or not. What many peo­ple do not know is that there is a 12-month time lim­it to com­mence prop­er­ty pro­ceed­ings or make an appli­ca­tion for prop­er­ty orders after the Divorce Order comes into effect. 

Sep­a­rat­ing cou­ples often believe that the prop­er­ty pool for dis­tri­b­u­tion is the prop­er­ty they had at the date of sep­a­ra­tion. This is not cor­rect. When mak­ing prop­er­ty orders, the Court must con­sid­er the prop­er­ty as at the date of the hear­ing not the date of sep­a­ra­tion. This means that any prop­er­ty you accrue after sep­a­ra­tion or divorce will form part of the prop­er­ty pool to be dis­trib­uted. For more infor­ma­tion on how post sep­a­ra­tion assets are dealt with, see the below articles

• Post sep­a­ra­tion finan­cial con­tri­bu­tion
• It’s mine, I got it after we broke up

3/ Did you know Aus­tralia is a no-fault jurisdiction?

This means that the Court does not con­sid­er which part­ner was at fault in a mar­riage. All that is required is that the mar­riage has bro­ken down irre­triev­ably and there is no rea­son­able like­li­hood of the two of you resum­ing mar­ried life. This is evi­denced by a mar­ried cou­ple liv­ing sep­a­rate­ly and apart for 12 months.

4/ Did you know that you may remain liv­ing under the same roof and still get a divorce?

If you have been sep­a­rat­ed for more than 12 months whilst liv­ing under the same roof, then you may still apply for a divorce. You will need to sat­is­fy the Court that you have in fact been sep­a­rat­ed under one roof for more than 12 months. You will need to pro­vide the Court with addi­tion­al infor­ma­tion when fil­ing your Appli­ca­tion for Divorce gen­er­al­ly in the form of an Affi­davit. The Court will want to know about mat­ters such as why you con­tin­ued liv­ing under one roof, what your liv­ing arrange­ments were while under one roof and whether you have advised any gov­ern­ment depart­ments of your sep­a­ra­tion. It is best to get your lawyer to assist you with this to avoid any delays in your divorce.

5/ Did you know that you are not always required to attend the Divorce Hearing?

You are not required to attend the Divorce Hear­ing if there are no chil­dren under the age of 18 or if you filed a Joint Appli­ca­tion. If you are apply­ing for an Order for sub­sti­tut­ed ser­vice or a dis­pen­sa­tion of ser­vice in the cir­cum­stances where you can­not find your for­mer spouse to serve the Appli­ca­tion for Divorce and/​or sup­port­ing doc­u­ments, then it is best attend the Divorce Hear­ing. It is also sen­si­ble to attend if you are required to pro­vide addi­tion­al affi­davit mate­r­i­al to explain cir­cum­stances such as liv­ing sep­a­rat­ed under the same roof or where you have been mar­ried for less than two years and/​or oth­er sit­u­a­tions which may impact on the out­come of your matter.

Let us help

Divorce and sep­a­ra­tion can be an incred­i­bly con­fus­ing time. Find­ing a fam­i­ly lawyer who is able to help you nav­i­gate your way and find solu­tions that work best for you and your fam­i­ly, will help you to move through this uncer­tain peri­od of your life with greater clar­i­ty, renewed ener­gy and excite­ment about the future that lies ahead. Get prac­ti­cal advice which assists you to iden­ti­fy your needs and val­ues by con­tact­ing one of our fam­i­ly lawyers today, on 02 9233 5544.