Family Law Outcomes

30/11/2022

Do you need to see a lawyer to get a divorce?

No, but you should take legal advice regardless.

Getting “divorced” in Australia is simply the process of getting “un-married.” There is one ground for divorce in Australia, and that is that the marriage has “broken down irretrievably.” The only way to prove that the marriage has broken down irretrievably is that you and your spouse have separated and have been living “separately and apart” for at least 12 months. Of course, there are sometimes issues that arise as to whether the parties have actually separated and, if so, when that occurred (for example where they have been separated under one roof) but that is basically it.

Either spouse can apply for a divorce from the Federal Circuit and Family Court, or the parties may apply together, known as a joint application. Generally, a joint application is simpler, as there is then no need to prove that the application has been served on the other party.

The simplest way to apply for a divorce is online through the Federal Circuit and Family Court website. It is not a difficult process but is certainly something you might not want to spend your time on, in which case you could consider delegating the task to your lawyer. If there are complexities in your matter (you do not know where your ex lives, it is unsafe for you to communicate with your ex, your ex might try and avoid receiving service of the documents, etc.) you should take legal advice.

Once your divorce has gone through, you will only have 12 months to sort out financial matters, so you should take legal advice in relation to property settlement and spousal maintenance regardless and as soon as possible.

20/11/2022

25/09/2022

Do you need legal docs to divide your assets when separating?

In some circumstances the answer is: Absolutely yes. For example, if you have to refinance your home to pay out your ex or if you have agreed to split superannuation.

In other circumstances the answer may in fact be: No. No one is going to MAKE you finalise the financial aspects of your last relationship, but you may be exposing yourself to significant risk if you do not, for example in the form of having to pay greater taxes in the future, or of your ex seeking to “have a second bite of the cherry” down the track.

If you and your ex have agreed a settlement – you may have both worked really hard to get that far – it is sensible to obtain some advice and to consider “locking in” that agreement while your ex has the intention to stick to it. Circumstances may change in the future – consider how relations may change if you or they entered a new relationship, or your ex saw you receive a windfall or spend heavily on yourself – and your ex may decide that they got a raw deal the first time around and make a claim against you, which may be financially and emotionally costly.

A legally enforceable agreement may be made in Australia by way of Consent Orders from the Court or by way of Binding Financial Agreement. By taking advice, you will have assistance to identify the risks and benefits of each potential course of action.

11/09/2022

Should you see a lawyer when separating?

The short answer is: Yes.

However, people going through separation or divorce are sometimes hesitant to speak to a lawyer about their circumstances for a range of reasons. They may be worried that the lawyer will ask them questions that bring up the negative emotions from the past, or that the lawyer may tell them things they don’t want to hear. Worse still, perhaps the lawyer will tell them things they do want to hear, but which give them unreasonable expectations of what can be achieved, and they will get led into a costly (and bitter) legal dispute.

A lawyer can provide advice on a range of areas in separation. The truth is that there are many aspects of separation which people are able to resolve themselves, without the need for lawyers intervening. Some people only need to speak to a lawyer once and are able to sort everything else out themselves. The earlier in the process you take advice the better, as the information you receive will help you to steer your separation along the best course for you and your family.

If you do not take advice from a lawyer at some point in your separation you may be at risk of missing something and ending up paying large sums of money (to a lawyer or your ex) to ‘fix’ the problem. It is also possible that the problem cannot be fixed, even with a significant investment of time and money.