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Plain English Guide to Divorce

 Click here to download our Plain English Guide to Divorce

When Can You Get a Divorce

You can get a divorce if your marriage has broken down beyond repair. Generally, you must have been separated for at least 12 months. You do not have to be living in different houses to be considered separated. If you have children under the age of 18 years, you will need to have proper arrangements in place for the children.

Documents Needed

There is a number of supporting documentation that you will require in order for your lawyer to process your application which include:

  1. Marriage Certificate (with translation if not in English)
  2. If neither party is born in Australia, proof of citizenship, residency or visa with passport proof evidencing you have been in Australia for the last 12 months

Time Limit: Property

Your divorce takes effect one month and one day after the divorce Order is made. After that, you will generally have 12 months to bring an application to Court to divide your property.
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What are Consent Orders and How Can They Help My Family?

If you and your former partner have agreed on an approach to parenting and/or financial and property arrangements, you can formalise your agreement by entering into Consent Orders. Consent Orders can only be entered into when you and your former partner have reached an agreement, whether between yourselves, or with the assistance of your family law lawyers. Consent Orders are legally binding and enforceable by the Family Court. They can be used to vary or discharge existing family law Orders that may be outdated or impractical. Consent Orders are final and can be difficult to change without agreement. It is therefore imperative to seek legal advice from family law lawyers about your family law rights and entitlements.

Consent Orders must be filed in the Family Court of Australia together with an Application for Consent Orders. The fee for entering into Consent Orders is $165, or free if you are eligible for an exemption of fees.

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Family Dispute Resolution: How to Resolve Your Parenting Dispute Without Going to Court

In response to the growing risks of COVID-19, the family Courts have begun postponing court dates for non-urgent matters. Unfortunately, this means that it may be many months before your application for child custody is heard before a Judge. Parents should be encouraged to look for alternative ways to resolve their dispute such as through Family Dispute Resolution.

By law, parents are normally required to make a genuine effort to resolve parenting disputes before beginning Court proceedings. This can be achieved by attending Family Dispute Resolution also known as FDR for short, with a certified FDR practitioner. Your FDR practitioner can then issue you with a section 60I certificate which you will need to provide to your child custody lawyer to file with your Application. You will then have 12 months to commence proceedings with the Certificate otherwise you will need to obtain an updated certificate.

Your FDR practitioner has the power to dispense with the FDR requirements if they believe that it would be inappropriate due to a party unable to negotiate freely. Unequal bargaining power and a history of domestic violence are matters the practitioner may consider when deciding whether the mediation is appropriate.

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My Ex Won’t Let Me Take My Kids Overseas

During child custody proceedings, parents cannot remove their children from Australia without either:

  1. The written consent of the other party, or
  2. A Court Order providing for overseas travel.

The most cost efficient way to take your children on an overseas trip is generally to negotiate with your former partner to obtain their consent and then put this into writing.

If you cannot come to an agreement, you may be able to make an application to the Family Court with the assistance of your child custody lawyers. Ultimately, the Court will make its child custody decisions in the best interests of the child. The Court may make an Order for the child not to travel overseas, or make an Order allowing the child to travel. In some circumstances the Court may make an Order for you or your former partner to pay a security if the child is allowed to travel to better ensure the child’s return.

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False Allegations of Child Sexual Abuse – What Can Go Wrong in Child Custody

In the matter of Massey & Wilenski [2019] FamCA 657 the parents had one child to the relationship whereby the mother was the primary caregiver. After separation, the child made disclosures to the mother’s then partner Mr C of inappropriate touching perpetrated by the father. Mr C recorded three disclosures of the child all within an hour and a half. The mother reported the disclosures to the police the next day. As a result of these disclosures, the mother made the decision to stop all time between the father and child and made an application in the Family Court for child custody that the father should spend no time with the child. The mother ceased child custody with the father for a period of about 11 months.

In considering the matter of child custody, the Court then needed to consider:

  • Whether the child had been sexually abused by the father
  • Whether the father poses an unacceptable risk of harm to the child
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Separation Lawyer Advice – Can your ex take your super?

By Andrew Banna, a Principal of Matthews Folbigg, in our Family Law Group.

Superannuation falls within the scope of property under the Family Law Act. Upon the breakdown of a relationship, the superannuation splitting laws provide for the possibility for your superannuation to be divided between you and your ex partner as part of your property settlement with a separation lawyer. However, as superannuation is held on trust, different rules apply to how this type of property can be divided. Dividing your superannuation will not automatically turn the interest into cash that you can take home with you, rather, the interest will remain subject to the laws of superannuation. The options available to the non-member spouse that is receiving the split include:

  1. Leaving the super benefit in the member’s super fund in their own name
  2. Rolling over or transferring the super benefit to another fund
  3. Apply for the benefit to be released  to them if you have reached the conditions of your retirement
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Divorce Lawyer Advice – I Want a Divorce – Married Less than Two Years

By Andrew Banna, a Principal of Matthews Folbigg, in our Family Law Group.

If you have been married for less than two years and you decide to divorce, there are a few things for you to consider with a divorce lawyer. A divorce application is not to be filed within two years after the date of marriage without the leave of the Court. When establishing how the two years is calculated, it is determined from the date of the marriage to the date of applying to the Court for a divorce. You and your spouse must also have been separated for at least 12 months before applying for a divorce.

What do you need to do to get around this?

If you have been married less than two years and want to apply for a divorce, you must either:

  1. Attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with your spouse. OR
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‘I Want a Divorce’ – Divorce Lawyer Advice

By Andrew Banna, a Principal of Matthews Folbigg, in our Family Law Group.

Divorce Lawyer advice; Can I apply for a divorce?

In Australia you can apply for a divorce with a divorce lawyer if either you or your spouse:

  • Regard Australia as your home and intend to live in Australia indefinitely, or
  • Are an Australian citizen by birth, descent or by grant of Australian citizenship, or
  • Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

Additionally, you must be able to prove to the Court that you and your spouse have lived separately and apart (it is possible to live in the same home and still be separated) for a minimum of 12 months and that there is no existent likelihood of resuming married life.

Divorce Applications

This is where seeking legal advice and assistance is recommended. Prior to filing a divorce application a divorce lawyer can assist you in identifying your legal rights and obligations. They are able to assist in providing divorce advice in relation to your child custody rights as well as property settlements.
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