Separation & Divorce

Recently separated? What next?

Separating from your spouse or partner can trigger a range of emotions and legal issues. We encourage separated couples to obtain independent legal advice as soon as possible to ensure they are aware of their rights and to assist in settling matters in the most effective way.

Practical steps to take immediately after separation

  • Personal safety is a priority – contact your local police if you are experiencing violence, abuse or harassment.
  • If necessary, we can represent you in matters involving a Family Violence Order (FVO) or Apprehended Domestic Violence Order (ADVO) whether you are the applicant or if you wish to oppose the order.
  • If possible, talk to your ex-partner about suitable care arrangements for your children – let him or her know that an amicable breakup is desirable and try to come to some resolution that is in the children’s best interests.
  • Arrange to see a lawyer as soon as possible. Even if the decision to separate is mutual or your relationship is amicable, you should be aware of your rights. Sometimes parties are agreeable at the outset, but emotions can escalate once discussions about children and property start.
  • If possible, obtain legal advice before leaving the family home. If you do move out, make sure you notify authorities of your new address. You might consider renting a post office box for privacy reasons and so your mailing address does not need to be changed again if you subsequently move.
  • Ensure that you have access to bank accounts, home loan accounts and investments. Keep originals or copies of important documents such as passports, marriage certificates, superannuation and insurance policies and change passwords for emails, online accounts and internet banking.
  • Make sure that any property registered in joint names remains insured.
  • Start a journal and keep written records of relevant dates, events and conversations.

When and how can I obtain a divorce?

A divorce is the legal process of ending a marriage. In Australia, there is no need to provide any reasons for divorce other than that the relationship has irretrievably broken down. If you have been separated for more than 12 months, the court takes this as evidence of that fact.

The court also acknowledges that parties may be separated but continue to live under the same roof for reasons such as childcare, religious or cultural belief or on financial grounds. If you live under the same roof as your ex-partner you can still obtain a divorce provided you swear to the separation in your divorce application.

You will need your marriage certificate, identification, and proof of citizenship (if you were not born in Australia). If you were married for less than two years, a certificate from a family counsellor confirming that you and your ex-partner have considered reconciliation must be provided, unless special circumstances exist.

The court needs to be satisfied that your children are being taken care of before a divorce will be granted but will not expect that you have a formal agreement regarding these arrangements.

When you lodge your application, the court will advise the date of the hearing, which is usually within 2-3 months. The hearing is not long, and you may not need to attend. If granted, a divorce order becomes final one month and one day from the date of the hearing.

After the divorce is granted

The granting of a divorce order triggers a 12-month timeframe within which to commence proceedings for a property settlement or spousal maintenance order. A divorce may also affect the provisions of an existing Will, or your Will may no longer reflect your testamentary wishes. If you have not already done so, you should revise and update your Will and take steps to formalise the division of your property.

If you need any assistance contact one of our lawyers at mail@smythfamilylaw.com.au or call 02 7202 2137 for a no-obligation discussion and for expert legal advice.