Divorce and separation are equally traumatic for those involved, but from a family law context there are key differences between divorce and separation.
The most fundamental distinction is that you and your spouse are still legally married during a separation, regardless of whether you are living separately or together in the matrimonial home. After a divorce is finalised, you and your partner are no longer legally married, and your union is officially dissolved.
Making a Divorce Application
If you want to officially end your marriage, you must apply for a divorce order through the court. You must have been separated from your spouse for at least twelve months, and married for at least two years. Additional conditions apply if you have been married for only two years or less.
In Australia, the court doesn’t have to consider or prove who is at fault for the marriage breakdown, and neither does the applicant. The only ground for divorce is the irretrievable breakdown of the relationship.
The court acknowledges that sometimes parties may continue to live under the same roof even though they are separated. This may be for practical reasons, such as the care arrangements for the children, or due to religious, cultural, or financial circumstances. In such cases, the relevant details are provided to the court and a request may be made that the technical requirements of having lived separately and apart be dispensed with.
You can apply for a divorce on your own, even if your ex-partner doesn’t agree to it, or together, as joint applicants. The application must include a copy of the marriage certificate and the relevant filing fee.
If there are children of the marriage who are under 18 years, the application must include particulars of their health, housing, schooling, and care arrangements, the contact they have with each parent and any financial support provided. The court must be satisfied that suitable arrangements are in place for the children’s care and welfare.
If approved, a divorce order is granted which becomes final one month later. You can apply for a divorce before finalising your property matters, however, once a divorce is granted, you only have twelve months to commence proceedings for a property settlement or spousal maintenance.
Tips for when you separate
The breakdown of a relationship is stressful and often causes significant emotional and financial hardship. It can be difficult to think rationally and make practical decisions. We understand that this is a ‘normal’ consequence of separation. Below are some practical considerations that might help during this difficult time.
- If you are concerned in any way for your personal safety or that of your children or other family members, contact your local police and, if necessary, apply for a restraining order.
- Put the best interests of your children to the forefront. Try to put differences aside to make arrangements that foster the wellbeing of your children. If possible, consider arrangements that provide minimal disruption from their usual routine, and foster a meaningful relationship with both parents.
- Prepare a list of assets, loans, bank accounts, credit cards, and obtain originals or copies of important documents such as passports, marriage certificates, birth certificates and insurance policies.
- Ensure that assets such as your home, other real estate, motor vehicles, boats, etc. remain insured.
- Protect your privacy and update passwords and login details for email accounts, online and mobile banking, and social media acounts.
- Contact your bank to ensure that two signatories are required to operate joint accounts and discuss any concerns regarding the use of credit cards or any other aspect of your daily banking.
- Contact Centrelink to find out if you are eligible for government financial assistance.
- Get legal advice to protect your interests and so you know where you stand. Even amicable breakups can turn nasty, so you should ensure that you understand your legal rights and options for pursuing a reasonable outcome that minimises lengthy and costly disputes.
- Talk to your lawyer about making or reviewing your Will to take into account your new circumstances.
- Create a trusted support network and enlist help from friends and family as well as professional counselling or therapy, if needed.
- Keep a diary or written records of important notes, dates, etc.
We are experienced and compassionate family lawyers. We provide expert advice and guidance for all family law matters and will help you resolve difficult issues quickly and effectively so you can get on with your life in a positive and practical way.
If you need any assistance, contact one of our North Sydney family lawyers at [email protected] or call 02 8075 0141 for a no-obligation discussion and for expert family law advice.