Separations & Divorce
Separating from a partner, whether de-facto or spouse, is a complicated and often difficult process. While deciding to separate is a big decision, the reality is, it is the simplest part of the separation process. The complicated process is dealing with financial and parenting matters.
When separating or contemplating a Divorce, it is important for you to have an understanding of the following, which is by no means an exhaustive list of matters you should consider:
Separation is the point at which a relationship has irretrievably broken down. The date of separation is ascertained based on the evidence of the parties.
If you intend to file for a Divorce, you must have been separated for at least twelve months before you file your Application with the Court.
Unless there are children under the age of eighteen to the marriage, you are not required to attend a Divorce Hearing. The Court will consider your Application in your absence. However, you are welcome to attend if you would like to do so.
You must commence Court proceedings seeking financial orders within twelve months of obtaining your Divorce. You will otherwise be required to seek leave from the Court to commence proceedings. This is not always straight forward.
If there are children under the age of eighteen, the Court will not grant a Divorce unless it is satisfied that appropriate arrangements for the children are in place. That does not mean those arrangements are formal, nor does it mean that there is no dispute, but rather that at the time of the Divorce Hearing, the children are being appropriately cared and provided for.
You can commence dealing with financial and parenting matters before you are officially divorced.
In the case of de facto relationships, the parties must file an Application for a property settlement within two years from the date of separation.
Separation can take place even though the parties live under the one roof and it can also be a gradual process. There must be a clear breakdown in the relationship and both parties must be aware of the separation.
Your spouse or partner does not have to apply for a Divorce with you. A joint application or a sole application can be filed.
Once a decision has been made to separate, contact your bank or financial institution, in writing, to stop joint funds being removed or liabilities increased.
Review your Will and consider if it is still appropriate in the circumstances and if you do not have a Will, have one drafted immediately.
Any plans to enter into a new marriage should wait until after the Divorce Order is made by the Court. Usually this occurs one month and one day after the Divorce Hearing.
Article – What to do after a family separation and pending divorce
For any further information or advice, whether or not you have officially made the decision to separate, contact our office on (03) 9923 8233 or email info@sm-law.com.au to discuss your options. The more information and specialised advice you have available, the better a position you will be in.
