To apply for a divorce in Australia you must lodge an Application for Divorce with the Federal Circuit and Family Court of Australia. You will be eligible to file for divorce if you or your former spouse are Australian citizens or residents and regard Australia as your home.
In Australia, there is a "no-fault" divorce system. There is only one ground for divorce, and that is the irretrievable breakdown of the marriage. You and your spouse must have been separated for at least 12 months before filing an Application for Divorce. If you reconcile with your spouse for more than three months during this separation, then the 12-month separation period may be reset, and the separation period must commence again. The separation can also occur whilst living apart or under the same roof, but there must be a clear separation in your day-to-day lives, for example a separation in the domestic arrangements between you and your former spouse.
If you and your former spouse have been living in separate residences, it is usually considered the most straightforward way to establish separation. However, you can still be separated whilst living under the one roof. To prove you have been separated and living under one roof, an affidavit will need to be filed together with an affidavit by a witness (or your former spouse) detailing separation has occurred and that you and your former spouse have ceased performing duties as a married couple during this period, for example no longer sharing meals, household chores or finances.
The time it takes to obtain a Divorce Order from the Court can vary depending on various factors, including the court's workload, the complexity of the case, and whether there are any complications or disputes involved. However, usually once you file your Application it will be listed for a Divorce Hearing within two months. Once the Court has granted the divorce, your marriage will be terminated one month and one day after the Divorce Order is made.
It is important to seek legal advice from a family lawyer to ensure that all necessary steps are followed and to understand the specific requirements and timelines for your particular case. Additionally, complexities involving children, property, or disputes about the date of separation might extend the duration of the divorce process. Property division and parenting arrangements are treated separately to divorce applications.
In Australia, parenting arrangements (about who the children of separated couples should live and spend time with, noting that in Australia, the language of the legislation no longer includes notions of ‘custody’ or ‘access’) are determined based on what is considered to be in the best interests of the child or children involved. The Family Law Act 1975 (Cth) outlines the principles that guide courts in making decisions about parenting arrangements. When considering what is in the children’s best interests the Court will consider a range of factors including the need to protect the children from harm, the children’s views, the nature of both parents’ relationship with the children, the needs of the children (including their developmental, psychological and emotional needs), both parents’ capacity to care for the children and any other relevant factor.
Parental responsibility is the ability to make decisions about the long term care, welfare and development of the children, including making decisions about their education, health, religious and cultural upbringing, name and changes to the children’s living arrangements. The law has previously encouraged equal shared parental responsibility, where both parents are involved in making major decisions regarding the child's upbringing, such as education, health, and religious upbringing. However, this did not necessarily mean equal time or shared physical custody. Recently, amendments have been made to the Family Law Act, meaning there will no longer be a presumption that both parents have equal shared parental responsibility.
Parents are encouraged to reach agreement on parenting arrangements outside of court through negotiation, mediation, and collaboration. There are several methods to consider for reaching parenting agreements without going to court, such as:
1. Negotiation Between Parents: Open and respectful communication between parents and/or their lawyers can often lead to agreements on parenting arrangements. Discussing the child's needs, schedules, and preferences can help in finding common ground.
2. Family Dispute Resolution/Mediation: Family dispute resolution (FDR) or mediation is a process where an impartial family dispute resolution practitioner or mediator helps parents discuss and negotiate parenting arrangements. This process assists in finding mutually acceptable solutions and reaching agreements without going to court. Mediators can provide guidance and facilitate discussions. Unless there are exceptional circumstances, such as, risk and urgency, the parents must attempt a Family Dispute Resolution before commence parenting proceedings.
3. Parenting Plans: Parents can create a parenting plan, which is a written agreement that outlines the agreed-upon arrangements for the children, including living arrangements, schooling, health, and visitation schedules. While not legally binding, a parenting plan can be a practical and flexible way to formalise agreements between parents.
4. Using Support Services: Accessing support services such as family relationship centres, community legal centres, or parenting support organisations can provide guidance, information, and resources to assist parents in negotiating and reaching agreements.
5. Legal Advice and Consent Orders: Seeking legal advice from a family lawyer is highly recommended so you can understand the legal implications of parenting arrangements. If parents reach an agreement, they can formalise this by applying for consent orders through the Family Court or Federal Circuit Court of Australia. Consent Orders are legally binding and enforceable by law.
6. Collaborative Law Practice: Collaborative law involves both parties and their lawyers working together to negotiate an agreement outside of court. The focus is on achieving a mutually beneficial outcome without resorting to litigation, which can be costly and lengthy.
7. Parenting Coordinator: Parents may decide to work with a parenting coordinator, a qualified professional who assists in resolving disputes and facilitating parenting arrangements in a non-adversarial manner.It's important to note that reaching an agreement outside of court can save time, reduce conflict, and give parents more control over the outcome. However, in situations involving family violence, child abuse, or where there is an imbalance of power, seeking legal advice and protection for the safety of all involved parties is crucial.
Child support is typically calculated using a formula outlined in the Child Support (Assessment) Act 1989. This formula takes into account various factors to determine the amount of child support one parent should pay to the other. The primary goal is to ensure that both parents contribute to the financial support of their children in a fair and reasonable manner.
The key factors that are considered when determining the amount of child support to be paid includes the income of both parents, the percentage of care that each parent provides to the child, the costs associated with the child including education, health care and special needs, whether there are any children from previous relationship and a self-support amount to cover each parents’ basic living expenses before the child support is calculated.
Child support assessments are usually conducted by Services Australia, being a government agency which administers the child support scheme. Parents can also come to an agreement between them but they should obtain legal advice first and have a lawyer prepare the formal child support agreement. This agreement should then be registered with Services Australia.
Child support is typically calculated using a formula outlined in the Child Support (Assessment) Act 1989. This formula takes into account various factors to determine the amount of child support one parent should pay to the other. The primary goal is to ensure that both parents contribute to the financial support of their children in a fair and reasonable manner.
The key factors that are considered when determining the amount of child support to be paid includes the income of both parents, the percentage of care that each parent provides to the child, the costs associated with the child including education, health care and special needs, whether there are any children from previous relationship and a self-support amount to cover each parents’ basic living expenses before the child support is calculated.
Child support assessments are usually conducted by Services Australia, being a government agency which administers the child support scheme. Parents can also come to an agreement between them but they should obtain legal advice first and have a lawyer prepare the formal child support agreement. This agreement should then be registered with Services Australia.
Both parties have obligations and responsibilities to financially support their children. These obligations are outlined in the Child Support (Assessment) Act 1989. The parent required to pay child support should make the payments on time and failure to make payments may result in legal consequences. The parent receiving child support should ensure the funds received are to meet the children’s needs including education, health care and general well-being.The paying parent is required to inform Services Australia of any significant changes in their circumstances that may affect their child support liability for example, changes in income, employment or living arrangements. It is important that both parents provide honest and accurate information to Services Australia for the purpose of their child support assessment.
Child support assessments can be changed under certain circumstances, usually if there has been a significant change in circumstances of either parent or a change to the child’s needs that would impact the existing child support assessment. Some of the common reasons for seeking a change to the assessment are change in income, change in care arrangements, change in expenses, by mutual agreement between the parties or an application has been made by a parent to Services Australia to change the assessment based on new circumstances.
The non-payment of child support is taken seriously in Australia. There are mechanisms which can be put in place to enforce child support obligations such as:
Services Australia can enforce child support payments. They have a range of enforcement powers including collecting child support directly from the paying parent’s wages, bank accounts or tax refunds;
1. Issuing notices and warnings by Services Australia;
2. Imposing penalties by Services Australia which can include fines;
3. Garnishing wages where Services Australia can arrange for child support payments to be deducted directly from the paying parent’s wages by their employer;
4. Court proceedings through the Federal Circuit and Family Court of Australia, including orders being made by the Court for imprisonment (which is a last resort).
Child support is typically calculated using a formula outlined in the Child Support (Assessment) Act 1989. This formula takes into account various factors to determine the amount of child support one parent should pay to the other. The primary goal is to ensure that both parents contribute to the financial support of their children in a fair and reasonable manner.
The key factors that are considered when determining the amount of child support to be paid includes the income of both parents, the percentage of care that each parent provides to the child, the costs associated with the child including education, health care and special needs, whether there are any children from previous relationship and a self-support amount to cover each parents’ basic living expenses before the child support is calculated.
Child support assessments are usually conducted by Services Australia, being a government agency which administers the child support scheme. Parents can also come to an agreement between them but they should obtain legal advice first and have a lawyer prepare the formal child support agreement. This agreement should then be registered with Services Australia.
In Australia, the division of assets is governed by the Family Law Act 1975, which sets out the legal principles that a Court must consider when determining the division of assets. When considering the separation of assets, the Court will consider a four step approach as follows:
1. Identify and value the net pool of property, which involves determining the value of all assets, liabilities, superannuation and financial resources of the parties;
2. Consider the contributions made by each of the parties at the commencement of the relationship, during the relationship and following separation. This will include all financial, non-financial, parenting and homemaker contributions made by the separated parties;
3. Assess the future needs of the parties, including their age, health and capacity for gainful employment, and whether either party will have the care or control of a child;
4. Consider whether the assets, liabilities, financial resources and superannuation entitlements to be retained or received by each of the parties is just and equitable.
In accordance with the Family Law Act 1975, the property pool to be divided between parties includes all assets, liabilities and financial resources owned by either or both of the parties, regardless of whether they were acquired before, during or after the marriage or de facto relationship.The property pool will usually include real estate, financial assets (such as bank accounts, shares and investments), superannuation entitlements, personal property (such as cars, furniture, jewellery), interests in entities (including businesses, trust, partnerships and companies) and liabilities.
Yes, prenuptial agreements are legally recognised, however, these are called Financial Agreements in Australia. These agreements can be made before a marriage or de facto relationship, during a marriage or de facto relationship or after separation. To be legally binding, the Financial Agreement must meet strict legal requirements, including the agreement being made in writing and signed by both parties and each party receiving independent legal advice before signing the agreement.
If you cannot reach an agreement between you and your former spouse or de facto partner, you can participate in alternate dispute resolution including negotiations through lawyers or mediation. If no agreement can be reached, then proceedings can be commenced in the Federal Circuit and Family Court of Australia and the Court can make Orders determining what assets each party is to receive and retain.
In New South Wales, a DVO is commonly referred to an Apprehended Domestic Violence Order (ADVO). If you have experienced, or are continuing to experience, domestic violence or fear for your safety, you should contact the Police urgently and report the incident/s. The Police can provide assistance through your local police station and they can apply for obtain a provisional ADVO for you. Alternatively, you can file an application through the Local Court, however, it is important that you obtain legal advice first.
In New South Wales, there are various legal protections and support services available to ensure the safety and well-being of victims of family violence. These protections include:
1. An Apprehended Domestic Violence Order being made by the Local Court to protect victims and placing restrictions on the other person such as prohibiting contact, staying away from certain places and refraining from intimidating or threatening behaviour.
2. A Provisional ADVO can be obtained by the police on behalf of the victim without going to court immediately in urgent situations.
3. In cases where there is a risk of violence, the Court may issue a Weapons Surrender Order which requires the person to surrender all firearms or weapons in their possession.
4. Counselling and support services for victims.
Family violence has a significant impact on parenting arrangements in family law. The need to protect children from harm is the main consideration of the Federal Circuit and Family Court of Australia, including what is in the children’s best interests. The Court will conduct a risk assessment to determine the level of risk family violence poses to the children and the affected parents. Family violence may lead to restrictions on the time a parent spends with the child or the manner the time is facilitated, for example supervised time.
Spousal maintenance is the provision of financial support by one partner to the other after separation. It is to assist the financially disadvantaged party to meet their reasonable living expenses, in the event that the disadvantaged party cannot meet their own financial needs from their own sources of income. The Court will consider the need of the financially disadvantaged party and the financial capacity of the other party to meet the shortfall in the other party’s expenses.
There is no strict formula for the calculation of spousal maintenance and it is determined on a case-by-case basis. The Court considers various factors in determining the amount of spousal maintenance to be paid including:
1. The financial needs of the disadvantaged party;
2. The financial capacity of the other party to meet the disadvantaged party’s need;
3. The standard of living maintained during the relationship.
In certain circumstances, spouse maintenance orders can be varied or ceased. These orders are usually the subject to change based on the changing financial circumstances of each party. Some circumstances where spouse maintenance orders are varied or ceased include a change in financial circumstances, change in living arrangements or relationships, retirement, re-marriage or entering into a new de facto relationship by the person receiving maintenance, by consent of both parties, an application made to the Court by one party or the death of a party.
Mediation is not strictly mandatory for all family law matters in Australia, however it is strongly encouraged. The Court can also make orders for the parties to participate in mediation. The goal is to encourage families to resolve their disputes instead of resorting to litigation in Courts, which can be costly and protracted. In parenting matters, parties usually need to attend Family Dispute Resolution before commencing proceedings. The Family Dispute Resolution practitioner (also known as the mediator) will issue a section 60I certificate which sets out whether both parties participated in mediation or whether it was not appropriate to conduct the mediation. This certificate can be used to then commence parenting proceedings. You do not need to obtain a certificate in certain circumstances such as urgency, family violence, child abuse or risk.
Mediation is a process designed to assist separated couples to resolve their disputes in relation to parenting arrangements, property settlement and other family law matters without the need for protracted and costly litigation. The primary goal of the mediator is to assist the parties with finding a mutually acceptable agreement. Either party can initiate the mediation process by contacting a mediator or Family Dispute Resolution Practitioner and inviting the other party to attend. The mediator will then arrange and conduct the mediation, whilst remaining independent during the process. Mediation sessions are confidential and information shared during the mediation usually cannot be used in Court, to prompt open communication between the parties.
Alternative dispute resolution methods, including negotiations and mediation, offer several benefits in resolving family law disputes. This includes minimising the parties’ costs on legal fees, time efficiency as resolving disputes through alternative dispute resolution is quicker than the court process, flexibility and customisation to the agreement instead of having a Judge determine your case, preserve an amicable relationship with your former spouse and confidentiality.
The resolution of international family law disputes involves the consideration of various issues including jurisdiction, enforcement of orders and cooperation between legal systems. The Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) is an international treaty aimed to protect children from the harmful effects of abduction and retention across international borders.
The Hague Convention provides a legal foundation and process for parents whose children have been unlawfully removed from Australia without their consent to be recovered and returned. The process involves Australian residents being able to submit an application to the Australian Central Authority in the Attorney General’s Department to recover their children. This application can only be made if the country where the children are located have also signed the Hague Convention and have been recognised by Australia as reciprocating country. The Central Authority can also only be used for children under the age of 16.
The process does not guarantee the return of the children to Australia as the other parent has the ability to argue against their return for a number of reasons, including if the children are at risk of harm, if the children dispute their return, or if the other parent alleges consent was given for the children to be removed from Australia in the first place.You can also obtain parenting orders by the Federal Circuit and Family Court of Australia in relation to the time each parent is to spend with the children. If the children are to spend time in Australia and another country, we can use the assistance of our international family lawyers to have reciprocal orders made in the other country. The Orders made in Australia may only be recognised and enforceable within Australia.
The recognition of orders made by a Court in Australia in overseas jurisdictions depend on several factors including international treaties, conventions and other domestic laws of the relevant jurisdiction. In the context of parenting disputes, Australia is a party to The Hague Convention on the Civil Aspects of International Child Abduction which has established procedures for the prompt return of children who have been wrongfully removed or retained in another country that is not their habitual residence. If other countries are a signatory to and have ratified the Hague Convention, then usually they are obliged to recognise and enforce the order.In relation to other family law matters, such as divorce and property settlement, this can be more complex and depend on the laws of the foreign jurisdiction. In most cases, countries have their own legal processes for recognising and enforcing foreign family law orders and it is important that you obtain legal advice. We have relationships with various lawyers around the world to assist you with understanding the law in a foreign jurisdiction.
It is not a legal requirement to have a lawyer for your family law matter, however, it is highly advisable to seek legal advice, especially if your matter is complex and highly contested. Family law matters are highly emotional, costly and involve several legal complexities. Having a lawyer to assist you can provide several advantages including giving you advice and guidance, understanding the law, preparation of legal documents, assistance with negotiation and strategy, representation in court, emotional support, understanding the options available to you and using their specialised knowledge in the area of family law.
Yes, there are several alternatives to traditional family law litigation which will save cost and time. These are referred to as Alternate Dispute Resolution methods including negotiations, mediation, arbitration, family dispute resolution, informal settlement conferences and collaborative law.Mediation involves the parties appointing a neutral third party (the mediator) to assist with settling their dispute. Parties can participate in mediation before and during court proceedings and it provides them with the ability to take control of the outcome of their matter and to agree on terms that are suitable to them instead of having a judge make a determination with which they may not be happy.
The Mediator will listen to both parties to assist with identifying the issues in dispute and finding ways to resolve the matter in a comfortable and controlled environment. We have experience in representing clients in mediation across all areas of family law including parenting and property disputes, spouse maintenance and child support issues. We regularly work with highly experienced mediators in family law, some of which are accredited family law practitioners, barristers practicing in family law or former family law Judges and Registrars of the Court. Arbitration in family law matters can be another effective means to resolve disputes, however, arbitration can only be used for most property disputes and spouse maintenance matters. You are unable to arbitrate your parenting dispute.
This process involves the parties appointing a neutral third party (the arbitrator) to hear their case, assess the evidence presented to them and to thereafter make a legally binding decision. There are certain requirements to becoming an arbitrator, including have completed specialist training. The Arbitration must also be a legal practitioner and either attained specialist accreditation in family law or have met the required threshold of practicing in family law to qualify them to determine your dispute.