MythBusters: the meaning of “Divorce”
As Family Lawyers, we are commonly asked whether our work consists of helping parties with divorce. The simple answer is, divorce is only a very small part of the work that we do.
The more complex explanation is that a “divorce” is only the formal dissolution of a parties’ marriage. A divorce does not affect a financial division of assets between spouses, does not require the court to make orders for the financial support of either spouse or their children, nor does it dictate parenting arrangements.
A Divorce Application is commenced through the Federal Circuit Court of Australia. Earlier this year the Federal Circuit Court moved to an electronic system whereby they direct parties to make online applications. This means that you can complete your Application and submit it to the Court from the comfort of your own home.
A Divorce Application can be completed jointly with your spouse or you can lodge a sole application. If you are lodging your own application, you will need to arrange for the filed Application to be personally served on your spouse. There are special requirements for serving the Divorce Application on your spouse and you can obtain further information about service requirements via the Court’s How-To Guide or by seeking assistance from a lawyer.
At the Divorce Hearing, a Registrar of the Federal Circuit Court will consider your Application. The Registrar will grant the divorce, provided they are satisfied that:
You or your spouse are either citizens of Australia, have lived in Australia for 12 months or that one of you intends to live here indefinitely;
You and your spouse were married – this can be proved by providing a copy of your marriage certificate to the Court;
You and your spouse had been separated for more than 12 months;
Appropriate arrangements are in place for the care of any children;
If it is a sole application, that your spouse was properly served with a copy of your Application; and
If you have been married for less than two years, that you have undertaken counselling to consider reconciliation or there are “special circumstances” which mean that counselling is not required.
Once the Divorce Order is made by a Registrar, it will take effect after a month and a day. You are then no longer legally considered to be married.
Effect of a Divorce Order
You have 12 months after a Divorce Order takes effect to initiate proceedings against your ex-spouse for a property settlement and/or maintenance. After the 12 month period expires, you would need leave of the Court or the consent of the other party to initiate proceedings.
However, you can also effect a division of assets/ property settlement and reach agreement on other financial and parenting matters without being divorced. Therefore you can reach agreement on and finalise all other financial matters between you and your spouse, before obtaining a formal divorce.
Divorce & Wills
We recommend you review and update your Will following a separation.
If you separate without changing your Will and you subsequently pass away, then you may be appointing your former spouse to be the executor of your Will and the beneficiary of your estate.
A Divorce Order will not revoke your Will, however it will revoke the appointment of your former spouse as executor and beneficiary.