Separation and Divorce are 2 separate stages of ending a marriage.
Here we will explain the differences and what is involved at each stage of a divorce.
12 Month rule
When separating from your partner, it is important they understand that the relationship is over, as you will need to show that you have been separated for 12 months with no chance of reconciliation.
If you recommence a relationship with your spouse, the 12 month period resets. You may be separated but continue to live under the same roof; this is most common where parents separate but wish to care for their children together. You must provide evidence to establish that your separation is genuine.
Choosing a lawyer
A family lawyer can help you understand how the law applies to your particular situation and will assist you in proceedings of family dispute resolution or attending court, if an agreement can’t be reached.
A good lawyer will be one that does not want the case to go to court and can give you a cost estimate.
It is best to obtain a cost estimate for each stage of your proceedings to avoid a shock at the end. This will allow you to be realistic with your negotiations to ensure that you are not paying your lawyer more than what your asset pool is worth.
Separation requires you to divide any shared assets, parenting responsibilities and property. We can begin to help you with getting for you what you deserve taking your circumstances into account. This can begin now. There is no need to wait for 12 months. However, this must happen before 12 months after divorce. So, some people file for divorce to exclude the other person from a property separation settlement.
If you and your ex-partner are able to agree on the division of assets and how your children will be looked after, you may not need to attend court.
Who gets what?
The ‘asset pool’ is the current market value of all assets and liabilities owned by both parties. This is split between the parties. The split begins at the position of 50 – 50 each. Then, other factors are considered which may increase the percentage of the split.The court can take into account money held in companies and family trusts. It will also consider superannuation held only in one person’s name.
Properties which were acquired prior to co-habitation may be excluded from the asset pool. However, details of valuations at the time of co-habitation may be required. Loaned monies are not considered as part of the asset pool. Usually, a signed – written loan agreement is required.
Mediation is where you with us and the other party with that person’s lawyer and the mediator are all together in one room and only the lawyers take turns in speaking with the mediator. The mediator is an experienced independent person in family law who helps the parties to try to settle the matter to avoid costs and emotion of continuing.
One way to achieve a good outcome is by agreement. If both parties agree, a proposal for the agreement can be made to the court. ‘Consent orders’ can be prepared and signed. It does not have to be heard in open court if everyone – you, the other party and the court – agrees.
If after trying, agreement cannot be readily obtained, a court process will be necessary. One of the first steps with court is that the court will require mediation. This is a real opportunity to be able to settle the matter on mutually agreed terms.
Attending a Court
Open court means that you may need to accompany us to the court building maybe 15 times over 18 months for lots of little decisions before the day of the final court hearing. A little decision or administrative decision may be about how mediation will be conducted or whether you are allowed to see the other party’s medical file or financial documents. This is the process of ‘discovery’ to find out about and verify the other party’s financial position. The final court hearing is what less than 5% of people experience. Most cases are settled at mediation or just prior to the final hearing.
Divorce is a fairly straight forward legal process, which formally ends your relationship.
You do not need to wait until you are divorced to settle your financial and property matters or make care arrangements for your children. We recommend settling these matters first, as a divorce imposes a 12 month time limit on making a property or financial settlement claim.
To obtain a divorce order, you are required to make an application to the Court on a no-fault basis; meaning, the only ground for divorce that needs to be satisfied is that you have been separated for a minimum of 12 months.
The application will be listed for hearing about 3 months after filing and the divorce will then become final, one month and one day after the hearing, making the whole process about 4 months.
Your ex-partner can’t say no to a divorce, unless there is a dispute with the date of separation.
If you were separated, but living under the same roof as your ex-spouse, the Court requires an affidavit to prove your separation. In this instance, it is advantageous to have a legal practitioner help you navigate through the process and prepare the additional information required.