A divorce doesn't have to be messy or melodramatic. You and your spouse may have married with the best of intentions. But it didn't work out, and the decision to permanently separate can be instigated by either one of you, or it might even be a mutual decision. So what happens next?
Moving Out
Generally one of you will move out. There might be a lease on a rental property, shared bank accounts might end up with each of you establishing your own account, and other joint accounts (such as utilities) might be transferred into the name of whoever remains at your previously shared home. These items will sometimes be necessary later to assign a formal date of separation.
Mediation
The terms of the separation will need to be determined. This involves which party will have primary custody of any children or whether custody will be equally shared. The division of assets will also need to be decided. Formal mediation can help you with this process.
Consulting a Lawyer
If you have any doubts about the terms decided upon during the mediation process, you might wish to consult a lawyer. Family lawyers can assess the terms of the separation and ensure that they're appropriate. If there are any points of contention about the terms that your spouse is inflexible about, then a family lawyer can work on your behalf to obtain a resolution.
The Waiting Time
As per the Family Law Act 1975, you must be separated for 12 months before you can apply for a divorce, before waiting a further month before the divorce comes into effect. Australia has a no-fault divorce system, which essentially means that fault doesn't need to be assigned to either party, and the only reason for the divorce is that the marriage simply was not working, which is demonstrated by 12 consecutive months of separation. Be sure to update your will after you separate, as your spouse will be entitled to a share of your estate (or even its entirety) if you should pass away before your divorce is finalised.
Formalising the Divorce
You or your spouse moving out of your shared home can be demonstrated as the date of separation, along with the establishment of a sole bank account or the transfer of existing shared accounts into a sole account. You will generally only need to apply for a divorce at the precise moment of eligibility if you intend to remarry immediately; otherwise, a delay beyond the minimum requirement is perfectly acceptable. This is entirely at your discretion. You can apply for a no-fault divorce online, via the Federal Circuit Court of Australia (or the Family Court of Western Australia for residents of that state).
Divorce will almost always be a difficult emotional process, but it doesn't have to involve a difficult legal process.
For more information, contact a family lawyer.
Share20 May 2020
Hello, my name is Jenny and this is my probate law blog. I should say now, I am not a lawyer and I have not had any professional legal training. However, I do know a thing or two about probate. I taught myself a lot after the death of my grandma. My grandma left a lot of money and property behind, but unfortunately, she didn't leave a will. This lead to several family members staking a claim on the inheritance. I instructed a lawyer to act on my mother's behalf to ensure that she was not cheated out of her share.