Family Law

To apply for divorce in Australia, the following 4 requirements must be satisfied:

• One of you meets the residency requirement
• The marriage has irretrievably broken down
• You have been married for at least 2 years (What happens if my marriage is less than 2 years?)
• You have separated for at least 12 months and 1 day

If you cannot locate your spouse, you may apply for a sole divorce application.

Normally you would need your spouse’s address to serve the divorce papers. In such circumstances, you have to prove that you have taken all reasonable steps to locate them but failed. You will need to make a further application to ask a court to dispense with service or for substituted service.

People know these agreements as ‘prenuptial agreements’ but the legal term is ‘financial agreements’. A Binding Financial Agreement sets out how all or any of the property or financial resources of either or both of the parties to the relationship is to be divided.

A Binding Financial Agreement is the most cost-effective way for the parties to finalise a property settlement, avoid disputes and court proceedings in the unfortunate event of separation.

You can make a financial agreement before, during or after a marriage or de facto relationship. These agreements can cover:

• financial settlement (including superannuation entitlements) after the breakdown of the relationship
• financial support (maintenance) of one party by the other after the breakdown of a marriage or a de facto relationship
• or any incidental issues

A divorce and property settlement are two different legal processes. Although property settlement is not compulsory for divorce, it is still an essential way to secure your personal property and finalise your financial ties with your ex-partner.

If you fail to do property settlement properly:

1. Your property division may be unfair and unreasonable
2. Your liabilities may not be separated after separation/divorce
3. The other party may still be eligible to claim your property after separation/divorce
4. After the time limit to apply for financial orders, it would be harder to properly settle property issues

Both married couples and de facto partners can seek spousal maintenance from their partners after separation if they cannot adequately support themselves.

To apply for spousal maintenance, you need to satisfy the following two requirements:

• You are unable to adequately support yourself
• The other party is able to pay you spousal maintenance

If you can agree on the arrangements for your children

Then you should consider arranging a parenting plan. This method is much cheaper and saves you time. It is drawn up with a shared commitment to your children and their future. A written parenting plan, agreed upon by both parents, will provide certainty on the arrangements for the care of your children.

If you cannot agree on the arrangements for your children

Then you should consider seeking a parenting order made by the court. The court must consider what is in the best interest of the child and make an order accordingly. You should be warned this process can be expensive and it takes time. However, a parenting order is legally enforceable and breaching it does have legal consequences.

Learn More:
Parenting Plan vs Parenting Order

Child support is payable for all children living in Australia whose parents have separated, whether or not the parents were married. Normally, child support stops when your child turns 18.

To pay child support to a child over 18, an application can be made to court if:

• it is necessary to enable the child to complete their education or
• the child has a physical or mental disability

If you believe your safety is at risk, and the normal application process won’t protect you quickly enough, you can make an application for an urgent temporary protection order.

Urgent orders may be made to protect the aggrieved even if the respondent is not present in court or is not notified about an application for a domestic violence (ex parte order).

The aggrieved is required to establish that an urgent order is necessary or desirable. If possible, contact us or the police as soon as possible.

Learn more
All you need to know about domestic violence order

There are 3 options you can take as a respondent to a DVO:

• Consent to a DVO, accepting the allegations
• Consent to a DVO being made against you on a “without admissions” basis, meaning you don’t accept the allegations
• Disagree to a DVO, proceed the matter to a trial

Learn more:
How to Properly Respond to a Domestic Violence Order?