- Initiating Divorce Proceedings
- Residency and Jurisdiction
- The divorce process in action
- Advice for Navigating the Divorce Process
- FAQ’s
Divorce is an emotionally challenging process, and it’s crucial to understand the legal aspects involved to navigate it effectively.
The Family Law Act 1975 is the primary legislation governing divorce and family law matters in Australia, including Queensland. The Act aims to promote the welfare of children and provide a just and equitable resolution of disputes between parties involved in family breakdowns.
Australia practises a no-fault divorce system, which emphasises the irretrievable breakdown of a marriage instead of assigning blame to either party. The concept of no-fault divorce is essential in promoting a more amicable and less adversarial approach to ending marriages. Instead of focusing on reasons for the divorce, the emphasis is placed on the 12-month separation period, which serves as evidence of the marriage’s irretrievable breakdown.
This approach also helps in reducing conflict between the parties, especially when it comes to matters of property division, spousal maintenance, and child custody arrangements. By eliminating the need to prove fault, the process becomes more streamlined and less emotionally taxing for all parties involved.
Initiating Divorce Proceedings
In Queensland, there are two types of divorce applications that can be made.
Sole Application
A sole application for divorce is filed by one party to the marriage. If you are the sole applicant, you are referred to as the “applicant,” and your spouse becomes the “respondent.” In this case, you are solely responsible for initiating and progressing the divorce proceedings.
Joint Application
A joint application for divorce is filed by both parties together. In this scenario, both you and your spouse are referred to as “joint applicants.” Filing a joint application indicates that both parties agree to the divorce and the terms set out in the application.
The choice between a sole and joint application depends on the circumstances and the level of cooperation between the parties. If both parties are amicable and in agreement regarding the divorce, a joint application can expedite the process. However, if there are disputes or communication breakdowns, a sole application might be more appropriate.
Documentation & Information Necessary
To initiate divorce proceedings in Queensland, certain documentation and information are necessary, regardless of whether it’s a sole or joint application. The following documents and details are vital for the divorce application:
- Marriage certificate: You must provide a copy of your official marriage certificate as evidence of your legal marriage. If the certificate is not in English, you must also include a certified English translation.
- Proof of Australian citizenship or residency: At least one of the parties must either be an Australian citizen, regard Australia as their home and intend to live in Australia indefinitely or ordinarily live in Australia and have done so for 12 months immediately before filing the application for divorce.
- Separation period details: As part of the “no-fault divorce” principle, you must demonstrate that you and your spouse have lived separately and apart for a continuous period of at least 12 months. This requirement is crucial, and you’ll need to provide information about the date of separation and any attempts at reconciliation.
- Children’s arrangements: If you have children under 18 years of age, you must provide details of their living arrangements, custody, and access arrangements. The court will want to ensure that proper arrangements are in place for the welfare of the children.
- Service documents: If you are the sole applicant, you will need to serve a copy of the divorce application on your spouse (the respondent). It is essential to keep proof of service as it will be required for the court hearing.
Residency and Jurisdiction
One of the fundamental requirements for initiating the divorce process in Queensland is meeting the jurisdiction criteria.
The jurisdiction requirement is that either you or your spouse must regard Australia as your home and intend to live in Australia indefinitely, or you must be an Australian citizen, or you must ordinarily live in Australia and have lived in Australia for at least 12 months immediately before filing for divorce.
Jurisdiction refers to a court’s authority to hear and decide a particular legal matter. In the case of divorce, it’s about whether an Australian court has the power to grant a divorce For an Australian court to have jurisdiction over your divorce case, you need to meet the residency requirement as mentioned above, and you must satisfy the below legal criteria.
- The 12-month rule: The Family Law Act mandates that you must have been separated from your spouse for a period of at least 12 months before filing for divorce.
- Reconciliation attempt: If you and your spouse have reconciled for a period or periods following your initial separation then the court may require additional evidence to satisfy the irretrievable breakdown of the marriage.
- Declaration of validity: You must be able to provide evidence that your marriage is legally valid and recognized under Australian law. This requires providing a copy of your official marriage certificate or a certified English translation if the certificate is not in English.
The divorce process in action
Legal Grounds for Divorce
In Queensland, the legal ground for divorce is based on the concept of “irretrievable breakdown” of the marriage. This means that the court does not assign blame to either party for the end of the marriage. Instead, you must satisfy the court that you and your spouse have lived separately and apart for at least 12 months and that there is no reasonable likelihood of reconciliation.
To prove the separation period, you can provide the court with evidence such as:
- Affidavits from yourself and a witness who knows about your separation.
- Lease agreements or utility bills showing separate addresses.
- Financial documents that demonstrate separate bank accounts or financial arrangements.
- Affidavits from friends or family who can attest to your separation.
The Hearing
After submitting your divorce application, a court hearing will be scheduled. If you have filed a joint application, you and your spouse do not need to attend the hearing. If you have filed a sole application, and there are children of the relationship who are under eighteen (18) years of age then you (the applicant) must attend the hearing.
If you have filed a sole application and there are no children of the relationship under the age of 18 then you do not have to attend the hearing.
During the hearing, the court will review the application and supporting documents. If all requirements have been met, and the court is satisfied that the marriage has irretrievably broken down, a divorce order will be granted. This order will become final one month and one day after the hearing, and the divorce will be legally recognised.
Division of Assets and Property
It is essential to understand that divorce and property settlement are separate legal processes. The divorce process deals with ending the marriage, while the division of assets and property involves the distribution of marital assets between the parties.
In regards to property settlement, the court considers various factors including the financial and non-financial contributions of each party to the marriage, future needs, and the welfare of any children.
Identifying and valuing assets and financial resources
The first step in the property settlement process is to identify all assets and liabilities of the marriage. This includes but is not limited to:
- Real estate: The family home, investment properties, and vacant land.
- Financial assets: Bank accounts, shares, superannuation, and investments.
- Personal assets: Vehicles, jewellery, artwork, and other personal belongings.
- Business interests: If either party owns a business or has interests in a business.
- Liabilities: Debts, mortgages, and loans.
- Financial resources: Superannuation, anticipated inheritances, interests in trusts and other interests where a party expects to receive a benefit.
It is essential to provide full and accurate financial disclosure during this stage to ensure transparency and fairness in the property settlement.
Contributions and Future Needs
The court considers various factors when determining the division of assets and property, including:
- Financial contributions: This includes both direct and indirect financial contributions made by each party to the acquisition, improvement, and maintenance of assets during the marriage.
- Non-financial contributions: Non-financial contributions include things like renovations or maintenance to a property.
- Parent and homemaker contributions: The Court takes into account a parties role in and caring for children and maintain and running the family home.
- Future needs: The court takes into account the future needs of each party, including their age, health, financial resources, and ability to earn an income.
- Standard of living: The court considers the standard of living established during the marriage and seeks to ensure both parties can maintain a reasonably comparable standard of living post-divorce.
Property Settlement Options
In Queensland, property settlement can be achieved through various means:
- Consent orders: If both parties reach an agreement on the division of assets and property, they can apply for consent orders through the Federal Circuit and Family Court of Australia. Consent orders formalise the agreement and have the same legal effect as a court order following a trial.
- Binding financial agreement: This is a formal agreement that outlines how assets and property will be divided upon divorce. It is a private contract. Both parties must obtain independent legal advice before signing a binding financial agreement.
- Court order: If parties are unable to reach an agreement, they can seek a court order for property settlement. In such cases, the court will consider the relevant factors and make a determination based on the individual circumstances of the case through the proess of a trial.
Child Custody and Support
Child custody, also known as parenting arrangements, is a critical aspect of divorce proceedings, especially when children are involved. The best interests of the child are the paramount consideration when determining custody arrangements.
Parents can make parenting arrangements privately, or if necessary, seek court orders for parenting arrangements. The court encourages both parents to be actively involved in the child’s life, taking into account the child’s wishes (if they are of sufficient age and maturity) and the ability of each parent to provide a safe and supportive environment.
Child support is another significant consideration but it is generally not determined by the Court. It based on each parent’s income and the care arrangements for the child.
Spousal Maintenance
Spousal maintenance refers to financial support provided by one spouse to the other after the breakdown of the marriage. It is usually considered when one spouse is unable to adequately support themselves financially. The court may order spousal maintenance if it is deemed necessary, taking into account whether or not the person seeking maintenance can meet with own reasonable expenses from their personal income or assets and whether the other party has the capacity to pay.
Advice for Navigating the Divorce Process
Avoiding Social Media Pitfalls
During a divorce, it’s worth being aware that social media can lead to issues if not used carefully. For example:
- Do not share details of family law proceedings: Refrain from sharing intimate details of your divorce or negative remarks about your spouse on social media platforms. Such posts can be used against you during the divorce proceedings. Further, and subject to some exceptions, section 121 of the Family Law Act makes it an offence to publish any proceedings that identity persons or witnesses involved in family law proceedings.
- Be mindful of photos: Be cautious about posting pictures that could be misinterpreted or taken out of context. Photos showing extravagant spending or questionable behaviour may impact property settlement negotiations.
Complying with Court Orders
During the divorce and family law process, the court may issue orders related to parenting arrangements, property settlement, or spousal maintenance. It is crucial to fully understand and comply with these court orders. Failure to comply can have serious consequences and may result in penalties or legal repercussions.
If you find it challenging to comply with a court order due to changed circumstances or other reasons, it is essential to seek legal advice and apply for a variation or modification of the order, rather than ignoring or breaching it.
Being Prepared for Setbacks
Divorce can be an unpredictable process, and setbacks are not uncommon. Emotionally preparing yourself for potential setbacks can help you navigate them more effectively. Lean on friends, family, or seek the guidance of a professional counsellor or therapist if needed.
FAQ’s
Can I get a divorce if I am still living with my spouse?
Yes, you can get a divorce in Queensland even if you and your spouse are still living under the same roof. The law recognises that separation can occur even if you are residing in the same house, as long as you have lived separately and apart for a continuous period of at least 12 months. It is crucial to provide evidence to support the separation, such as separate financial arrangements, living arrangements, and affidavits from yourself and a witness who can attest to the separation.
Who gets to stay in the house during separation?
During the separation period, neither usually has an exclusive right to live in the family home. The court does not automatically grant exclusive occupancy to one spouse. However, if there are issues of family violence or other safety concerns, it may be necessary to seek legal advice and apply for a court order for exclusive occupancy.
How long does a divorce take?
The duration of the divorce process in Queensland varies depending on the complexity of the case and the court’s caseload. Generally, in our experience, once you file the divorce application, the Court will list the application for hearing between six and twelve weeks after you file the application. If all requirements are met, and there are no complications, the divorce order will be granted at the court hearing. After the hearing, the divorce becomes final one month and one day later.
Do I need to attend Court for my divorce?
If you and your spouse have filed a joint application for divorce, neither of you will need to attend court for the hearing. However, if you have filed a sole application, and you have children of the relationship who are under 18 years of age, you (the applicant) will need to attend the hearing. If you have filed a sole application and you do not have children of the relationship who are under the age of 18 then you usually will not need to attend.
Can I get divorced if my spouse and I cannot agree on parenting arrangements for our children?
Yes, the divorce process is separate from parenting arrangements. Even if you and your spouse cannot agree on parenting arrangements, it does not prevent you from obtaining a divorce. However, the court encourages parents to prioritise the best interests of the children and will consider each parent’s position during parenting order proceedings.
Can I get divorced if my spouse and I cannot agree on a property settlement?
Yes, similar to parenting arrangements, the divorce process is independent of the property settlement process. The court can grant a divorce without the need for an agreement on property settlement. However, it is essential to resolve property settlement matters to avoid future disputes and protect your financial interests. In such cases, seeking advice from a skilled family lawyer can help you negotiate a fair and equitable property settlement.
It is also worth noting that in normal circumstances, the Federal Circuit and Family Court of Australia will not hear an application for property settlement if it is filed more than 12 months after your divorce is finalised.
