What is the difference between divorce from separation?
When one partner in a relationship determines the union is finished and there is no chance of a reconciliation, separation takes place and the other partner is informed of this choice. It’s crucial to understand that separation does not always require consent from both parties. The decision to end the relationship can be made by either party, but the other person must be informed that the separation has occurred.
Before filing for divorce, you must be apart for 12 months and 1 day.
The separation period of 12 months need not be continuous. You can add the times before and after the reconciliation to obtain the necessary 12 months even if there are only brief periods of reconciliation (less than 3 months).
Divorce is different than being separated. A court will terminate the marriage contract through the legal process of divorce. It has a lot of immediate consequences and alters the parties’ legal position. For instance, a divorce decree nullifies any will you may have created that bequeaths property to your husband.
It’s crucial to keep in mind that divorce does not require settling property rights with your ex-spouse. You only have a year after your divorce to ask the court for a property settlement.
What about divorce proceedings?
Whether you file for divorce on your own or jointly with your husband will affect how the process plays out. It is simpler to file your application with the Federal Circuit and Family Court of Australia if you can work cooperatively with your spouse.
You must submit a single Application for Divorce if you are unable to lodge jointly for any reason. The Application must then be “served” on your spouse. You must personally deliver the Application to your ex-spouse; it is not sufficient to simply post it to them. If you feel uncomfortable performing service yourself, you can ask a friend, a family member, or a professional process server to do it.
If you file a sole application, you will also be required to appear in court if you have any family members who are minor children (including a foster child or step-child).
In contrast, neither party must be served with a joint divorce application, and neither party is required to appear in court.
Do I need a lawyer?
Speaking with a Queensland lawyer and asking them to handle the process on your behalf is the simplest method to start the divorce process. In that instance, you will have to give some paperwork and respond to some inquiries, but the attorney will see to it that the rest of the requirements are met.
You can also apply for divorce without consulting a lawyer. The Commonwealth Courts Portal allows you to electronically file your application.
What about time limits?
In Australia, divorce and separation are subject to significant time constraints and limitations.
When one or both parties decide to separate, or when one party decides to separate and notifies the other party of their decision, the process of separating officially begins. Before requesting a divorce, the spouse must have been apart for one year and one day. Therefore, you cannot apply for divorce if you separate on August 1, 2021, until August 2, 2022.
What about property settlement and divorce?
Property division and divorce are two distinct legal procedures.
The official split of property after a couple separates is known as a property settlement. The partition of assets can be discussed as soon as a couple separates.
A divorce allows the parties to legally end their marriage and start a new one. Before filing for divorce, you must wait 12 months from the date of separation.
Without requesting a divorce, your property settlement might be formalised.
Following a divorce, the following processes should be followed in order to divide assets fairly:
- We must first come to an understanding regarding the values of each party’s assets and debts.
- Second, we must consider who has made what contributions to the relationship, both monetarily and otherwise.
- Third, we must evaluate any elements that will have an impact on the people in the future, such as the arrangements for children and each party’s income.
- The final requirement is that the result be “fair and equitable”.
How can we make our property settlement legally binding once we’ve come to an agreement, and what are the advantages?
A property settlement can become legally enforceable in one of two ways:
- The first step is to submit settlement terms or orders to the Family Court of Australia.
- The second is to sign a binding financial agreement, which can only be done with the help of independent legal counsel from both parties.
The agreement’s formal completion has several advantages, including the provision of certainty and finality, the ability to protect assets accumulated after the couple’s separation, and potential savings on capital gains and stamp duty.