Family & Divorce Law FAQs

Divorce

1.    Do I need to get a divorce?

If you have separated from a spouse you do not necessarily need to obtain a divorce. The only reason you would need a divorce is if you wish to remarry. You can carry out all other legal processes that follow separation (e.g. property settlement and arrangements relating to the children) without a divorce.

2.    Do I need my partner’s consent to file an application for divorce?

No, you can file the application on your own without the consent of your partner. You will, however, need to arrange for the application to be served on your partner after it has been filed with the Court. This is usually carried out by a registered process server.

3.    Do my partner and I need to be living separately in order to prove separation?

No, it is possible to demonstrate that you have separated even though you are still living in the same house. To do this you will need to file an affidavit with your divorce application in which you provide evidence of separation. This may include the fact that you are sleeping in separate bedrooms, that your sexual relationship has ceased, that you no longer socialise as a couple and that you are no longer providing financial assistance to one another.

4.    When is a divorce final?

If the Court is satisfied that you have met the legal requirements it will make a divorce order.  The order will usually take effect one month and one day after the making of the order.

5.    I have recently obtained a divorce, how long do I have to apply to the Court for a property settlement or parenting orders?

If you wish to initiate court proceedings to obtain a property settlement or parenting orders or apply for spouse maintenance, you have 12 months from the date on which the divorce is finalised. This will also apply to any application for consent orders. The 12 month limitation will not, however, affect any agreement that is made without the intervention of the Court.  

Property settlement

1.    Can consent orders or property orders be varied?

A property settlement can be set aside in some limited circumstances. If the settlement was by consent, then the consent orders can be set aside by the parties applying to the Court for fresh consent orders. If the settlement was the result of a contested hearing, then the property orders will only be set aside in very limited circumstances. The party seeking a variation will have to apply to the Court and will usually have to demonstrate that circumstances have changed in an exceptional manner since the making of the orders. It will not be sufficient that the party is simply no longer happy with the orders.

2.    During my relationship with my former partner I did not work as I was at home looking after the children. Will this affect my portion of the property pool?

No, if your property settlement is conducted by a court, the Court will look at both financial and non-financial contributions as well as contributions to the care and welfare of the family. If you have left the workforce to take care of your children and undertake domestic tasks, these will be taken into account and will usually be treated equally with financial contributions, so you shouldn’t be disadvantaged.   

3.    When my ex-partner and I commenced our relationship I already had several investment properties. What will happen to these during our property settlement?

The division of property in a property settlement is conducted on the basis of ‘contributions’ to the asset pool. At the breakdown of short relationships it is typical for parties to take with them what they brought in. However, in longer relationships, the contributions made by each party over time are seen to erode the contributions made at the beginning of the relationship such that property which was brought into that relationship often becomes part of the asset pool and divided amongst the parties.

4.    I have acquired significant property since the breakdown of my relationship. Will my ex-partner be able to get any of this in the property settlement?

The division of property in a property settlement is conducted on the basis of ‘contributions’ to the asset pool. Therefore, to claim a certain portion of the asset pool you need to demonstrate that you have contributed to it. Property that is acquired after the breakdown of the relationship is not technically off limits. If your spouse contributed to the acquisition of that property then, yes, it is possible that he or she may be able to claim a portion of it. Because property settlements carried out by a court often take place years after the breakdown of the relationship, the court looks at the position of the parties at the time of the hearing. The future needs and earning capacity of each party are considered to ensure a fair division of the asset pool and this may include division of property acquired after the relationship if necessary.

5.    If I leave my home (leaving my partner living in the house), does that mean I lose my entitlement to a share of the house?

No, if the house is sold as a result of the property settlement you will still be entitled to a share of the proceeds. If the house is not sold and your former partner is to continue living in it, you should be compensated for your share of the house. Remember though that it is not as simple as just dividing the house in a 50:50 share. Various factors will be considered and it is important to seek proper legal advice to protect your interests in the property settlement.

6.    I have been ordered to make spousal maintenance payments to my former spouse and I want to know when that order ends?

Unless the order specifies a particular date, the spousal maintenance order will cease to apply when your former spouse either dies or remarries. Failing that it will cease when you die.

7.    Can a spousal maintenance order be changed?

Yes, the Court can vary a spousal maintenance order in further proceedings between the parties.

Parenting and children’s issues

1.    Who can apply for parenting orders?

Any person who is concerned with the care, welfare and development of the child can apply for parenting orders. Whilst this is usually either or both of the parents of the child, it can also include grandparents, step-parents or other persons.

2.    Can parenting orders be reviewed or changed?

Yes, parenting orders can be changed. This can be done with the consent of the parties (for example, a valid Parenting Plan made after any parenting orders overrides those orders) or on an application made by either party to the Court. In reviewing parenting orders, the Court must consider whether there has been a significant change in the parties’ circumstances since the making of the orders and whether this warrants changing them.

3.    My ex-partner has breached our parenting orders, what can I do?

Parenting orders are legally enforceable which means a court can issue a penalty to your partner and prevent them breaching the orders again. You should seek legal advice immediately and your solicitor will notify the Court of the breach.

4.    I’m unhappy with an assessment made by the Child Support Agency, what can I do?

Firstly, you can make a formal objection to various decisions made by the CSA. This could include an objection to the decision to allow an assessment or to the particulars of an assessment. If you are not happy with the result of your objection, you can appeal to the Social Security Appeals Tribunal (SSAT) for a review of the decision. If you are dissatisfied with the outcome in the SSAT, there are some limited circumstances in which you can appeal to a court for a review.

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