It is normal for couples to want to formalise the end of their marriage if they have separated. Making an Application for Divorce will end the marriage however, it will not finalise financial matters with your ex-partner. It could be the case that your ex-partner may still have a claim to your assets even after the Divorce.

Divorce

There is only one ground for divorce in Australia and that is that the marriage has broken down irretrievably. To establish this ground, you must satisfy the Court that you have: –

  1. Separated; and
  2. Lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.

If you are unsure if you are separated, check our blog here for some more information about separation.

To make an Application for Divorce, you will need to register with the Commonwealth Courts Portal. Some of the information that you need to provide is: –

  • A copy of your marriage certificate.
  • Details about separation such as whether you remained living together under the one roof.
  • Copies of any other current or pending cases relating to family law, child support, family violence or child welfare.
  • Details about the children (if any), such as: –
    • Who the children live with.
    • How they are supported financially.
    • Their health.
    • Current education.

One you have filed the Application for Divorce a Court date will be set. If the Court is satisfied that the ground for divorce has been met, then a Divorce Order will be made. The Divorce Order will become final one month and one day after the Order is made.

Now that you are divorced, it does not mean that you have completely severed financial ties with your ex-partner. You will still need to finalise all financial matters to ensure your ex-partner does not have a claim to any of your assets.

Property Settlement

Not only does a property settlement finalise matters between married couples, but it also finalises financial matters between those in a de facto relationship.

There are strict time limits to finalise financial matters and if you have separated, you should note the following important time limits: –

  1. If you were married, you have 12 months from the date the Divorce takes effect; or
  2. If you were de facto, 2 years from the date of separation.

If you do not apply to the Federal Circuit and Family Court of Australia before your time limit expires, you may lose your right to apply for property settlement orders.

How a Court determines property entitlements

When finalising your financial matters, regardless of whether this is by consent (with a consent order) or by Judicial determination, the Court will take a 5 step approach.

  1. To determine whether it is just and equitable to alter property rights

In some circumstances it may not always be appropriate for a Court to alter property rights. For example, in a very brief relationship where neither party has contributed to the others property.

  1. Identify the asset pool

If the answer to question 1 is yes, then the Court will then determine the asset pool. The asset pool includes all assets and liabilities of the parties regardless of how they are registered. It can include real property, cash, bank accounts, vehicles, superannuation, business interests and debts including mortgages, credit card debts and tax debts.

  1. Assessment of contributions

The contributions of the parties are assessed and a percentage adjustment is made in favour of one party if required. Contributions can be financial or non-financial, direct or indirect and contributions to the welfare of the family. Contributions made at the commencement of the relationship, during the relationship and since separation are taken into account.

  1. Assessment of future needs

The future means and needs of the parties are assessed having regard to a number of issues including income and earning capacity, property and resources, superannuation entitlements, health issues, the need for one party to care for the children of the marriage and the like. Again, the Court may make a percentage adjustment in favour of one of the parties if required.

  1. Consideration of justice and equity

Once the Court has considered all of the above factors it will consider whether the orders proposed to be made are just and equitable.

Contact our office today to speak with one of our solicitors to obtain advice about divorce or property settlement.