Are you thinking of getting a divorce and want to know what the process is like? If you live in Brisbane or North Brisbane there are five key steps in the divorce process you should know about, and it’s important that you understand what each one entails before you get a divorce. This includes filing for divorce, property settlement, and managing co-parenting after separation. You should also seek legal help when you get a divorce, especially if you’ve got children and joint property.
The Federal Circuit Court of Australia has the jurisdiction to deal with divorces under the Family Law Act 1975. When granting a divorce, the Court doesn’t consider the reasons for the divorce but simply recognises that the marriage has ended due to a breakdown and the parties will not get back together.
If you have children under 18 years of age, the Court will only grant a divorce if you’ve made proper arrangements for them.
In Australia, you can apply for a divorce if you and/or your spouse meet one of the following criteria:
If you married overseas and want to get a divorce in Australia, either you or your spouse must also meet the above criteria. You also need to give the Court a copy of your marriage certificate. If it isn’t in English, you should file an English translation of it, as well as an affidavit from the translator.
When applying for a divorce, you’ll need to prove to the Court that you’ve lived separately and apart from your spouse for at least one year and that you won’t resume married life. You can, however, be separated and still live in the same house – this is also known as being separated under one roof.
You and your spouse can be separated but continue to live in the same house one year before applying for divorce. You’ll have to prove to the Court that you were separated during this time. You can find more information about this in the publication ‘Separated but living under one roof’.
The filing fee for a divorce application is $865. If you’re experiencing financial hardship or hold certain government concession cards, you may be eligible for a fee reduction. If so, you only have to pay $290.
You should file a counselling certificate. You’ll have to attend counselling to get the certificate. Contact the Family Relationship Advice Line on 1800 050 321 to arrange counselling, or Relationships Australia on 1300 364 277. If you can’t attend counselling with your spouse, you should file an affidavit. You and your spouse should also have been separated for at least one year before applying for a divorce.
The granting of a divorce doesn’t determine issues of property distribution or arrangements for children. For more information, please refer to ‘Property and Asset Settlement’, ‘Child Custody’, and ‘Co-parenting/Managing Separation with Children’ below.
If you took your spouse’s surname when you got married, you can revert to your maiden name or former following a divorce or separation.
If you were married in Australia, you should contact every organisation you have a personal account with to change your family name. You also have to provide proof of the name change, including the following:
If you were born and/or married overseas and legally changed your family name to your spouse’s with the Registry of Births, Deaths and Marriages, you’ll have to legally change your name again with them.
If you were married in Australia, you’re entitled to be known by your maiden name regardless of your marital status. You simply need to prove the link between your married and maiden names with your marriage and birth certificates.
Here are some organisations, governments, banks, and councils you’ll need to notify when you change your name and address after a divorce: They are all clickable links straight to the people you need to notify. We hope this helps you in these chaotic times.
You can easily and quickly notify organisations of your new name using a personalised name change kit.
When your marriage is over, the financial ties between you and your ex should be finalised. For example, if you have a joint property, you should decide what happens to the house. You can either sell it or stay in it and your ex moves out.
When you make a claim for property settlement, the Court will look at the property at the date of proceedings and at the date of Trial if it makes it all the way through the Court process. This means property, assets, and debt acquired after separation by either party will be brought into the property pool.
The property settlement process should start soon after you divorce or separate from your spouse. At Journey Family Lawyers, we usually start the process by advising you of your entitlements. Then with your instructions, we’ll draft a letter to send to your ex partner to try to reach an agreement without having to go to Court. If an agreement can’t be reached, we recommend mediation between you and your ex partner. If there’s little chance of mediation succeeding, however, Court proceedings will commence and mediation can follow.
Your or your ex-partner must apply to the Court for property settlement within 12 months of your divorce or within two years of your separation. If you don’t commence property proceedings within these time limits, you could lose your rights.
The best way to finalise your property settlement is through a consent order, which is an order that you and your ex have agreed to. If the Court finds the property settlement to be fair and reasonable, they’ll make the order.
If you can’t reach an agreement with your ex, you can apply to the Court for a financial order.
When negotiating a property settlement, the Court will determine the value of the assets of both parties.
When deciding how to divide assets and debts, the Court looks at:
While you can split superannuation entitlements between both parties, it doesn’t automatically convert the interests into cash. The entitlements are still subject to superannuation laws, eg. it’s normally retained until you reach retirement age.
You can split superannuation by:
If you’re seeking a court order, the Court will tell the trustee of the superfund about the order by providing them with 28 days written notice. The trustee can attend the court hearing and object to the order you’re seeking. This is called providing the trustee with ‘procedural fairness’. Once the order is made, you should give a sealed copy of the order to the trustee.
If your spouse abuses your children, you can apply to the Court to grant you custody of your children and you can ask the Courts to have your spouse leave the home by court order. If you’ll be leaving the house and your children are going with you, you should also take items that your children may need if you have time and also your special things that are of sentimental value.
If you’ve experienced domestic violence, you can apply to the Court for a domestic violence protection order to protect you, your children, and other relatives or associates from your ex.
While it’s important that your children have both parents involved in their lives, you should also make sure they’re protected from physical and psychological harm. The Family Law Act specifically says so.
Whether you or your spouse have full custody of your children, the Court will usually presume it’s in the children’s best interests if both of you have equal shared parental responsibility. In the case of child abuse or family violence, this won’t apply.
Equal shared parental responsibility means both parents are responsible for making long-term decisions for their children after a divorce or separation. This means you and your spouse should make parenting arrangements for your children, and they must be practical and in your children’s best interests. These could cover:
If it’s in your children’s best interests, you can include the following people in your parenting arrangements:
Most importantly, you and your spouse should both be included in the parenting arrangements, to the extent possible having regard to any child abuse or family violence.
There are three types of written parenting arrangements. If you and your spouse agree with the arrangements made for your children, you can record your agreement as a parenting plan or a consent order. If you disagree with the arrangements, you can apply to the Court for a parenting order. But you should try to reach an agreement through family dispute resolution before applying.
A parenting plan sets out the care arrangements for your children. It must be signed and dated by both parents. There’s no need for it to be in a specific format or witnessed.
You can change the plan any time by making another written agreement. It must also be signed and dated by both parents.
You can apply to the Court for a consent order to make your agreement legally binding. You can also apply for a consent order online. You’ll also have to complete an Annexure to draft consent parenting order. You should file this with the Court at the same time as you apply for the consent order.
The consent order should be signed and dated by a suitable witness, such as a Justice of the Peace. You’ll have to pay a $160 fee when you file an application for a consent order.
You can change a consent order by making another consent order, parenting plan, or parenting order.
A parenting order is an order made by the Court regarding arrangements for your children and your parental responsibilities. The Family Law Act sets out what the Court should consider when making parenting orders, including what’s in your children’s best interests.
A parenting order is legally enforceable, so if you disobey the order you can face serious consequences.
Depending on who has custody of your children, you can determine the amount of child support you need to pay or receive by visiting Child Support at the Department of Human Services. If you want to change a child support assessment due to special circumstances, you can complete an application form to change the assessment. Your child support will be changed if there are indeed special circumstances and the change would be fair to both parents and the children.
Sometimes if your Income is going to radically increase or decrease, you could lodge an Estimate Of Income but be careful to read the guidelines or get legal advice before you do.
When co-parenting/managing separation with children, you and your ex should always have your children’s best interests in mind. Here are some factors to consider:
Equal shared care means your children spend half the time living with you and the other half with your ex.
In many cases, however, an equal shared-care arrangement isn’t in the children’s best interests, so the Court will consider an alternative arrangement. For example, your children will live with you and spend every second weekend, plus one night each week and half of the school holidays with your ex. Other arrangements such as 4 or 5 day weekends every second week, or 8 days a fortnight with one parent and 6 days a fortnight with the other are also common. It depends on what is best for the children.
If you’ll be relocating with your children, you should get your ex’s written consent or do it with a court order. On the other hand, if your ex moves away with your children and it affects your children’s ability to spend time with you, you can obtain a recovery order requiring your ex to return your children.
Here are some tips for successful co-parenting:
With more than 30 years’ experience, Journey Family Lawyers Brisbane can guide you through the process of divorce and help you achieve a positive outcome. Our services include divorce, separation, property settlement, and child support. We’ve helped thousands of Australians through their separation, so call us now on (07) 3832 5999 for a free 15-minute consultation. You’ll get personal advice from one of our friendly specialist family lawyers to ensure your divorce goes as smoothly as possible.
The financial support of children when parents separate is the responsibility of both parents. The system and process of child support is regulated by the Child Support Agency (CSA).
Child Support is money paid by one parent to the other, to assist towards the financial support of the children. The amount to be paid can be either negotiated between the parents or calculated by the CSA. If one party refused to pay the amount they are required to pay by the CSA, the CSA can take steps to recover that money. In other cases, the CSA collects the Child Support and passes it onto the other parent.
If anyone needs detailed information about the amount of child support payable, we recommend you visit the CSA website which has a “calculator” that parties can use.
Broadly speaking, the amount of Child Support payable is based on a formula that takes into account the incomes of the two parties, the number of children and nights those children spend each year with the respective parents
Generally, a parent only needs to provide Child Support until a child turns 18 years of age. However there are exceptions to this rule. You need to discuss this aspect with Lawyer if you think it might apply to your situation.
Separated parents have a number of options to determine the financial arrangements. These include:
There are potential benefits of having a private arrangement however there can be serious disadvantages as well. A great deal depends on your particular situation and you should NEVER agree to a Child Support Agreement, or sign any document until you have seen a Lawyer to discuss its implications. You need to remember that these types of decisions can, over the growing up period of a child or children, turn into a large amount of money. For instance, if you have committed to a payment arrangement and your situation changes (for example, you cannot work because of ill-health), you could end up with an obligation to pay money that you cannot afford.
Some Lawyers promote Child Support Agreements but do not explain the potential disadvantages. Often, if one party is advantaged, the other party will be disadvantaged. Therefore, we strongly recommend you see a Lawyer to make sure you receive proper advice and you know where you stand.
Child Support can be complicated. At Journey Family Lawyers, not only are all our Lawyers dedicated to Family Law but they also specialise within the various aspects of Family Law. If you need expert advice, call us and ask to have a talk with one of our experts about your Child Support issues.
A: There is a lot to be learned from the Child Support Agency website. There are downloadable forms to use if you need to. You can always telephone the child Support agency on the numbers on your Letters from them. and also on the web page. Don’t forget to always quote your case number when you call or write to them.
A: You need to contact child support and complete a form that asks them to consider changing the assessment. There are 9 grounds on which you can rely. Send the form to CSA and they will send it to your partner for response. The case officer will then arrange an appointment to see you both or talk to you on the phone and will make a decision. IF you are not happy with the decision, you may appeal to the Child Support agency. If you are still not happy, then and only then can you take the matter further. Check the form HERE on the CSA website.