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.
Over the past decades grandparents have been called upon to look after their grandchildren fulltime in a way they could not possible have imagined they would.
Often their own children have been lost to drugs or are in unsuitable environments for raising children. Sometimes people agree that the grandchildren would be better off with their grandparents, but sometimes there are heart rending disputes for the sake of the children.
Our firm has a significant track record for understanding and resolving disputes between grandparents and children, and do not shy away from initiating applications for grandparents to spend time with their grandchildren also. If you tried elsewhere and failed to get the legal support you need, or simply need to have someone assess your situation please call or email us, and we will do our very best for you.
We find when client’s come to Journey Family Lawyers for the first time, there are two prominent issues that we need to look at;
what will be the final outcome and
what is going to happen in the short term.
This article gives some practical tips for what to do before you go and what to do once you’ve left.
One of the biggest problems we have with client’s coming to see us for the first time, is that they just don’t understand their finances. It’s very common to hear, “Oh, but so-and-so always paid the bills, I have no idea how much we have.” As painful as it is, you need to learn the basics.
After speaking with us for the first time, we will often recommend that you go and speak to a financial planner. Why? Because we can’t give you financial advice. They can give you advice on:
We can work with your financial planner to let them know how much money you have to work with so that a manageable budget can be planned.
Often, people just walk out of the house with nothing more then the clothes on their bank. Sometimes however, you have the opportunity to do a little pre-planning. If you can, take a copy of all your useful documents (bank statements, superannuation statements, share statements, tax returns, pay slips, etc.) to provide to us to give us a better understanding of your property pool.
And once you do leave, get organised! Put a binder or folder together of your most important information. You can include in it account numbers, contact information, policy numbers, correspondence from your solicitors and any other important documentation. It’s simple, but effective and helps you to focus.
As well as this, if you are leaving and you’re worried about personal items, take them with you. Photo albums are not easily replaced but copies can be made later.
Divorce adds pressure to your already busy life, so to get through it, you need a good support system. Find a solicitor that you can relate to. Having a good relationship with your solicitor is absolutely fundamental. If you don’t trust or feel comfortable with your lawyer, you will never feel ok with the outcome. If you need to, speak to a psychologist or counsellor. Remember, we are all professionals in different arreas for a reason. Just like a counsellor can’t give legal advice, there are certain issues that solicitors aren’t trained to deal with. If you feel like it’s becoming too much, speaking to a professional will often help with this pressure.
Speaking with a financial planner, accountant or real estate agent often helps as well. Ask your family and friends for a good recommendation.
We lawyers absolutely love paperwork! And if you think your paperwork pile was big before, a complicated divorce matter makes things so much worse. It can be tempting to simply through everything in a box and leave it there, but we recommend getting a file or system in place that allows you to keep everything organised. That way, you’ll know where everything is when you need to access it and you will make your life much easier.
There is a time lag between a person first applying for Centrelink payments and Child Support and the date of the first payment. This can leave one party in dire straits for a few weeks, especially if they do not have any funds in their own name.
In these circumstances, most people continue to take mortgage payments and other living expense from whichever salary funded them in the past. It is usually only later, when Child Support payments are being made that the person living in the house assumes liability for the mortgage and outgoings. The Court expects a person living in a property to pay for the costs associated with that property on the basis that the other parent will have other living expenses involved in renting.
If no agreement can be reached then it may be necessary to bring an urgent spousal maintenance claim to cover day to day living expenses.
Many times the Father leaves the house and the children and their Mother stay in the home. This is usually the sensible course of action as it is easier for one person to relocate than for several people to relocate. Difficulties arise however, where neither party will leave the home and resulting conflict makes life hell for both parties and the children.
In these circumstances, it may be necessary for one party to apply to the court for an order granting them “sole occupancy”. Decisions on this point are made by the Court based on the balance of convenience and fault, amongst other things. Generally the person who has somewhere else to go and the money to fund the move will be asked to leave. Unless he or she can convince the Court that there is no reason why they should leave. It is not unusual for people to continue to live under one roof but separately if they are unable to afford alternative accommodation for one party.
At the early stages, unless there are serious emergent circumstances, the parties will need to negotiate interim parenting arrangements either directly between themselves, or with the assistance of solicitors. Family Relationships Centre or Relationships Australia offer a free mediation for parties to discuss parenting arrangements.
Remember, unless there is an exception, parties must attend (or have sought to attend) compulsory family dispute resolution prior to commencing proceedings.
If , after reading our client’s testomonials, and reading about our philosophy and skills, you feel that you would prefer to have our firm handle your case then we are happy to help.
Sometimes it can feel difficult to change lawyers. You will feel loyalty to your solicitor sometimes but still feel that there could be more that should be done to move things along. We understand that sometimes other firms require their staff to carry many more files than we do. This can result in your file being one one of many rather than one of only about 20 or so files.
If you wish to try our firm’s positive approach, then email us at firstname.lastname@example.org or phone us on 07 38325999 in Brisbane or your local journey office, and we will arrange for the file to be transferred to us. There is no need for any ill will with your former lawyers. We will handle the transfer with dignity and a minimum of disruption to your case tamiflu over the counter. Even if you are not far from a Court date, we may be able to help you with a concentrated effort on your part and ours.
Talk to us first so that you are sure you are comfortable with us and that we can help.
We can email you the authority to transfer the file if you prefer. Just call one of the Solicitors for an obligation free discussion. Just email us and we will get back to you. Or call us and ask to speak to any one of our experienced lawyers about your case to see if you feel we share the same philosophy and have the expertise you need.