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Understanding the Divorce Process, with Clickable links to help

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.

Divorce and separation

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.

Who can apply for a divorce?

In Australia, you can apply for a divorce if you and/or your spouse meet one of the following criteria:

  • You consider Australia your home country and will live in it permanently or
  • You’re an Australian citizen or
  • You normally live in Australia and have done so one year before filing for divorce.

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.

‘Separation under the one roof’… What does it mean?

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’.

How to apply for divorce

Simply register for the Commonwealth Courts Portal if you haven’t already done so, then complete the Application for Divorce online and pay the filing fee.

How much will a divorce cost?

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.

What to do if you’ve been married less than two years

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.

What if you have children and joint property?

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.

Where to find more information on divorce and separation

Changing your name and address after getting divorced

Reverting to your maiden name or former name

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:

  • Australian birth certificate
  • Australian marriage certificate
  • Updated photo ID
  • Identity documents

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.

Who you need to notify when changing your name and address

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.

Property and asset settlement

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.

What’s included in the property pool?

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 pool can include:

  • Joint property
  • Investments (shares, real estate)
  • Interests in businesses and companies
  • Interests or entitlements in trusts
  • Interests in deceased estates
  • Superannuation and savings
  • Inheritance money or lottery win
  • Boats
  • Vehicles
  • Jewellery
  • Artwork
  • Personal injury and compensation payouts
  • Long service leave
  • Life tenancy
  • Pension entitlements

How to start the property settlement process

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.

Time constraints for property settlement

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.

How to formalise your property settlement

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.

How is the value of the assets determined?

When negotiating a property settlement, the Court will determine the value of the assets of both parties.

  • Furniture –The value of furniture is determined by their current sale value or second-hand value, not their replacement value or insurance value.
  • Joint property –The value of the property is what someone’s prepared to pay for it. But if you won’t be selling it, the value of the home is determined by taking the average of all the valuations provided by reputable real estate agents in the area. This is enough for most negotiations, but if agreement cannot be reached on the value and it goes to trial, a proper valuation by a registered valuer will be needed.
  • Cars, Motorbikes :These can be valued initially from a Redbook Valuation or a formal valuation obtained from a registered valuer.
  • Boats; These can be either valued or comparative values can be obtained from Tradeboats online.
  • Caravans These can be estimated initially from a Caravan online sales site or a formal Valuation
  • Superannuation –The value of your superannuation is harder to determine as its current value is lower than it’ll be at your retirement age. A Journey Family Lawyer can use forms to obtain information from your superfund to determine your super’s value. The forms are included in the Superannuation Information Kit. Self-managed super funds are generally valued with the help of an accountant. Some special Superannuation funds like Military Super have their own valuation process.

How are assets and debts divided?

When deciding how to divide assets and debts, the Court looks at:

  • What you’ve got and what you owe (assets and debts and what they’re worth)
  • The parties’ direct financial contributions to the marriage (wage and salary earnings)
  • The parties’ indirect financial contributions (gifts and inheritances from families)
  • The non-financial contributions to the marriage (caring for children and homemaking)
  • The parties’ future needs (the Court will consider your age, health, financial resources, care of children, ability to earn, etc).
  • Any financial resource or entitlement that you have that is not actually ‘property’ that can be divided between you both.

How can you split superannuation?

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:

  • Entering into a formal written agreement
  • Seeking a consent order
  • Obtaining a court order if you can’t reach an agreement with your ex partner.

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.

Child custody

Child abuse or family violence

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.

What is ‘equal shared parental responsibility’?

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:

  • Where your children live
  • Who your children spend time and communicate with
  • What time your children spend with the parent they don’t live with
  • Times for your children to contact each parent by phone when they’re with the other parent
  • Childcare or education
  • Medical issues
  • Religious or cultural practices
  • Financial support for your children
  • Changeover arrangements (Where and what time should changeover occur, who drives where)
  • Arrangements for special days (Christmas, Easter, Mother’s Day, Father’s Day, birthdays)
  • How you and your ex-spouse will communicate with each other.

Who can you include in parenting arrangements?

If it’s in your children’s best interests, you can include the following people in your parenting arrangements:

  • Grandparents
  • Extended family
  • Other people who are concerned with the welfare of children.

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.

Written parenting arrangements

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.

1. Parenting plan

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.

2. Consent order

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.

3. 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.

Child support payments

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.

Co-parenting and managing a separation with children

Have your children’s best interests in mind

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:

  • Protecting your children from harm
  • Ensuring your children have a meaningful relationship with both parents
  • The views of your children (Giving weight to their age and maturity)
  • The relationships your children have with each parent and other family members
  • The capacity and participation of each parent when parenting and spending time with the children
  • The effect of any changes to the children’s circumstance
  • The practical difficulty and expense of any arrangements.
  • The relationship the children have with each other sibling

What is ‘equal shared care’?

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.

What if you’re relocating?

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.

Tips for successful co-parenting

Here are some tips for successful co-parenting:

  • Don’t use your children to relay messages to their other parent.
  • Speak directly to your ex partner but keep it businesslike and to the point
  • Don’t talk badly about your ex to your kids or in their hearing
  • Be considerate towards your ex-partner
  • Respect your children’s time with your ex-partner
  • Don’t do something that would make it hard for your children to have both parents attend their weddings
  • Don’t let another adult’s angst affect the decisions you make in your parenting arrangements with your ex-partner
  • Plan your time when your children are away, so that you don’t mope
  • Don’t air your grievances on social media, even if you’ve blocked your ex-partner. Someone will pass it on and one day the kids may read it too..

Would you like some guidance through your divorce? Contact Journey Family Lawyers Brisbane today

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.

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Keeping Costs down

Superannuation

Following separation people wish to make arrangement for property settlement and remember having heard somewhere that superannuation is now considered property for the purposes of family law property settlement.  Sometimes people wish to reach an agreement about splitting their superannuation interests but do not know how to go about doing this.  The purpose of this fact sheet is to provide you with some general advice about how the Family Courts deal with superannuation interests.

Superannuation splitting law

The superannuation splitting law treats superannuation as a different type of property to things like houses, cars and bank accounts. It lets separating couples value their superannuation and split superannuation entitlements, although this is not necessary for all people to do so. Each case is unique.

It is important to understand that splitting superannuation entitlements does not convert those interests into a cash asset – the entitlements are still subject to superannuation laws (for example, it is usually retained until retirement ages are reached).  In simple terms, if you wish to receive part of your partner superannuation this does not mean you can readily convert it into cash.  Only in very limited circumstances will a super fund allow you to do so, and only then, only a limited amount (known as “hardship grounds”).  You must check with your Journey family law solicitor first before thinking you can access any part of your partner’s super after property settlement.

Options for splitting superannuation

Separating couples may either:

    1. Enter into a formal written agreement to split superannuation

A formal written agreement requires that both you and your former partner instruct a lawyer who must sign a certificate stating that independent legal advice about the agreement has been given. Once this agreement is made, you do not need to go to court. The agreement is not registered in court and you must be careful that each of you retains a copy.

Journey family lawyers do not recommend that anyone enter into a “superannuation agreement” as there are many dangers and pitfalls involved in doing so. Ask your Journey family law solicitor about this if you require further advice.

  1. Seek consent orders to split superannuation (this our best recommendation), or
  2. Seek a court order to spilt superannuation (if you cannot reach an agreement with your former partner)

Even when an application is made to a court, it is possible to reach an agreement at any stage without the need for a court hearing, and we encourage you do to so.  Journey Family Lawyers has a high success rate and reaching settlement in property matters thereby avoiding costly trials. You should ask your Journey Family Law solicitor about these options.

What you need to do to split superannuation

Step 1: Obtain valuation information

You need to get information to value the superannuation interests of both of you. You should provide the following forms to the trustee of the superannuation fund (we will usually do this for you):

  1. Form 6 Declaration. This satisfies the trustee of the fund that you are entitled to get the information for this limited purpose, and
  2. Superannuation Information Request Form (accompanied by the appropriate Superannuation Information Form).

The superannuation fund may (and often does) charge a fee for providing this information, and this is paid when you send the forms. The Superannuation Information Kit provides the information and the forms you need. To obtain a copy of the Superannuation Information Kit go to www.familylawcourts.gov.au or call 1300 352 000, or ask your Journey Family Law solicitor.

The information from the trustee may be enough to value the superannuation. However, the valuation of some superannuation interests can be complex. An expert may need to provide a further valuation.  This often occurs when one of you works in the public sector and is a member of a defined benefit scheme.  The valuation process for such schemes is often very expensive.  You should ask your Journey Family Law solicitor about valuing superannuation.

How superannuation is valued

There are different types of superannuation. The superannuation splitting legislation sets out methods for valuing most types of superannuation, but there are exceptions, including:

  1. Self-managed superannuation funds – they are generally valued with the assistance of an expert such as an accountant
  2. Where the Attorney-General has approved a fund using a different valuation method.

Step 2: Decide the method of splitting

You have the option of either entering into a formal written agreement or obtaining a court order (by consent).

Obtaining a court order (our preferred method)

People obtain court orders about the division of matrimonial property in two ways:

    1. By consent of the parties

If you and your former spouse have reached an agreement about property settlement (and superannuation), then a Form 11 Application for Consent Orders should be filed in the Family Court, accompanied by a  consent order (often referred to as “Minutes of Consent” or “Terms of Settlement”) recording the agreement. The orders can then be made in chambers (by a judge alone)  without either of you or your Journey Family Law solicitor attending court.

NB.  In some rare circumstances the Court will require further information from the parties.  Just because you have prepared Consent Orders and a Form 11 does not necessarily mean that it is the end of the matter.  A court will only make the Orders you seek if they are “just and equitable” and are enforceable by law.  The wording of superannuation splitting orders is complex and must meet strict legislative requirements.  If your orders are not worded correctly they will be rejected by the registry and you will find yourself having to seek the advice of a solicitor.  It is always wise to seek legal advice first, and is you wish to have super-splitting orders made, have your Journey Family Law solicitor prepare them for you to avoid delay and unexpected expense.

  1. As a result of a court hearing.

Even if you start proceedings, you can reach an agreement at any stage and once the orders recording the agreement are made you do not need to attend court further, provided that the Court is satisfied that the orders you seek are “just and equitable”.

Either way, you need to file an Application with the Court.

To start a case in the Federal Magistrates Court we must prepare for you and file an Application, an Information Sheet and a Financial Statement. The other party will file a Response and a Financial Statement.

The information from the superannuation fund trustee will help us to complete the court forms. You must disclose all superannuation, even if you do not intend to split superannuation payments.

Informing the superannuation fund

If you are seeking court orders about superannuation, we must tell the superannuation fund trustee about the orders you are seeking.  We must ordinarily provide the Trustee with 28 days written notice of the orders we seek on your behalf.  The trustee must have an opportunity to attend the court hearing and object to the orders that you are seeking. This is called providing the trustee with ‘procedural fairness’.

Once the superannuation order is made, whether by consent or after a hearing, it is  important to provide a sealed copy of the order to the trustee immediately.

You should get legal advice from us before deciding what to do. Our team of solicitors can help you understand your legal rights and responsibilities, and explain how the law applies to your case. Our role is to help you reach an agreement with your former partner without going to court.  That is always our first preference, but in some cases, it is simply not possible for parties to agree and if that is the case, we will assist you to prepare your court case.