Is getting divorced all I need to do?

Is getting divorced all I need to do?

27 November 2019 Topics: Family law

To finalise your separation with your husband or wife, you will generally need to consider more than just obtaining a divorce.

There are five separate issues you may need to think about depending upon your circumstances. These are:

  • divorce
  • property settlement
  • spousal maintenance
  • care arrangements for children
  • child support

We have provided a brief summary of each of these below.

Divorce

You may apply for a divorce one year and one day after separating with your husband or wife.

The only ground for divorce is that your marriage has broken down irretrievably. You do not need to give a reason why your marriage has broken down.

To apply for a divorce, you will need to complete an Application for Divorce and file it in the Federal Circuit and Family Court with your Marriage Certificate.

You may apply for a divorce jointly or solely (without the consent of your husband or wife).

Your Application will generally be listed for hearing within four months of the date it was filed in court.

If a Divorce Order is made at the hearing, it will take effect in one month and one day, after which time your marriage is dissolved.

Importantly, you will only have one year from the date the Divorce Order comes into effect to commence property settlement or spousal maintenance proceedings in the family law courts or finalise those matters in a legally binding way, unless you are granted leave of the court to proceed out of time, which is only given in limited circumstances.

Property settlement

Property settlement is the division of your property after you separate.
The family law courts adopt the following process in determining how parties’ assets will be divided:

  1. Identifying whether it is just and equitable to make an order adjusting the parties’ property by identifying the existing legal and equitable interests of the parties, being the net asset pool.
    Just because you were married does not necessarily mean that there will be a property settlement. In some cases, where parties have kept their assets and income separate, the Courts have declined to make an adjustment of their property.
  2. If it is just and equitable to make an order, assessing the parties’ respective contributions to the asset pool and determining how to divide the property pool based upon those contributions. Contributions can include financial, homemaker and parenting. Financial contributions are not given greater weight than parenting contributions.
  3. Considering each parties’ future needs, having regard to factors such as a party’s age, health, care of children and income earning capacity. A percentage adjustment may be made in favour of one party after considering those various factors.
  4. Assessing the overall percentage outcome to ensure the division of property is just and equitable.

Spousal maintenance

Spousal maintenance is an amount of money paid by one party to a marriage for the financial support of the other party.

It is not an automatic right upon separation. In an application for spousal maintenance, the court will consider:

  1. whether the applicant party can adequately support themselves; and
  2. whether the respondent party has the capacity to support the applicant.

In determining whether the applicant can adequately support themselves, the court will have regard to whether they:

  1. have the care and control of children of the marriage;
  2. are unable to obtain appropriate employment due to age or physical or mental incapacity; or
  3. have any other need having regard to various factors in the Family Law Act 1975.

Even if the court determines that the applicant is unable to adequately support themselves, the respondent is only liable to support them in so far as they are reasonable able to.

The respondent’s capacity to pay (if any) is assessed by determining their surplus of income after payment of their reasonable weekly needs.

Care arrangements for children

If you and your former spouse or de facto partner have children, you will need to decide where the children will live and how often they will spend time with each of you during school terms, holidays and special days.

The paramount consideration for the court is what arrangement is in the children’s best interests.

The court considers that children have a right to have a meaningful relationship with each parent. This is not to be confused with a parent having a right to see their children. The focus is what is in the best interests of the children.

If you and your husband or wife cannot agree upon care arrangements for your children, generally the first step will be to attend family dispute resolution with an independent mediator to try and resolve your dispute.

Child support

Child support is an amount of money paid by one or both parents to the other for the financial support of children of the marriage.

Child support is generally paid until the child turns 18. In some limited cases parents may also be required to pay adult child maintenance.

Either parent may apply to the Services Australia for an administrative assessment.

Alternatively, parents can essentially contract out of the administrative assessment by making a written agreement about how they will pay child support.

If there is an assessment to pay child support, a formula will have been used to determine the amount payable, which considers factors like the number of children, the children’s ages, the parents’ income and how often the children are in each parent’s care.

There is a helpful child support calculator on the Services Australia website which estimates the child support that would be payable pursuant to an assessment.

If you receive a child support assessment and do not agree with the amount payable, there is a review process to dispute the assessment.

Of course, not all the above issues may apply to you and should you require specific advice regarding your marriage breakdown, we recommend you get in touch with our family law team.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.