FAQs: Family Law
Family Law:
What is a divorce? It is the legal dissolution of a marriage. This means, the couple is no longer the husband and wife. A couple is able to be divorced after a 12 month period in which they must sort out the issues concerning property, estate and finance.
When can I obtain a divorce? For a couple to be divorced, a couple must have been separated for at least a period of 12 months and granted permission by the court to do so. Within the 12 months, the issues concerning property and estate must be sorted by the couple. Furthermore, to be eligible for a divorce, you must comply with the following:
· regard Australia as your home and intend to live in Australia indefinitely, or
· are an Australian citizen by birth, descent or by grant of Australian citizenship, or
· Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
What is a Separation? A legal separation may be similar to a divorce. For it to be legally recognised, you must apply for divorce. When ‘Separation under one roof’ occurs, you may still be legally married as husband and wife, but the law will regard that your marriage relationship has ended. If you fail to reach an amicable resolution (Consent Orders), the Court can intervene (upon an application) and make Orders for children, debts and assets, as in a divorce.
What must I prove to obtain a divorce? To get a divorce you must:
1) show evidence of marriage;
2) proof that you have been separated for at least 12 months;
3) That the marriage has broken down permanently and there is no reasonable probability of a reunion;
4) Proof that your application for divorce has been served on your ex partner;
5) And lastly , that you are an Australian citizen/permanent resident (at least one of the parties)
Can I oppose an application for divorce? Yes. However as an alternative, you must complete , file and serve a Response to Divorce Application.
What happens if we get back together for sometime? A short reconciliation of less than 3 months may not affect your ability to file for divorce, on the basis that the two periods of separation before and after the reconciliation (but not including the period of reconciliation) add up to a period of separation of at least 12 months.
What is a Family Violence Order (Protection Orders)? A Family Violence Order is an order made under the laws of the states and territories for the protection of someone from family violence. There are different names for family violence order in different states: Protection Orders (ACT and Queensland), Apprehended Domestic Violence Orders (NSW), Intervention Orders (Victoria), Restraining Orders (South Australia, Western Australia, Northern Territory and Tasmania). In majority of the cases, a Family Violence Order restricts one parent from coming within a set distance, stalking or harassing another parent. However, Family Violence Orders can contain limited exceptions such as allowing contact between parents for the purpose of delivering or collecting a child etc. In some circumstances, children are included in the Family Violence Orders.
How much will the Divorce cost? The current court cost for the divorce is $550 (Federal Magistrates Court filing fee). There is an extra cost unless organised otherwise. This fee is regulated every two years. However in some cases, this fee does not apply. If you hold a government concession card or if you face financial difficulty, these fees may be waived if you qualify.
I married overseas; can I get a divorce in Australia?
Yes, you can apply for a divorce if you or your spouse qualifies for at least one of the following terms:
1) You must regard Australia as your home and intend to live indefinitely in Australia as an Australian citizen or resident,
2) You are an Australian citizen by birth or decent,
3) You are an Australian citizen by grant of citizenship,
4) Live mostly in Australia and have done so continually for over a period of 12 months immediately before filing for divorce.
And you must provide the Court with a valid copy of your marriage certificate. However if your marriage certificate is not in English, then you must:
1) obtain an English translation version as well as
2) A statement from the translator stating: their qualifications, a copy of the marriage certificate and a translated copy of the marriage certificate and swear that the facts therein are all correct.
I can’t find my spouse to serve a divorce application. What can I do? If you can’t find your spouse there are two options:
1) Substituted service or
2) Dispensation of service
What is the difference between substitution service and dispensation of service?
Substitution service: Allows you to serve court documents on a third person who the Court is satisfied with and will bring the court document to the attention of your spouse.
Dispensation of service: You do not need to serve Court documents on your spouse if the Court is satisfied that you have made all reasonable attempts to find your spouse.
We are getting divorced - will decisions about future arrangements for our children, property and maintenance be made at the same time? The allowance of a divorce does not decide the arrangements for property, maintenance or child support. To make an agreement on this matter there are two options:
1) Arrange with your spouse and file it with a Court, or
2) Seek assistance from the Court If you and your spouse cannot reach an agreement.
To apply for maintenance for self or for the division of property, you must file a separate application within a year of your divorce or speak to the Court directly about another arrangement.
Same Sex Relationships – Please contact us in confidence to obtain accurate legal advice
What are your charges for acting in Family Law property settlement/maintenance matters? We normally charge on an hourly basis, the rate depends on the matter.
For some matters, we undertake not to charge our professional fees until your family law property settlement matter is completed. You will then authorise us to receive on your behalf any property settlement monies that you will receive from your matter into our trust account until our legal costs and disbursements are fully paid.