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DIVORCE AND SEPARATION

Divorce is a significant legal process that marks the end of a marriage. In Australia, the rules and requirements for seeking a divorce are outlined in detail to ensure clarity and fairness for all parties involved. Divorce in Australia is governed by specific regulations designed to ensure that the decision to end a marriage is considered carefully and that all parties have access to support and counselling services. Whether dealing with a straightforward application or navigating the nuances of separation under one roof and short marriages, it is important to understand the legal requirements and seek professional advice. 

 

Eligibility for Divorce:

12-Month Separation Requirement

The fundamental condition for filing a divorce application in Australia is that the parties must have been separated for at least 12 months. This separation period is crucial as it serves as a clear indication that the marriage has irretrievably broken down. The application can be initiated by either spouse individually or jointly, demonstrating mutual agreement on the decision to divorce.

Eligibility for Divorce:

Separation Under One Roof

Disputes between a second spouse’s interests and those of the first marriage’s children are highly nuanced, requiring a detailed examination of the case’s specific facts and circumstances. The court’s decision in each case hinges on a variety of factors, taking into account both the needs of the claimant and the intentions and obligations of the deceased.

 

Eligibility for Divorce:

Special Considerations for Short Marriages

    Marriages lasting less than two years have additional prerequisites to discourage hasty divorces. Couples are obligated to undergo counselling with a family or nominated counsellor to explore reconciliation possibilities. Proof of this counselling, in the form of a certificate, must be submitted with the divorce application. Alternatively, if counselling is not attended, the couple must seek the court’s permission to proceed with the divorce application, ensuring that all avenues for resolution have been considered.

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    Support Services

    The Australian Government offers free services to support families during the separation process. These services include mediation, dispute resolution, and counselling, aimed at facilitating amicable arrangements regarding child custody, property division, and other related matters. Families are encouraged to take advantage of these services through organisations such as Relationships Australia, which provides valuable resources and support for navigating the challenges of separation and divorce.

    Seeking Legal Advice

    Given the legal complexities and emotional challenges associated with divorce, obtaining professional legal advice is highly recommended. Family law accredited specialists, such as Edwards Moloney Family Law, offer expert guidance and representation throughout the divorce process. From filing the initial application to addressing specific concerns related to living arrangements and short marriages, a family lawyer can provide the necessary support and clarity.

       

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      Frequently Asked Questions

      Navigating through a divorce can be one of the most challenging periods in a person’s life, marked by emotional turmoil and numerous legal considerations. Recognising the complexity of this process, we’ve compiled a comprehensive list of Frequently Asked Questions (FAQs) designed to provide clarity and guidance on the myriad aspects of divorce law in Australia. Whether you’re contemplating the initial steps of filing for divorce, curious about the implications for your children and assets, or seeking to understand your rights and obligations, our FAQs section serves as a valuable resource to support you through this difficult time.

      Our aim is to demystify the legal process and offer practical advice that empowers you to make informed decisions about your future. The FAQs cover a wide range of topics, from the basic requirements for obtaining a divorce in Australia to more nuanced issues like navigating living arrangements post-separation, handling property settlements, and understanding the impact of divorce on wills and estates. We encourage you to explore these questions as a starting point in your journey towards resolving your divorce proceedings as smoothly and efficiently as possible.

      What is the legal requirement for obtaining a divorce in Australia?

      In Australia, the primary legal requirement for filing a divorce is a 12-month separation period, demonstrating the irretrievable breakdown of the marriage. This separation must be continuous, but it is possible to live under the same roof and still be considered legally separated, provided certain conditions are met. Edwards Moloney Family Law can guide you through this process, ensuring you understand the necessary steps and evidence required to meet legal standards.

      Can we be considered separated if we live under the same roof?

      Yes, couples can be considered legally separated even if they continue to live under the same roof. However, they must provide additional evidence to the court demonstrating that they lead separate lives, including details about separate financial accounts, household responsibilities, and social lives. This evidence is crucial for the court to acknowledge the separation despite the shared living situation.

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      How do I file for divorce if my spouse and I agree?

      If both spouses agree to the divorce, they can file a joint application, which simplifies the process and often does not require either party to attend court. This cooperative approach can also reduce the emotional and financial stress associated with divorce proceedings. A joint application signifies that both parties mutually acknowledge the end of their marriage and agree on the terms of their separation.

      What if my spouse doesn’t agree to the divorce?

      If one spouse does not agree to the divorce, the other spouse can still file for divorce individually after the required 12-month separation period. The non-agreeing spouse will be served with the divorce application and has the opportunity to contest the application. However, disagreement to the divorce does not usually prevent it from being granted, provided the separation period can be proven.

      What are the grounds for divorce in Australia?

      The sole ground for divorce in Australia is the irretrievable breakdown of the marriage, evidenced by a 12-month separation. This no-fault approach means that the reasons for the breakdown do not need to be proven, focusing instead on the fact of separation. This system simplifies the divorce process and reduces the potential for conflict between parties.

      Do we need to have our property and finances settled before applying for divorce?

      It is not mandatory to settle property and finances before applying for divorce; however, once the divorce is finalised, there is a 12-month time limit to apply for a court order regarding financial matters. Many couples choose to begin this process concurrently with the divorce application to ensure timely resolution. Legal advice can help navigate these settlements efficiently and fairly.

      What about arrangements for our children?

      Arrangements for children must be addressed separately from the divorce process, focusing on the best interests of the children. These arrangements can include custody, visitation, and child support agreements. It’s important for parents to come to an agreement that prioritises the welfare of their children, possibly with the assistance of mediation services.

      What are the requirements if we’ve been married for less than 2 years?

      For marriages lasting less than 2 years, the law requires couples to attend counselling with a family counsellor to discuss the possibility of reconciliation before filing for divorce. If counselling is not attended, parties must seek court approval to file for a divorce by demonstrating that they have experienced exceptional circumstances. This process aims to ensure that couples make informed decisions about ending their marriage.

      What if my spouse refuses to sign the divorce papers?

      If your spouse refuses to sign the divorce papers, you can still proceed with the divorce. The court allows for a divorce to be granted if one party demonstrates the marriage has irretrievably broken down, evidenced by a 12-month separation. Legal support is essential in these situations to navigate the complexities and ensure your rights are protected.

      How do we handle joint bank accounts and debts during a divorce?

      Joint bank accounts and debts require careful management during a divorce. Parties are encouraged to reach an agreement on how to split these assets and liabilities equitably. If an agreement cannot be reached, the court will decide based on factors like each party’s financial contribution and future needs. Legal advice can provide strategies for negotiation and settlement.

      What happens if we reconcile after filing for divorce?

      If you reconcile after filing for divorce, you can withdraw your application before the divorce is finalised. Reconciliation must be genuine, and you should inform the court of your decision to halt the divorce proceedings. Seeking legal advice during reconciliation can help address any legal implications and ensure the proper steps are taken.

      What are the implications of remarrying before finalising my divorce?

      Remarrying before your divorce is finalised is legally not allowed and considered bigamy, which is a criminal offense. It’s crucial to wait until your divorce has been officially granted and you’ve received the final divorce order. Consulting with a family lawyer can help you understand the timeline and ensure all legal processes are followed correctly.

      How does divorce affect my will and estate planning?

      Divorce can significantly impact your will and estate planning, necessitating updates to reflect your new marital status. Provisions in your will favouring your ex-spouse may no longer be valid post-divorce, and revising your estate plan ensures your assets are distributed according to your current wishes. It’s advisable to seek legal advice to update these documents promptly after a divorce.

       

       

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      What support is available for families during the divorce process?

      Families going through a divorce can access various support services, including counseling, mediation, and dispute resolution, to navigate the emotional and practical challenges of separation. Organisations like Relationship Australia provide free or low-cost services to help families adjust. Legal firms such as Edwards Moloney Family Law offer expert guidance on all matters relating to divorce.

      How do we decide on child custody arrangements?

      Child custody arrangements are determined based on the best interests of the child, considering factors like the child’s relationship with each parent, their health and safety, and the ability of each parent to provide care. Parents are encouraged to agree on arrangements amicably; if not, the court will make a decision. Legal advice can assist in negotiating a fair and practical custody arrangement.

      Are there alternatives to court for resolving our divorce and custody issues?

      Yes, alternatives to court, such as mediation and collaborative law, offer a less adversarial approach to resolving divorce and custody issues. These methods focus on negotiation and agreement between parties, often resulting in less stress and lower costs. Family law professionals can facilitate these processes, helping parties reach mutually acceptable agreements.

       

      About Edwards Moloney Family Law

      We are a leading family law firm in Sydney with over 30 years of award-winning experience in matters relating to complex family law matters. We are a full-service family law firm with a rich history of helping clients with complex property settlements, divorce law, divorce negotiations, child custody and mediation services. Our law firm has a strong focus on providing expert specialist advice relating to Family Law following the breakdown of your marriage or de facto relationship.

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      What are Accredited Family Law Specialists?

      Members of our senior legal team are accredited Family Law Specialists. In the legal profession an Accredited Specialist is a practising solicitor who has demonstrated specialised competence in a particular area of law and has been conferred Specialist Accreditation by the Law Society under its Specialist Accreditation Scheme. Our Family Lawyers in Sydney are highly experienced accredited specialists in divorce, settlement and all matters related to Family Law. EM family lawyers have 4 accredited specialists working out of our offices in Sydney CBD and North Sydney.

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      Divorce & Separation

      Experienced Divorce Lawyers in Sydney

      When married couples separate, there is only one ground for the grant of a Divorce Order, and that is the irretrievable breakdown of the marriage. This is established by the parties being separated for a minimum of 12 months prior to Divorce. In some circumstances, parties can be living under the same roof and still be able to establish this ground.

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      Property Settlement

      Expert property settlement lawyers

      Edwards Moloney Family Lawyers can assist you and your spouse/partner to come to an agreement in relation to all financial matters and issues arising from the breakdown of a relationship, including the division of all assets and liabilities, spouse maintenance payments, superannuation splitting orders and child support departure Orders.

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      Negotiation & Resolution

      Expert negotiation and resolution lawyers

      Opportunities for negotiation and settlement exist not only before proceedings are commenced, but also after proceedings have been commenced and right up until the time that the Court finally hears and determines the matter. Parties can settle a matter at any time.

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      Parenting & Children

      Parenting and Children Family Lawyers

      The best interests of the children is the paramount consideration when determining the most appropriate and suitable arrangements for the children after a separation. At Edwards Moloney Family Lawyers, we encourage our clients to participate in the counselling or mediation services available to assist them to reach an agreement with their spouse/former partner

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      Mediation Services

      Mediation Lawyers

      Edwards Moloney Family Lawyers offer Mediation Services to assist parties to engage in effective dispute resolution. Our Principal, Frances Edwards, has extensive experience in negotiating settlements in both parenting and property matters, and is a National Accredited Mediator and member of LEADR and IAMA.

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      De Facto

      De Facto Lawyers

      De Facto couples (including same sex couples) who separate after 1 March 2009 have the same rights as married couples. The rights and obligations of couples upon the breakdown of a Marriage or De Facto relationship are now all governed by the Family Law Act 1975. De Facto couples who separated prior to 1 March 2009 are still covered by the old State legislation

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      We are a leading family law firm in Sydney with over 30 years of award-winning experience in matters relating to complex family law matters. We are a full-service family law firm with a rich history of helping clients with complex property settlements, divorce law, divorce negotiations, child custody and mediation services. Our law firm has a strong focus on providing expert specialist advice relating to Family Law following the breakdown of your marriage or de facto relationship.

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