What to expect from the Divorce Process

A divorce is never an easy time, it can stir up many feelings and feel like a long process. At Carroll Goldsmith Lawyers we are here to help you through this process when you feel the time is right.

Officially, a divorce is a formal ending of a marriage. It's more permanent than a separation and involves a legal process. If you get a divorce, it means that the marriage has formally ended. 

The only requirement to get a divorce is that the marriage has “irretrievably broken down” because the court no longer concerns itself with fault. A couple, having been separated for a minimum of 12 months with no likelihood of reconciliation, will satisfy this requirement.

It is not necessary to get a divorce when you separate unless you want to remarry, but if you stay married it may affect your rights and obligations. For example, the division of the property on your death, or death of your former spouse, may have unintended consequences if you remain married.

You must update your Will and contact your Superannuation Fund to ensure your nominated beneficiary is updated, and that your Fund is aware of your change in circumstances.

Application

To apply for a divorce you or your spouse must have been separated for 12 months. You can apply for a divorce together (joint application) or on your own (sole application). If you are making a joint application you do not need to go to court. If you are making a sole application and your children are under 18 you must go to court.

If you make the application on your own, your former spouse must be served with the application. Service of the application can be achieved by ordinary mail, though we recommend that service of the application be affected by a Process Server. 

A hearing date will be set, at which time you will have to attend and the court will grant the divorce. Your divorce will not become final until one month after the hearing, at which time the court will issue a divorce certificate.

Property & Children

Typically when a new client attends our office following the breakdown of a relationship we advise against rushing to make an application for a divorce. Obtaining a divorce does not resolve property division or parenting matters. Generally, speaking these are the real issues that our clients will want finalised.

Once granted a divorce marks the start of a 12 month period during which parties must complete the division of property. If a property settlement is not resolved within 12 months after the divorce (in the case of a de facto couple, within 2 years of final separation), you will have to make an application to the court requesting permission to make an out of time application.

The costs and risks of litigation remain a real concern for our clients. It is not uncommon for a party, in circumstances where a divorce has been obtained, to use the pressure created by this 12 month timeframe to leverage a more favourable settlement outcome for themselves.

It would also not come as a surprise to learn that property division is intrinsically linked to parenting matters. These issues inevitably elicit tension, and so to make an application for divorce during negotiations may not be in either parties’ best interests. The finality of the divorce can be very emotive and undermine otherwise ongoing discussions concerning parenting and property matters.

Other Issues

Short Reconciliation

Couples may try and reconcile during separation for a period of up to 3 months without re-staring the 12 month separation period. For example, if you are separated for four months, get back together for almost three months and then separate again for eight months, this will be considered a total of 12 months’ separation.

Separated but under the same roof

It is possible to be separated, but still living under the same roof. The court will need to consider a number of factors if it is required to determine whether, in fact, you have been separated. For example what the domestic arrangement is, such as sleeping arrangements and home duties, and how friends and family categorise your relationship.

If this applies to you and you want a divorce, you will need to prepare supporting affidavits. 

Short marriages

If you have been married for less than two years, you and your spouse will need to attend marriage counselling and obtain a certificate to file with your divorce application.

If you would like to know more, feel free to contact us on 5975 7588 for further detail.

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