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Australia Divorce Overview

Welcome to Mathews Family Law & Mediation Specialists. We’re here to assist you with your family law matter. I’m Vanessa Mathews, and I’m an accredited Family Law Specialist and Mediator.

I established Mathews Family Law & Mediation Specialists in 2007, with a commitment to providing our clients with a high level of family law advice and personal service. At Mathews Family Law & Mediation Specialists, we cover all of the issues that commonly arise when our clients separate and divorce. We’re experts in negotiating parenting arrangements and the division of assets.

If you’re starting a new relationship whether married or de facto, we can assist you with a prenuptial agreement. We also advise on the full range of family law matters, whether it be relocation, maintenance or superannuation splitting.

For most of our clients, we’re able to achieve a resolution through negotiation and mediation. For some of our clients, it only is a last resort, litigation may be necessary.

Separation and divorce is always difficult. At Mathews Family Law & Mediation Specialists, we can assist you to navigate your way through this time. If you have any questions about your family law matter, please don’t hesitate to contact us.

Our website contains lots of information about family law in Australia. We’ve also prepared a family law eBook with you, our client, in mind. Simply click on the eBook icon to download.

Choosing a family lawyer is a very important decision. I’m confident that Mathews Family Law & Mediation Specialists is the right choice for you.

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Divorce divorce

Who is allowed to divorce in Australia?

There are three requirements for divorcing in Australia:

  • You are an Australian citizen by birth or descent (one or both parents are Australian) or Australian citizenship was granted to you OR;
  • You must consider Australia your home and currently be living in Australia and intend to live in Australia indefinitely, OR;
  • You ordinarily live in Australia and have lived in Australia for 12 months immediately before filing for divorce (even if you took short holidays or business trips overseas).
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Divorce divorce

The divorce process demystified

Transcript

Hi, I’m Vanessa Mathews from Mathews Family Law & Mediation Specialists. Today I want to discuss a number of issues related to divorce.

I want to stress that these issues are best handled by a lawyer. I would encourage you to talk with a lawyer and to read more about these issues on our website before you take any steps on your own.

Divorce, according to Australian law, is the end of a legal marriage. That is, it’s a change in status for those in the couple. From a legal angle, it only involves those two people, not their children, not their property or the financial obligations they might have.

While all of those factors are affected by divorce, divorce itself is a fairly straightforward matter in Australia. Also, at least for now in Australia, legal divorce can only happen between a man and a woman. That’s because marriage in Australia is only legally recognised between a man and a woman.

Other couples, like same sex couples or couples who had been living together for a long time but chose not to get married, may be recognised as what’s called de facto couples. They may have many of the same rights as a married couple. But, if they choose to end their relationship they do not have to go through the process of divorce.

Divorce in Australia is no fault. This means that there doesn’t have to be a reason given for the divorce. If even one person wants to end the marriage, to get a divorce they have the legal right to end it.

There are, however, a number of conditions that need to be met before a couple can get divorced. You must be separated from each other for at least 12 months and 1 day. The court may even ask for proof that you were separated for this period of time before granting the divorce.

While generally separation means living apart from one another there are cases where a couple is considered separated even though they live in the same home. But, in this case the burden of proof is even greater, and there are a number of conditions that must be met.

So, if you are separated but living together in the same house, make sure you meet those other requirements. They include not having sexual relations, living in separate rooms, not attending social functions together, and not providing household services to each other like cooking and laundry. This shows the court that you really have ended your relationship. You can read more about this on our website.

Once you’re separated for a year and one day you can fill out an application for divorce. The application mostly asks about personal details like name, addresses, details about children, and the marriage and separation date. But, it also asks if there are other outstanding family issues in the court like property division, and this information needs to be listed.

The application must be signed in front of a lawyer, or justice of the peace, or someone else who can witness a document. Then, it’s filed with the court along with two copies and a copy of your marriage certificate. There is also a fee that you’ll need to pay when you file the application.

If you both wanted the divorce and both filled out the application then you’ll each get a copy from the court and wait for a hearing date. If only you filed the application then you have to serve the application on your spouse which means that your spouse has to get a copy of the application. Generally, a spouse is served by sending by registered mail. Your spouse can receive the application personally by hand, but you may not bring it to him or her. Someone else over the age of 18 has to serve him or her by hand.

Now, again, Australia has no fault divorce, so if one person wants the divorce there isn’t much the other spouse can do to prevent it. But, once the other spouse has the application he or she can fight the divorce by filing what’s called a response to divorce and claiming there wasn’t a separation of 12 months and 1 day or by arguing that the particular court doesn’t have the right to hear this case. Then, the case will have to be heard by the court.

But, assuming the other partner doesn’t fight the application, you will have a hearing at the court to just verify the facts of the case. The law doesn’t require everyone to attend the hearing, but you do have to go to court if you have children under 18 and only one of you apply for the divorce. If you filed a response to divorce you should probably go to the court since the judge will want to hear from you.

Now, I want to talk a bit about what happens in court. This is often scary for people, partly because just the idea of being in court is frightening and also because of the emotional side of divorce. But, it’s just a formal procedure where the judge or the registrar reviews the application. He checks that everything written is correct. The judge might ask you or your spouse some questions, too. If you have children, the judge will also want to know that everything is arranged for them, things like where they’ll live and how they’ll be supported.

Once everything is clear to the court they’ll announce that the divorce is complete and the marriage has ended. You’ll get a divorce order from the court through the mail, and this is proof of the divorce. The divorce is actually final only one month and one day from the date of the hearing. Only at that point, one month and one day, can you remarry.

You can find the application for divorce on the Internet, but we recommend you speak to a lawyer to be sure you haven’t missed out anything and to make sure you know all of your rights. You may also like to visit our online divorce service, onlinedivorce.com.au.

Thank you for watching this video. I’m Vanessa Mathews from Mathews Family Law & Mediation Specialists.

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Divorce divorce

I have questions about divorce but I’m not ready to talk to a lawyer, what should I do?

For many people, meeting with a family lawyer is terrifying. Some may feel that it signifies that the marriage is truly over, others are just scared of the process, and others may still be holding out hope for reconciliation. There are many reasons why being proactive about seeking advice might be hard. The good news is, there is a great resource available to Australians who are looking for information or advice about family issues: The Family Relationship Advice Line.

While you should not depend on the Advice Line to give you legal advice, it can be a great resource for general inquiries. Advice Line staff are equipped to provide information about:

  • services to help maintain relationships
  • the family law system and family separation
  • how to develop workable post-separation parenting agreements
  • the impact of conflict on children
  • Family Relationship Centres and other dispute resolution services, including telephone services
  • other services which will help with family relationship and separation issues

Another advantage to using the Advice Line for general or initial inquiries is that your call will remain anonymous. You can feel free to pick up the phone and ask your question without having to provide any personal information.

The phone number is 1800 050 321 and is open for calls from 8 am and 8 pm Monday through Friday and from 10 am until 4 pm on Saturday.

While this is not an appropriate resource to have your legal questions, such as “will I have to pay spousal support?” answered, it is a great resource to ask general questions about the divorce process and other family issues.

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Divorce divorce

Why is the divorce rate declining?

By 2016 the marriage rate in Australia had declined from 9.3 marriages per 1,000 residents to 4.9 in 2016.

The divorce rate has also been in steady decline since its height in 1976 (for obvious reasons) to 1.9 in 2016.

I wonder if the reasons for the declines set out in this American study – that who gets divorced is a function of who gets married – are applicable to the Australian social context?

https://www.theatlantic.com/family/archive/2018/09/millennials-divorce-baby-boomers/571282/

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What Contagious Disease Called ‘Divorce’

The rate of Divorce in Australia is high, with approximately 2.2 divorces per 1,000 estimated resident population.

The decision to separate and/or divorce is very difficult.

I find it difficult to believe that the decision to separate and divorce can be triggered by the separation or divorce of a friend (unless there is a ‘tryst’ between the parties to the marriage).

I have yet to meet someone who’s decision to separate was brought about by someone else’s decision.

I think that the decision to separate is much more profound than any ‘contagion’ and that the parties deserve greater respect than this oversimplification of this most difficult of decisions.

http://www.theage.com.au/lifestyle/life/making-a-break-for-it-when-you-divorce-because-your-friends-have-20140711-zt29v.html

Mathews Family Law provides expert divorce law / family law advice in Melbourne and the metropolitan area and, through the use of technology, to clients all over the world.

Vanessa Mathews
Accredited Family Lawyer

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Re-partnering After Separation, Divorce

Second marriages, partnerships, step-families present challenges, new opportunities after separation, divorce

Relationships Australia has prepared this informative summary about challenges and complication of re-partnering after separation, divorce.

In second partnerships, couples are often more aware of the difficulties in establishing a successful relationship and are more committed to making the marriage work.

Both second marriages and step-families have to overcome some difficult hurdles. These hurdles can present significant challenges to the couple in their relationship as partners and as parents.

Unfortunately, many second marriages and step-families, despite their commitment to making things work, fail to get over these hurdles.

This page outlines some of the challenges and complications of re-partnering and step-families.

The decision to re-marry or re-partner

Before you re-marry or re-partner, you should consider the following questions:

  • When?
  • Why?
  • To Whom?

Listen to any doubts. If necessary, wait a little longer

When?

The simple answer is after you have fully come to terms with the end of your previous relationship.  This is particularly important if you did not want the first marriage to end, and had to deal with the pain of leaving or being left by your previous partner.  It takes longer than many people expect to get over the end of a long term relationship, even if you were unhappy and felt that the end was inevitable.

Some studies suggest many people take at least two years to adjust to the end of a long term relationship. There are many exceptions to this. Some people take longer, others adjust more rapidly. Ask yourself:

  • Do I find myself thinking about my ex-partner and do these thoughts still arouse strong feelings such as anger and resentment?
  • Have I adjusted to living alone again?
  • Have I regained a sense of self-confidence?
  • Can I look back on that relationship and recognise some of the things that contributed to its breakdown?

In other words, am I emotionally free to re-partner? Can I put all my emotional energy into this new relationship without allowing my feelings about my previous relationship to get in the way?

Just as you cannot re-marry until you are legally free to do so, being emotionally free to re-marry is also important.

Why?

Unfortunately this question is often overlooked. Are you thinking of re-marrying or re- partnering because you want to be with someone whom you love or do you want to re-marry or re-partner for the sake of being in a relationship, or to provide a two-parent home for your children?  Being alone is not easy after being married or in a long-term relationship, especially if you have children living with you.  However, moving too rapidly into a new relationship can create a new set of problems.

To whom?

Past experiences influence our choice of partners.  This is especially true of a second marriage.  Be realistic about what worked and what didn’t work in your first marriage when making a decision about a new partner.  Learn from that experience to clarify what sort of partner you want.

Being in love is not enough to make a relationship work especially once the initial excitement has worn off.

The following organizations offer separation, divorce counselling:

Family Relationships Centre:  http://www.familyrelationships.gov.au/searchpages/searchpage.aspx?KEYWORD=frc%20not%20pop&RESOURCETYPES=Service

Relationships Australia: http://www.relationships.org.au/what-we-do/services/counselling

CatholicCare: http://www.ccam.org.au/

Family Mediation Centrehttps://www.fmc.org.au/marriage-counselling.php?gclid=Cj0KEQiAqK-zBRC2zaXc8MOiwfIBEiQAXPHrXsvDPeRotm4nM6DHg4zIk5QIa_fiidlbpIzCf9gbUlYaAoXl8P8HAQ