Have you been separated for a while and now want to formally divorce?

You have probably heard that these days nearly half of all marriages end in divorce. More couples are applying to the Court to dissolve their marriage than ever before. The process may seem simple, but it’s important you fully understand the process. A divorce can also affect your rights to a property settlement, spousal maintenance, or your will. Want to know more? Call us for an appointment on 4031 1044 or email us at info@rdlawcairns.com.au.

 

When can I get divorced?

You can apply for a divorce when you and your former spouse have been separated for over 12 months.  This is the only ground for a divorce, however if you have been married less than 2 years, counselling must also be attempted before the court will grant your application..

If you have children, the Court will need to be satisfied that proper arrangements have been made for the children. If you are involved in Court proceedings regarding your children or their support, this doesn’t necessarily mean your divorce won’t be granted. The Court will just need information about this.

If you do not have children, you can choose not to attend Court when the Court decides your application for a divorce. If you have applied for a divorce and have children, you will need to attend Court unless you file a joint application with your former partner.

 

When are we officially separated?

Separation occurs when one party forms the intention to end the relationship and communicates this to the other person.  Generally, one person will move out of the family home or residence. It is possible to be separated, but still living under one roof.  If the separation is not clear, the Court may require further information about your living circumstances at the time of separation.

 

If I move out of the home will this affect my rights?

No. Your rights to a property settlement or the children’s rights to have a meaningful relationship with you are not affected if you move out of the family home. It is always best however to try to reach agreement about what will happen before moving out of the family home provided it is safe to do so. If you are thinking about moving out, we suggest you seek legal advice before doing so.

 

What is the difference between a divorce and property settlement?

A divorce is the legal end of your marriage. A property settlement is the division of your assets, liabilities and financial resources. A property settlement can be done at any time after separation. You have to be separated over 12 months before you can apply for a divorce.

Generally, it is best to arrange your property settlement before your divorce. This is because once you are divorced, you only have 12 months to file an application for property settlement. After this time, you have to apply for permission of the Court to bring an application. This may not be allowed unless special circumstances exist.

 

Should I make a new will?

A divorce may affect your will or Enduring Power of Attorney. We suggest you seek legal advice about your particular circumstances.

Want more information? 

You may find it helpful to read our blogs on divorce. You can also phone us on 07 4031 1044,  email us at info@rdlawcairns.com.au, or contact us here.