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Divorce & Separation

Facing divorce or separation can be difficult and upsetting. During this time, matters can become complex, fueled by emotion. Our team of specialist family lawyers are here to answer your questions and help you become aware of your options so you can make informed decisions. 

Whether you are considering or already separated, Honan Family Law is here to help you understand the legal parameters of your separation. With the correct information and support, you can navigate your next move with confidence.

Divorce vs separation – what’s the difference?

In Australia, separation occurs when one party communicates to the other they wish to end the relationship. This applies to both de facto and married relationships.  

A married couple can file for divorce once they have been separated for at least 12 months. A divorce is the legal severance (end) of a marriage. 

What are the first steps when filing for a divorce?

Before filing a divorce application, there are some important questions to consider:

  • Are you the only one wanting to file for divorce, or are both you and your spouse filing for divorce? If there are applications filed by both of you, you will be able to resolve the process quickly and avoid any Court appearances. 
  • Are there children under 18 involved? Where the application for divorce is a sole application and there is a child of the marriage under 18 years, the applicant must attend the Court hearing. The Court must also be satisfied that proper arrangements have been made for the care of the children before granting a divorce.

Everyone will have a different set of circumstances. Even if you are already separated, or you and your partner are amicable, early legal advice is important.

The processes of separation and divorce can be difficult. Seeking legal advice from expert divorce specialists ensures you can be informed before you act, enabling you to move onto the next chapter of your life quickly and cost-effectively.

Everything you need to know about divorce and separation

When parties to a marriage separate but continue to live in the same home, this is referred to as “separation under one roof”. It may be for a few days, weeks, months or years following separation.

If you lived in the same home during part or all of the required 12 months separation period or in the 12 months prior to you filing for divorce (if you have been separated over the required 12 months separation period), before the Court will make a divorce order, one party (in a sole divorce application) or both parties (in a joint divorce application) need to file an affidavit setting out their evidence that they were separated under the same roof. An affidavit from a third party (like a friend or family member) will also usually be required.

The affidavit will need to show there was a change in the marriage, gradually or suddenly, showing the spouses had separated. Examples in the affidavit may include:

  • A change in the sleeping arrangements.
  • A reduction in family outings or social engagements.
  • A reduction in performing household duties for each other; for example, cooking meals or washing clothes.
  • Division of finances; for example, operating separate bank accounts.
  • Any other matters that show the marriage has broken down; for example, if family and friends were advised of the separation.

The affidavit should also explain:

  • Why the parties continued to live in the same home following separation and what will be the living arrangements in the future.
  • If there are children of the marriage, what the living arrangements were for the children have been since separation.
  • If any government departments were advised of your separation.

Where the application for divorce is a sole application and there is a child of the marriage under 18 years, the applicant spouse must attend the Court hearing.
In all other instances, provided the circumstances of the separation are set out correctly and the required affidavits have been filed with the Court, there is no requirement for you to attend the court hearing and the Judicial Registrar will determine the application in chambers.

If the Court requires more information before making the Divorce Order, it will adjourn the case and direct you to file additional material or to attend the Court hearing.

Where there are children under the age of 18 years, before granting a divorce order, the Court must also be satisfied that proper arrangements have been made for the care of the children.

At the time of hearing of the application (which will be on the papers in the absence of the parties if a joint application is made), if the Court is satisfied that the Divorce Application meets the requirements of the Family Law Act then the Judicial Registrar will pronounce a divorce order in relation to the marriage.

Once this hearing takes place, the divorce will take effect one month and one day after the divorce order is made at the hearing.  Until the divorce order takes effect you and your ex-partner will still be considered spouses at law despite having been separated and despite having the divorce order granted.

Once you obtain a divorce order, it will affect several aspects. A divorce order:

  • legally severs the marriage. This means that you can remarry in the future and you and your ex-partner will no longer be considered spouses at law.
  • will render any provision in your Will that appoints the spouse as executor of the other spouse’s estate or nominates them as a beneficiary of the estate null and void. Under Queensland law, a spouse is entitled to make a claim on their spouse’s estate any time up until a divorce order takes effect.

will start a time limitation period running in which you must finalise property settlement and spousal maintenance matters.  You can only make a claim for property settlement or spousal maintenance if you apply to the Court within 12 months from the date a divorce order becomes effective.

Need support navigating your next move?

Book an initial consultation with us. We’ll help you understand where you stand, so you can move forward with grace and confidence.

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