A Guide To Divorce

A Guide to Divorce

               Establish Eligibility for Divorce

               Filing an Application for Divorce

               Serving Divorce Papers

               A Guide to Entitlements

               Consent Orders

               Errors in Consent Order Applications

               Reaching an Agreement through Negotiations

               Terms of Settlement are Agreed

               Court Proceedings

               The Divorce Hearing

A Guide to Divorce

Take your time to read through the following information. This guide is designed to assist your understanding and explain the proceedings and requirements for ending a marriage. Keep in mind that each application for divorce and the proceedings resulting are unique to your circumstances. Never hesitate to Contact Us [ILW1] at Antwan Lawyers for further information.

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Establish Eligibility for Divorce

• an Australian Citizen
• born in Australia
• a Permanent resident, or
• has an intention to stay in Australia

Proof of the marriage is necessary. A Marriage Certificate will need to be filed.

The third criteria according to the Family Law Act 1975, is that the marriage has broken down and there has been a period of separation for 12 months or greater. In the event separation has not been for 12 moths, that is, both parties have occupied the same residence in that 12 month period, an Affidavit must be filed. An Affidavit is treated as evidence by the court, and is a written statement given under oath. It goes to prove separation for a period 12 months or greater, despite a co-habitation and is preferably given by a third party, like a family member or a mutual friend. This statement must show that that there has been a break-down and that both parties have a wish to end the marriage.

A period of two years marriage is required to apply for divorce. If partners have been married for a period shorter than two years the person filing for divorce can postpone filing for divorce until the two years has elapsed, or both parties can attend counselling session to prove irreconcilable differences.

Filing an Application for Divorce

Divorce Applications require a fee.

There are circumstances under which you may be excused form paying this fee. When filing the application you may submit a form detailing which of the following circumstances apply:

• you receive a Commonwealth Government Allowance and have a Concession Card
• you receive a student benefit AUSTUDY or ABSTUDY, or you are receiving legal aid, or
• paying the fee would result in financial hardship

Serving Divorce Papers

Once you have filed the divorce papers, the applicant must serve notice to their partner or the respondent.

The service must be completed at least 28 days prior to a hearing and by either

 personal delivery

a third party serve the documents to the respondent and the respondent signs that they have received the documents. if the respondent does not sign, the third party who served the documents can provide an affidavit (a statement that they were received by the respondent)

            or post

When neither of these can be carried out, a substitute service, which will require a court order, can occur, but only when circumstances prevent the other options.

All documentation must be signed, completed and filed with the Court before the divorce hearing.

Very rarely, the respondent may defend the divorce. In this case a date is set for the Court to determine whether or not there are grounds for this application.

[ILW2] A Guide to Entitlements

• homes
• cars
• furniture
• business interests
• superannuation
• tax refunds and tax debts
• other debts and

inherited assets

Consideration will be made for all contributions made to the marriage, those brought to the marriage at the beginning, those acquired during the marriage, and those after the separation.

Initial contributions are the assets acquired before marriage and must be considered. However, in long term marriages, these assets may carry less weight.

Assets acquired during the marriage include all manner of contributions including:

• all those listed above
• wages and salaries
• the contribution of a stay at home, primary parent. The Court, as a general rule, values the contribution of stay-at-home parents in the same way it would the parent who works fulltime and contributes a wage. These contributes are generally considered equal
• contributions made towards the maintenance, renovation or improvement made to property
• business ventures and investments

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If a settlement is reached shortly after the separation, contributions made following the separation may not be significant. However, if settlement is a considerable time after the separation, they may become relevant. If one spouse is left to draw on assets to support children, if one person fails to meet obligations to support the children these may be considered negative contributions and considered in assessing entitlements. Mortgage and rent, property improvements may be considered, as can redundancy, compensation payments, inheritance or other lump some receipts.

Further to these considerations there are also adjustments made for each person’s interest. Considerations under Section 75(2) include:

• the age and health of the parties
• the duty of each spouse to support the children or other family members
• the capacity for each party to earn an income

financial resources available to both parties

For example, where there are children, the primary care giver may not have the same capacity to earn an income the same as the other party, so consideration will be made for this and financial adjustments made accordingly.

Every situation is assessed individually and every set of circumstances is different. Initial contributions, assets acquired during the marriage and after the separation, and considerations under Section 75(2) will be different in every marriage.

[ILW3]  

Consent Orders

To obtain a Consent Order you will need to provide the following documentation:

• The Application for Consent Order (form 12A).
• A copy of the Marriage Certificate to establish eligibility.
• The Agreed Terms of Settlement establish and outline the agreement reached in regards to entitlement, taking into consideration assets, liabilities and the circumstances of each party.
• A Form of Order. This is a standard, formal paragraph required with each Term of Settlement. 
• Copies of any prior Apprehended Violence Orders (if there are any).
• A Superannuation Information Form also needs to be submitted, if there is to be a division of superannuation benefits. The superannuation funds for each party will need to complete these.

Two Affidavits, one for each party, to state that each person has had independent legal advice.  The affidavit needs to be signed by both people in front of a Justice of Peace or lawyer. Legal advice is important to ensure that parties do not agree to inequitable or unfair settlements, and that documentation is not inadequate or poorly prepared. If legal advice is not sort the Court may consider the Consent Order more closely and additional information may be required to satisfy the Courts requirements, especially in regards to the needs of any children involved in the marriage break-up.

Application for Consent Orders - Form 12A contains the following information:

• names of both people involved
• addresses
• dates of birth
• occupations
• details of the marriage  -  date and location
• if there are children involved, any relevant details concerning them also need to be disclosed
• assets, liabilities, and financial resources also need to be listed, as well as their values
• both people must also divulge their current gross weekly income.

When all the relevant documentation is completed, it needs to be filed with the Court Registry.  If the court accepts the details and agreements reached as meeting the criteria, a Consent Order will be sent to both parties, or their respective legal representation.

Errors in Consent Order Applications

a)      the Terms of Settlement list and include all assets, liabilities and financial resources of both people, omissions and details left out may lead to further disputes.

b)     the order is drafted correctly. It is important that values, time constraints for any payments, and any other relevant conditions be clearly stated in such a way that the Court deems easily enforceable. Poorly drafted orders may be deemed unenforceable.

c)      the Terms of Settlement include penalties for any conditions or agreements that are not meet by the other person.

d)     your order clearly states who is required to do what and who is to receive what.  Failure to make this clear can lead to an unenforceable order. If Jack is to transfer a particular asset to Jill and Jack is to be responsible for that transfer by a particular date, your order needs to say so clearly.

The team at Antwan Lawyers is able to assist you with this. Helping you to avoid these common mistakes and assisting with the process. Independent legal advice is also necessary to avoid the Order being set aside on the grounds that it was signed by one party who claims to have not understood what they were signing, or who did so under duress (that is they were forced).

Consent Orders can also include agreement pertaining to Children. For further information please read our article regarding Children and the Divorce Process[ILW4] 

Reaching an Agreement through Negotiations

Having a solicitor enter into negotiations on your behalf with either your spouse or your spouse’s representation does not have to result in lengthy court proceedings. Having an objective, professional to represent you when you are negotiating terms of settlement can be quick and inexpensive.  

Having a solicitor represent you in negotiations can avoid Consent orders that are unfair to one party as a result of the other pressuring or confusing the other. It will ensure that all relevant assets and circumstances are considered when alone you may miss or consider something unimportant. Remember your solicitor is a professional who understands the legalities of this situation. He or she is there to represent your best interests, and is able to explain and facilitate the process of divorce to you.

Antwan Lawyers are committed to an outcome that reflects your unique circumstances. Are solicitors will act professionally, objectively and sensitive to the emotion strain divorce and negotiations can entail.

Terms of Settlement are Agreed

• Your solicitor can prepare an Application for Consent Orders and Terms of Settlement for you once you and your spouse have reached an agreement. 
• The Consent Order is filed with the Court Registry. 
• Once the Order is accepted, the Courts decision is absolute and binding.
• If either party is ‘buying out’ any part of the other party’s assets, the transaction must be completed at this stage.  There is no formal agreement until all financial exchanges are completed and the relevant documentation is completed.
• If neither party obtains a Consent Order, then Court proceedings can only be started up until 12 months after the date of the divorce and asset value and financial situation will be considered at the time of the Court proceedings, not at the time of separation.

Court Proceedings

• the inability or refusal of one party to meet financial obligations or make payments  
• one party’s attempt to sell possessions and assets without consent
• attempts to claim an entitlement like superannuation without consent

delays in negotiations that are unacceptable to the other party’s circumstances

In these difficult cases, the Court can facilitate an effective and appropriate outcome. Only 5% of property settlements result in Court proceedings the other 95% are resolved in the negotiation and through various dispute resolution techniques. At all times, your solicitor can discuss and inform you of your options. Everyone considers court proceedings a last option, and even during court proceedings, if the two parties feel they can reach a settlement and agreement, then Negotiations can still happen.

If you would like to know more please see our article regardi[ILW7] The Divorce Hearing

If there are no children under 18 years, neither party needs to attend Court for the hearing. A Registrar in Chambers will determine the divorce.  Once granted, Certificates of Divorce are issued to both people.

If there are children under 18 years it is required that the applicant and their chosen legal representation attend. Most often the respondent is not required to attend. This process usually takes only about 10-15 mins. Documentation is read, and any changes concerning the children need to be made known at this hearing. Meeting the registrar’s satisfaction, Certificates of Divorce are issued to both people.

 [ILW1]Recommended link to Contact Us page

 [ILW2]This constitutes a re-write of ‘What do I need to know about divorce’ Section 1. I have ommited the final section ‘What Next?’ from here and placed it at the end.

 [ILW3]This constitutes a re-write of ‘What do I need to know about entitlements?’ Section 2. I have omitted the final section ‘Lets work through an example’ as I did not feel confident with this particular section. you may feel an example of this nature is not necessary, should you like one I would appreciate some template I can add here.

 [ILW4]Recommended link to separate Article Children and the Divorce Process. I thought this was best separate from the bulk or more generic information and so have constructed an entirely separate article.

 [ILW5]This constitutes a re-write of ‘What do I need to know about Consent orders’ Section 3.

 [ILW6]Recommended link to separate article Family Court Proceedings. I thought this was best separate from the bulk or more generic information and so have constructed an entirely separate article.

 [ILW7]This constitutes a re-write of ‘What do I need to know about Negotiations Section 4

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