Top 6 Things You Should Know Before Your Divorce

For those contemplating divorce, we here at My Legal Crunch Lawyers have 6 top things you should know before you complete your divorce. This information may help you avoid the pitfalls of the divorce process and make it easier and stress-free.

1. Who can divorce?

Those considering divorce should:

1. Have been born in Australia; or
2. Are an Australian citizen; or
3. Been living in Australia for the last 12 months with no intention of leaving the country.

Your marriage must have broken down irretrievably, and you have lived apart for at least 12 months and one day (although you can live separated under the same roof).  Further information will be needed by the court if you are still living separated under the same roof.

A counselling certificate should be obtained if you have been married for less than 2 years, although exceptions may apply.

2. How long is the divorce process?

My Legal Crunch’s processing time to prepare a client’s divorce is usually 1 to 3 weeks. Once your application for divorce has been filed with the Court, the divorce hearing will be scheduled in most cases in 6 to 12 weeks.

3. How much does it cost to go through the divorce process?

The general costs for Divorce Application include:

• Our legal fees of circa $990;[1]
• A divorce court filing fee of $1060 (or $350 for eligible concession cardholders);
• A service fee of circa $200 to serve the divorce on the other party.[2]

Please keep in mind that each financial year, the Court generally raises the filing fees to keep up with inflation. If you are considering a divorce, give us a call to discuss the costs and your circumstances. The above costing is a generalisation of what you can expect to pay for your Divorce. Your circumstances may differ, for instance you may be eligible for a concession and save on further costs with our legal team representing you.

4. What do I need to do?

A. Apply for divorce

1. Sole Divorce Application – when one party (applicant) files for the application. Application should serve by hand the application to the respondent for them to sign.
2. Joint Divorce Application – both parties agree to go the divorce process as joint parties.

B. The Application is then filled with the Federal Circuit Court and Family Court of Australia.

C. If there are unusual circumstances surrounding the divorce case, you might need:

1. To file for “substituted service” when you don’t know your spouse’s home address, but you can contact them or someone they know.
2. To apply for “dispensation of service” when you don’t know where your spouse is;
3. To swear to the court, through a document called an “affidavit” explaining your special circumstances such as:
   1. if you are separated and living under the same roof; or
   2. have changed your name from your married name; or
   3. you are missing any required documents.

5. How long do I have to complete a property settlement?

Before you have divorced, there is no time limitation on your property settlement, save for both parties continuing to remain alive. Jurisdiction is subject to both parties being alive.

Once your divorce has been granted, you only have 12 months to commence property law settlement proceedings in Court.  If you are outside 12 months, you can ask the Court for special leave.

6. How do we divide property in a divorce?

A range of factors is considered when both parties divide their assets. Factors that affect a property settlement include:

• The length of their relationship;
• Financial and non-financial contributions made by both parties including when you commenced living together that were made during the marriage and were made after you separated;
• The future needs of both parties, including:
  • Any health issues;
  • Any age difference;
  • Each party’s standard of living;
  • Employment income and future employability;
  • Property and financial resources;
  • Each party’s commitments to support themselves;
  • Whether you have children and caring responsibilities;
  • Whether a party is a parent and wants to continue in that role;
  • If one party is cohabitating with someone else, the financial circumstances of that relationship;
  • Child support

All of the above factors are looked at to determine what is a fair property settlement.