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The Fundamentals of Divorce in Australia

Divorce it is a complicated and emotionally charged process. This can make the process of getting a divorce very confusing, especially if you are not familiar with family law rules in your state.

When a married couple decides to divorce, they must navigate the legal process of dissolving their marriage. This is because there are legal rights and duties connected with the divorce, such as child custody and financial settlements.

It is no secret that divorce laws vary from state to state. To make the process as smooth as possible, be sure to understand the basics of divorce law. 

What Is the Law of Divorce in Australia?

In Australia, family law rules are based on the Federal Family Law Act 1975 (Cth), which sets out the grounds on which a divorce can be granted. The law is the same across Australia, although there may be some differences in procedure from one state or territory to another.

The Family Law Act of 1975 (Cth) (‘the Act’) regulates marriage, divorce, de facto relationships, property settlements, guardianship, adoption and the care of children. The Act also sets out the grounds on which a divorce can be granted in Australia.

What Are the Grounds for Divorce in Australia?

The only ground for divorce is a 12-month separation immediately preceding the date of applying for divorce by section 13 of the Family Law Act.

Australia Has ‘No Fault’ Divorce

  • When a marriage comes to an end through the divorce process, the court does not consider the cause or causes of the breakup. Neither party has to show that the other was (or was not) responsible for what caused the relationship to fall apart. 
  • Under Part VI of the Family Law Act 1975, the Federal Circuit and Family Court of Australia have jurisdiction or power to handle divorce matters. The issuing of a divorce is simply a legal declaration that the marriage has come to an end.
  • If you have been separated but living under the same roof, you will need to provide evidence to the court that demonstrates that you have been living separately and apart by providing evidence of financial independence.
  • You must also satisfy the court that there is no reasonable likelihood of you and your spouse getting back together. If there are children under the age of 18, the court must also be satisfied that arrangements have been made for their welfare.
  • The court can grant a divorce even if one party does not want the divorce to go ahead. However, the court must be satisfied that there are grounds for the divorce and that it would be unreasonable to expect you to continue living together.
  • To obtain an Australian divorce, you must have been married for at least two years or attend the required therapy with the Family Court.
  • If you want to file for divorce based on 12 months of separation, but you have been living in the same house during that time, you will need to provide evidence to satisfy the court that you have been living separately and apart.

How Do You Prepare for a Divorce in Australia?

It is important to prepare before commencing divorce proceedings. This includes being aware of the grounds for divorce, the process involved and the potential outcomes. In this case, you need to work with your family lawyer to provide you with the best outcome.

Organise Your Documents and Other Important Paperwork

This might include your marriage certificate, birth certificates, tax returns, bank statements and property records.

Update Your Financial Accounts

Take the time to conduct a thorough examination of the family’s joint and individual finances and record the findings in writing. This data will be provided to the court during the settlement procedure. Typically, it’s better to close any joint account because it avoids future squabbles over who spent what.

Divide Property Assets

In Australia, the family home is usually the biggest asset that needs to be divided during a divorce. Other property assets can include investment properties, cars, boats, furniture and art collections. It’s important to remember that any property owned before the marriage is usually exempt from division.

Child Custody and Support

If you have children under the age of 18, the court must also be satisfied that arrangements have been made for their welfare. This includes issues like child custody and child support.

How Are Assets Divided in a Divorce Australia?

It’s worth noting that a divorce and property settlement are two separate legal procedures. The legal termination of a marriage is known as a divorce. Following the dissolution of a marriage, a property agreement is the formal assignment of assets.

Hence, it’s important to follow the four-step process in dividing the asset. This is based on section 79 of the Act.

1. Valuing the Assets

In determining the marital property’s value, the assets, liabilities and financial resources of the pair are first identified and evaluated regardless if they were acquired before or after marriage or divorce.

2. Valuing the Contributions of Each Party

The second stage in the process of dividing assets is to consider the contributions that each party has made during the marriage, regardless if they are financial or non-financial. These can be direct or indirect and may have been made at any time before, during or after the relationship.

3. Assessing the Future Needs of Each Party

The third step is to consider the future needs of each party, particularly if they have young children. This includes their current and future earning capacity, their health, their carer responsibilities and any parental obligations.

4. Dividing the Assets

Once the court has assessed all the factors above, a decision will be made on how to divide the assets in a way that is just and equitable. This can be done through an agreement between the parties or an order made by the court.

How Madison Marcus Can Help You

If you are considering getting a divorce, it is crucial to seek legal advice to ensure that you are aware of your rights and obligations. If you need one, our top family lawyers in Sydney at Madison Marcus can help you understand the legalities surrounding divorce, so you can make informed decisions about your future. With our expertise and experience, we can guide you through the entire process and help you protect your rights.

For all enquiries or to book a free 15-minute consultation, contact us today.


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