Divorce and Separation

Going through a divorce or separation can be an emotional and challenging time. We are here to assist you through the process with sensitivity and compassion.

Whether you are separating from your de facto partner or your married partner, there are a great many decisions that you will need to make, such as those concerning your financial future, your living arrangements, the division of property and arrangements for children of the relationship. This can be a distressing time and seeking legal advice at this point may help you to understand the issues involved and your legal rights and obligations.

Under the Family Law Act, you have grounds for divorce if your marriage has broken down, there is no prospect of a reconciliation and you have been separated for at least 12 months. The court does not need to consider why your marriage has broken down - it just needs to be satisfied that this is the case and that you and your spouse have lived “separately and apart” for not less than 12 months.

Living separately and apart can include living separately under one roof. You can make the application for divorce on your own, or you and your spouse can apply together. When there are children under 18 involved, information about their care and financial support must be included in your application, as the court will need to be satisfied that proper arrangements have been made for them. Those arrangements can be informal or by order of the court.

Bear in mind that obtaining a divorce will only confirm that you are no longer legally married and are free to remarry. It will not determine important matters such as your financial future, the division of property, or arrangements concerning children. However, it may affect the provisions of your will and you should obtain legal advice in relation to your estate planning.

Stacks Law Firm can advise you on the process and your legal rights in relation to separating from your partner or spouse, or divorcing your spouse. We know that this is a challenging time and will approach your matter with the utmost sensitivity and professionalism.

Need advice about divorce or separation? call us today

Commonly asked questions about divorce and separation:

What are the requirements for obtaining a divorce?

You will need to prove to the court that you were legally married by producing a copy of your Marriage Certificate. You will also need to satisfy the court that your relationship has broken down and there is no reasonable likelihood that you will get back together. You must have been separated for at least 12 months before filing for divorce.

The court can grant a divorce provided you or your spouse meet one of the following criteria:

  • You consider Australia to be your home and intend to live here indefinitely

  • You are an Australian citizen by birth or descent

  • You are an Australian citizen by grant of Australian citizenship

  • You ordinarily live in Australia and you lived here for the 12 months prior to applying for a divorce

Can we be considered to be separated even if we still live under the same roof?

Yes, but you will need to satisfy the court that you are no longer living as husband and wife. Someone outside the relationship may be required to give evidence to confirm what you say about the separation circumstances if your partner or spouse disagrees with your version. Factors to prove that you are separated might include things like the absence of a sexual relationship, you and your spouse each doing your own chores (eg cooking and cleaning), and/or financial independence.

Will I have to go to court to get a divorce?

If there are no children of the marriage under the age of 18, then neither party needs to attend the divorce hearing.

If there are children under 18 but you and your spouse have made a joint application for divorce, then neither of you needs to attend the hearing.

However, if only one party made the divorce application, and there are children of the marriage under 18, then the applicant is required to attend the hearing (the other spouse is not required to attend but they can if they wish.) In the event that the other spouse has filed a “Response to Divorce” application and is opposing the divorce, then they will need to attend the hearing. You can apply to the court to appear by telephone if it is inconvenient or expensive for you to travel to the court.

What if I don't want a divorce but my spouse does?

You can generally only oppose the divorce application if there has not been the required 12 month period of separation before the application was filed, or if the court does not have jurisdiction to grant the divorce.

Can I get divorced in Australia if I married overseas?

Yes, as long as you or your spouse:

  • Consider Australia to be your home and intend to live here indefinitely

  • Are an Australian citizen by birth or descent

  • Are an Australian citizen by grant of Australian citizenship

  • Ordinarily live in Australia and have lived here for the 12 months prior to applying for a divorce

Does separation or divorce affect my will?

Marriage separation does not revoke (cancel) your will. If you pass away and have not updated your will following your separation, then your spouse may inherit any property you had left to them, or act as executor of your will if you had so named them.

If you divorce, your former spouse can no longer act as executor of your will, and any gift you left them in your will is void. But if you had appointed your former spouse as trustee of property left on trust for beneficiaries including children of your marriage, that appointment is not cancelled just because you have divorced.

You should make a new will following a separation or divorce, so that your intentions concerning your former spouse are clearly documented.