“I’ve separated – when do I go to court?”

by Ruth Whisker

Unlike what you see on television or read about in gossip magazines about celebrities separating in the United States of America, in Australia divorce, property settlement and arrangements for children involve completely different court applications. An application for divorce in Australia won’t resolve any questions about who gets to keep the matrimonial home or who the children will live with.

Applying for a divorce after 12 months of separation

An application for divorce is an application to formally end the marriage. You must be divorced before you can get remarried and some registries require you to provide a Divorce Certificate if you want to change your name back to a previous name.

You cannot apply to the Federal Circuit Court for a divorce until you have been separated from your husband or wife for a period of 12 months. If you have separated but have been living together separately in the same house for 12 months, you can still apply for a divorce, but you will need separate and independent evidence that you have been “separated under one roof”.

However, if you have not been married for more than two years before the date of the Application for Divorce, you need to attend mediation with your husband/wife before you can apply for a divorce.

If there are no children or if it is a joint application, you don’t even need to attend court. However, if there are children under 18 years and it is not a joint application, you will need to attend court for your divorce hearing.

Negotiated property settlement can be finalised by Consent Orders

An application for property orders can be made as soon as separation occurs.

Ideally you should try to negotiate with your estranged spouse or partner to come to an agreement on what is going to happen with any property belonging to both of you separately and jointly and formalise the agreement by Consent Orders.

With Consent Orders, your agreement will have the force and finality of orders of the Family Court, but you will not have to attend court and the costs and time before finalisation (usually between six to eight weeks after filing the application) will be substantially less than in contested court proceedings.

What happens if you can’t negotiate a property settlement?

However, if you can’t negotiate a resolution or if there are circumstances of urgency, for example, if the other party is planning on selling an asset not in joint names, you can apply to the Federal Circuit Court as soon as you can get the forms completed.

When you actually go to court for the first time will depend on whether the matter is urgent and given an urgent listing, in which case it could be within days of filing your application. If it is not considered urgent, it will usually be listed for a first court date around six to eight weeks after you file the application.

Children’s matters best determined by negotiation with your ex

As with property matters, you can apply to the Federal Circuit Court for children’s matters at any time after separation. However, usually you will be required to prove to the court that you have attempted family dispute resolution (mediation) before filing your application for your application to be accepted by the court.

There are some limited exceptions to the requirement to provide evidence of mediation. If you find yourself needing to commence court proceedings for children’s matters, you should check with your lawyer to see if your circumstances qualify you for an exemption.

Again, depending on whether your matter is considered urgent or not, the time between filing your application and the court date could be a couple of days or up to eight weeks.

However, for children’s matters, as with property matters, it is always best to try to resolve the matter with the other parent and come to an arrangement you can both live with, even if neither of you is 100% happy with it, as the alternative is incurring costs of a protracted and expensive court case and putting yourself into a situation where an independent judge has the decision-making power and the matter is out of your control. Bear in mind that you may be even more unhappy with the judge’s decision than the arrangement you could have agreed on.

A special thank you to Contributing Author
Ruth Whisker
Divorce and Separation
Stacks Law Firm

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