Question 1

How long do I need to be separated for?

Accepted Answer

Generally, you need to be separated from your partner for a minimum of 12 months before you can apply for a divorce. If you reconciled with your partner for more than 3 months, then the 12 month period begins again.

Question 2

Does divorce deal with property and children matters?

Accepted Answer

Many people mistake divorce to mean the whole matter of separation. Divorce proceedings do not finalise any arrangements regarding parenting and property. These types of orders need to be filed on a separate application.
There are 3 stages of divorce and they are handled separately:
1. Divorce;
2. Financial/property settlement; and
3. Parenting arrangements.

Question 3

Can I still file for a divorce if my spouse doesn't agree?

Accepted Answer

A divorce application does not require consent by both parties. As long as you fit the criteria to apply, one party may initiate the divorce proceedings.

Question 4

How much does a divorce cost?

Accepted Answer

There is a court fee for filing for a divorce. This is currently $940 however in some circumstances, you can have this reduced to $310. Your lawyer will also charge for their professional fees at either a fixed or variable cost, depending on the length and complexity of your matter.

Question 5

How long does it take for a divorce to be granted?

Accepted Answer

Obtaining a final Divorce Order generally takes three to four months from the date of filing the application. This process can take longer if there are problems locating or serving the other party.

Question 6

How long do we have to wait to divide our assets?

Accepted Answer

Your assets should be divided as soon as possible after separation. You do not have to wait until your divorce is final to complete this. If you are in a de-facto relationship, you have 2 years from the date of separation to divide assets or if you were married, you have 1 year from the date of your divorce grant. It is common practice to separate your assets first, before applying for a divorce.

Question 7

Will my superannuation be included in our property settlement?

Accepted Answer

Under the Family Law Act, your superannuation is treated as property that forms part of the ‘asset pool’. It can be split as part of property orders or a separate superannuation agreement can be made. It is generally divided according to a certain percentage (eg 50%) or on a base amount (eg $50,000). There are still laws in place which restrict individuals from accessing their superannuation.

Question 8

Can my child decide who they live with?

Accepted Answer

In Australia there is no minimum age for a child to be able to express their view about where they would like to live in a parenting dispute. The courts, as with all family dispute cases involving children will look at the “best interest of the child”.

Question 9

Am I entitled to half of my ex's business?

Accepted Answer

No, divorce or separation does not automatically mean the other party is entitled to half of the business. Instead, the value of the business is included in the parties property pool. Each parties entitlement to the business is determined following family law principles after the business has been valued.

Question 10

When should I update my Will?

Accepted Answer

If you’d like to change your Executor or beneficiaries or how your estate will be distributed, then you should have your Will changed. You do not need to alter your Will if you have simply moved houses, however if you have listed specific properties to be distributed and they no longer form part of your estate, then you may want to consider some amendments.

Question 11

Do I need a Will?

Accepted Answer

If you have assets, you should have a Will. Unfortunately we don't know what could happen to us tomorrow, therefore a Will specifies how your assets will be distributed after your death.

Question 12

What kinds of Powers of Attorney are there?

Accepted Answer

There are two types of Powers of Attorney we often prepare for our clients: Enduring power of attorney (financial) and Medical treatment decision maker. These documents allow you to appoint an ‘Attorney’ to make decisions on your behalf when you are unable to.

Question 13

What happens if I don't have Powers of Attorney in place?

Accepted Answer

If you lose the ability or ‘capacity’ to make decisions for yourself, then your loved ones will not be able to make decisions on your behalf or assist you. This can cause complications as your family will need to apply to the Guardianship and Administration Tribunal to be appointed as your guardian. Applications for Guardianship can become complicated and expensive, which is why we encourage it.

Question 14

Can I use a Will kit?

Accepted Answer

We do not recommend Will kits. Will kits give you broad instructions and do not go into enough detail. This may cause complications when applying for Probate or attempting to distribute your Will after your death.

Question 15

Can we get divorced in Australia if we got married overseas?

Accepted Answer

Yes, if you were married overseas, you can apply for a divorce in Australia if either you or your spouse:
1. Regard Australia as your home and intend to live indefinitely in Australia are an Australian citizen or resident;
2. Are an Australia citizen by birth or descent;
3. Are an Australia citizen by grant of an Australia citizenship;

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