While you are not legally *required* to have a family lawyer to get divorced in NSW, it is almost always advisable. The process, even in amicable separations, involves navigating specific legal requirements and potential pitfalls that can significantly impact your future.
What are the basic requirements for divorce?
Under section 48 of the Family Law Act 1975, a divorce application must be based on the irretrievable breakdown of the marriage. This is established by demonstrating that you and your spouse have lived separately and apart for a continuous period of at least 12 months. While seemingly straightforward, proving this separation can be complex, and the court must be satisfied there is no reasonable likelihood of resuming cohabitation.
What about the paperwork and court procedures?
The Family Law Act 1975 outlines the practice and procedure provisions for divorce proceedings, referencing the applicable Rules of Court (section 188). These rules govern how applications are filed, how evidence is presented, and how the process unfolds. Navigating these rules without legal expertise can lead to delays, errors, and potentially unfavourable outcomes.
What if there’s family violence involved?
If abuse or violence is a factor, specific procedures apply. Section 156 requires the court to ensure applicants receive information about available services and options, including family counselling or dispute resolution. However, understanding your rights and ensuring your safety within the legal framework requires specialist advice.
The property settlement problem
Divorce is often intertwined with a property settlement, which is a separate but related process. While the divorce itself focuses on ending the marriage, the property settlement addresses the division of assets and liabilities. This can be incredibly complex, involving valuation of assets, superannuation splitting, and negotiation of a fair outcome. The court has broad powers to set aside a property settlement if one party has not been fully transparent about their financial position.
Questions to consider
- What assets (including superannuation) do you and your spouse currently own, and what is their approximate value?
- Are you confident in your ability to negotiate directly with your spouse, or do you anticipate disagreements?
- What are your long-term financial goals, and how might a property settlement impact your ability to achieve them?
This information is general in nature and does not constitute legal
advice. For advice specific to your situation, contact JB Solicitors.