What should be in your separation checklist? Read on to find out.
Marriage is a beautiful thing, but it can also be fragile. Sometimes, even the strongest marriages can end with parties splitting. When this happens, it can be a painful and confusing time even if it was an amicable separation.
In Australia, the crude divorce rate (divorces per 1,000 Australian citizens) increased from 1.9 in 2020 to 2.2 in 2021. 56,244 divorces were officially issued in total in 2021, which is a record high since 1976. So, if you’re going through a separation or divorce, you’re definitely not alone.
The legal dissolution of a marriage occurs through divorce. Divorce is ‘no fault’ in Australia. This indicates that the Court does not take into account the reason why the marriage ended when issuing a divorce.
Neither spouse must establish that the other’s actions or inactions contributed to the marriage’s dissolution. The only basis for divorce is when there is no likelihood that the parties will reconcile after the marriage has broken down.
Contents of Your Separation Checklist
Separation from your spouse is a difficult phase and often ends in divorce if there’s no chance of reconciliation. To assist you in this most challenging phase, here’s a separation checklist for your convenience:
- Eligibility check for divorce:
- Either you or your spouse ordinarily live in Australia and have done so for 12 months immediately before filing for divorce, or
- Either you or your spouse is an Australian citizen by birth, descent, or by a grant of Australian citizenship, or
- Either you or your spouse regard Australia as your home and intend to live in Australia indefinitely.
- Proof of separation: You must prove to the court that you and your spouse have been living separately and apart for at least a year from the separation date. Moreover, both of you must prove that there is no realistic chance of getting back together. You can still be separated even if you live in the same house.
- If married overseas: You must give the Court a copy of your marriage certificate if you were married abroad and your foreign union is recognised in Australia (in accordance with Part VA of the Marriage Act 1961). If the certificate is not in English, you must also submit a translated copy.
- If there is domestic violence: Domestic violence is a serious factor during divorces and separations. You can file for an Apprehended Domestic Violence Order (ADVO) against your former spouse or former partner if you are a victim of domestic violence.
- If you have children: A court may only allow a divorce when it believes that parents have established suitable arrangements for minor children. The court will require information about the children of the marriage. Make sure you give enough information about the children, their education, health, and financial support, as well as how they interact and communicate with each parent.
Visit the Services Australia website to find out if you’re eligible for government payments for separated parents. This can greatly help with child support and spousal maintenance matters.
Other Concerns in Your Separation Checklist
Aside from the above-mentioned concerns, you must also take note of the following because these are also important aspects of the separation process:
- Family counselling: You can choose to avail the counselling services. Family relationship problems can be emotionally taxing and distressing. You might be able to settle your concerns by discussing your options with a family law counsellor. A counselling certificate is necessary if the marriage is less than two years.
- Family mediation and dispute resolution: People can settle their differences through mediation, which a third party typically facilitates. We urge separated families to turn to family mediation rather than the family law courts to assist settle their child custody disagreements.
- Property orders: A divorce grant does not include concerns relating to your properties during the marriage. Before the grant becomes final, what you need to do is to apply for a property order. But once your divorce is final and you wish to seek property orders, you must apply to the court within 12 months if you still need to do so.
- Commonwealth Courts portal registration: You must register in this portal to file and access copies of court orders and to stay updated. If you’re unfamiliar with the portal, here’s an instructional guide for you.
- Application for Divorce and E-filing Affidavit: Applications for divorce should be eFiled online using the Commonwealth Courts Portal. You must also include a signed affidavit for e-filing application. Here’s a blog article about the application process.
- Payment of filing fee: You must pay a fee of AUD$1060 as the filing fee (as of July 1, 2023) for an application for divorce. You can pay online when eFiling using the Commonwealth Courts Portal. It can be made in registries through eftpos, credit card, debit card or by mail using Visa and Mastercard debit/credit card.
- Financial matters: You may need a separate bank account if you need to protect yourself in the short term and maintain your access to your personal funds and relevant financial documents. Additionally, you should then decide what you will do with any joint bank accounts. This also translates to fixing any property settlement issues.
Separation Checklist: Parenting Arrangements
One thing that should be in your separation checklist is the parenting arrangement. Make sure that everything is settled with your children before the grant of divorce becomes final. Here are some tips on parenting arrangements:
- Create a parenting plan. A parenting plan is a written agreement between parents that sets out the arrangements for their children, including living arrangements, time spent with each parent, and decision-making responsibilities.
- Best interests of the child. In making parenting arrangements, the best interests of the child are the most important consideration. This means that arrangements should be made that promote the child’s safety, child support, welfare, and development.
- Consent orders. If parents are able to agree on parenting arrangements, they can apply for consent orders, which are legally binding orders made by the court. Consent orders can cover a range of issues, including living arrangements, time spent with each parent, and decision-making responsibilities.
Get a Family Lawyer and Seek Legal Advice Today
Hiring a family lawyer for separation arrangements in Australia can provide several benefits. Family lawyers have in-depth knowledge of family law and the legal proceedings involved in separation. At JB Solicitors, we can provide you with accurate legal advice and guidance throughout the process. We ensure to protect your rights and interests.
Contact us today.
