Just like relationships, no two separations are the same. It is likely, though, that going through a separation or divorce will be a difficult and disruptive time for both parties. Our Melbourne-based Separation and Divorce Lawyers provide some helpful points to keep in mind throughout process to help make it as smooth and successful as possible.
The legal differences between separation and divorce
Separation is when a marriage or de facto relationship ends. This is generally signified by no longer living together, or, if you are still living together, that you are no longer participating in the usual activities of a relationship. This can be something that is decided and acted upon by either person, or mutually decided between both parties.
Divorce is the legal end to a marriage. There is no requirement to divorce after you separate from your partner, unless you are planning on marrying another person. To apply for a divorce, you and your partner must have been separated for at least 12 months – so it is helpful to keep a note of the date of separation to assist with divorce and property settlement proceedings.
It is worth mentioning here that divorce is a separate legal matter from your children, property settlement and financial obligations.
Australia’s “no fault” divorce law
Australia is a “no fault” divorce jurisdiction. This means that during divorce proceedings, the court will not consider the reason or reasons as which to why the marriage ended. The only ground for divorce is a marriage breakdown, and that there is no reasonable chance for reconciliation.
The reason for this is to reduce the potentially hostile nature of divorce, to ease stress and to allow a path for ex-partners to maintain civil relations if they wish.
It is a common misconception that if one party is at “fault”, then the other party will far better in the eyes of the law in terms of property settlement and child support arrangements. Keeping the “no fault” divorce law in mind throughout proceedings is helpful – particularly if there is dispute between you and your ex-partner about who is to blame for the relationship breakdown, or if either of you have behaved in a way that the other deems inappropriate. This does not matter in the legal system.
Note: The welfare of the child is always placed above any presumption of shared parental responsibility in Family Court. If there is a history of substance abuse, violence or mental illness, these factors will be considered when determining parenting and custody arrangements.
Keep communication between you and your ex–partner respectful
Although in some cases this might feel difficult, it is important that you keep all communication between you and your former partner courteous and efficient during separation and divorce proceedings.
Anything you say in written or verbal communication with your former partner could appear as evidence or in an affidavit used in family law proceedings. This is particularly important when it comes to communication around parenting arrangements. When children are involved, the Family Court’s main objective is to come to an agreement that is best for the child, rather than what either parent may think that they are entitled to.
This applies to social media posts, emails and text messages too.
If you feel as though there is no way that you can communicate effectively with your ex-partner, it is best to allow a third party, such as a lawyer, solicitor or mediator, to communicate on your behalf. This can also streamline the entire legal process.
Do not forget about property settlement
With divorce comes splitting assets – but as mentioned earlier in this article, property settlement and divorce are separate legal matters. Settlement of property within the context of divorce and separation refers to the arrangement made between parties to divide assets, liabilities, and financial resources upon separation.
Property settlement proceedings can begin before your divorce is finalised, and it is favourable to do so. This is because you or your ex-partner may continue to accumulate assets or wealth (or even debts) after separation, which will then be available for the other party to claim their share of.
If you do finalise your divorce before property settlement has taken place, there is a strict 12-month time limit from the time of divorce to do so, to avoid further disputes between parties in the future.
Assets that are the property of you and your former partner are considered “marital property”. This can include property that was owned by one person before the beginning of the relationship.
With over 30 years of experience, our separation lawyers in Melbourne have expertise across all areas of divorce, separation, parenting, child support, property, and financial. We are here to understand what you are going through so that we can best assist you. We will work towards getting you a fair and equitable outcome, whilst minimising your stress, cost, and time.
Contact us today for your FREE 30-minute consultation.