What’s really involved in a divorce?

By | May 8th, 2019|

Michael Tiyce was asked by ABC Life to shed some light on divorce – when it’s simple and when it gets complicated. to learn more about this oft-misunderstood topic, read on!

[The article below first appeared on ABC Life: https://www.abc.net.au/life/how-to-get-divorced-in-australia/10996740. Image credit: Unsplash: Benjamin Robyn-Jespersen /ABC Life: Luke Tribe]

Relationships are complicated. When they end, they can get even more complicated.

Sometimes lawyers are needed to help untangle your lives from each other, and you may need to go through what is basically a divorce, even if you never got married in the first place.

To make sense of what that even means, ABC Life spoke with both family law experts and someone who’s recently been through the legal process of divorce to give you an idea of the practicalities involved.

Of course, this is going to be very general advice on what you need to do after you split, time limits, annulments, when you need to go for mediation, the cost and where to get support — you will need to talk to a lawyer for advice on your particular situation.

First off, what even is ‘divorce’?

The definition of divorce in Australia is simply the termination of a marriage. It’s called a “divorce order” these days. It used to be called a divorce certificate.

“The only impact of a divorce is it allows you to remarry,” Michael Tiyce, principal lawyer specialising in family law in Sydney, says.

He explains that if a marriage ends in separation, a legal divorce is not needed to begin a de facto relationship with other people.

Some people separate and don’t bother getting divorced. As long as you don’t want to marry again, that’s not generally a legal problem.

However, if you never get around to divorcing, get in another relationship and then die, that can be “a quagmire of complications”, says Mr Tiyce.

“Because you’ve got two different parties as partners who have made contributions to your property … and there are cases where that’s happened,” he says.

Regardless of the legalities, people may want to get a divorce order as a symbolic end to a marriage.

In Australia, you can actually apply for a divorce order online, as we have a “no fault” divorce system, meaning you don’t need to prove anyone has caused the relationship to end, you just need to show it’s not working anymore which is demonstrated by being separated for 12 months (more on that later).

It costs about $900 ($300 for approved concession holders) to file for a divorce order. If you get a lawyer to do that for you or if you need to have the divorce papers served to your ex, it will cost more.

The way around leaving a quagmire of complications is to get your property, finances and parenting agreements sorted after you’ve split.

This is the messy stuff you probably think of when you think of divorce, and this is the stuff even those without the marriage certificate still need to work out.

“It was such a long process and so pedantic about wording,” says Louise Symon, whose divorce was approved in July last year.

Louise left her husband in 2016, after a trip for their 10-year anniversary made her realise the relationship didn’t have a future.

Georgia Burke is a family law associate with a Hobart firm and says it’s important to get your property and parenting matters sorted before you get the divorce order.

“We don’t want to be too hasty with applying for a divorce,” she says.

“What happens is you only have 12 months from the date that your divorce becomes absolute to then ask the court to deal with your property matters.”

Louise didn’t have kids with her ex, but did share a house. And because they had been together for many years, there were financial matters to sort.

There are no rules that say one person gets a specific amount, or so-and-so gets the house if so-and-so gets the car. Each case is looked at on its own merits.

Even if you can agree on all matters with your ex, it’s a good idea to get a lawyer involved to make sure everything is done correctly with the right wording, as you’ll need to show that agreements are “just and equitable”, says Mr Tiyce.

“And the parties won’t necessarily know how a court decides what’s just and equitable — we [lawyers] do.”

Are there time limits around divorce?

While you can take as long as you want from splitting up to when, or if, you decide to get a divorce order, there are some minimum time restrictions.

If you’ve been married for less than two years, you will need to attend some counselling before the family court will accept your application.

You also will have to live as separated for at least 12 months before you can apply for the divorce order, no matter how long you’ve been married.

In Louise’s case, she moved out of the house she owned with her ex, which meant she had to think of things like telling her car insurance, bank and work where she was living.

You can be separated and still live in the same house together. It’s called “separation under one roof”, but if you do that you’ll need to prove you’re not a couple any more, with such things as an affidavit (a written statement) from a third party saying you’ve split up.

And then again, there’s a time limit of 12 months after a divorce order has been approved that you can ask the family court to make decisions on property.

Can I get an annulment?

Annulment is a term mostly used in America, meaning a marriage is declared null and void.

In Australia, a decree of nullity can sometimes be granted to declare a marriage is void, but it is very rarely used.

The reasons a marriage can be declared void include:

  • One or both parties were already married
  • It’s a prohibited relationship (such as siblings marrying, for example)
  • The legal requirements were not met at the time of the marriage (for example, the celebrant wasn’t qualified)
  • If one or both people is under 17 and doesn’t have special court approval, or someone is not able to provide informed consent
  • If either party was forced into the marriage

Some people might seek an annulment from their church for the spiritual side of marriage, but they will still have to go through a divorce for the legal aspects in Australia.

A push for mediation over court battles

Ms Burke says the court requires parents to go through mediation before taking matters to the courtroom, unless there are mitigating circumstances.

“Unless it’s a situation of high risk, in which you can get an exemption to this rule, parties need to have what’s called a Section 60i certificate,” she says.

So Ms Burke advises clients to go through somewhere like Relationships Australia first before getting legal with child arrangements.

Mr Tiyce agrees, saying all parties, and particularly children, are usually better served by staying out of court, which “can be really destructive”.

The idea of mediation was daunting to Louise, but she didn’t realise it can be done without the two parties having to face each other directly.

“I didn’t want to sit in the room with him and what I didn’t know was I didn’t actually have to sit in the room with him,” she says. “It could be done with him in one room and me in another.”

In the end, Louise didn’t have to battle her ex in court as they came to an agreement that saw her pay him a lumpsum from her superannuation, and she got to keep the house.

How much is this going to cost?

Other than the filing fee for the divorce order, the cost of a divorce varies as much as the people involved.

Louise says it’s worth shopping around for a lawyer — a lesson she learnt the hard way when she decided to change lawyers part way through her settlement proceedings as she wasn’t happy with the help she was getting from the first one she hired.

She had to pay out fees owing before being able to move firms, so she advises people to shop around before getting too far with the first lawyer you come across.

Ms Burke says you can find info on different legal firms from their websites and social media to find a lawyer that suits you. You can also call the office and ask some questions before committing.

Don’t forget the emotional side

The thing that makes these things so complicated is how emotional the end of a relationship can be, particularly when it’s been a long one with or without children involved.

Louise says while she realised going through this process how strong and tenacious she really is, she also realised it’s OK to ask for help.

“It’s OK to have a breakdown and cry and lean on other people’s shoulders,” she says.

“I’m very, very independent and I don’t rely on other people as a rule, but I found that this changed me in that I had to ask for help, I had to know that I couldn’t control everything.”

Louise found a support group for women going through a divorce, which helped her navigate the legal and emotional aspects of what happening and she also saw a psychologist before and after making the decision, which she says helped a lot.

“What you need to do is work out who do you want to be at the end?” she says.

“You’re reinventing yourself.”

This article contains general information only. You should obtain specific, independent professional advice in relation to your particular circumstances and issues.

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