Divorce is commonly known as the irretrievable breakdown of marriage where the parties are no longer able to cohabitate and wish to end their marriage formally.

Divorces are on a no-fault basis and are focused on breakdown and, more formally, an ‘irretrievable’ breakdown. In order to be divorced, the parties must be separated for a minimum of 12 months and must not have re-cohabitated for a period longer than 3 months during this time.

Many people mistakenly believe that a divorce includes orders either for children or for any property, however, this is untrue. Once parties have had a divorce order made, and certificate provided to them, their marriage is officially void after one month and one day from the granting of the divorce. Following this, the parties are able to then undertake proceedings or less formal approaches such as negotiation for the care of children and the separation of property.

Prior to the engagement of court proceedings, with respect to the care of children, it is a requirement that Family Dispute Resolution is attended where the parties are to show they have attempted to come to an agreement and were unable to do so. This is a specific requirement as outlined in s60I of the Family Law Act 1975 (Cth), however, there are exemptions under the act where:

• the matter is deemed to be of urgency;

• the court is satisfied that there are reasonable grounds to believe there has been any form of violence concerning either party or the child;

• where there is an incapacity to partake in the family dispute resolution; or

• where there has been an alleged contravention of the existing orders.

Children

If parties are able to amicably agree on various terms of separation relating to the care and welfare of the child, or children of the marriage, they are able to do so with no intervention by the court. If they wish to formalise their agreement they can apply for consent orders where the court approves the orders formally and they become binding on the parties. However, in the event that the parties are not able to agree, it may be necessary to engage the court in a hearing where the court will make orders for the parties.

Where the matter proceeds to a hearing the judge will look at the child’s best interest as the paramount consideration. It is also presumed that equal shared parental responsibility is in the best interest of the child and it will be considered as to whether equal time or substantial and significant time is more appropriate.

The orders usually accommodate for who the child will reside with, how much time the child will spend with each parent, the communication of the child with either parent and any other aspect of care, welfare or development of the child as expressed under the legislation.

Property

Another area, which requires consideration post separation or divorce, is that of the division of the parties’ assets and other property. This is done in a way which is quite similar to orders concerning children, that is, via amicable agreement between the parties with no requirement of court involvement, formalising of the agreement between the parties via consent orders or alternatively, if an agreement cannot be reached, an application to the court for financial orders. Post-divorce the parties have a period 12 months to initiate proceedings if required.

The most favourable way to divide property would be through amicable agreement with no court involvement or simply the creation of consent orders. However, if there is need for a hearing by the court there is no set formula as to how the property will be divided and a decision will be made based on all the evidence presented to the court leaving the Registrar to decide what is just and equitable.

Usually the court will consider:

• Each party’s assets and debts;  
• The direct financial contributions of each party to the marriage, this being in the form of earnings;
• The indirect financial contributions by each party, this being inheritances and gifts;
• The non-financial contributions to the marriage such as homemaking and care of the children; and
• The future requirements of each party considering the care of the children, health and financial resources available.

If you find yourself in a position as above where you have recently separated and need assistance with parenting or property orders we can assist you. Let the friendly and professional team here at LBC Lawyers provide you with the best advice for your situation and help take some of the burden out of what can be quite a difficult period of your life.