The fire! The fun! The passion! The sparks! They are all gone!
The couple has grown apart and each just wants out…those three words “I love you” are now “I divorce you!”
Many individuals pack up and move on without thinking of divorce. However, leaving things up in the air has consequences.
- Consider our previous blog “Multiple Partners + No Will = Mess”: Your former partner can be entitled to a share in your estate.
- If you have a Will, divorce revokes a gift or any power of appointment to the former partner unless there is a clear contrary intention. Nevertheless, you should have your Will examined or consider a new Will.
- Not formally finalising the relationship may affect moving on with future relationships i.e. remarrying when you decide to.
- It may be difficult to locate your former partner later on to serve them with the proper documents in order to formally finalise the relationship.
DIY Divorce and relevant law
There are some couples that amicably separate and complete DIY Divorce. However, there are some key points to note from the relevant law [Family Law Act 1975 (Cth)] when applying for DIY Divorce:
- Applications for marriages of less than 2 years will require a signed certificate from a family counsellor, family consultant or qualified individual/organisation stating that the parties to the marriage have considered reconciliation.
- There must be an irretrievable breakdown of marriage whereby the parties have lived separately and apart for a continuous period of not less than 12 months prior to making the application.
- If the parties have attempted “to kiss and make up” (not just physically) on one occasion, for a period of less than 3 months, in that 12 month period, but still would like to divorce, then that period of reconciliation is not included in the 12 month period and the previous separation period can count towards the 12 month period. So, the clock does not start again!
- There is a period of 1 month and 1 day after the divorce order is made at the hearing for it to take effect. This allows parties to appeal. There is no remarrying permitted during this time period!
- Property and maintenance – see below for key point.
When legal assistance should be sought
It is recommended that legal assistance be sought for any divorce to ensure that the correct steps are followed and any issues can be resolved quickly. However, the following scenarios outline situations where legal assistance may be necessary:
- Wilma would like to divorce Fred but cannot psychologically deal with all the paperwork nor face Fred.
- Wilma and Fred cannot locate their marriage certificate or the marriage certificate has incorrect information. An affidavit will be required in this situation.
- One party would like to respond to the other party’s application.
- Wilma and Fred have been separated for the period of 12 months but have been living under the same roof. Wilma will need to provide an affidavit of the living arrangements before and after separation. Witness affidavits may also be required in this situation.
- Wilma and Fred have a child, Pebbles. They will need to satisfy the court that formal arrangements have been made for the care, welfare and development of the child before the grant of divorce.
- Wilma cannot locate Fred to serve him with the proper documents in order to divorce.
- Wilma and Barney would like to remarry ASAP and not wait 1 month and 1 day for the divorce order to take effect.
- Fred has decided to appeal the divorce order.
Key point, whether amicable or not, there is a time limit of 12 months after the divorce order has taken effect to commence applications for property and maintenance. Alternatively, leave of the court will be required or consent by the parties.
Thus, once separated (married or de facto), you should consider entering into a Property Settlement Agreement to finalise the relationship because that winning lottery ticket around the corner or that pool of money you may receive may have to be shared with your ex-partner!
Next blog to come is a surprise!
Clue you ask? Well then……. a major issue that arises between prospective clients and lawyers!
Disclaimer: Please note our blog is for general information only and accuracy of information is not guaranteed. It is not offered as and does not constitute specific legal advice or opinion for you to act or rely on. You should seek legal advice in your state before acting on relying on this information.