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The Basics of Divorce

What is the process for filing for Divorce in Australia?

The first step in the divorce process is separation.  This occurs when one spouse decides that the marriage is over and communicates to the other spouse their intention to separate.  It is often at separation when one spouse will move out of the marital home although it is possible to be separated and remain living under the same roof in some circumstances.

The second step is to file an Application for Divorce in the Federal Circuit Court of Australia.  Both spouses can make a joint Divorce Application or either spouse can bring the Application on their own.  You must have been separated for 12 months before you can file your Application for Divorce in the Court.

If you bring a Divorce Application on your own, you will need to serve your former spouse with your Application at least 28 days before your Divorce Hearing (or at least 42 days if they are overseas).

The next step is to attend your Divorce Hearing (if required).  If you do not have children under the age of 18, you will not have to attend the hearing.  If you do have children under the age of 18 but have made a joint application with your former spouse, you will not need to attend the hearing.

At the Divorce Hearing a provisional decree is made provided that the Court is satisfied with a number of jurisdictional and procedural requirements.

After one month and one day from your Divorce hearing your divorce will become final.  The Court will issue a Divorce Order confirming your marriage has been dissolved.

Your Divorce and Property/Spousal Maintenance Claims

Once your Divorce Order is made you have 12 months from the date of your Divorce Order to commence proceedings for property settlement or spousal maintenance claims.

Your Divorce and Parenting Arrangements

Before the Court makes a Divorce Order they must be satisfied that proper arrangements have been made for the care, welfare and development of any children of your marriage who are under the age of 18.

How does my Divorce impact my Will?

In Queensland, your Divorce will revoke any gift you made to your former spouse in any Will you made prior to your Divorce.  Your Divorce will also revoke any appointment in your Will of your former spouse as Executor, Trustee, Advisory Trustee or Guardian.

Upon separating from your spouse, it is timely to review your Will and other estate planning arrangements to ensure they continue to reflect your testamentary intentions.

How does my Divorce impact my superannuation?

You may have nominated your former spouse as a beneficiary of your superannuation payments.  It is important to review these arrangements on separation to update your superannuation beneficiaries accordingly.

“Divorce does not have to be costly or complex.  Let us guide you through each step of this process so you can move forward.”

Katrina Craven, LL.B, Grad Dip LP

Senior Associate, Craven Lawyers

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