Guest article: how to divorce in Australia

What is involved in a separation in Australia?

There are two family courts in Australia, one is the Federal Circuit and Family Court of Australia and the other is the Family Court of Western Australia.

The Family Law Act 1975 (Cth) is an Act of Parliament with jurisdiction in all of Australia, however, the state of Western Australia also has their Family Court Act 1997 (WA).

Australian law provides that to completely sever your relationship with an ex-partner, you may require various legal processes including:

• A property settlement to end your financial relationship;
• Parenting orders to document the arrangements for your children;
• A release of Spousal maintenance; and
• A Divorce to dissolve your marriage (if you married);

The Act has a strong focus on parties resolving their family law matters through alternative dispute resolution so that they may avoid the expensive and emotionally draining process of litigation. Parties are required to take genuine steps to resolve their matter prior to filing their Application with the Court which involves inviting the other party to mediation. Once an Application is filed, the Court will again offer the parties an opportunity for alternative dispute resolution, usually through a court ordered Conciliation Conference.

Property settlement

Provided you have not entered into a financial agreement, the Court has wide discretionary power to decide the property settlement entitlements of each party based on the facts of each individual case. In their decision, the court will follow a five step approach as follows:

Step 1: The Court will determine whether or not it is just and equitable to adjust the parties’ interests in property held by either party to the relationship;

Step 2: The Court will identify and value all property held by either party to the relationship, irrespective of where it came from or when it was acquired;

Step 3: The Court will consider direct and indirect, financial and non-financial contributions made by and on behalf of each party, including contributions in the role of the homemaker and parent. At this stage, a percentage apportionment reflecting those contributions is usually made (for example 50% / 50% for equal contributions by both parties);

Step 4: The Court will then consider the future needs of each party and decide if these factors mean the apportionment in Step 3 above should be varied (for example, if one party has a lower earning capacity than the other, the 50% / 50% contributions percentage may be adjusted to a 55% / 45% split in the lower income earner’s favour);

These factors may include:

• age and state of health;
• income, property and financial resources;
• physical and mental capacity for appropriate gainful employment;
• disparity in the income earning capacities;
• family and/or domestic violence; and
• any commitments that are necessary for each of you to support yourself or any other person,

Step 5: The Court will consider if the proposed orders to implement the percentage division are ‘just and equitable’ in the circumstances of the case and they may make any necessary adjustments.

Parenting Orders

With respect to arrangements for children after separation, parties can apply to the Court to make an agreement binding or for the Court to make a determination with respect to:

• decision making responsibility
• living arrangements
• travel

The Court do not have jurisdiction to deal with child support except under special circumstances and so that is managed by the Australian Government’s Child Support Agency. Parties may enter a private child support agreement or in the alternative, an administrative assessment shall be made by the Agency upon Application.

Spousal Maintenance

As with property settlement, if separated parties have not entered into a financial agreement, their obligation to support each other financially, known as “spousal maintenance” is decided in accordance with the Act.

Maintenance is different from an order for property settlement and child support. A Maintenance Order is one for the payment of money, either at regular intervals or in a lump sum, for the support of the person to be maintained.

Pursuant to the Act, a party will have the right to receive spousal maintenance from the other only if:

1. That party is unable to support themselves adequately by reference to their income as against their reasonable weekly needs because either:

a. they have the care of a child of the relationship under 18 years; or

b. their age or physical or mental incapacity for paid employment; or

c. for any other adequate reason.

AND

2. The other party has the capacity to pay spousal maintenance given their income and reasonable weekly needs.

The Court also considers future needs factors set out in Step 4 of the Property Settlement process when making a determination on Spousal Maintenance.

Divorce

To apply for a divorce, parties must have no reasonable likelihood of reconciliation and must have been separated for one year and one day before making an application.

If you have been married for less than two years before separating, you must receive counselling before you can apply. If you are separated but still living together or have lived together for some of the one year separation, you can still divorce, however, you are required to file an Affidavit explaining that your relationship is in fact at an end.

If both parties are agreeable to the divorce and can make a joint application, there is no need to personally appear at the Divorce Hearing, however, if it is a sole application then you will both be required to attend.