Divorce pathways in Australia are simple
Divorce in Australia takes time but it is pretty straightforward.
We have a no fault jurisdiction but you have to wait for a period of time and then you can get divorced.
If it has been twelve (12) months since you separated you can divorce. It only takes one to make the application but it is easier if you both agree.
Divorce isn’t the hard part. Working out how to divide up your assets and how to look after your children when you divorce in Australia is the tricky part. In the rest of this article we will talk about what is required whether you were legally married or not because everywhere in Australia with the exception of WA it is pretty much the same under the law whether you were married or not for property.
The rules are the same for parents regardless of their relationship status because the court looks at the needs of the child and your obligations towards them.
Before we move on there is one thing to think about. You only have 12 months after your divorce to get your property settlement sorted so leave the divorce till last and get the rest sorted out first.
If you were not married you have two years to get your financial settlement done after your separation.
Family Violence
Statistics show that family violence commonly spikes when people are considering separation or after they separate. It is a time where people feel frightened, angry and upset with each other and every state in Australia has legislation to help stop that anger and frustration from turning into family violence.
Legislation varies a bit from state to state but be aware that emotional, financial and psychological abuse are also forms of family violence. You don’t have to bash your partner to find yourself barred from your home by a family violence order. You may also find the children on the order meaning that you can’t see them or can only see them if you are supervised.
Not fun so don’t take the risk. If you are feeling angry and upset take some time out to calm down and then resume your discussion later when you can talk without fighting.
A Family Violence order specifies what you can and can’t do but it is a civil matter. That means that unless what has been done to hurt partners and/or children is severe enough to warrant criminal charges the Family Violence Order will not go on your police record. It may have long term consequences in your family law settlements though so walk away if you are feeling upset.
Breaching a family violence order is a serious matter and can result in a criminal conviction for violence. Even if the breach of the order relates to comments on social media or something else that you think isn’t harmful. If it is against the rules the order puts in place it is a breach. If it is serious enough or repeated enough times then a criminal conviction and jail time are possible consequences.
If you have a family violence order protecting you and your former partner is ignoring the order and harassing you then they are in breach of the order and you should talk to the police about what is going on. They may not react the way you hope they will the first time but they will eventually take action.
If you are experiencing or being accused of family violence it is really important that you get good quality legal advice. The consequences of not reacting appropriately can be far reaching. Find out about our Legal Advice and Strategy Sessions
Divorce in Australia and Relationship Counselling
Don’t give up on your relationship too soon. Relationship Counselling is available in most communities in Australia. There are many government subsidized services and some excellent private practitioners.
If you are not sure that you want to end the relationship marriage counselling is a good idea. If your partner is asking you to attend marriage counselling then seriously consider attending.
Ignoring their wishes is not likely to make it all go away and more likely to end up with you coming home one day and finding them gone.
Hint: Marriage counselling with a counsellor that one of you has been working with for a while may feel like it is biased to the other person. It is important that you work with someone that you both feel confident in.
Separation and Divorce Consultation
Interact Support Separation and Divorce Consultations are designed to help reduce the confusion associated with divorce in Australia. Our practitioner can help you to understand your options in terms of reaching an agreement about your property and your children.
It is best to book in for a Separation or Divorce Consultation BEFORE you go to get legal advice because the consultant will talk to you about the bigger picture and help you to prepare properly to get legal advice.
Unless you are an informed consumer of legal services you may find that you’ve spent a lot of money with very little result due to going down an adversarial pathway that you didn’t need to take. Even if your former partner is impossible to negotiate with there is a lot you can do to keep your legal costs from blowing out.
During the Separation and Divorce Consultation session our practitioner will help you to gather the critical information for Family Law, work out where you are on the journey between being in a relationship and be fully legally separated or divorced. They will also help you to get clear on your goals for your families future to help you to remain in control when you go to see a lawyer.
Legal Advice and Strategy Session
We strongly recommend against going to a “free” 30 minute legal advice session. The lawyer can not provide you with proper advice during that amount of time and they are usually used to decide if you have enough money to be a client and if so to convince you to become one. You will usually find you don’t get much advice until you start paying for it.
It is important that you ask the right questions to find out your legal position, the best and worst outcomes you could expect if you can’t reach an agreement with your former partner and have to go to court, what it is likely to cost and how long it is likely to take. The lawyer won’t be able to tell you exactly but they can tell you roughly what other clients have paid for similar issues.
Now that you know the best and worst of going to court put that option aside to the last resort.
Our Legal Advice and Strategy Sessions are 90 minutes long and low cost.
Reaching an agreement on Parenting
Parenting after separation can be challenging for everyone.
If there has been family violence then one parent may not be seeing the children on a regular basis. Your children may be feeling stressed and frightened, especially if they have witnessed fights and violence.
If you are living separately under the one roof the kids might not even know you have separated and you may not have discussed how you will care for the children once the financials have been sorted and you each go your own separate way.
If you have both agreed to the separation and you are putting your children’s needs first you may be able to work out a parenting agreement without any external support or facilitation. Good on you. It is probably good enough to write down what you’ve agreed so that you are both clear and any misunderstandings are found before they cause conflict.
If you want to reach agreement without going to court (and who wouldn’t?) you should go to a Family Dispute Resolution service such as Interact Support and our consultants offer. Don’t work with a mediator who is not an Accredited Family Dispute Resolution Practitioner. Here is a link to the register to check if you have someone offering Family Law Mediation and you’re not sure if they are accredited. https://www.fdrr.ag.gov.au/Search.aspx
Using an unaccredited mediator is like using an unlicensed electrician to rewire your house. There is no guarantees that they know what they are doing and no recourse if they do the wrong thing.
If you can reach an agreement about children in mediation we recommend you trial it for a period of time and then come back to discuss any issues that you’ve had and then once they are sorted out sign your agreement to turn it into a parenting plan.
Often that will be all you need to do but if you are experiencing a lot of conflict you may want to have the agreement made into Consent Orders. See below.
If you can’t reach an agreement your Family Dispute Resolution Practitioner will give you a Section 60i Certificate that will let you go to court but think before you do that. There might be some other options to try before you commit to the cost of the Family Court System.
Find out more about Family Dispute Resolution with Interact Support
High Conflict Family Dispute Resolution (FDR)
There are ways in which the FDR process can bring in other people to give you specialist information and advice during the negotiation to help overcome deadlocks and differences in perspectives.
Child Inclusive FDR incorporates a child specialist who meets with the children and brings their perspective into the mediation process.
Lawyer inclusive FDR includes lawyers to provide legal advice during the session. This is used more frequently in Property mediation rather than parenting but it is an offer.
High Conflict Family Dispute Resolution is a process that is offered exclusively via Video Mediation and it is a more structured process suitable for people who have suffered trauma due to family violence or who have mental health issues that are impacting their behaviour.
Find out more about High Conflict Family Dispute Resolution
If none of those options work then there is still the option of negotiation.
FDR Facilitated Negotiation
FDR Facilitated Negotiation is a process where the FDR practitioner only meets with you each individually and helps you to formulate and consider offers and counter offers. The advantage of the process is that the FDR still works as a neutral facilitator rather than as an advocate for either of you.
That means that vulnerable people are not taken advantage of as a critical part of the process is the obligation of full disclosure and the best interests of any child impacted by the negotiations. Best interests of the child refers to their right to have a meaningful relationship with both parents (and extended family) as long as that is safe for them. Find out more about our Mediator Facilitated Negotiation service.
