Getting a Divorce in New South Wales

by Sonia Hickey

Divorce is a delicate subject, especially over the holiday period when families are meant to be coming together rather than falling apart.

But there is no denying the holidays can have a way of magnifying tensions in relationships that aren’t strong and thriving.

In fact, typically around the world, Christmas and the New Year tend to be the busiest times for divorce lawyers to take calls from new clients.

In Australia the divorce rate is declining, and currently stands at 2 in 1,000 marriages. But these numbers don’t include the significant number of marriages and de-facto relationships that simply end without any kind of official paperwork. While it is not illegal to avoid divorce, there are implications to consider if you don’t formally end your relationship or marriage.

If there are children under the age of 18 from the relationship then their ongoing needs and care must be a priority. Chances are there is property and joint financial commitments too. Superannuation can be considered a joint asset in long term relationships.

To protect yourself, and to make a clean break so you and your former partner can both move on, it’s important to consider ‘officially’ ending the relationship.

So, what are your options? And what is the difference between divorce, ending a de-facto relationship and annulment?

Divorce

The definition of divorce in Australia is simply the termination of a marriage. It’s called a “divorce order”.

In Australia, you can actually apply for a divorce order online, as we have a “no fault” divorce system, meaning you don’t need to prove anyone has caused the relationship to end, you just need to show that the relationship has broken down, which in the eyes of the law, is demonstrated by being separated for 12 months.

You also will have to live as separated for at least 12 months before you can apply for the divorce order, no matter how long you’ve been married. If you separate, but remain living together under the same roof for the sake of convenience, then you also need to prove that the relationship has ended.

While you can take as much time as you like from splitting up to applying for a divorce, there are some minimum time restrictions. For example, if you have been married for less than two years, you will need to attend some counselling before the family court will accept your application.

The other time restriction relates to your financial affairs. From the date of the divorce there is a 12 month time limit to be able to access the Family Court if intervention is required over financial or property matters.

While you don’t have to get a divorce, it’s an important consideration if you want to remarry. Polygamy is illegal in Australia.

Children and divorce or separation

If you and your co-parent can’t agree custody and living arrangements of the children, then you are required to go through a process of meditation before going to court, unless there are mitigating circumstances.

De facto relationships  

De facto relationships, and their breakups, are handled under the Family Law Act 1975.

A de facto relationship is defined by the fact that you’re not legally married to each other, and you are not related to each other but have a relationship as a couple living together on a domestic basis. The difficulty with de-facto relationships is proving when they started which can impact the settlement terms. When there is a marriage certificate, the date is recorded.

What about an annulment?

Annulment means that a marriage is declared null and void. It’s different from a divorce.

In Australia, it is not popular to seek an annulment, but they can sometimes be granted to declare a marriage is void, in circumstances such as:

  • One or both parties were already married
  • If one or both people is under 17 and doesn’t have special court approval, or someone is not able to provide informed consent
  • It’s a prohibited relationship (such as siblings marrying, for example)
  • The legal requirements were not met at the time of the marriage (for example, the celebrant wasn’t qualified)
  • If either party was forced into the marriage

This kind of legal annulment shouldn’t be confused by an annulment that is sometimes granted by a religious faith for the spiritual side of the marriage.

Prenuptial agreements

Prenuptial agreements (otherwise known as ‘prenups’) are not common in Australia, and recent case-law has made clear they may be difficult to enforce.

Recent research suggests that while a vast majority think they’re a good idea (74%), only about 18% of people actually have one. Prenuptial agreements don’t set a relationship up to fail, but they do protect both parties if that should happen and can make any divorce process run much more smoothly.

Prenuptial agreements are outlined in Sections 90B-90KA of the Family Law Act 1975 deal with financial agreements by parties that are married, while sections 90UA-090UN apply to de facto couples, including same sex couples.

The Act covers de-facto couples in all states and territories except Western Australia. prenups are best organised through a lawyer.

Like Wills, if they are scribbled in the back of an envelope not ‘officially’ executed in accordance with the legislation, this can cause problems if anyone chooses to launch a dispute, ending in lengthy, expensive legal battles and delays.

Family violence

If the relationship is ending because of violence, then first and foremost, you need to consider your own (and your children’s) safety. The research consistently shows that the most dangerous time for a victim is as the relationship is ending. Contact the local police and get legal advice. There are mechanisms that can be put in place to protect you, and police and lawyers can assist you to make a plan to leave safely, assisting you with emergency accommodation, food and clothing if need be.

Important steps

Because every relationship is unique and the reasons for the breakdown are also unique to the situation it is best to protect your own interests and seek legal advice. While many parties do ‘go it alone’ they do so at their own peril. A lawyer will have your best interests at heart and make sure that the terms of the separation or divorce are fair and equitable.

It’s also worthwhile, once all of the custody, financial, property and legal aspects are finalised to consider getting help from a professional financial planner who can help you to understand your financial position and help you prepare for the future.

It’s also really important to consider the benefits of hiring a life coach or finding a support group or a counsellor too. Having someone to talk to is paramount to moving forward, helping you plan the next phase of your life.

Relationship breakdowns, no matter how amicable can still be stressful, so take time to take care of your physical and emotional health.

Author

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.

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