What’s the difference between getting divorced and the process of dividing a couple’s assets?

People often confuse the process of divorce (the termination of the marriage) with the process of separating and adjusting a couple’s property interests. The two issues are completely separate.

It is not necessary to wait until you are divorced to enter into property settlement negotiations, nor do they need to happen at the same time. You can have a property settlement, or file an application in court where there is no agreement on the division of property, any time following the separation. In fact, it is best to enter discussions regarding property as soon as possible after separation to reduce costs. It is not necessary to obtain a divorce at all; but if you do, you must obtain a property settlement or file an application in court within 12 months of the first anniversary of the divorce.

The requirements for obtaining a divorce are as follows:

1. You must be legally married and have a marriage certificate;
2. You must have been living separately and apart for a minimum period of 12 months and one day (this is possible under the one roof in certain circumstances);
3. The application must be served on the spouse (unless it is a joint application);
4. If there are children under the age of 18 years, you must show that proper arrangements have been made for their care.

An Application for Divorce may be obtained and filed online from the Federal Circuit Court webpage. In the case of a joint divorce, the parties do not need to attend at Court for the hearing. The Registrar will review the Application in chambers and if all the requirements have been met; will issue the Certificate of Divorce in the mail, which will become final in one month from the court date.

In circumstances where the Application for Divorce is a sole application, it is necessary to attend court if there are children of the marriage under the age of 18 years.

Streeterlaw’s Family Law experts are happy to assist you in the preparation and filing of your Application for Divorce and attend court where necessary. Please contact us for further information or to discuss your personal circumstances and how we can help you on 8197 0105 or email advice@streeterlaw.com.au.