Divorce and De Facto Relationships

Divorce:

Divorce refers to the official ending of a marriage. When a divorce order is made final, you can remarry. It is illegal to be married to more than one person at any time.

The only requirement for a divorce is the ‘irretrievable breakdown’ of the marriage. This requires that the husband and wife have been separated for a minimum of 12 months with no likelihood of getting back together.

Your partner is not required to agree to the separation, however, they only need to be aware that you believe the marriage is over. The court does not consider who was at fault for the marriage to breakdown.

You are not required to get a divorce when you separate, however, staying married will affect your overall your rights and obligations for financial matters, such as property settlements, your Will and in the event,  you pass away, your Estate. If you have children, a Divorce Order does not affect your relationship with your children.

Any division of property for a divorced couple must be done within a period of 12 months from the date of the divorce order.

If you are seeking Divorce or want advice about Divorce and separations, please contact us so that we can assess and assist you. We have a range of affordable legal services that we can tailor to your circumstances.

De Facto Relationships:

A de facto Relationship, under law, is required to be one in which a couple, of the same or opposite sex, live together on a genuine domestic basis. However, if you are legally married, or are related by family, it is not considered a de facto relationship.

In deciding whether you were in a de facto relationship, the court will consider, but is not limited to the following:

  • The duration of the relationship
  • The duration of living together
  • Whether you were in a sexual relationship
  • If you were financially dependant on one another
  • Any property you owned, and how you came about to owning it
  • The degree of how you cared for and supported any children you have
  • How other people perceived your relationship.

Property settlement and partner maintenance

The court will only make orders about property and maintenance issues for a de facto couple if it is satisfied that:

  • The couple were in a de facto relationship for at least two years or a child is born out of their de facto relationship
  • The couple have lived at least a third of their de facto relationship together
  • The couple separated after 1 March 2009.

There is a time limit set to apply for a court order in relation to any property settlement or partner maintenance, in which it must be within two years of separating from your partner. The court may allow more time in special circumstances.

The family home:

If your relationship ends, property may be divided between you and your partner by:

  • Agreement
  • Using a family dispute resolution service to help reach agreement
  • Going to court.

This applies to married couples who are now separated or divorced from their spouse and de facto couples who separated after 1 March 2009. If you have separated before this date, you are entitled to different legal rights in which you should obtain legal advice.

If you were to leave the house or other property, or, if one person gets the house by an agreement or a court order, you do not lose your right to a fair share of the assets. This provides that the person who stays in the house may need to buy the other’s share or re-finance the mortgage into their sole name.

You also may still have a right to a share of the house even if the house is in the name of a third party. This is contingent on meeting certain criteria.

What can be divided?

Property includes assets and liabilities. These can be owned individually, jointly, or by a family trust or family business.

This includes:

 

  • Real estate, including the family home
  • Money
  • Investments
  • Insurance policies
  • Inheritances
  • Shares
  • Superannuation
  • Any other assets, such as cars, furniture or jewellery
  • Debts, such as loans, credit cards and personal debts.

 

All items may be considered in the property settlement regardless of:

 

  • Whose name is on the documents
  • Who made the debt.

 

What happens to child/ren after separation?

When a relationship ends, the law provides that parents must make efforts to agree on arrangements for their kids and consider what is best for them. It is best to consider, putting the best interests of the child first:

  • Where the children will live, who they will spend most time with
  • How the children will be financially supported
  • How the children will preserve a relationship with both parents and other significant people, such as grandparents and extended family.

If the parents agree on an arrangement, it is best to put it in writing which will make it legally enforceable.

If the parents are not able to come to an arrangement, they can attempt family dispute resolution which will assist in reaching a mutually agreeable arrangement. Further, in the circumstances where family dispute resolution is not effective, parents can apply to the family law courts to make parenting orders, whereby, the court must make its decision in the best interests of the children.

 

To book an appointment to start the process or if you have further enquiries, please do not hesitate to contact our offices on the following numbers: 03 9304 3344 (Melbourne) or 02 9645 5175 (Sydney).