Divorce Lawyers Perth
Divorce in Australia is the formal process to legally end a marriage. The Family Law Act 1975 established a system called a ‘no-fault divorce’, meaning you will not be required to explain to the court your reasons for wanting a divorce. The only grounds required for divorce is the evidence of an irreversible breakdown of the marriage. This means you and the other party have not been living as a married couple for at least 12 months and have no chance of getting back together. It does not matter whether both parties want a divorce, or who was responsible for the separation.
What is separation?
Separation is the term used when both parties in the relationship have stopped being together as a couple. This can be a decision made by both or one of the members. In some cases, it may not be possible to move out due to financial difficulties, children, or any other reason. If this is the case separation will still be granted while both are living under the same roof.
The Family Law Act 1975 (Cth) states you must be separated for at least 12 months before getting a divorce. Therefore, it is important to note when the separation period begins. The term ‘separation’ does not mean physically being separated, but rather the breakdown of a relationship. Just because one party leaves the home, does not mean they are considered separated. Couples who continue to maintain sexual relationships, attend social functions together and have their finances managed together are not considered separate. There needs to be action followed in accordance with the separation intention.
At Klimek & Wijay, we understand that every relationship is different, and we promise to acknowledge the results of a separation. Some couples may try getting back together without having to restart the 12-month period, however this can only occur once. For example, if a couple separated for three months and wanted to try getting back together, but only lasted two months, you will only have to remain separate for another nine months before being eligible for divorce.
How to Divorce?
Issues such as property or parenting arrangements that occur during separation must be resolved prior to applying for a divorce. To be granted a divorce, the Federal Magistrates Court of
Australia will require the following:
● Evidence of a Marriage Certificate.
● Evidence of a 12-month separation period and breakdown of the marriage.
● Both parties are either:
a) A citizen of Australia,
b) A legal resident of Australia, or
c) Reside in Australia by living here for at least 12 months
● The Divorce Application had been served properly and the Court is satisfied that the other party is aware of the Application.
● An Affidavit from the person who served the Divorce Application and acknowledgment from the other party receiving it.
● If married for less than two years, proof that both parties attended marriage counselling.
● Arrangements for any children are made or being made. This is usually contained within the Application for Divorce.
Once the court is satisfied, an Application for Divorce must be completed, sworn and filed with the Federal Magistrates Court. The Application will be given a Hearing date, approximately 2 months after the Application was filed. The Application must be served to the other party at least 28 days before the hearing, or 42 days if they are overseas.
The court will send out a Certificate of Divorce upon becoming satisfied of the above points. The order becomes official one month after it is made. If you would like Klimek & Wijay Family Lawyers to assist with obtaining a divorce, please feel free to contact us.
Children and Divorce.
At Klimek & Wijay Family Lawyers we understand that the breakdown of marriage can often be more difficult when children are involved. Being concerned about their wellbeing after separation is something we consider. Most evidence has shown that in a situation of marriage breakdown, it is not the separation, but the conflict between both parties that causes damage to the children. The Family Law Act 1975 encourages parents to have cooperative and shared parenting after separation, to avoid disputes. We believe children in separated families can have loving relationships with both parents if the parents have a positive outlook and do not involve their children in any formal disputes. If you believe you are in a situation where children are involved, please contact one of our lawyers at Klimek & Wijay Family Lawyers to relieve your stress.
Divorce and Remarrying.
To remarry, you must obtain a legal Divorce. At Klimek and Wijay Family Lawyers we do not recommend making plans to marry on a specific date until your divorce is finalised, as it is illegal in Australia to re marry while being married to someone else. However, you can lodge a Notice of Intended Marriage with an authorised celebrant. The celebrant must also sign a copy of the divorce order before the wedding.
Assets after Divorce.
The law requires couples to follow specific steps to determine what each person is entitled to when splitting their assets. We will help you determine what assets are available to be split by adding together the value of those assets (including superannuation) and minus any liabilities. The name which the asset is under is not relevant in this case. One of our experts will be assigned to determine the value of any items that may cause disputes between the couple.
We recognise that different roles of the relationship may have been fulfilled differently by each party. This could include being the primary income earner, or the primary homemaker. However, the law views these roles equally, therefore in long-term relationships each contribution is determined equally. Unless one of the parties entered the relationship with more assets or received a significantly large amount of money during the relationship, the outcome should be even and expressed in percentage terms. i.e. 50% to 50%
Future needs are something we will discuss with you at Klimek and Wijay Family Lawyers. Particularly if the needs are unequal. There are several factors that the court needs to consider when deciding if one of the parties has greater needs. These include:
● The age and health of each parties.
● The income, property and finances of each party.
● The mental capacity of each party to gain employment.
● Whether either of the parties has control over a child from the marriage under the age of 18 years old.
● Commitments of each members of the party necessary to support himself or herself and any children.
● Whether either party is eligible for pension, allowance or any other benefits under the commonwealth law.
An example of a Future Needs case: If a couple who are separated have two kids under the age of five, the children will live with their mother; the homemaker. The court will then need to consider the future need of the mother.
The court will decide the future needs in each case, therefore it is important to obtain legal advice from us at Klimek and Wijay Family Lawyers, to understand what arrangement could be placed.
After reaching a final percentage split, we will be able to help you work out the dollar terms each party is likely to receive. In most cases, each party will keep what they have been using during the separation period. If one person has more assets then the other, a cash adjustment can be made, to even out the percentage.
At Klimek and Wijay Family Lawyers we do not recommend waiting until your divorce is final to split the assets. This is where we can come in and assist so it can be done immediately after separation.
If you would like Klimek & Wijay Family Lawyers to assist with obtaining a divorce, please feel free to contact us.