The many stages in your family law matter

Are you going to Court?

The many stages in your family law matter

A number of clients start off their initial appointment with me saying something like:

“I definitely don’t want this to end up in Court.”

And what I like to impress upon them is this:

“Keeping your matter out of Court is absolutely our objective. The optimum outcome is when parties resolve their dispute without going to Court.”

About ninety-five per cent (95%) of all family law matters settle.  That number of settlements includes matters settling at different stages of the case including, sometimes, after court proceedings have commenced. Sometimes, matters settle “at the steps of the Court” on the day of the final hearing

Going to Court /why parties commence Court proceedings?

There are many reasons why parties commence Court proceedings. Normally, parties do so reluctantly when other methods to resolve a dispute have failed. Sometimes, parties commence proceedings as a strategic move to force the other party to end the dispute. In our experience the most common reasons why our clients decide to commence proceedings are:

  • The other party is refusing to engage in negotiations, for example, ignoring correspondence, failing to respond to requests for disclosure, failing to engage a solicitor;
  • Where mediation/counselling has been attempted and was unsuccessful, with limited signs of ability to resolve any practical issues;
  • Due to urgency, for example, relocation or removal of children, in circumstances of dire financial hardship and property matters and so-on.

The Different Stages in a Family Law Matter

We welcome you enquires with our Family Law Team.  We are committed to resolving your matter at the earliest stage possible in your Family Law dispute.   We will work with you to develop solutions to your problem, and do our utmost to ensure that we do so in a timely and cost effective manner.

We aim to resolve your matter amicably and through alternative dispute resolution, without the need to resort to costly and time consuming litigation.  In the event that we do need to engage in litigation for you, we are experienced and well equipped to defend your interests and progress your matter successfully through the Court system.

For more information or to make an appointment with a Family Law Solicitor in either our Canberra or Queanbeyan office use our contact form or contact:

e: aaidman@elringtons.com.au     | p: 02 6206 1300

e: cturini@elringtons.com.au         | p: 02 6206 1300

 

A Simple Guide to Divorce

By Pheobe Ryan

Fixed Fee Simple Divorce

elringtons Lawyers are now offering a fixed fee ‘Simple Divorce’ service priced at $500 plus GST plus disbursements.[1]

elringtons’ specialist family law team have developed a streamlined divorce process designed to minimise costs and inconvenience to the client whilst delivering high quality professional service and advice. Our fixed fee ‘Simple Divorce’ promises clients a smooth transition into the next phase of their lives free from the burden of unforeseen legal costs.

Who can apply for a divorce?

In Australia a married person may apply for divorce if either spouse:

  • Is an Australian citizen;
  • Considers Australia to be their home or intend to live in Australia indefinitely, or
  • Has lived in Australia for 12 months immediately before filing for divorce.

A divorce application can be made where a married couple have separated and there is no reasonable likelihood of reconciliation.

When can I apply for a divorce?

In order to satisfy the Court that your marriage has broken down irretrievably, you must have been separated for a continuous period of 12 months and one day immediately prior to filing the application for divorce.

If you and your spouse resumed cohabitation for a period of up to 3 months following your initial separation, you are not required to re-set the continuous 12 months separation period. However, you must have lived separately for a period of at least 12 months in total.

What do I need to prove to be granted a divorce?

To prove the marriage a copy of the marriage certificate must be filed with the application for divorce. If the marriage certificate is not available, an affidavit will need to be filed explaining why it cannot be found.

Australian law only recognises one ground for divorce: that is that the marriage has “irretrievably broken down.” Irretrievable breakdown must be evidenced by at least 12 months of separation.

Separation is established where:

  1. There is an intention by one or both spouses to end the marriage;
  2. The spouse or spouses have acted as though the relationship has ended; and
  3. Where only one spouse considers the relationship to be at an end, that person has communicated this intention to the other.

You do not need to physically live apart to prove that you consider your marriage to be at an end. However, the Court must be satisfied that you have separated. If you are separated but are living under the same roof, you will be required to provide additional information to the Court.  Separation under one roof is not necessarily easy to prove and may require evidence from at least one corroborating witness contained in a sworn affidavit.

What does a divorce application involve?

To begin the process, an Application for Divorce must be filed with the Federal Circuit Court. The application can be made jointly or solely and a filing fee must be paid to the Court at the time of the filing of the documents. Your lawyer can prepare the application on your behalf, or you can lodge the application online.

Upon filing of the application a hearing date will be set.  If the application is made by one spouse only, it must then be served on the other spouse.  You will need to prove that you have served your former spouse and file an affidavit to prove this to the Court.

On the hearing date your application will be considered, and if successful, a divorce order will be granted.

The divorce order will automatically take effect one month after the order is granted, thought the court may abridge the period to nil in exceptional circumstances.

How do I serve the application on my spouse?

If you have not filed a joint application, you will need to serve the following documents on the other party:

  • A sealed copy of the Application for Divorce (‘sealed’ means a copy that has been stamped by the Court);
  • A copy of the Family Court Brochure ‘Marriage, Families and Separation’;
  • An Acknowledgement of Service Form; and
  • A stamped self-addressed envelope for return of the Acknowledgement of Service.

If your spouse then returns the signed Acknowledgement of Service to you, it must be attached to an Affidavit of Service which will need to be filed with the Court along with an Affidavit of Proof of Signature.

Service must take place 28 days prior to the date of the hearing if service is being effected within Australia. If the application is to be served outside of Australia, it must be effected 42 clear days prior to the hearing date.

If the application has not been served on your spouse 28 clear days before the hearing date, the matter may be ‘adjourned’, meaning that it will be re-listed for a later date. In order to prevent the matter being adjourned you may ask your spouse to indicate his or her agreement to ‘abridge’ service by signing an Acknowledgement that includes a comment to that effect, that is, that he/she consents to the abridgment of time.  Service is ‘abridged’ where the prescribed 28-day period is shortened by the Court on the basis of the parties’ consent.

Service is commonly performed by a process server but may be done by hand by any adult other than the person making the application, or by post. The person effecting service must swear an Affidavit of Service to satisfy the Court that service has taken place.

What if my spouse cannot be found?

If your spouse cannot be located, you may apply to the Court for substituted service (allowing the documents to be served on a third person who the Court is satisfied will bring it to the attention of your spouse) or for service to be dispensed with altogether. To do this you must file an affidavit setting out in detail, the measures you have taken to effect service by ordinary means.

Do I need to attend the final hearing?

If you have made a joint application or there are no children of the marriage under the age of 18, you are not required to attend the hearing.

If you have made a sole application and there are children of the marriage you must attend Court. Your ‘hearing’ will be before a Registrar of the Court and you may be asked some questions about your application.

Do I need to attend counselling?

If you have been married for less than two years, the law requires you to have attempted reconciliation with the assistance of a counsellor prior to making an application for divorce.

If you have not attended counselling, you must seek permission from the court in order to apply for a divorce.

What about our children and property?

A divorce order will not affect your property interests or parenting rights and responsibilities.

Property settlement applications must be made within 12 months of a divorce order taking effect. There are narrow circumstances in which you can obtain ‘leave’ from the Court to file out of time, but we strongly recommend you do not leave this to chance. You should consider attending to property orders as soon as you can, if you have not already done so, to ensure that you protect your existing assets from future claim or otherwise seek to have matrimonial assets divided.

You should also speak to a solicitor about formalising any parenting arrangements that you may have or wish to establish.

If you would like more information about ‘Simple Divorce’ or wish to discuss any other family law matter, you may contact Pheobe Ryan one of our solicitors experienced in these types of matters or any other member of our experienced family law team in either our Canberra or Queanbeyan office.

e: pryan@elringtons.com.au      |  p: +61 2 6206 1300

[1]Please note: Fixed fees only apply to the application for divorce.  They do not apply to children or property matters. Please see “What about our children and property?

So you want to get divorced! 12 Things you need to know

1. How long do we have to be separated?

Before you can apply to the Federal Circuit Court for a divorce, you need to be separated for a year.  For example, if you separated on 3 April 2015, you cannot make application until 4 April 2016.

2. How do I know we are separated?

It must be clear that at least one of you has decided the marriage is over and has communicated this to the other party.  This is especially important if you separate under the one roof.

3. We can be separated under the one roof?

Yes.  You may need to give the Court further information to establish you were in fact separated.  For example did your family and friends know you were separated?  How did you communicate to your ex that the marriage was over?  You will need to file an Affidavit to support your contention that you were separated under the one roof.  You may also need to file an Affidavit by a friend or family member who was aware you had separated.

4. What if we get back together after separation but then it does not work out?

The total amount of time of separation must total one year.  If you reconcile for longer than three months than the time starts again.  For example, you separate on 10 October 2014 and reconcile on 3 January 2015, but separate again on 31 January 2015.  You cannot file an application for divorce until 9 November 2015.  If however you did not separate the second time until 15 May 2015, then you would have to be separated for a full year from the second time you separated, that is, you could not apply for a divorce until 15 May 2016.

5. Do I need a copy of the marriage certificate?

Yes, if you cannot locate it you need to apply to the state or territory registry (of Births, Deaths & Marriages) for a copy.

6. What if I was married overseas?

If you were married overseas you may still be entitled to apply for a divorce in Australia.  In order to apply for a divorce one of the parties must:

Regard Australia as your home and intend to live indefinitely in Australia OR

Be an Australian citizen by birth or descent OR

Have been granted Australian citizenship OR

Ordinarily live in Australia and have lived here for at least the last 12 months.

7. But I do not want a divorce, what can I do?

The Court will grant a divorce if it is satisfied your marriage has broken down irretrievably and there is no reasonable likelihood of you resuming married life.  If these two grounds are established and the period of separation – 12 months – has been met, then, even if you do not want to get a divorce, the other party can apply for a divorce.  If you have been married less than two years when the application for divorce is made, you may be required to attend counselling to explore the possibility of reconciliation.

8. What about the kids?

If there are children of the marriage under 18, the Court needs to be satisfied there are appropriate arrangements in place for those children before a divorce will be granted.  There are questions included in the Application to give the Court information about the children.  (You can apply for orders about children – “parenting orders”- almost immediately after separation if the need exists. Alternatively you can organise a Parenting Plan between you and your former partner.  You do not have to wait until you are divorced.)  If there are already proceedings before the Court then usually the divorce order will be granted even if those proceedings (the parenting proceedings) have not finished.

9. What about the house (investments, superannuation, etc)

You do not have to wait until you are divorced to sort out your property, indeed you can apply for “property orders” as soon as you separate.

10. When can I get married again?

Once you file your Application for Divorce (and any supporting documents), you will need to serve your ex partner.  You cannot serve the Application in person but may serve it by post.  You can get a process server to serve the Application for you.  You will be given a court date 4 to 6 weeks after the date you file your application.  If all the correct information has been given to the Court then the application will be approved and a Divorce order will become final one month and one day after the court date.  For example, you may file your application on 4 February 2015 and be given a court date on 27 March 2015.  On 27 March 2015 your application is approved and your divorce becomes final on 28 April 2015.  You cannot get married before this last date.  In some circumstances you may apply to the Court to shorten the time, however should not rely on the Court approving a shortening of the time.

11. Does the Court charge a fee?

Yes, the current fee is $900 .00 – Court Fees (Family Law).  If you are in receipt of a commonwealth income support payment you may be entitled to a reduction in this fee. – Guidelines for reduced fee – divorce and decree of nullity application

12. I would like more information, where can I go?

Information is available on-line at the Federal Circuit Court.

For more information or to make an appointment with a Family Law Solicitor in either our Canberra or Queanbeyan office contact:

Accredited Specialist Carlos Turini at: cturini@elringtons.com.au or

Phone  the Family Law Team on +61 2 6206 1300

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