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    Married Overseas, Divorce in Australia: A Complete Guide 2023 1024 700 Dorter

    Married Overseas, Divorce in Australia: A Complete Guide 2023

    Getting a divorce can be a challenging and emotional process, and if you were married overseas, you may have the added stress of not knowing if you can end the marriage in Australia. Understanding the essential steps involved in a divorce can help you to gain clarity during this difficult time.

    In this article, we will guide you through the necessary steps to get divorced in Australia if you were married abroad and ensure a clear and straightforward path to legal separation.

    Am I considered legally married in Australia if I married overseas?

    In Australia, if you married overseas, your marriage is generally recognised as valid as long as it was valid in the country where the marriage took place. However, there are certain circumstances where a foreign marriage may not be recognised in Australia.

    Here are some examples:

    • If you or your former partner were already married to someone else at the time of the foreign marriage, your second marriage may be considered invalid in Australia.
    • If you or your former partner were underage according to Australian law at the time of the foreign marriage (below 18 years old).
    • If the marriage ceremony did not meet the legal requirements of the country where it took place

    While your marriage may be legally recognised, it does not automatically mean that you can immediately apply for a divorce in Australia. You must meet certain criteria and satisfy the jurisdictional requirements of Australian family law to start the divorce proceedings.

    How to get a divorce in Australia if married overseas

    To get divorced in Australia when you married overseas, you need to meet certain requirements and follow the divorce process outlined in the Australian Family Law Act.

    Here are the key requirements:

    a. Either you or your former partner is an Australian citizen.

    b. Either you or your former partner regards Australia as your permanent home and intends to live in Australia indefinitely.

    c. Either you or your former partner has lived in Australia for at least 12 months before you apply for a divorce.

    Other Requirements for Getting Divorced in Australia if Married Overseas

    Marriage Certificate

    You must provide a copy of your marriage certificate as proof of your marriage. If your marriage certificate is not in English, you must provide an authorised translation along with the original document.

    Separation

    You must demonstrate that your marriage has irretrievably broken down, which is typically established by a period of separation.

    In Australia, the requirement is that you and your former partner have lived separately for at least 12 months before you apply for a divorce. It is possible to be separated while still living under the same roof, but you need to provide evidence to support that separation has occurred.

    No Reconciliation

    You must confirm that there is no reasonable likelihood of reconciliation between you and your former partner. This means that you have made genuine efforts to reconcile but have been unsuccessful.

    Once these requirements are met, you can file an Application for Divorce with the Family Law Courts. If the court is satisfied with the application, a divorce order will be granted, officially ending your marriage.

    No-fault divorce in Australia

    To obtain a divorce order, you do not have to prove the fault or wrongdoing of a party.

    In Australia, the only ground for divorce is the irretrievable breakdown of the marriage, which is demonstrated by a period of separation of at least 12 months. This means that neither party needs to prove fault, such as adultery or domestic violence, to obtain a divorce.

    This approach to divorce is similar to the laws in many other countries that have adopted a no-fault divorce system. There are some countries, however, that still require specific grounds or reasons for divorce, such as adultery, abandonment, or cruelty.

    In those countries, the parties may need to provide evidence or prove fault to obtain a divorce.

    The Divorce Process in Australia for People Married Overseas

    Here’s a simplified overview of the process that you may go through if you’re married overseas and want to get divorced in Australia.

    1. Gathering the documents

    You must obtain your marriage certificate and any relevant documents related to your marriage, separation, and children. As we mentioned earlier, if the marriage certificate is not in English, it will need to be translated.

    2. Divorce application

    Fill out the divorce application form with all necessary information about yourself, your former partner, your marriage, and any children.

    3. Lodge the Application

    Submit the completed divorce application form to the Federal Circuit and Family Law Court of Australia, either online or in person, and pay the required filing fee. You can access up-to-date filing fees here.

    4. Serve the Application

    Serve a copy of the filed divorce application on your former partner, following the specific rules and guidelines for service. This step is only required if you’re making a sole application for divorce – which we will explain in more detail below.

    5. Wait for a Response

    Your former partner has a specified timeframe to respond or contest the divorce. If there is no response, an uncontested divorce may proceed.

    6. Divorce Hearing

    If there are issues to resolve or your former partner contests the making of a divorce order, a court hearing may be necessary. Otherwise, a court hearing is not ordinarily required.

    7. Divorce Order

    If all requirements are met, the court will grant a divorce order, officially ending your marriage. Once made, an order becomes final after one month and one day at which time the court issues the sealed order.

    Joint application vs sole application in divorce

    There are two ways you can apply for a divorce: sole and joint application. Here’s how they differ from each other.

    Joint application

    A joint application for divorce is filed when both you and your spouse agree to the divorce and are willing to cooperate throughout the process. This means that both parties work together to complete and sign the Application for Divorce form. It is a joint declaration stating that you both consent to the divorce.

    In a joint application, both parties are considered joint applicants, and both need to sign the application form. This option is generally more straightforward and can often lead to a faster and smoother divorce process as there is no requirement of service.

    Sole Application

    A sole application for divorce is filed when only one spouse wishes to initiate the divorce. In this case, you will be the sole applicant, and your spouse will be the respondent. You will need to complete the Application for Divorce form on your own, without your spouse’s signature.

    A sole application is appropriate when there is a breakdown in the relationship, and both parties are not in agreement or are unable to cooperate. It is also used when your spouse cannot be located or refuses to participate in the divorce process.

    A sole application can also occur even when both parties agree to get divorced. In this case, the divorce papers will still need to be served to the party that did not apply for divorce.

    What if I don’t know the location of my former spouse?

    If you do not know the location of your partner, there are steps you can take to proceed with the divorce process.

    Reasonable Efforts

    You must demonstrate to the court that you have made reasonable efforts to locate your spouse. This typically involves attempts to contact them through various means such as phone calls, emails, letters, or mutual acquaintances. These attempts must be then recorded in an Affidavit, explained below.

    Don’t forget to keep a record of your attempts to locate your spouse, including any responses or lack thereof.

    Notice of Divorce

    Once you have made reasonable efforts to locate your spouse without success, you can seek the court’s permission to proceed with the divorce by serving them with a Notice of Divorce by way of substituted service.

    Substituted service means serving the documents through an alternative method approved by the Family Court. For example this may be through means such as by publication in a newspaper or through a social media platform.

    Affidavit

    Along with the Notice of Divorce, you will need to file an Affidavit outlining the steps you have taken to locate your spouse and why you believe they cannot be located. The Affidavit should provide as much information as possible about your attempts to find them and give notice of your application.

    Court Consideration

    The Court will review your application, the supporting documents, and your Affidavit. If the Court is satisfied that you have made reasonable efforts to locate your partner and that it is appropriate to proceed without their participation, they may grant permission for the divorce to proceed.

    Divorce Order

    If the Court is satisfied with your application and there are no other complications, a divorce order may be granted, effectively ending your marriage. The court will specify the method of service and the date from which the divorce becomes final.

    What if there are children involved?

    When addressing matters related to children, the Court prioritises their welfare and aims to ensure their ongoing care and support.

    Both parents are encouraged to maintain a meaningful relationship with the children unless there are circumstances such as abuse or violence that warrant restrictions.

    In divorce proceedings, you and your spouse will be required to outline to the Court what arrangements have been made for the care of the children.

    The court will then assess whether there are proper arrangements for the care, welfare and development of the children. If the court is not satisfied that proper arrangements have been made for the care of children, the court could decline to make the order. This occurs rarely notwithstanding that it is common that a parent may contend that arrangements may not be proper or in the best interests. The Court does not hear parenting disputes in the course of making a divorce order. Parenting custody or access disputes require a separate application.

    Do I need to divorce in Australia if married overseas?

    While the specific laws and requirements can vary depending on your circumstances, here are a few reasons why getting a divorce in Australia may be necessary:

    Legal Recognition

    By obtaining a divorce in Australia, you ensure that your divorce is recognised and valid under Australian law. This can have implications for various legal matters, such as property division, financial settlements, and child custody arrangements.

    Future Relationships

    In some cases, future legal requirements or benefits may depend on having an official divorce order from Australia. For example, if you wish to remarry in Australia or claim certain government benefits, having an Australian divorce can be important.

    Is overseas divorce valid in Australia?

    In Australia, the validity of an overseas divorce depends on several factors. Generally, if you obtained a divorce overseas according to the laws of that country, your divorce will be recognised as valid in Australia.

    However, there are certain circumstances where an overseas divorce may not be recognized. Here are some key considerations:

    Jurisdiction

    The jurisdiction refers to the legal authority of a court to hear and decide a case. In the context of an overseas divorce, it means that the foreign court that granted the divorce must have had the appropriate legal authority over the matter. If the court had jurisdiction based on your or your former partner’s residency or domicile in that country, the Australian courts are more likely to recognise the divorce.

    Legal Requirements

    Each country has its own specific legal requirements for obtaining a divorce. For an overseas divorce to be recognised in Australia, it must have met the legal requirements of the country where it was granted. This typically includes fulfilling residency requirements, following the proper procedures, and obtaining a legally valid divorce order, decree or certificate.

    Compliance with Australian Law

    While an overseas divorce may be recognised in Australia, it must also comply with Australian law, particularly if there are related matters such as property division or financial settlements.

    For example, if the overseas divorce did not address or adhere to Australian family law principles regarding property settlement, you may need to initiate separate legal proceedings in Australia to resolve those issues.

    How we can help you

    Even if you were married overseas, we can assist you with your divorce process.

    The first step is to determine if your marriage is recognised under Australian law. If it is, we can proceed and apply for a divorce. We will guide you through the necessary paperwork and documentation, ensuring all legal requirements are met.

    If your marriage is not recognised, we will explore alternative legal options to dissolve your relationship. Throughout the process, we will provide you with expert advice on your rights, obligations, and entitlements under Australian family law.

    We will advocate for your interests during negotiations regarding property division, spousal maintenance, and child custody matters if applicable.

    Ultimately, our goal is to help you navigate the divorce process efficiently and help you achieve a fair resolution, while prioritising your best interests and emotional well-being.

    Contact us for an initial consultation.

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    Consent Orders in Australia: Everything You Need to Know 1024 664 Dorter

    Consent Orders in Australia: Everything You Need to Know

    Separation or divorce can be a stressful and emotionally challenging experience for couples, especially when they have to make decisions about property division and parenting arrangements. One way to formalise these agreements and make them legally binding is through a consent order.

    Consent orders are a legal tool that separated couples can use to protect themselves and their families. This article will answer some common questions about consent orders in Australia, including how to obtain them, what they can be used for, and their advantages and limitations.

    What is a Consent Order?

    When a couple separates, they must make decisions about property and parenting arrangements. These decisions can be made privately between the parties by agreement, or through the court. Informal agreements are not legally binding, which means that the parties may have no legal recourse if one of them does not comply with the agreement or changes their mind later.

    A consent order is a legal document that formalises the agreement reached between the parties. This makes the agreement legally binding, meaning that both parties have legal protection if either of them does not comply with the terms of the agreement.

    What Are Consent Orders For?

    Consent orders can be made for parenting and property settlement matters, which are typically the most common issues that separated couples need to resolve.

    Parenting arrangements can include custody, access or ‘time with’ arrangements, and communication, while property settlement consent orders can cover the division of assets, such as real estate, investments, and personal property, as well as superannuation and spousal maintenance.

    It’s important to note that consent orders can only be made for matters falling under the jurisdiction of the Family Law legislation. Consent Orders require the approval of the Court before the agreement is enforceable as an Order. The Court requires that the agreement reached between the parties is fair and equitable (in accordance with the legislation and case law) before approving a consent order.

    Other legal matters, such as child support or divorce, require separate applications, and seeking legal advice from an expert family lawyer can ensure that your rights and interests are protected.

    How to Obtain a Consent Order

    Here are the step-by-step instructions for obtaining a consent order in Australia:

    1. Reach an agreement: Before applying for a consent order, the parties must first reach an agreement on certain issues. This can be done through negotiation, mediation, or other dispute-resolution methods.
    2. Prepare the application: Once an agreement is reached, the parties must prepare an Application for Consent Orders. This application includes proposed consent orders, being the terms of the agreement, and supporting information that are required by the Court to assess the reasonableness of the agreement.
    3. Lodge the application: The application must be lodged with the Federal Circuit and Family Court of Australia. The Court will then review the application and assess the agreement to ensure that it is fair and equitable.
    4. Decision by Court: If the Court is satisfied with the agreement, the Court will generally make the consent orders.
    5. Receive the order: Once the consent orders are made, both parties will receive a copy of the orders. The orders become legally binding and enforceable at this time.

    The process of obtaining a consent order normally takes a few weeks and in some rare cases months, depending on the complexity of the agreement and the Court’s workload.

    Can an Application for a Consent Order be Rejected?

    In some cases, the Court may reject an application for consent orders. This could happen if the agreement reached between the parties is not deemed fair or reasonable, or if it’s not in the best interests of any children involved. Additionally, if the documents filed are incomplete or incorrect, the court may reject or requisition the application.

    If an application is rejected, parties can work to revise the agreement and re-apply for a consent order. However, it’s always best to ensure that the agreement reached is fair and reasonable before submitting an application to the court. Seeking the advice of a family law professional can help ensure that the application is submitted correctly, increase the likelihood of its approval, and reduce the risk of any delay.

    Does a Consent Order Expire?

    A consent order does not have an expiry date, which means it remains legally enforceable until it is varied or set aside by the Court. However, it’s important to note that there are limited circumstances in which a consent order can be altered or set aside. Some examples include if there has been a significant change in circumstances, fraud, or duress.

    . If you believe there has been a significant change in circumstances, fraud, duress, or some other reason that warrants a variation or termination of a consent order, you should seek legal advice.

    What Happens if a Consent Order is Breached?

    If a party breaches a consent order, the other party can take legal action to enforce the order. Breaching a consent order can result in serious legal consequences such as fines, or other penalties. In extreme cases, a person found to have breached an Order can be ordered to serve a term of imprisonment.

    If you suspect that a consent order has been breached, you should seek legal advice immediately to determine the best course of action. In some cases, it may be appropriate to negotiate with the other party to resolve the issue. In other cases, legal action may be necessary to enforce the order or seek compensation for any losses incurred.

    If there are changes in circumstances that make it difficult for you to comply with the terms of the consent order, it’s highly recommended that you seek legal advice before applying to make any changes to the order or breaching the Order. This can prevent potential legal consequences and ensure that the agreement remains fair and reasonable for all parties involved.

    How Can a Lawyer Help with Consent Orders?

    Applying for consent orders can be a complex and sometimes daunting process. Seeking the help of an expert family lawyer can ensure that the process is as smooth as possible. A family lawyer can offer legal advice on the agreement, ensuring that it is fair and equitable, and help clients to understand their legal rights and obligations.

    Lawyers can also assist in the preparation of the necessary documents and filing of the application with the Court. They can communicate with the Court on behalf of their client, and if needed, represent their client in Court proceedings.

    In addition, if a consent order has been breached, a lawyer can advise on the available legal remedies and represent their client in court proceedings to enforce the order or seek variations. A lawyer can also assist in negotiating a new agreement or variation to a consent order.

    Consent Orders: Move Forward with Confidence

    Separation and divorce can be emotionally challenging, but consent orders provide a practical and beneficial way for parties to reach agreements on parenting and property settlement matters. Although obtaining a consent order is not mandatory in Australia, it is strongly recommended because it offers legal protection and enforceability of the terms of the agreement, providing peace of mind for both parties.

    In addition to offering legal protection, seeking legal advice can help ensure that the agreement is fair and reasonable, and that the necessary paperwork is correctly prepared and submitted, and will be approved by the Court. With the assistance of a family lawyer, clients can navigate the process of applying for a consent order and move forward with confidence.

    Ultimately, consent orders provide a useful tool for resolving disputes in separation and divorce. By obtaining consent orders, parties can ensure that their agreement is legally binding and enforceable, providing them with greater certainty and security for the future.

    If you need legal advice regarding an agreement with a former partner, you can contact us at Dorter Family Lawyers & Mediators. Our firm is well-versed in negotiating and preparing consent orders and various agreements that may need to be made as part of a separation.

    Call us today on 02 9929 8840 or book a consultation online here.

    Separated Under One Roof? What You Need to Know 1024 688 Dorter

    Separated Under One Roof? What You Need to Know

    Highlights:

    • Separated couples may choose to live together due to financial, convenience, co-parenting, lack of alternative housing, emotional attachment, or cultural and religious reasons.
    • It’s possible to be legally separated while living together. However, you may need to prove that you and your partner have already separated and representing to other and to third parties that this is the case.
    • Evidence of separation, such as affidavits, witness statements, financial records, utility bills, photos or videos, and other evidence, may be required to get a divorce while living together.
    • Seeking legal advice before filing for divorce or making financial decisions is recommended to ensure that the requirements are met.

    For many people, when they end a relationship they move out and this signifies the beginning of their separation. However, this is not always the way it goes. There are separated couples who choose to live under one roof due to financial constraints, convenience, or even cultural and social aspects or religious reasons.

    But no matter what the reason is, separation and living under one roof also has its financial and legal effects on the lives of a separated couple, especially in certain aspects like government payments and divorce proceedings.

    In this piece, we’re going to help you understand the legal side of things if you’re still living with your former partner. But first, let’s understand why couples live together even after separation.

    6 Reasons Why Separation Under One Roof Happens

    Living together after separation is not the best option for everyone. It can be challenging emotionally and practically and may not be suitable for those who need more distance or space from their ex-partner.

    However, there are several common reasons why separated couples may choose to continue living together, including:

    1. Financial reasons

    Living together can be a more affordable option than living separately, especially if one or both partners cannot afford to move out on their own. Sharing expenses such as rent or mortgage payments, utilities, and groceries can help both partners save money.

    2. Co-parenting

    If the couple has children, living together can make it easier to co-parent and provide stability for the children. It may also allow for more flexible care arrangements.

    3. Convenience

    Living in the same home together can be more convenient than finding separate residences, especially if the couple has shared pets or household responsibilities. It can also be easier to divide household chores and responsibilities when living in the same space.

    4. Lack of alternative housing

    In some cases, one or both partners may not have a viable alternative housing option. This could be due to financial constraints, lack of availability of suitable housing, personal or family crisis or other factors.

    5. Emotional attachment

    Even after separating, some couples may still have a strong emotional attachment to one another. Living together may allow them to maintain that connection while they work through their issues and decide what their future holds.

    6. Cultural or religious reasons

    In some cultures or religions, it may be frowned upon or forbidden to separate or divorce. Living together under these circumstances may be seen as a compromise or a way to maintain appearances.

    Can you be legally separated and live together?

    Technically, there are no legal requirements or certifications for separation. So yes, you can be separated and still be living under one roof.

    However, you may need to alert certain institutions like Centrelink (Services Australia), banks, insurance companies, or the court system (if you are applying for divorce) and prove to them that you and your partner have already separated even though you’re still living together. This can be proven in a variety of ways.

    Will your living arrangement affect your divorce proceedings?

    They could, however it is possible to get a divorce in Australia while still living together, as the legal requirement for divorce is that the parties have been separated for at least 12 months.

    It is important to understand that while it’s common to live separately when you separate from your partner, a separation is much more than just living in separate residences – there must be a clear intention to end the relationship from one party and evidence of separation.

    How to prove separation under one roof for divorce

    If you and your spouse are still living separated under one roof during the separation period, you will need to provide evidence to the court that you have been living separately under one roof, meaning that you have not been living together as a married couple. This can include evidence such as:

    Affidavits

    You and your former partner can prepare written statements called affidavits that describe relationship details, the living arrangements and other factors to confirm that separation has occurred. These affidavits must be sworn or affirmed before an authorised person, such as a lawyer or justice of the peace.

    Witness statements

    You can ask other people who know about your living arrangements or sexual relationship to provide statements to the court. This could include family members, friends, neighbours, or professionals such as doctors or counsellors.

    Financial records

    If you and your former partner have separate finances, you can provide bank accounts, statements, bills, and other financial records to demonstrate that you are living separately.

    Utility bills

    You can provide utility bills or other documents that show that you have separate accounts for gas, electricity, water, and other utilities.

    Photos or videos

    You can provide photos or videos that show your separate living arrangements, such as separate bedrooms or living areas.

    Other evidence

    You can provide any other evidence that confirms separation, such as emails, text messages, or social media posts that demonstrate that you have separated.

    It is recommended that you seek legal advice before filing for divorce to ensure that you meet the requirements and that the divorce proceedings will not be impacted by your living arrangement.

    We can guide you on how to prove separation under one roof and any other legal considerations that may apply in your specific circumstances.

    When to seek legal help

    Ideally, the moment that you and your partner decide to have separate lives, under one roof or not, is the best time to approach a family lawyer so you would know your options.

    We can also advise you on what living and financial arrangements that you must maintain so you can prove to the court that you’re already separated and living together.

    For expert and compassionate legal advice, contact us today!

    Getting a Divorce in Australia: What You Need to Know 1024 713 Dorter

    Getting a Divorce in Australia: What You Need to Know

    Deciding to end a marriage is a difficult choice that often involves making emotional and complicated decisions.

    Although the process of getting a divorce is relatively simple, the challenges arise due to the additional issues such as asset division and child custody that can make finalising the divorce and ending the relationship a daunting process.

    If you are in the midst of a divorce or contemplating one, you might have queries regarding divorce, including your legal alternatives, rights, and obligations. In this article, we will answer 8 of the questions we’re asked as family lawyers about getting divorced in Australia.

    1.   How do you get divorced in Australia?

    The process of getting divorced in Australia is relatively simple. To be granted a divorce, you must meet the requirements for divorce, and fill out a divorce application form. This form can either be submitted jointly with your spouse, known as a joint application, or alone, known as a sole application.

    The divorce application form will require additional documentation, such as a marriage certificate, and if not in English, a translated copy. Once completed, the form and documents are uploaded to and lodged with the Commonwealth Courts Portal.

    It’s worth noting that a divorce order is a formal and legal recognition of the end of the marriage, and it’s separate from property settlement and parenting matters. These issues must be resolved either formally or informally, but they don’t need to be finalised before you lodge your application for divorce.

    If you and your partner reach an agreement about finances and children, it can be informal and not enforceable by the court. However, if you want to formalise the agreement, you can apply for consent orders. In most circumstances, it is recommended that agreements be formalised.

    If you’re unable to agree, you may need the help of a legal professional or the Court to reach an agreement on the division of property. It’s important to apply for this settlement within 12 months of the divorce being approved.

    Another important point to note is that the divorce process is the same for same-sex couples too.

    2.   What are the criteria need to apply for divorce?

    Before applying for divorce in Australia, there are certain criteria that must be met by the couple. These requirements include:

    • At least one of the spouses must be an Australian citizen, have been born in Australia, or have lived lawfully in Australia for a minimum of 12 months.
    • The validity of the marriage must be proven. i.e. confirmed by producing a copy of the marriage certificate.
    • The couple must have been separated for a minimum of 12 months and one day. During this period, they may either live apart or continue living together without being a couple, which is known as separated under the same roof.
    • The breakdown of the marriage must be irretrievable (i.e. there is no chance of a reconciliation) , which is typically demonstrated by the 12-month separation period.
    • If the marriage has lasted less than 2 years, the couple must provide a certificate from a counsellor who confirms that they have attempted to reconcile. However, in cases where domestic violence has occurred, counselling may not be mandatory.

    It’s important to note that divorce in Australia is “no-fault” which means that you don’t need to prove that your spouse is responsible for any wrongdoing or the downfall of the relationship. The “no-fault” divorce system was introduced to help to make the process of divorce less hostile.

    3.   Is court attendance needed when you get divorced?

    It’s not always necessary. As mentioned previously, for the divorce application, there are specific situations where you may be obligated to appear in court. One example is if you file for a sole divorce application and have children under 18. The attendance at court is usually limited to appearing by telephone/video conference and often the hearing takes no more than 10 minutes.

    You may also be required to attend court if you and your spouse cannot reach an agreement regarding property settlements or parenting arrangements.

    4.   How long does it take to get divorced?

    There is no expedited process for divorce, nor is there an option for an immediate divorce.

    To be eligible to apply for divorce, you and your spouse must have been apart for a minimum of 12 months. Once you have submitted your divorce application, you can anticipate being granted a divorce order within 3 to 4 months.

    The 12-month separation period is intended to give both parties ample time to contemplate whether divorce is the ultimate decision.

    5.   Can you get divorced if you’re partner doesn’t want to?

    In Australia, you do not need to file for divorce jointly with your spouse. A sole divorce application can be submitted, and it is not mandatory for your spouse to sign the application before you can lodge it.

    The Court will approve a divorce order if they are satisfied that the marital relationship has broken down beyond repair, and there is little possibility of reconciliation.

    If you apply for a sole divorce, you must serve your spouse with the divorce application. This is to ensure that they are informed of the impending divorce application.

    It is necessary to attend court if you are applying for a sole divorce and you have children.

    If you are considering filing for divorce alone, we recommend that you consult a family lawyer. We can assist you in understanding the process and guide you in completing it swiftly.

    6.   What’s the difference between an annulment and a divorce?

    When ending a marriage, spouses may seek legal orders in the form of a divorce or an annulment.

    A divorce involves the termination of a valid marriage, while an annulment declares that a marriage was never valid. An annulment can only be granted under certain circumstances, including:

    • If the marriage was not legally performed
    • If one party was underage at the time of marriage
    • If one party was coerced into the marriage
    • If one party was incapable of consenting to the marriage due to a mental disability
    • If one party was already married when entering into the marriage
    • If the parties to the marriage are close relatives which is prohibited

    The process of obtaining an annulment is typically more complex than that of a divorce, as the court must investigate the circumstances surrounding the marriage to determine if an annulment is appropriate. An annulment is also referred to as a declaration of nullity.


    7. Is getting a divorce required after separation?

    If you and your spouse decide to separate, you are not legally required to obtain a divorce. However, staying married can have an impact on your financial obligations and rights. It also may have an impact on your estate planning. Thus, it is recommended to seek legal advice.

    If you intend to remarry, you must first obtain a divorce. Often when marrying for second time, you may be asked to provide proof of divorce and will need to produced the Divorce Order with the Court’s seal.

    8.   Do I need a lawyer to get divorced?

    It is not mandatory to hire a lawyer to get divorced. In recent years the Court has made the process easier for people to apply without the assistance of lawyers and the process can be completed online. However, many individuals opt to work with a lawyer due to the complexities that arise during a divorce such as property settlements and parenting matters.

    As each situation is unique and family law can be intricate, understanding your rights and obligations is not always straightforward. A divorce lawyer can assist you throughout the entire process, including the online application, and ensure that you understand your rights and responsibilities and that all necessary documentation is provided. This can make the entire process more manageable and efficient.

    Do you need a divorce lawyer?

    If you are in Australia and contemplating a divorce while seeking legal guidance, a family lawyer can provide assistance.

    Family and divorce lawyers possess extensive qualifications and expertise in guiding couples through the divorce process and attaining resolutions that enable them to progress with their lives.

    Divorce can be a difficult and emotional period, but you need not face it alone. You can have a no-obligation consultation with family lawyers to discuss your situation at no cost.

    Discuss your situation with the team here at Dorter Family Lawyers. Based in North Sydney, our team is well-versed and highly experienced in all kinds of family law matters, including divorce and separation.

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    What if my ex-partner won’t comply with Court Orders? 1024 725 Dorter

    What if my ex-partner won’t comply with Court Orders?

    So, the Court has made Orders, or you’ve got a binding agreement. You’ve spent a lot of money on litigation or having a lawyer negotiate and prepare a formal agreement setting out your respective legal rights and obligations. You want to move on with your life, but your ex won’t let you.

    Unfortunately, this scenario is somewhat common in Australia. However, while it is common, it’s not impossible to overcome. In this article, we’re going to help you understand Court Orders, including what may happen when you or the other party don’t comply with them and how you can enforce them.

    The family law system in Australia is complex and often overwhelming for those involved in a legal matter, so before we dive into how you can have Court Orders enforced, let’s talk about Court Orders generally.

    Table of Contents:

    What is a Court Order?

    A court order is a decision that helps to resolve a legal matter and is made by a judge or judicial officer.

    Essentially, a Court Order is a set of rules or decision that is legally binding and provides clarity of the legal relationship (obligations and rights) between the people (parties) involved in the legal matter.

    Court Orders can be made in a few different ways. A Court Order may be made after two parties have made a private agreement regarding a matter, such as how they plan to parent after a separation, and they wish to make it legally binding – this is known as a consent order. Court Orders are also often made after a hearing or trial.

    When Court Orders are made for family law matters in Australia, they are usually about parenting or financial issues.

    Are there different types of Court Orders?

    There are a few different types of Court Orders, including:

    Final Orders

    These orders are the orders that resolve a legal matter and bring it to an end.

    Interlocutory Orders

    An interlocutory or interim order is commonly made in situations where the matter is urgent or a decision is needed before a final trial. This type of order is temporary and usually put in place until final orders can be made.

    Consent Orders

    For many family law matters you have the option to resolve the matter privately, outside of the courts. However, if you don’t formalise the agreement make it legally binding, the parties are relying on each other to uphold their end of the agreement. A consent order is an order that makes a private agreement between parties legally binding.

    What kinds of matters can court orders be made for?

    As we touched on above, in a family law context, Court Orders are usually made for parenting concerns or financial matters.

    Parenting Orders

    These kinds of orders are made about parenting matters such as communication and/or spending time between parents and their children, where the child/ren may live, and other welfare related arrangements for children.

    Parenting orders can be applied for by any person who is concerned with the care, welfare, and development of a child, which may include the child’s parents, grandparents and relatives.

    When the Court is making a decision regarding a parenting order, the best interests of the child are the paramount consideration. The Court needs to consider two key factors – the benefit to the child of having a meaningful relationship and bond with both parents and the need to protect the child from harm (including psychological and physical harm).

    Parenting orders can be applied for at any time, including before, after or during a separation or divorce.

    Financial Orders

    Financial orders are usually made to resolve matters such as the division of property and assets or providing financial support after the breakdown of a relationship (spousal maintenance).

    As part of making the Orders, the Court will need to ensure that the arrangements set out are “just and equitable” for each party, and often they will require detailed information from each party to ensure that this is the case.

    There are time limits which apply to persons seeking to apply for financial orders. For couples who were married, they have 12 months after a divorce order has been granted to apply for financial orders. For de facto relationships, financial order applications need to be made within two years of the relationship ending.

    What happens when you don’t comply with a Court Order?

    Non-compliance with a Court Order, also referred to as breaching a Court Order, means that a party has not followed the rules or regulations that have been provided as part of their Court Order.

    However, while it may be frustrating that a person isn’t following a legally binding order, they are not going to be immediately arrested for this. Rather, for there to be any consequences for the non-compliance of the Order, the other party involved will need to file a Contravention Application or an enforcement application.

    Contraventions

    This application essentially alerts the Courts to the non-compliance of the Order and can result in the person who has not been compliant facing serious consequences. They could face penalties such as having to participate in counselling, performing community service, paying a fine, paying compensation to the other party, or in particularly serious circumstances, they could face imprisonment.

    Before filing a Contravention Application an attempt to resolve the matter through a means such as Family Dispute Resolution must occur, in most circumstances. If you have attempted to obtain Family Dispute Resolution or have been ruled as exempt from this requirement, you can then apply for the Contravention Application.

    To make your Contravention Application you will need to submit an affidavit providing information of how the accused party has contravened the Orders, and either the Family Dispute Resolution Certificate or proof of your exemption.

    It’s important to be aware that a breach of Court Orders can happen in a variety of different ways. It must also be considered whether the breaching party had what is known as a “reasonable excuse” for not complying with the order.

    Reasonable excuses that may be accepted by the Court include:

    • The party that breached the Order believed that their actions were required to protect the health and safety of a person or child; or
    • The actions of the party causing the breach did not continue longer than was necessary to protect the health and safety of the person. 

    If someone has breached an Order, what should you do?

    If you find yourself in a situation where the other party to your agreement, your ex for example, is not complying with an Order, it’s important to take a step back and consider the circumstances of the situation. Below, we’ve included some things to think about if a breach of an Order occurs:

    Non-compliance with Parenting Orders

    Has the other parent breached or contravened your parenting Orders? A party may file a Contravention Application if another party has breached Court Orders. Before taking any action, the aggrieved party must consider two questions;

    1. Did the other parent have a reasonable excuse? and
    2. What do I want to achieve by going to Court?

    If the answer to question 1 is yes, then you should reconsider before hastily filing an application in Court. 

    So, what do you wish to achieve?  If the answer to that question is that you hope to seek to change the Orders, you may wish to consider making an interim application or a new final orders application. If the breached Orders are final, there will need to have been a significant change in circumstances. The change in circumstances could be the breach of the Orders, but it depends on the circumstances of the breach.

    Non-compliance with Financial Orders

    Unfortunately, from time-to-time parties are unable to fulfil their obligations for various reasons. There are times where a party may also try to evade their obligations. Below are some examples of common breaches that occur with property orders:

    1. Has your ex-partner refused to sign a document? – The Court can order a Registrar to sign a document on their behalf.
    2. Has your ex-partner refused to make a payment? – You could Consider making an application for Third Party Debt Notice. A Third Party Debt Notice is the Family Court version of a garnishee order. It allows the Court to order that a payment be made from a party’s source of income/capital e.g. salary or savings.
    3. Has your ex-partner refused to make a payment and have no cash or income? – You can consider making an application for the sale of their property so that you may receive your entitlement.

    Interest may be payable under the Court Rules if the Court makes an order for payment and the payment is made late.

    Plan for the worst

    It may be cynical, but as the saying goes, it is always better to be safe than sorry. When you are negotiating your agreement, consider what will happen if a payment is not made or your ex-partner skips the country. In most circumstances, there might be an appropriate alternate outcome if a party defaults or form of security that can be offered if that a party fails to comply. 

    It’s also important to consider seeking legal advice from an experienced family lawyer. A family lawyer can help you understand your options and obligations so that you can make informed decisions for your future.

    If you would like any assistance with compliance of Orders or Agreements, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact with us on (02) 9929 8840.

    Multiple Jurisdictions 1024 683 Dorter

    Multiple Jurisdictions

    Litigation of issues across multiple jurisdictions involving the same subject matter and parties is becoming increasingly common, particularly in family law. It will often involve a careful analysis of which jurisdiction or Court is preferred and consideration of whether the issues or proceedings can be transferred or consolidated.

    In a family law context it is becoming more common to see third parties, such as Mum or Dad or grandparents, seek repayment of monies they may have advanced to one or both parties or an argument that real estate is held “on trust” for a third party following separation. In these situations a third party may assert certain legal rights to pursue repayment of monies or declarations that the third party is the beneficial owner (real owner) of real estate. What follows is that multiple jurisdictions (or Courts) may have the jurisdiction to decide the issue e.g. Federal Circuit and Family Court of Australia and Supreme Court of New South Wales. Our previous article on “Accrued Jurisdiction” provides an overview on such jurisdiction existing between different Courts and can be found here – What is Jurisdiction and Accrued Jurisdiction?.

    In these circumstances it is necessary to seek specialist advice about:

      1. Which jurisdiction (or Court) may be preferred to determine the issue;

      2. Whether the issue can be cross-vested, or transferred, between jurisdictions (or Courts);

      3. When and how to apply for a transfer of proceedings;

      4. How to deal with different Judicial Officers in different Courts; and

      5. What to do if the transfer does not succeed.

    Dorter Family Lawyers and Mediators specialises in family law disputes that involve multiple areas of jurisdiction and/or multiple Courts. If you require any assistance with the above we can assist.

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us on (02) 9929 8840.

    Andrew Johnson
    Partner

    Rebekah Dorter
    Principal

    I’m considering separating what should I do? 1024 667 Dorter

    I’m considering separating what should I do?

    The decision to separate from a partner is understandably a very difficult decision. You may be in a situation where you feel confused and your life is out of control.

    It is important to find confidence, gain clarity and take control of your decisions.

    Although every relationship is unique, the one thing you should do is know your rights and entitlements particularly how it affects you,  your children or your financial situation. We identify the top three things to do when considering a separation:

    1. Seeking legal advice

      Although you may know many who have been through a separation, each separation is different and knowing how to navigate your own separation is important.

      Before you separate, you should obtain legal advice to understand your rights and entitlements in the event of any separation. This will empower you with the knowledge of what separation entails and give you the confidence to make the decision on whether or not you wish to separate.

      Depending on your situation, your family lawyers may explain different ways of separating, such as physical separation and obtaining new accommodation or remaining at home and living under the one roof. Each situation involves different implications both financial and non-financial.

      Expert Family Lawyers will guide you and tailor their expert advice to your unique situation.

    2. Seeking help

      “Help is always available, you just need to ask.” Although this may be true, many do not know where to seek help or what help is needed.

      Expert Family lawyers will provide you the guidance to seek help where you may or may not realise it is needed. This could be anything from financial support, counselling support, safety and risk management, or referrals to other experts where needed.

    3. Securing key information

      If you are considering separation you may need to secure key information. This includes securing key documents such as passports, and identification documents. You may also need to protect assets such as ensuring bank accounts require two signatures to operate.

      Your family lawyer would be able to advise you as to what other documents are relevant and how to obtain them, if they are not in your possession. This could include obtaining documents to gain understanding of your finances and financial situation, seeking documents regarding your interests in any properties or assets, or obtaining reports or assessments for the interests of the children.

    If you are considering a separation, Dorter Family Lawyers and Mediators are expert Family Lawyers who specialise in all areas of family law and mediation and can assist you. We can be contacted on (02) 9929 8840.

    Julie Cheung
    Senior Associate

    Rebekah Dorter
    Principal

    hammer_court_dollar_dollar_sign_fine_justice_judge_case_law
    With the rising cost of living becoming a common topic in many news and media outlets and a very real problem for many families in Australia, an increasingly asked question to family lawyers is “Can the other party help to pay my legal fees?” 1024 768 Dorter

    With the rising cost of living becoming a common topic in many news and media outlets and a very real problem for many families in Australia, an increasingly asked question to family lawyers is “Can the other party help to pay my legal fees?”

    Many families in Australia feature traditional roles with one party being the primary breadwinner and the other party being the primary homemaker and parent. If a couple decides to separate, payment of legal fees to help obtain a fair settlement can cause stress for the party who has sacrificed their career to stay at home and care for the children. This can be particularly problematic if the separation is acrimonious.

    Sometimes, parties are able to obtain loans from friends and family members for payment of legal fees, however for many, this is not the case.

    Generally the Family Law Act requires each party to bear their own costs in a family law matter, regardless of the outcome of the case.

    However, there is long standing authority in the Family Court that recognises the need for an “equal” or “level playing field”, particularly in cases where there is significant financial disparity between the parties.

    Section 117(2) of the Family Law Act allows the Court to make orders for the payment of legal costs in some circumstances.

    If the Court does make an order requiring one party to provide a payment to the other for legal fees, (often referred to as “litigation funding”) the Court can make different types of litigation funding orders for example, a lump sum payment, or a “dollar for dollar” order.

    A costs order can be made requiring one party to make a one-off lump sum payment to the other party, if there is sufficient liquid assets in the property pool. The quantum of that lump sum payment can depend on the complexity of the case.

    A “dollar for dollar” order is an order requiring each dollar that is paid to one party’s solicitor, to be paid to the other party’s solicitor. While this may not be ideal in all cases, this type of order can assist if there is a smaller property pool with little to no liquid assets, but the other party has a significant income.

    When considering whether to make a costs order in a family law matter, the Court must have regard to factors such as the financial circumstances of each party, whether either party is in receipt of legal aid, the conduct of the parties, whether proceedings have been commenced due to non-compliance with previous orders, whether written offers have been exchanged, whether one party has been wholly unsuccessful with their case or any other relevant matter. The notion of a “level playing field” is one which is fundamentally in the interests of justice and an important matter to consider when deciding whether it would be appropriate to make an order for the payment of legal costs.

    If parties own a property and do not want to commence proceedings to obtain litigation funding, another option is to obtain a loan for litigation funding. These finance providers look at the prospects of that party’s case and can provide a loan for payment of legal fees, which is usually secured by a caveat on the title of that property.

    If you would like assistance with securing funds to obtain a fair settlement after separation or require legal advice, Dorter Family Lawyers and Mediators are expert Family Lawyers who specialise in all areas of family law and mediation, and can assist. Please contact us on (02) 9929 8840.

    Maeve Cooper
    Associate

    Rebekah Dorter
    Principal

    What is a de facto relationship? 1024 683 Dorter

    What is a de facto relationship?

    Whether a de facto relationship exists or existed can depend on what purpose the de facto status is being decided. 

    The criteria for a de facto relationship changes in various settings depending on whether the de facto status is being considered for the purpose of Family Law, Migration Law or Succession Law. For example, in the Federal Circuit and Family Court of Australia (“FCFCOA”), the Court applies the definition in the Family Law Act which appears in Section 4AA.

     A person is in a de facto relationship with another person if:

    1. the persons are not legally married to each other, but this does not prevent a person from being legally married to someone else; and
    2. the persons are not related by direct lines of family descent or by adoption; and
    3. having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

    The circumstances that may be considered by the Court include any or all of the following:

    1. the duration of the relationship;
    2. the nature and extent of the person’s common residence;
    3. whether a sexual relationship exists;
    4. the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
    5. the ownership, use and acquisition of their property;
    6. the degree of mutual commitment to a shared life;
    7. whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
    8. the care and support of children;
    9. the reputation and public aspects of the relationship.

    No particular finding in relation to any of the above circumstances is to be regarded as necessary in deciding whether the persons have a de facto relationship. A Court determining whether a de facto relationship exists has discretion to consider all the circumstances of the particular case.

    A de facto relationship can be between people of the same gender or different genders. A person can be married to one person, but in a de facto relationship with another person. A person can also be in more than one de facto relationship.

    Section 90SB of the Family Law Act applies to all de facto financial cases. The legislation requires that the relationship must have been of at least two years’ duration for proceedings to be brought. If the relationship is less than two years, then proceedings may only be instituted if: 

    1. there is a child of the relationship, or 
    2. the applicant made substantial contributions to property such that serious injustice would be caused if the proceedings were not permitted to proceed, or 
    3. the relationship is or was registered under a prescribed law of a state or territory.

    For the purpose of Succession Law in NSW, a person is not required to be in a relationship for 2 years to be considered de facto. Similarly, Migration Law in Australia does not have a prescribed minimum period to be considered de facto.

    In making an application for property settlement or spousal maintenance, family law legislation applies geographical limitations on applicants. It is required that either:

    1. both parties must be ordinarily resident in a participating jurisdiction (e.g. NSW) when the relationship breaks down, or
    2. either or both of them are ordinarily resident in such a jurisdiction at the date the application is made, and:
      1. the parties have been ordinarily resident in such a jurisdiction for at least one third of the relationship; or
      2. the applicant has made substantial contributions in the jurisdiction.

    In NSW, de facto relationships can be registered at any time subject to a 28-day cooling off period. Similarly, the end of a de facto relationship can be registered by either person in the relationship provided that they serve notice on the other party.

    To apply to register a relationship in NSW both partners must be:

    1. over 18 years of age;
    2. not married to each other or anyone else;
    3. not already in a registered relationship under this Act or in another state or territory in Australia;
    4. not in a relationship with another person; and
    5. not related by family.

    The requirements for registration can vary between the States and Territories.

    If you require advice in relation to de facto relationship law, for example, you are living with someone else and you are uncertain about your rights, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact us on (02) 9929 8840.

    Christopher Palumbo 

    Partner 

     My partner and I have just separated and we are trying to remain amicable. What do we do now?  1024 914 Dorter

     My partner and I have just separated and we are trying to remain amicable. What do we do now? 

    Separation can be a very difficult time and it can be hard to know where to start when sorting arrangements for your children, division of property and finances. Often, parties try and remain amicable, especially when children are involved, although sometimes this is not possible. Attending counselling or family therapy can assist separating couples try to remain amicable while negotiating the steps which need to be taken to finalise their separation.

    If you have decided to separate and you and your partner are amicable, you may wish to:

    1. Consult with a specialist family lawyer and obtain advice in relation to your rights and entitlements following the breakdown of your relationship. 
    2. Attempt to reach agreement in relation to parenting and/or property matters with your former spouse directly. 
    3. If you cannot reach agreement, you should consider attending family dispute resolution or mediation. You can organise a private mediation or, in some circumstances, through a not-for-profit agency such as Relationships Australia. If you require assistance with negotiating, you should consider attending with a specialist family lawyer to negotiate on your behalf. If you can reach agreement, it is in your best interests to document the agreement you have reached with your former partner sooner rather than later. You can document the agreement you have reached by entering into the documents below: 
      1. Application for Consent Orders and Minute of Consent Order – These documents are filed with the Federal Circuit and Family Court of Australia and once approved by the Court they sever your financial ties with your former partner on a final basis. These documents must be filed to end your financial relationship with your former spouse. Entering into these documents seeks to ensure that your former partner does not file an application in the Federal Circuit and Family Court of Australia seeking a property settlement at a later date. It is not necessary for either party to obtain their own legal advice to prepare or enter into these documents, although it is strongly recommended. You can also include parenting Orders in this document. However, if you wish to remain flexible with your parenting agreement, then a Parenting Plan may be more suitable. Sometimes parties elect to enter into a Binding Financial Agreement instead of an Application for Consent Orders and Minute of Consent Order to document arrangements made in relation to property. 
      1. Deed of Release – this document seeks to provide that you and your former spouse will release each other from a future ‘family provision claim’ on each other’s estate and further, that you will not challenge the other’s Will. This document is not necessary to end your financial relationship with your former partner, but is often recommended to afford your estate greater protection when you pass away. If you wish to enter into a Deed of Release with your former partner, both parties are required to obtain legal advice from their own lawyer. 
      2. Binding Financial Agreement for NIL spousal maintenance – this document seeks to prevent a successful claim for spousal maintenance (also referred to as ‘alimony’ in the United States) against each other now or in the future. This document seeks that neither you, nor your former partner will be able to make an application to the Federal Circuit and Family Court of Australia requesting payment of spousal maintenance unless the Binding Financial Agreement has been first set aside. This document is not necessary to end your financial relationship with your former partner, but is often recommended if you are the spouse with the greater income. If you wish to enter into a Binding Financial Agreement, both parties are required to obtain legal advice from their own lawyer.
      3. Child Support Agreement – If you reach a private agreement with your former partner in relation to financial arrangements for your children that is separate or in addition to a child support assessment issued by Services Australia (Child Support), you should consider documenting this arrangement by way of a Child Support Agreement. A Child Support Agreement documents arrangements made for payment of expenses such as school fees, private health insurance, medical expenses or extra-curricular activities. There are two different types of child support agreements – a Limited Child Support Agreement and a Binding Child Support Agreement. If you wish to enter into a Binding Child Support Agreement, both parties are required to obtain legal advice from their own lawyer.

    Application for Divorce


    A property settlement is separate from an Application for Divorce and this can be filed once you have been separated from your partner for 12 months.

    You may make an Application for Divorce either jointly with your former partner or individually on your own behalf. Please note if you file a sole Application for Divorce:-

    1. You will be required to serve a hard copy of the application on the other party and then provide evidence to the Court that the other party has received the application.
    2. You will be required to pay 100% of the filing fee.
    3. You will be required to attend Court (electronically) and make submissions to satisfy the Registrar that proper arrangements have been made for the children.

    An Application for Divorce legally ends your marriage to your former spouse in Australia. It does not end your financial relationship with your former partner. This can only occur by entering into an Application for Consent Orders and Minute of Consent Order or a Binding Financial Agreement (in some circumstances). 

    If you or your former partner wish to commence Court proceedings for a property settlement or spousal maintenance, then the person wishing to apply must commence court proceedings within twelve (12) months of your divorce becoming final. In limited circumstances, permission can be obtained from the Court to start proceedings after the limitation period.

    If you would like assistance with the process after separation, mediation or require legal advice, Dorter Family Lawyers and Mediators are expert Family Lawyers who specialise in all areas of family law and mediation, and can assist. Please contact us on (02) 9929 8840.

    Maeve Cooper
    Associate

    Rebekah Dorter 
    Principal