Family Lawyers Melbourne

Divorce is the legal ending of a marriage.

Divorce does NOT finalise property arrangements between the parties, nor does it finalise parenting arrangements. However, it does permit you to remarry. Talk to our family lawyers in Melbourne to learn more.

You must establish that there has been an ‘irretrievable breakdown’ of the relationship between the parties. To prove this, parties must be separated for 12 months or more before commencing legal divorce proceedings.

Australia does not have an ‘at fault’ system. While the reason for your separation may be relevant in many legal and family matters, it is not considered by the court when granting a divorce.

If there are children, it is important to provide the court with information about the current arrangements. “Children” includes any of the following:

• Any child of you and your spouse, including children born before the marriage or after separation
• Any child adopted by you and your spouse, or
• Any child who was treated as a member of your family prior to your final separation; for example, a stepchild or foster child.

If you meet the above criteria – irretrievable breakdown of relationship and separation for 12 months, then you will be eligible, subject to satisfying one of the following:

• Be an Australian citizen; or
• Live in Australia and regard Australia as your permanent home; or
• Ordinarily live in Australia and have done so for at least 12 months before the Divorce.

Applications are now made online through the Commonwealth Courts Portal.

You can apply as either a ‘sole divorce application’ or a ‘joint divorce application’. Our family lawyers in Melbourne can assist you with this process.

This will depend on a number of factors.

You will need to pay a filing fee to the court to hear your application:

• $1,060 full fee
• $350 reduced fee where eligible.
• * These fees change slightly in July each year and are accurate as of 1 July 2023.

You may also need to pay a process server to serve the documents – which will normally cost between $150-200 for four attempts in the metro area.

If you engage a lawyer, you will also incur legal expenses.

No. You can make a ‘sole’ application, in which case you will need to serve the documents on the other party. You cannot serve these documents yourself. If you are self-represented, then we suggest that you visit the Federal Circuit Court website for guidelines on service requirements. There are also time limits that you must comply with.

If you make a ‘sole’ application and you have a child under the age of 18, you will also need to attend court for a hearing.

If you make a ‘joint’ application – that is an application together with the other party – there is no need to serve any documents and you will not be required to attend court.

You must take all reasonable steps to locate the other party. If you are still unable to locate them, you can put their address as ‘unknown’ in the application. You will need to upload a further application seeking an order to dispense with service or for substituted service.

This can change things, but it depends on how long you were back together. The court will still count the time providing that you only got back together once and that it was for a period not longer than 3 months. If you stay together for longer than 3 months, then the clock will reset and will begin ticking again if you separate.

So, if you separated for six months – reconciled for 3 months – and then separated for another six months – you would meet the condition as the first separation would be counted.

If you were separated for six months – reconciled for 4 months – you would not be able to count the first six months and your legal separation time would start from scratch.

You can still apply for a Divorce, but the court will need to be satisfied that you were actually separated during that time.

If you apply ‘jointly’ for a Divorce – you will each need to file an affidavit outlining the factors that are evidence of living separately but under one roof. You will also need an affidavit from a witness who can attest to the arrangement that was in place.

If you apply ‘solely’ for a Divorce – you will need to provide an affidavit and so will a witness.

In order to demonstrate to the court that you were separated, it is helpful to provide the following type of information:

• Whether you slept in separate rooms?
• Whether you were each individually responsible for your own meals and cleaning?
• Did you attend functions as a couple or separately?
• Did you continue to engage in a sexual relationship together?
• Any other factors that can demonstrate that you were living together, but as separated people.

The court will require you to attend counselling and provide evidence (a certificate) to the court if you have been married for less than 2 years.

There may be some situations where counselling is not appropriate, such as family violence or where one party cannot be located. In these circumstances, you can apply to dispense with the requirement for counselling.

You only need to attend court if you have filed a ‘sole’ application and there is a child or children under the age of 18.

However, it is also advisable to attend court in any situation where you have had to file an additional affidavit – be it due to living together under one roof, being married less than two years and not suitable for counselling, or in situations where you are seeking an order for either substituted service or to dispense with service because you are unable to locate the other party.

Nardi Lawyers are the family lawyers in Melbourne who can assist with all court proceedings.

Your divorce will become ‘absolute’ (final) one month and one day after the court hears your application – the court will provide a Certificate of Divorce at this time, and you are then able to legally remarry.

You should review, update and/or draft a new will and estate planning documents.

You should also issue proceedings in the court regarding the property within 12 months (if you are unable to resolve it out of court). If you do not issue proceedings within 12 months, then you will lose the automatic right to apply to the court for this purpose and you will need to apply for leave before you can have your property matter heard.

How property is owned or registered is not relevant in family law when identifying the asset pool. For example, the husband may not be on the title of the property, but that does not mean that he does not have an interest in that property.

This does not mean that all property is included. Sometimes property can be excluded based on how it was obtained. The most obvious example is an inheritance received after separation.

The overall property pool includes all assets, liabilities, superannuation and financial resources that the parties have an interest in under joint names, their sole names and/or via corporate entities and trusts. Interests in assets or liabilities that are held together with third parties are also included.

Property includes cryptocurrency, inheritances and assets held in trust. It also includes windfalls, such as winning the lottery. Talk to our Melbourne family lawyers to learn more about property and your rights.

If the Family Court finds it is just and equitable to intervene, it will then follow the below four-step process.

1. Identify and value the assets, liabilities and resources of the parties
2. Consider the contributions of the parties made throughout the relationship, both direct financial contributions and non-financial contributions (such as being the primary homemaker)
3. Consider the future needs of each party; and
4. Determine whether the proposed settlement is just and equitable.

You may know of other people who have also had a property settlement and it’s not

uncommon for people to discuss what percentage of the asset pool they were able to retain.

Whilst it may be tempting to compare, the facts of each case are often different. What is right in one case may not be right in another. The four-step process, as outlined above, is applied to the facts of your case, and on that basis, a range will often be provided of what we believe the court would consider to be a just and equitable settlement.

Different time limits apply for making an application to the Court for financial orders depending on your individual situation.

• If you were married, applications for property adjustment must be made within 12 months of your divorce becoming final.
• If your marriage was declared nullity, your financial applications must be made within 12 months of your decree of nullity being made.
• If you were in a de facto relationship, your applications for property adjustment must be made within two years of the breakdown of your de facto relationship.
• If you want to start proceedings out of time, you must ask the Court for leave. This is not always granted.

Time limits do not apply to child support and child maintenance.

The short answer is no. It may be evidence of an intention, but in order for the settlement to be binding, the parties will need either a Binding Financial Agreement or a Final Order from the Family and Federal Circuit Court of Australia.

Consent Orders are filed with the Court and are therefore enforced by the Court.

A Binding Financial Agreement (BFA) is only enforceable where both of you have received independent legal advice.

Therefore, both parties must be represented in order to enter into a Binding Financial Agreement.

Consent Orders do not preclude the later making of a spousal maintenance application. In determining what is just and equitable, a court will consider the future financial needs of the parties and cannot make a spousal maintenance order which is final. However, spousal maintenance can be finalised under a BFA.

Often the greatest driver of higher costs is conflict. Where the parties have largely reached or agreement or are of a mind to settle matters amicably and reasonably, costs are likely to be modest. Where matters are in high conflict, and particularly where matters are litigated, costs increase significantly.

Except in limited circumstances, the Family Law Act 1975 (Cth) (the Act) requires you to obtain a certificate from a registered Family Dispute Resolution Practitioner before you file an application for an order in relation to a child under Part VII of the Act.

The certificates, known as section 60I certificates, can be issued only on the basis that:
1. One party refused to attend the FDR
2. The FDRP was of the view the matter was not appropriate to conduct FDR
3. Both parties attended and made a genuine effort to resolve the dispute;
4. Both parties attended but one did not make a genuine effort; or
5. FDR began but the FDRP determined it was not appropriate to continue.

In certain circumstances, the Court may grant you an exemption from the requirement to file a certificate.

Under section 60I(9) of the Family Law Act, you can seek an exemption from providing a certificate in the following circumstances:

• If your matter is urgent
• If the Court is satisfied that there are reasonable grounds to believe that:
  o There has been child abuse and/or family violence by a party
  o There is a risk of family violence by a party, and/or
  o There is a risk of child abuse if there were to be a delay in applying to the
  Court
• Where a party is unable to participate effectively in FDR (for example, due to an incapacity to do so or physical remoteness from a FDR provider)
• If your application relates to an alleged contravention of an existing order that was made within the last 12 months, and there are reasonable grounds to believe that the person who has allegedly contravened the order has behaved in a way that shows a serious disregard for his or her obligations under that order.

You will be issued a section 60I certificate. This is valid for 12 months from the date of the last mediation and enables you to now apply to the court without seeking leave.

It depends on your situation. In some instances, a Parenting Plan is sufficient. This Plan is not binding and cannot be enforced, but it is evidence of the parties’ intention, and it can set out an arrangement for time. It can be reviewed periodically and easily altered.

Court Orders are binding and are therefore enforceable. They are also more difficult to change and will remain in place until a child is 18 years of age.

Under the Family Law Act 1975, there is a presumption that both parents will have an equal parental responsibility—that is, they will both have a role in making decisions about major long-term issues such as where a child goes to school or major health issues.

You can lodge either contravention proceedings or enforcement proceedings. Enforcement proceedings are used where you want time to resume, but you do not want the other party to be punished.

In contravention proceedings, the Court may make an order that:

• Ensures the resumption of the arrangements set out in an earlier order
• Compensates a person for lost contact time
• Varies an existing order
• Puts a person on notice that if the person does not comply with an order, the person will be punished
• Or punishes a person by way of a fine or imprisonment.