If you think the only things that are constant in life are change, choice, and principles (could I include taxes and death?), well perhaps you should also add – Marital spats! And, most marital spats and conflicts today often end up in divorce. The ugly truth is that divorce can get nasty, whether emotions run high or a couple’s feelings toward each other get bitterer. But while divorce can certainly be very tough, it’s important to avoid letting your emotions get the better of you, and it would be saner to go for divorce settlements in Brisbane! Here’s a peek at how a divorce settlement is handled in Australia.
The Grounds for Divorce
It’s a quite common misconception that a system of divorce exists in Australia. The truth is that while there indeed are laws on divorce, these are but a small assembly or collection of laws that are contained in the Family Law Act of 1975.
The laws governing marriage, divorce, de facto relationships, guardianship, property settlements, adoption, and the care of children are all contained in the Family Law Act of 1975.
In 1975, the act established a principle of “no-fault” divorce for the very first time Down Under. The only ground for divorce is an irretrievable breakdown of marriage, evidenced by a twelfth-month separation immediately preceding the date of the filing of an application for divorce.
In other words, the courts in Australia do not consider why the marriage ended, but only whether the marriage has broken down for a continuous period of not less than 12 months, and there’s no reasonable likelihood that the parties will get back together. So, these two reasons necessitate the need for divorce settlements Brisbane.
The second limb or part of the divorce test is somewhat ad hoc, or unplanned (or improvised?). The reality is that if one of the parties to the marriage has announced by virtue of applying for a divorce that they do not want to be in a relationship with the other one, then the court will step in and decide otherwise, so long as separation has been proven.
The Rules/Guidelines Around Separation
The word “separation”, as defined by the Family Law Act of 1975, is paramount insofar that it operates as a prerequisite for divorce. As on-and-off relationships are quite common these days, this can create confusion as to when the separation occurred and when it ended.
However, the Family Law act recognizes that if the parties separate, and if there’s a resumption of co-habitation of three months or less, then separation occurs again, and those two periods of separation may be aggregated into one single period. Confused? Well, I’m a bit, but then again stay focused as we’ll go deeper into the ins and outs of divorce settlements in Brisbane.
So, if a married couple separates for two months, then reconciles or cohabitates for 3 months, and then separates for 10 months, the 12-month qualification period or phase has been satisfied within the total period of 15 months. Now, doesn’t this sound like a mathematical equation?
Now, what if you (or your partner) want a divorce? Where the question of separation is an issue between the parties to the marriage, such that one party opposes the creation of a divorce order, then it’s imperative to consider whether the parties continued to live together as a couple or not in the relevant 12-month period.
To answer this issue, the following questions should be tackled: Were the parties sharing a bedroom? Was there a sexual relationship? Was one or both of the parties performing domestic tasks for the other? Were the parties sharing finances? Were there elements of financial dependency? Did one party inform the other that they considered the married relationship over? Was the separation made public to family and friends? And, did the parties make contact with the Child Support Agency or any other government agency, and notify them of the parties’ separation for the purposes of financial assistance?
Applying for Divorce
Now, here comes the nitty gritty with regard to applying for divorce settlements in Brisbane. Once the two limbs or major aspects of the divorce test are fully satisfied, a party to a marriage can now make an application for divorce in the Federal Circuit Court of Australia.
If a divorce order is made, the divorce takes effect and is finalized in just one month and one day from the date the order was made. However, a party can seek to shorten this time period, especially in special circumstances, such that the divorce order can actually take effect on the day it’s made!
However, it would still be best to avoid this scenario, because the parties can suddenly choose to remarry within the given period. However, they’ll need to give the usual one-month notice of intention to marry.
And, if a married couple splits, or gets divorced, then how are their conjugal assets split? According to Aussie legal experts, it’s important to note that divorce and property settlement are two different legal processes.
A divorce is the legal termination of the marriage, while a property settlement is the formal division of assets that can occur while the two parties are living together, and can be finalized before their divorce is finalized (and even when they continue to live together!).
Remember that Australia is an equitable distribution country, meaning that on a spouse’s divorce or death, net wealth is not evenly split like the usual 50/50 sharing. In fact, the property adjustment is calculated using a four-step process which includes Valuing the Assets, Valuing the Contributions of Each Party, Calculating Future Needs, and Considering the Practical Effect.
Now, aren’t divorce settlements in Brisbane complicated Down Under? Well, while they may be a bit complex, if you hire a good divorce lawyer, perhaps this emotionally (and financially) arduous process could be made a little bit smoother, and less troublesome for both parties!
