Most often when people make an appointment to see me they say they want to talk about ‘divorce’. This is completely understandable because ‘divorce’ is a word pretty much all of us know. But in Australia ‘divorce’ has a specific meaning.
‘Divorce’ refers to the end of a marriage – or more specifically, the legal severance of a marriage. One day a Marriage Certificate provides the legal status of two people, then following the Divorce Order it does not.
Obtaining a Divorce Order is a relatively straight-forward matter (legally at least, the emotional side of things can be much more difficult). One, or both, of the parties applies to the Family Law Courts one year and one day after the date of separation using the Divorce Kit (available from the Courts) or through their lawyer and pays the Court fee. If only one party has made the application then the documents are served on the other. The application is usually heard six weeks later – the applicant is only required to attend if there are children under the age of 18; the other party is only required to attend if they are disputing something in the application – such as the date of separation. If the Divorce Order is made at that hearing it becomes absolute (effective) one month and one day after the hearing date and a certificate of the Divorce Order is mailed out to each of the parties.
However, a ‘divorce’ does not finalise all the legal matters in relation to the end of a marriage – it does not resolve the division of property between the parties (it also does not resolve the parenting matters but I'll talk more about that in another post).
A ‘property division’ is the finalisation of the division of the party’s property – home, cars, caravans, bank accounts, superannuation, furniture, mortgages, personal loans, and credit cards etc.
Most couples are able to reach an amicable agreement as to how their property will be divided – and they will save time and thousands of dollars in legal fees by finalising that agreement in a Binding Financial Agreement or Consent Orders. Such an agreement is reached either by the parties having discussions directly between themselves or with the assistance of lawyers putting together a proposal/counter-proposal until agreement is made.
But if no agreement can be reached then it becomes necessary to apply to the Family Courts for a judge to review the evidence (including the value of the assets and liabilities as well as the contributions made by each party to those assets and any future needs either party may have) and make a decision as to the division.
It is after a Binding Financial Agreement, Consent Orders or Court Orders are made that the assets/liabilities can be sold or transferred in accordance with the Agreement/Orders.
So why is the distinction between ‘divorce’ and ‘property division’ important not only for the end of a marriage but also for people in a de facto relationship? Well, it’s because while ‘divorce’ only applies to marriages ‘property division’ occurs not only at the end of a marriage but also at the end of a de facto relationship. That is, following the breakdown of a de facto relationship the parties have the same (or very similar) entitlements and obligations to property division as married people do.
‘Divorce’ refers to the end of a marriage – or more specifically, the legal severance of a marriage. One day a Marriage Certificate provides the legal status of two people, then following the Divorce Order it does not.
Obtaining a Divorce Order is a relatively straight-forward matter (legally at least, the emotional side of things can be much more difficult). One, or both, of the parties applies to the Family Law Courts one year and one day after the date of separation using the Divorce Kit (available from the Courts) or through their lawyer and pays the Court fee. If only one party has made the application then the documents are served on the other. The application is usually heard six weeks later – the applicant is only required to attend if there are children under the age of 18; the other party is only required to attend if they are disputing something in the application – such as the date of separation. If the Divorce Order is made at that hearing it becomes absolute (effective) one month and one day after the hearing date and a certificate of the Divorce Order is mailed out to each of the parties.
However, a ‘divorce’ does not finalise all the legal matters in relation to the end of a marriage – it does not resolve the division of property between the parties (it also does not resolve the parenting matters but I'll talk more about that in another post).
A ‘property division’ is the finalisation of the division of the party’s property – home, cars, caravans, bank accounts, superannuation, furniture, mortgages, personal loans, and credit cards etc.
Most couples are able to reach an amicable agreement as to how their property will be divided – and they will save time and thousands of dollars in legal fees by finalising that agreement in a Binding Financial Agreement or Consent Orders. Such an agreement is reached either by the parties having discussions directly between themselves or with the assistance of lawyers putting together a proposal/counter-proposal until agreement is made.
But if no agreement can be reached then it becomes necessary to apply to the Family Courts for a judge to review the evidence (including the value of the assets and liabilities as well as the contributions made by each party to those assets and any future needs either party may have) and make a decision as to the division.
It is after a Binding Financial Agreement, Consent Orders or Court Orders are made that the assets/liabilities can be sold or transferred in accordance with the Agreement/Orders.
So why is the distinction between ‘divorce’ and ‘property division’ important not only for the end of a marriage but also for people in a de facto relationship? Well, it’s because while ‘divorce’ only applies to marriages ‘property division’ occurs not only at the end of a marriage but also at the end of a de facto relationship. That is, following the breakdown of a de facto relationship the parties have the same (or very similar) entitlements and obligations to property division as married people do.
The divorce is making the difference between the couple who wanted to leave there life whether it is at fault or without fault. If a couple decided that they don't leave with each other than they get divorce. And the divorce lawyer can help for this. The divorce lawyer can really help for consulting both people and also for property distribution.
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