09 Jun What is a divorce?
Divorce and what it means: Many people refer to a divorce when what they really mean is property settlement and vice versa. When you refer to a divorce, this is the step you take when you have been married and have been separated for at least 12 months. This is when you can apply for a divorce. However you do not have to divorce in that exact timeframe. You may be separated for years before you decide to divorce but as long as it has been at least 12 months since separation you can do so at any time after that period.
Divorce is a separate issue from making arrangements for who spends time with the children of the relationship and who the children live with. However you will need to provide information on your divorce application about the children with respect to their financial maintenance, any medical issues and how they have been addressed and the educational institutions attended by the children to show that the parties have taken care of the children’s interests and put their needs first.
Similarly property settlement can be completed at any time but once you have finalized your divorce, you then only have 12 months in which to finalise property matters. If you do not finalise property matters within that time then you will need to make an application to the court (usually the Federal Circuit Court) providing reasons as to why your application is out of time and any hardship you or the children may suffer if your application for property settlement is not accepted.
The Federal Circuit Court has a Divorce Kit which you can download and you may wish to do this yourself. The fee information is readily available on the Federal Circuit Court website and the Divorce Kit has all the information you need to file for divorce, either as a joint application with the other party or you can file a sole application and then serve the documentation on the other party.
There may be occasions when you will need a solicitor to do this for you. For example, you may be too busy to make your own application and prefer a professional to complete this and appear at court on your behalf. There are sometimes responses from the other party, for various reasons, where they will defend your application for divorce, for example, if they do not agree on the separation date. This may entail the lodgement of further affidavit material to respond to the other party’s claims and will extend the period of time taken to obtain your divorce. You should seek professional advice if this happens.
Be aware that any information about this sort of application should not be discussed with the children of the relationship. It is not their issue and they will be affected by the family breakdown already and there is no benefit to anyone from informing them about proceedings and including them in the emotional fallout.
There is a section in the Family Law Act 1975 (s.121) that specifically places quite extensive restrictions on publication of any information of parties to proceedings in the court. You should be aware that this includes all forms of social media, such as SMS text messages, Facebook and Twitter. Basically this means keeping your personal business to yourself and not involving other people, including children.