Divorce Lawyers

In the Australia the ground for a Divorce, is the irretrievable breakdown of a marriage. The evidence required is to demonstrate that the parties to the marriage have lived separately and apart for twelve (12) months and one (1) day. It should be noted that in exceptional circumstances, parties can resume cohabitation for a period of up to three (3) months. Also, parties can be separated but still reside in one residence, or ‘under one roof’. The party alleging the separation will likely need to provide evidence as to why the parties continued to live ‘under one roof’ and corroboration that the parties were in fact separated during that time. This is normally done by a witness, other than the parties to the marriage giving evidence. If the marriage is less than two (2) years in duration, then a divorce application should not be filed without ‘leave’ (permission) of the Court having first been obtained, unless a certificate is filed with the application that the parties have explored reconciliation through counselling. If there are children to the marriage under the age of eighteen (18), then the Court will want to be satisfied that proper arrangements, in all the circumstances have been made for the care, welfare and development of those children (except in exceptional circumstances).

A party to a marriage is liable to maintain the other party, to the expent that the party is reasonably able to do so, if and only if, that other party is unable to support herself or himself adequately, whether by reason or having care and control of a child of the marriage who has not attained the age of eighteen (18); by reason of age or physical or mental incapacity for appropriate gainful employment; or for any other adequate reason. The Court will have regard to those factors set out in Section 75(2) of the Family Law Act. In summary and to put it simply, there is a ‘Threshold Test’. Does the Applicant for spousal maintenance have the ‘need’, because they are unable to support themselves adequately; and if so, then is the payer reasonably able to pay. De Facto maintenance claims have an additional requirement that the relationship must have been two (2) years in duration, or a child or substantial contributions which would cause it to be substantially unjust if any order were not made.

A consent order is a written agreement that is approved by a court. Signing consent orders means you agree with the orders and will follow the terms stated in the document. When the consent order is made, it has the same effect as a court order made by a judicial officer after a court hearing. Consent orders about property and financial orders may deal with: transfer or sale of property, splitting of superannuation, Child maintenance and spousal maintenance. You and your former partner can apply for consent orders to be made in the Federal Circuit and Family Court of Australia without going to court. If proceedings have been commenced in Court, and you subsequently reach an agreement, you can ask the Court to make orders by consent. Source: Family Court

The Family Law Act 1975 provides for parties to a marriage or de facto relationship to enter into a binding legal agreement about the financial arrangements should their marriage or de facto relationship break down. Sometimes people know these agreements as ‘prenuptial agreements’ but the legal term is ‘financial agreements’. Sections 90B–90KA of the Family Law Act 1975 deal with financial agreements by parties to a marriage. Sections 90UA–90UN apply to financial agreements by de facto couples. The Act only provides for financial agreements between de facto couples if the parties to the relationship were ordinarily resident in New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory, the Northern Territory or Norfolk Island when the agreement was made. You can make a financial agreement before, during or after a marriage or de facto relationship. These agreements can cover: financial settlement (including superannuation entitlements) after the breakdown of a marriage or a de facto relationship financial support (maintenance) of one spouse by the other after the breakdown of a marriage or a de facto relationship, any incidental issues. For a financial agreement to be legally binding, you must both have: signed the agreement, and received independent legal and financial advice before signing. Source: Family Court

It will depend on what you, informally, or the court decides. In some cases, the court may order that the matrimonial home be sold, with the proceeds divided equally.