What family lawyers do
Divorce lawyers are family lawyers that specialise in providing legal services to individuals going through a separation or divorce. They provide counsel and representation for their clients throughout all the stages of the legal process, including filing petitions, negotiating settlements, and appearing in court.
Family lawyers also handle a range of other family law matters such as: child custody, prenuptial agreements, property settlement, and spousal support disputes. In addition to representing clients already involved in a divorce application or proceeding or other family law matter, family lawyers can provide preventative advice to help couples avoid potential legal issues down the line.
What to ask a family lawyer
Questions to ensure you find the right lawyer for your needs
- What experience do you have handling divorce cases?
- What is your track record in successfully negotiating settlements in divorce cases?
- Have you ever handled a case like mine?
- Are there any potential conflicts of interest that may arise due to your representation of me in my case?
- How would you handle a situation if I wanted to proceed with mediation or collaborative law rather than court proceedings?
- How often will I be updated on the progress of my case and how can I contact you if I have questions between updates?
- What fees am I expected to pay for services rendered, and what payment arrangements are available?
Questions relating to knowledge and experience with specific family law matters
- What is the process of filing for a divorce in Australia?
- How long does it take to obtain a divorce?
- What are the financial implications of getting divorced?
- Are there any alternatives to going through court for a divorce or separation?
- How much will I need to pay in legal fees?
- How will our assets be divided during the separation or divorce process?
- What rights do I have regarding child custody and visitation rights?
- How does child support work in Australia?
- Are prenuptial agreements legally binding in Australia?
- How does adoption work in Australia?
What to Prepare for When Meeting with a Divorce Lawyer
Documents and financial information relevant to the case
Be prepared to find and supply documents that are relevant to your case when you apply for a divorce. These may include:
Identification documents
- birth certificate
- passport
- driver’s license
Marriage and Separation Documentation
- marriage certificate
- separation agreement
Financial Information
- income tax returns
- bank statements
- investment accounts
- debts and liabilities
Property and Assets
- title deeds
- mortgages and
- other assets/liabilities
Child Custody Agreements
- court orders concerning the children of the marriage or living arrangements outlined by the parents
An understanding of what outcome is desired from the case
Understand what your desired outcome is from the divorce process before you start a divorce application.
The divorce itself is one step but associated with this formal separation comes a range of other considerations. This could include custody arrangements for the children, division of property and assets, or financial compensation.
It is important to express this clearly to your lawyer, when you obtain legal advice, so that they can work with you toward achieving your desired outcome. Make sure to have an open dialogue and be honest about expectations, as it will help the process in the long run.
It is important to have realistic expectations about the process and outcome. The courts make decisions based on what is deemed fair and reasonable, which may not match your own wishes or desires. It is essential to know this when you apply for a divorce so that any disappointment can be managed before it happens.
Openness to discuss all details and provide transparent information
Separation and divorce are difficult and emotional processes, be prepared to be candid with your lawyer and provide all necessary information in an honest and straightforward manner.
There may be details that are uncomfortable to discuss but withholding important information can have serious consequences. The more open you are, the better prepared your lawyer will be to help you achieve the best outcome possible when you apply for a divorce.
An open mind to solutions
Have an open mind when it comes to possible solutions that may not have been considered prior to meeting with the divorce lawyer or family lawyer. The lawyer may be able to suggest alternate options that are more favourable for both parties and should be given the opportunity to do so.
Additionally, it’s important to remember that your divorce lawyer is a professional who has been through many similar cases in the past; they will have valuable insight into how best to handle certain situations.
What you need to know before you get divorced
Understanding divorce laws in Australia
Divorce laws are not the same in every country, in Australia the key features are:
- The Court has the power to make orders relating to property, children, and financial matters.
- In the event of a divorce, both parties may need to come to an agreement about child custody, division of assets, payment of spousal maintenance, and other matters.
- A divorce can be granted if one partner believes there has been an irretrievable breakdown of the marriage.
- As long as there has been a 12 month separation period, either party can file for divorce.
"No fault" divorce
In Australia, couples no longer need to prove that one spouse was at fault to obtain a divorce; instead, they must only demonstrate that the relationship has irretrievably broken down through 12 months of separation.
This is known as no-fault divorce, and it simplifies the process by reducing animosity between both parties.
No-fault divorces have made the process of divorce simpler and cheaper, as there is no need for private investigators to search for evidence of a spouse’s infidelity or other bad behaviour.
This is good news for those going through a difficult time in their marriage, as it allows them to exit on an equal footing. Despite this, it is important to note that domestic violence, mental health issues, and substance abuse are still relevant in family law proceedings, particularly when it comes to parenting matters.
People eligible to apply for a no-fault divorce in Australia must either regard Australia as their home and intend to live there indefinitely or be an Australian citizen or resident.
If the person is an Australian by birth or descent, grant of citizenship, or just ordinarily lives in Australia with 12 months before filing for the divorce, they may also seek a no-fault divorce.
What if one spouse does not agree
If a spouse does not want the divorce to go ahead, they have very limited options for legal opposition. The person who initiated the divorce is known as the applicant, and their partner is referred to as the respondent.
Personal service of the application must take place, which means it needs to be physically handed to them, either directly or through a lawyer if they are willing to accept them. The documents need to be delivered at least 28 days prior to court hearing if within Australia or 42 days if located overseas.
If there is concern that refusal may occur when serving documents personally then delivering them by post may be more appropriate. When served this way an Acknowledgement of Service (Divorce) needs to be signed and returned before court hearing can take place. If delivery fails personal service can still take place with documents left in presence of receiver while mentioning what they are for this will suffice as service requirements.
Separation, living under the same roof and divorce
It is possible to get a divorce in Australia even if couples have been living together under the same roof.
To prove separation, individuals can present evidence including separate bedrooms, not performing domestic duties for each other, avoiding social gatherings together and informing family and friends of their split.
Depending on the length of time married, counselling may be required before filing for a divorce if it has been less than two years.
Divorce and financial settlements
In a property settlement:
- both parties need to disclose their individual financial assets and debts to establish an asset pool.
- contributions made during the relationship must be determined and considered.
- the court then considers any future needs of the parties to make an equitable decision about which assets should stay with each party.
- finally, when making their decisions, the court will consider if it is fair and just for both parties involved.
Factors like earning capacity, health status, age, responsibility for the care of children post-separation/divorce are considered when determining whether someone has adequate financial resources. Women with dependents may be at a disadvantage compared to men typically and may require extra help in terms of living expenses going forward.
Divorces involving children
In Australia, when it comes to determining custody or parenting arrangements for children after a separation or divorce, the court will prioritise what is in the best interest of the child rather than favour either parent.
When both parties are amicable and can peacefully come to an agreement about parenting arrangements through communication without involving the court, mediation services may help parents transition from partners to co-parents.
When family violence is present, extra precautions may be taken such as granting sole custody to one parent or filing a Child Protection Order with the Children’s Court.
Both parents also have financial responsibility for their children regardless of who they live with, and this amount will depend on factors like age, number of children, and their income.
The Family Law Act 1975 works to secure the well-being of children by recognising parental responsibilities and focusing on the rights that kids have, over parental rights. This law endeavours to uphold a meaningful bond between both parents and their children as well as shielding youngsters from harm.
Married overseas, divorcing in Australia
If you were married overseas, that is married outside of Australia, you can apply for a divorce in Australia if:
- one party is an Australian citizen by birth or grant of an Australian citizenship,
- regards Australia as their home with the intention to remain there indefinitely, or
- would usually live in Australia and has done so for 12 months before filing for divorce.
As proof that they have been living in Australia long enough they will need to provide evidence such as their Visa Entitlement Verification Online check.
When filing the Application for Divorce applicants need to include a copy of their marriage certificate (or an English translation with affidavit if it is not in English) and any other necessary documents specified by their State or Territory Registry of Births, Deaths, and Marriages.
In very exceptional cases the court may accept an application without providing a marriage certificate.
What is a divorce order?
Once your divorce is granted, a divorce order is issued one month and one day later, unless a special order is made by the Court to shorten that time.
The Court will issue an electronic copy of a formal order with a seal and signature. This can be accessed through a portal.
A physical copy of the order will not be sent in the mail, so make sure you are registered for access to the Commonwealth Courts portal for downloading once it officially becomes available.
When can I remarry?
It is possible to legally remarry in Australia once a divorce has been officially granted. This usually happens one month and one day after the divorce hearing.
However, it is important to be aware that this time frame is just the minimum; unexpected issues may cause delays or even the denial of a divorce application, so it’s best to avoid setting an exact date for your marriage ceremony until all matters are settled and your divorce order is finalised.
In addition, before marriage can take place a Notice of Intended Marriage must be supplied to an approved celebrant at least one month beforehand as per the Marriage Act 1961.
The Notice can be submitted before any official documents for the divorce (such as the divorce order) come through, however, these must still be presented by the celebrant prior to performing any ceremonies.
Do I need a family lawyer to apply for a divorce?
It is possible to divorce without the assistance of family law specialists, as it is a court process that is relatively easy in the most straightforward cases.
As Australian law operates based on no-fault divorce law, meaning neither party must prove anything for the marriage to be considered broken down, there is no need for extensive arguments about who is at fault or most at fault. The law applies to same sex relationship/marriage.
For a divorce to be granted, there must simply be an irretrievable breakdown with no possibility of getting back together.
If you and your spouse are not seeking parenting or financial orders from the court, it may be possible to finalise divorce applications without a lawyer’s involvement.
However, it is recommended that each person obtains proper legal representation if pursuing these orders.
Property and financial issues are far more complex, the divorce ends the legal marriage, but other orders or agreements will sort out these issues. An experienced divorce lawyer will help smooth the path with the aim of reducing any financial hardship.
Where To Get Support During a Divorce or Related Family Law Matter
Government agencies
The Family Relationship Advice Line and centres provide information, support, and services to:
- help individuals maintain healthy relationships
- resolve family separation issues
- educate people on the family law system
- assists with developing parenting arrangements after separation
- give advice about the effect of conflict on children, and
- offers telephone-based Family Dispute Resolution for those in need.
Furthermore, they provide referrals to Family Relationship Centres and other dispute resolution services as well as a range of other relevant services related to family relationships and separations.
Legal Aid Queensland provides free advice or legal representation in certain cases and there is useful information about divorce proceedings, separation, child support and custody on the Legal Aid Queensland website.
There are also links to various organisations that can provide more information or support
Support groups
There are many community and not-for-profit groups that can provide support for people who are separating, divorcing, or affected by these, such as children. For example:
- Relationships Australia is an organisation that can provide support and guidance during separation and through divorce.
- Headspace has resources and tools to help parents support their children through the separation and divorce process and afterwards.
Conclusion
Divorce is a complex process and it’s important to understand your rights as well as the legal requirements for filing. It is possible to divorce without assistance, but if you are seeking parenting or financial orders from the court, then proper legal representation is recommended.
Government agencies such as Legal Aid Queensland can provide advice and support during this difficult time. There are also many not-for-profit organisations that offer help with the emotional aspects of separation and divorce, including counselling services and support groups.
Above all, it is important for parents to communicate with each other and their children to ensure that everyone’s needs are met, and that the best possible outcome is achieved. With the right support and understanding, you can make sure your divorce agreement works for you and your family.
When filing for divorce in Australia, the court will prioritise what is in the best interest of any children involved rather than favour either parent. This involves factors such as earning capacity, health status, age, and responsibility for care of children post-separation/divorce.
To file for divorce from a marriage overseas, one of the parties must be an Australian citizen or usually live in Australia and have done so for 12 months before filing.
After a successful application, the court will issue an electronic copy of a formal order with a seal and signature. A physical copy will not be sent in the mail.
Once officially granted, it is possible to remarry in Australia providing that at least one month before performing any ceremonies, a Notice of Intended Marriage has been supplied to an approved celebrant.
It is possible to divorce without legal assistance if neither party are seeking parenting or financial orders from the court, however it is recommended that each person obtains proper legal representation if pursuing these orders.
Divorce lawyers are specialised family lawyers who provide comprehensive services for couples going through a divorce. Their primary role is to provide counsel and representation in the filing of petitions, negotiating settlements, and appearing in court.
They can also handle other matters such as child custody, pre-nuptial agreements, property settlement and spousal support disputes.
Additionally, they can offer preventative advice to help couples avoid potential legal issues.
Financial considerations during a divorce include dividing assets and liabilities between both parties, as well as determining child support payments.
When seeking legal advice regarding your divorce case it is important to ask questions about a lawyer’s experience and track record in similar cases. Potential conflicts of interest should be discussed along with references from past clients.
Divorce lawyers thus act as indispensable guides throughout the entire divorce process, providing clients with personalised guidance through difficult times.