There is a common misconception that once a divorce is finalised the separation process is over. A Divorce Order will only dissolve the marriage. Settlement of property and parenting arrangements require further applications. The same applications apply equally to de facto relationships.
Divorce
If you have been separated for at least one year, you can file an Application for Divorce. The divorce process can take a couple of months. However, the only benefit this provides is that, once divorced, you can legally remarry. It also means that you will have only one year from the date of divorce to file an application for property.
Property
Property includes all shared and separate assets and debts of each party, including superannuation. If the distribution of matrimonial assets can be agreed, then you can file an Application for Consent Orders which can be relatively quick and inexpensive. Assets must be split upon consideration of a range of factors including financial contributions, maintenance or raising children, and it may not necessarily be 50/50, or based on who purchased the assets. If an agreement cannot be reached, either party may commence Court proceedings.
Parenting
Like property, if the parties can agree on an arrangement, they may sign a written “Parenting Plan”, or file Consent Orders. If the parties cannot agree, either may file an Application for Parenting Orders, whereby the Court will decide based on a variety of factors but, first and foremost, based on what is in the best interests of the child/children.
Wills
If you are separating, it is important to consider if you should revise your Will or make a new one. If you were married but then become divorced, any appointment in an existing Will of a former spouse as Executer and any benefit that would have received is automatically revoked. Similarly, becoming married will entirely revoke a Will made prior to the marriage.
Regardless of your relationship status or separation process, you should seek formal legal advice to ensure that you are informed of the rights and responsibilities as applicable to your situation.
If you would like to speak with one of our family lawyers about any of these things to consider when separating please contact us at info@madisonbranson.com or give us a call on 1300 653 189.
The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information is for general informational purposes only.
