SEPARATION AND DIVORCE

Separation (and divorce, if you’re married) is one of the most difficult things we as humans go through. Understanding your rights and obligations, the family law system and the process involved with resolving disputes can help you navigate the complexities of separation and divorce more confidently. 

This guide provides essential information about the process, important legal considerations, and how a family law firm can support you during this difficult time.

Separation refers to the period when a couple decides to live apart, whether physically or emotionally. It does not necessarily require any formal legal process but marks the beginning of a significant change in a relationship. Separation may be temporary or permanent, and while many couples may choose to reconcile, others move forward with divorce.

Many couples remain living under one roof after separation. With the rising costs of living and current housing crisis, this is becoming more common. Some couples also choose to continue living under one roof post-separation to ensure their children have appropriate care arrangements in place. This is often the case where one parent is a shift worker, or works in a fly-in-fly-out role.

If you do not have a ‘move out’ date to mark your separation, it is important you note the date (or the approximate date) your relationship ended. For married couples, this is relevant to your divorce. For de facto couples, the date of separation starts a clock ticking on your ability to apply to the Court for orders in relation to your property settlement.

Divorce is the legal end (or ‘dissolution’) of a marriage. Australia has a ‘no fault’ divorce system, which means the Court does not consider the reasons why the marriage ended when granting a divorce. The only relevant ‘ground’ for a divorce is that the marriage has broken down, and there is no prospect the parties will reconcile in the future.

In Australia, a party can only apply for a divorce once they have been separated for 12 months and one day. This is why it is important to be aware of your separation date, particularly if you and your ex-spouse remained living under one roof for a period of time after the relationship ended.

There are several key aspects to a divorce in Queensland:

1. Separation

The parties must have been separated for at least 12 months prior to applying to the Court for a divorce.

2. Application for Divorce

One or both parties must file an Application for Divorce in the Federal Circuit and Family Court of Australia. If there are any children of the marriage under the age of 18, the Court will need to be satisfied that appropriate arrangements have been made for their care and welfare before granting the divorce.

3. Divorce Hearing

The Court will schedule a ‘hearing’, during which an officer of the Court (usually a Judicial Registrar) will review the Application and, if all is in order, grant the divorce.

If both parties filed the Application together, they do not need to attend the hearing. The matter will be considered ‘on the papers’, and the divorce order made in the parties’ absence.

If only one party applied for the divorce, and there are children of the marriage under 18, that party will need to attend the hearing (usually by way of telephone or video conference). Provided the Court is satisfied that:

a. the Application is in order;

b. the other party is aware of the hearing (because they have been served with the Application); and

c. appropriate arrangements have been made for the children;

the Application will be granted.

4. Divorce Order

If the Application is granted at the hearing, a divorce Order will issue one month and one day later. That is the official end of the marriage.