Divorce

Happens, the Divorce Down Under podcast where we talk about and everything family law related. Welcome to Split Happens, the Divorce Down Under podcast with me, Alex, and my colleague and friend Liza. We're both practicing family lawyers based on the Gold Coast. And this podcast talks about anything and everything to do with family law. Today this podcast is all about divorce.

So if you're a de facto relationship y in a de facto relationship you can get yourself a nice cup of tea, coffee and not worry about what we're about to talk about, but listen to it and think about your married friends and how much fun you're gonna have talking to them about this podcast. Liza divorce. Do you have to be married in Australia to get divorced in Australia? No you don't. You can have got married elsewhere.

got married in the Caribbean. Um it doesn't really make any difference. But what you do have to do is show that you are res

Okay. And are there any other limitations? I mean you you've fallen out of love with your your spouse, your husband or your wife. You don't want to be married anymore. So can you just wander into a court and get a divorce the same day? How does it work? No, you have to be separated from your uh husband, whether it be or your wife. for a period of twelve months and one day. Now that separation period can be either separated under one roof or separated under separate.

So separation is a different term than what most people would normally understand and So as long as the parties have in fact communicated that separation, then then they're separation. Okay. And the a time limit going to the other side of the equation then is How long do I have to be married before I can apply for a a divorce? Can I go the next day? I've had a a tragic change of mind. I've you know, I've still got confetti in my shoes. What about the time that I can make that application?

Well, in terms of the time that you make that application, you can't just go the next day. There is a there is some time periods that you will have to do. The court will in certain circumstances will allow you to do that, but it's not the the rule, it's the exception to the rule. um the court would need to hear some further evidence if you were to do it for just the the next day or but it's highly unlikely. You're probably

It it's not like the situation where you've had a change of heart and you've um you've picked the wrong T shirt, you've picked the wrong um wife. Um, the court's not going to simply allow you to get out of that get out of that. Conditions that you're going to have to go through first. before you get to that stage. I really like that expression. So I'm just writing that down although I hope my wife doesn't So that you can take that information.

Yeah. But there is a two year waiting period, isn't there? There is. Under the Family Law Act, which governs all of these things and a lot of the stuff that we talk about in this podcast is related to the Family Law Act in some way, shape, And if you go to I think it's part six Uh if anybody can't sleep at night and wants something to cuddle up to, the Family Law Act is And if you head to part six of that, it tells you that you must have been married to somebody.

So it's not a simple and quick process a lot of the time. Oh it's probably simple, but it's not necessarily quick. So before you get married you probably want to make sure that you're you're picking Husband or wife, because getting out of it is not that. And you've got to wait around. And th there are some circumstances where you can apply for um an early divorce if I can call it that. That's right. And I think the process is involved.

So say you've been married for less than two years, but you have It came to a a grinding halt fairly soon. Yeah, um blazing rouse on the honeymoon and never improved since that p that point. You then have to go through like a family counselling situation, don't you? Yeah, that's right. That's what I was sort of getting at, um, initially. Because you can't just y you're not going to be able to just fill in a form and say, Yeah, we want to get divorced, we've had a change of heart.

So you need a a proper reason and you need to have have some sort of counselling process undertaken and the court will need to consider your application. Um sometimes if it's a really violent situation, things like that, you might be able to get out of your marriage earlier. But again, all of these things it's all on a case by case.

Yeah. But otherwise the jurisdiction is is there and it's pretty straightforward um that two years married, one year separated, you can apply for a divorce, whether you were married in Australia or overseas. But I've had this case um recently. I think you've you've R remember it. Um where the husband has jumped the gun and he's filed an application a bit early. He's w he doesn't want to wait the twelve months waiting. That's still rumbling, honestly.

It is, it is. And the the unusual and crazy thing about it is all he had to do all he has to do is wait for that twelve months to expire, which will come up very soon. And then when that um expiry um when that date expires, he can apply for the divorce and he'll get that divorce whether client wants the divorce or not. And but he's being quite stubborn about it and we have to go to court at a time after the date that he

reapply for the divorce.'Cause the court doesn't have that jurisdiction. The court's quite Twelve months. Separated. Yeah. On yeah. So if you put your application too soon, that application's dead from the start. You can do about it. You just have to refile. You have to withdraw it, dismi have it dismissed, whatever. That's void abonisio as we lawyer. Like it never happened. Like, for those who don't follow the law all the time. Which is most lawyers included. Um What's the L O R E, isn't it?

Yeah, oh that's right. Yeah, folklore about law.

So, um in divorce cases in Australia then, di uh when we th we talk about the Family Law Act and that came in in nineteen well, it was it's nineteen seventy-five, but it took effect from the first of January nineteen seventy-six. And since then All divorces in Australia are on a no fault basis, aren't you?

Yeah. So we don't have to worry about, you know, little men in Macs with uh cameras tied around their their necks jumping out of wardrobes and taking photographs of people in in compromising positions. It's it doesn't matter the reasons for your divorce so long as It's broken down. And that's proved by being separated for more than

That's right. But But those little those little men that in with cameras um getting about, I look I love a good um story when you've got a private investigator is caught in the act and the Clients think they're on to a winner here. But what it does prove it it's evidence though of a separation or a potential So there still might be the occasional time that a a private investigator or an

Look, bring it on. I I'd love to have another case where there's a private investigator out there and and there's some evidence about some bad behaviour by one of the And that's big because a lot of the time it's a strategic thing about the duration of that relationship, duration of that marriage and really is important that once you committed to saying, well, we started the marriage and or the relationship on this date, and then it ended on on this day.

Well it's it's a really it's a really tactical decision as to what you're going to put down as your As um w you may have heard from our other podcasts, in particular in relation to property, the relationship the duration of that relationship is really important.

Yeah, and it's not just the duration of the relationship, but the uh it's the time that you're married in terms of the divorce application. The time of the relationship you you could live with somebody for twenty years and be married to them for two years. Then you can be separated for a year and still qualify for your divorce. The entirety of that relationship is relevant as far as the property settlement's concerned.

But it's the duration of the marriage that's concerning and divorce. Now, divorces are handled as absolutely discrete, so separate applications to property, aren't they? They are. You can't just put it on um I've s I've seen a few applications in my time where um clients have

set out with the final orders that they want on the application form. A divorce and a property settlement. So the divorce, unfortunately guys, you gotta put that you've got to have a separate form It would be far too straightforward to give somebody the ability to say, Hey, look, we've gone our separate ways, we want to do it all at the same time, but nope, but we we're from the government, we're here to help you.

That's right. We're we're here to help to give to create additional filing fees and Acidic must. Yeah. Well I'm a cynic. We all know that. Um but the but what it is what you what you will find from Federal Circuit and Family Court website is that a really, really handy kit, divorce kit, where you can do So um a a few forms. Now it does get a bit tricky if you haven't been um well if you've been separated but living under the same roof.

Which a lot of people these days probably will be separated and living under the one roof because let's face it, you just can't get a accommodation in a lot of places these days. There's gonna be more and more of those people. So Alex I I come across it a lot. With a more fun. What are the sorts of things that clients are going to need to do um to get around that hurdle to show that they've been separated? Even though they've been living under the one roof.

Almost certainly you're gonna have to file an affidavit with the court. And an affidavit is just a sworn statement. Uh and sometimes you might need uh a supportive affidavit from anybody that knows about your relationship as well. So You're separated, but you don't have the wherewithal, you haven't got the financial means to have separate accommodation until the property settlement's done, which could be a long time off.

You might then get friends and family members to confirm that as far as they're concerned, you know, you've been living separate lives, that, you know, you live in separate bedrooms, you don't share meal times, you don't share y'all s a shared social life anymore.

But you're going to have to prove that with a sworn affidavit and that gets filed with your application. Uh now talking about the separated under one roof, um there's a there's another provision and a quirk about divorces as well, which is the

I I suppose from a probably from like a patriarchal perspective of parliament, they allow people to have periods of reconciliation, don't they? But not exceeding three months. So if you are if you're separated from somebody under the same roof or not, you can Count your twelve months as being over a fifteen month period if you had a short period of reconciliation or you tried to get back together again.

So it doesn't necessarily flow that it's always going to have to be a a consecutive twelve month period of separation. So long as you've been separated for more than twelve months and it could be over that fifteen month period, you can still apply for a divorce. So it's not necessarily the case that

We've separated. Six months later you thought, let's give this another go. A couple of weeks later, it doesn't work out. You don't have to go back to, you know, the first day of the of the twelve month period. You can just count that two weeks off your separation. I tell you what, there'll be a lot of people relieved to hear that.

Yeah, I mean look relationships are difficult things. They're you know, th th they don't come in the same shape for everybody. And, you know, the heart wants what it wants and sometimes, you know, the relationships don't stand the test of time despite a lot of love and sometimes that they do.

And or do even without the love. But certainly periods of reconciliation um are something that the courts provide for, or the legislation actually provides for it saying, Look, let people make their own minds up, you never know. Talk to your solicitor if you're not sure whether or not you would be able to apply for divorce. Doesn't necessarily mean that you have to go right back to the beginning of separating one.

In t you've mentioned again the relevance between a divorce order and a property settlement, but just to clarify from when we were talking about property settlement in the other What a divorce order does is to create a limitation. So after you've if you've got a divorce order, um the divorce order it comes into effect I think it's one month and one day. I don't know what the one day is, but I I think the one day is the day on which it actually issues.

Right. Okay. But it's always one month and a day. Yeah. Anyway. one month and one day um after the you have your divorce hearing and the divorce order is made is when the divorce So that's the very first impression. t to know about. So you're not actually technically divorced until One month and one day. The day after you've got your divorce.

Um but the main limitation is that if you uh still haven't sorted out your property Then you only have twelve months after that time to bring in a property which is an application for final orders in the F and C Court and in relation to uh a property settlement. You really need to make sure that you file those. prior to that expire of the twelve months because the court can shut you out and they will if there's no proper reason for you to have not brought those proceedings earlier.

So strategically you probably want to talk again to your you know your family law solicitor to say should I be filing for my divorce before property or should I file for property before

divorce or file for divorce and stay very, very quiet about property because I'm the one with the property. So those are things you probably need to have a chat to your lawyer about. That's right. Make sure you put you know whether it's sometimes the cart does need to go in front of the horse and other times the other way round.

So um in terms of divorces then let's roll back to that. What does it actually mean when somebody is divorced? Well the marriage is over. Legally owned. Legally over. You're free to marry um someone else. I was gonna say you're free to have a relationship with someone else, but that's doesn't really that's usually Well, oftentimes that's the reason for the divorce. There's another relationship bubbling away in the

You're allowed to marry someone else. Right. So that's the main that that is Reason why people get divorced. And we do obviously f from time to time we'll get people who are fairly unhappy about the notion of becoming divided. yw'n yw'n yw'n yw'n yw'n Um it's really only I haven't seen any successful contests over divorce. Apart from those cases where Like that chap you were talking about before who's jumped ahead of the game.

Where they haven't been separated um for a period of time. Yeah. I haven't really seen any um successful cases. I don't know if you have but I I've had the same experience where somebody has applied too soon and in that in that case it was quite entertaining in the sense that the the lady applied uh a lot further than the real separation as we said. I was for the husband in that case.

To sponsor split happens, you'll be in safe hands with Alban Legal. For all your family law needs, call us on 074. Or visit our website at arbanlegal.com.au. And after the date of separation, according to the wife, the husband and wife had then proceeded to buy another piece of real estate, another, another house.

So at some point she's either googled or or spoken to a lawyer who perhaps doesn't practice in this jurisdiction so much and said, Oh right, okay, well if we if we apply and backdate the date of separation, then we can try and claim that that's just your house and and I mean it was a stupid Um and it got no no real travel with the with the court. So but that's the the dates around things seem to be one of the bigger issues. I know that sometimes uh there can be questions about

Whether Australia is the right place to bring the divorce. There's a there's a case I can't remember the name of it. It was The Indian couple. That's right, yeah. When um the The husband I think had applied for the divorce because in Australia it led to a better financial outcome for him than the proper forum which was India, which would have meant that the wife would get a much uh fairer piece of the pie if I can put it offices of the court were not permitted to

forum shopping and and international job judge shopping. So it is my we have to be mindful of that. But at the same time, um I find that as a general rule of thumb If the parties are resident and their property Um because then that way you you can't be The more advantageous forum for Duck the docket judge and then you'd be assigned one. And you'd be thinking, Oh no, no I don't I don't know.

Um and then you try and come up with some other reason why you would probably be better served with a different judge or a And you're not meant to do that. No, judge judge shopping is is is very much a a no no. But it's it's much, much, much harder to do that now because

with Australian divorces and most of our applications these days, apart from the very rare ones, they're all lodged online. So we all go through a process whereby we don't get to you you don't have a drop down button and say which judge would you like Mr. Fluffy Bunny slippers or Mr Mr. Strict and Cross. You don't have those options anymore. It's simply you get what you get and you don't get upset as you know I used to say to the children. Oh, daar is een boek.

You get what you get and you don't get upset. And it does he does he often have it around the back of his head at a rate of knots? I'm sorry. Advocating that for children, I'm afraid too many Australian Medical Association reports saying do not hit your children. I'm joking. That's right. I don't hear much. No, that's right. Roll them up in a in a mattress first and then it doesn't leave any bruising. No, I'm I'm that is of course not something I'm recommending or

Flippant remark. So uh let's get back to divorce. Let's get back to divorce. So um how much does it cost? What's involved and how long does it all take? Um so the cost, um there's a filing fee. Found on the FCFC OA dot gov.au website. Which is about nine hundred and ninety dollars at the moment. Ouch. So that's the filing fee. That's just for the court's fee, isn't it?

So, and then your lawyer... I can't say for what a lot of lawyers would charge, but eleven hundred dollars or so um to could be anywhere up to two grand because you might have some issues with surf Right. What do you mean by service? So service is that if you're if you're making a sole application, you have to serve Former spouse with the divorce paper. File in a court and then The court's gonna make those orders and they So you you've got to prove to the court that they know about it.

And sometimes that can be tricky.'Cause if they party just for whatever reason just wants to be difficult. They can be difficult and they can try and evade survey. Um and this is where our little men with the Macs, not with the ph uh with the cameras so much these days, but they can still come to the fore and get these people. They can still come out and we we do it all the time.

We send process servers around and find them and track them down and and then we prove service, prove that they've known about the thing. Court is aware. that both parties are aware of the application and All the relevant facts are before the court. So The cost of a process server typically if it's not not if it's not ridiculous. A couple of hundred bucks.

Uh yeah, I I've I've seen the process server fees range from anywhere to two to four hundred depending upon w whereabouts in the country it is. But that's if it's just like on the one occasion. Yeah. The more complex it is, the more evasive your ex is in terms of handing the papers to them, the more expensive that gets. And sometimes if you have to get an order, so say for example that um your ex is hiding or

being really, really difficult. You send your process server around, they can't serve. But you've got their email. And you might be able to you might be able to show the court well. I can't prove service, I can't serve him or her for whatever reason. You've actually got to go through a bit of a process. You'll have a few matters, a few mentions before the court t in order to get an order that allows you to be able to Serve the documents by s some other means such as email.

Or by s by leaving it with a family member or or something like that. That's an order for substituted service. Service. So there are those sorts of complications that can arise, particularly in a bitter divorce. And that's why a lot of the time lawyers They will it's very difficult to do. because they'll say, Oh, we can fix the drafting of the of the fees for drafting of the application but we don't know what he's gonna how he's gonna respond or she's gonna respond.

So that's where the unknown comes into it in terms of costs. So that's why there is that range there a lot of the time. Just to take into account that extra effort that maybe But a lot of the time it shouldn't be it shouldn't be more than a a than a couple of thousand dollars all up. A few thousand dollars all up. But you know, these things are very simple to be done.

Like a lot of things an an old professor I can remember saying at at State University that law is simple but it's not easy. It's I mean it's still a confronting and a difficult process for you to go through emotionally apart from anything else. And sometimes it can be helpful to have a professional just handle that for you so that you just have

Talk to Liza, you talk to Alex and say, Okay, I just need some help. Can you organise a divorce? We know what the paperwork is, we get you to sign the ri you know the relevant bits of paper. We can organise the process over so you don't need to worry about that side of the side. It it is, it's that peace of mind. It's that, uh look, let someone else handle it.

The other thing, of course, is Which we haven't really covered. Cảm ơn các bạn đã theo dõi và hẹn gặp lại. Jumped ahead. Good. Excellent. So the um the joint application. Yeah. Um jointly apply for the the Um that you can have an agreement for you to be equally responsible for the costs, you know, both half the filing fee. You've had one fairly recently, I think, haven't you, Alex? The didn't you have one where the

I'm I'm I'm just I'm nodding but I can't quite remember. We we we do a few of these things. Um but yeah, joint applications are simply a process where uh husband and wife they both agree the marriage is at an end and they both want the divorce, so they both sign the application for

If you're both applicants, so to speak, then obviously nobody needs to be handed the paperwork in dramatic fashion by a process server. Uh not that it's normally dramatic, it's just here, is your name Bob Smith? Yes. Here this is for you. Um so when we we get our our application filed, we pay our fee, our process server hands it to our ex or we don't need to do service.

How long then do we have to wait before you? Our day in court and I'll come back to the whether we have to go to court or not in a moment, but What what's your experience at the moment as to how long it's taken? bit of a while. Um so there's a bit of a delay and Just the sheer volume of the court list at the moment is incredible. We still have something in the region of and don't quote me on this as only a problem.

It's close on fifty thousand divorces per year. Yeah. With the you know, on the Australian Bureau of Statistics information. So that's a lot that's a lot of processing, that's a lot of work. 'Cause every single application has to be reviewed by a a registrar. That's right. And you're assuming that every single person has got their paperwork correct and there's no other issues that are going along with that, there's no requisitions to come back from the court, no more questions.

You both got the paperwork and so when it in my experience lately it's been a few months. It could be um before you actually get uh before a registrar. Um it might be, you know, two to three months or something. Actually, get to choose the date. When you go through the online process, there's a uh once you filled in the second part of your form that everybody has signed or your affidavit of service and so on, and then you pay your money.

Then up pops a little diary box where you get to see the first available dates and they are, you know, usually quite some time off at the moment, unfortunately. Or fortunately, depending upon your perspective.

But um that then is the date that it's heard and not every case needs you to go to court, does it? No, if there's no children under eighteen you don't have to do. So even if there are kids under the age of eighteen, so long as it's joint, you don't have to go to court. Yeah, um and by the s yeah, and in the same token, if there are children under the eighteen age of eighteen of the marriage and it's a sole application, then the applicant will have to go to court. And just a little tip here.

Because a lot of people get their applications knocked back. And that is in that form there's a section there which talks about the time with the kids. And who's having what time? Now you might have a parenting order out there that's The court isn't too concerned about what's meant to be.

They want to know what's actually So they wanna know that um just say for example that you're meant to have you're you're the husband and you're meant to be seeing um Johnny and Billy every second fortnight, but for whatever reason, um, it's actually been working quite well and you've been using those parenting orders as a backup.

And in fact you've been really arranging it on a week about basis. You really need to put as much information in there about your kids and what you're really doing with them, where they're really at. Where they're at at school.

What year they're in, are they doing well? Do they have any d development problems? Are they having any educational problems? You really gotta chuck as much information into that section as possible because if you don't, or if it's very quiet, or if it just attaches whatever the order is saying, um then you are most likely going to get a requisition from the court because then they're not satisfied that that's enough information.

Because the court has to effectively make a declaration well it does under section fifty five, Capital A. that proper arrangements have been made for the care and welfare of the children who are the under the age of eighteen. I'm I'm paraphrasing slightly, but y what you just explained, you've got to make sure that the court is satisfied that the arrangements for the children are working and are proper and appropriate. before you can move to the next step which is the divorce.

Okay, so that's divorce with children. Um it doesn't actually what you've actually put in your application form is usually fairly brief. And it doesn't necessarily mean that it's gonna be the same level of detail that you might find in a parenting application. By any stretch is fairly fairly s fairly short and sweet, but you've still got to put it in Because if you don't, your divorce won't take effect.

Um now let's talk about a different tack on this. Th not a divorce as such, but sometimes marriages occur and You want to nullify them, you need an annulment. You want to say this marriage was never a marriage. And what are the kinds of circumstances that somebody could make an application? Declaration of a marriage. If a party's under eighteen for what for starters.

Without proper consent or Um if they haven't waited the the notice period, they haven't when you get married there's all these um waiting periods and notices that you have to serve and fill in and Um Trying to think. Yeah, that's right.

slightly strange one that but sometimes people are sort of swept up along in these ceremonies and it's particularly the case where you might have somebody coming from another country where the ceremonies are conducted in a different language and perhaps don't properly understand what they're saying or doing. Well I I probably think.

if it was a genuine marriage on that basis because I A I'm not too sure that they understand um what's going on and they probably don't understand the terms of what they've just signed Um and B, I'm pretty sure that there's a fair bit of duress there for their marriage.

Well I'm I'm I'm not into the initiated of having watched maths. I know that we're gonna be doing some episodes later on about T V shows and films about divorce and so on, and you are going to subject me to watching these awful television shows. Alex is going to be watching a whole heap of I really don't want to do this but I but I will. Anything for the point.

Um so we were talking briefly about um nullity of marriages and so it's people who maybe you don't know what they're getting into, people who are under tremendous um duress at the time, um people who are underage, although you can, if you're under eighteen, still get married providing that you go through the right consent Um and of course what about if somebody is already married to the case? I'm thinking there's something that's really obvious. Yeah, you can't marry more than one person.

No, I mean... I it's a challenge to think that why you would want to marry more than one person. If y if you ask my husband that question, he'd say, I've got enough trouble with my with one wife, let alone have more, so Um but I I really think though that in terms of an annulment, the sip the easiest way to An annulment is like the marriage never happened at all. Yeah. And a lot of cultures will probably want to or some people. religions and I'm not really well versed.

But I I'm aware of plenty of them who would prefer an annulment rather than a divorce. Yeah, I I mean divorce can be seen as um i c offending the you know the the edicts of the religion. I mean y y you roll back to the Reformation of course and the Pope refusing to give Henry the eighth um his divorce and so

We're not having that around here anymore. I've got this new church and I've got this great idea for the boss for this new church, which happens to be the guy I'm staring at in the mirror. But look, we're digressing slightly. Um going back to nullity, there's another one uh which is the mental incapacity. So not about giraffe. Yeah.

a legal or mental impairment. No, no, no. I know I know some I know some cynics out there, some singleton cynics out there who might say, Well, anybody that wishes to get married and clearly has a mental incapacity or impairment there. Goodness me. That's a bit of a read. I look around. You go to a shopping centre and you think, God almighty. Yeah. But but from a l from a lawyer's point of view, it's about being able to actually properly consent to know what's going on.

Um and you might need some medical medical evidence to show that that if you're going to claim that for annullity. But it's it's not that common that we have to deal with um applications for annulment. Nearly all of our work in like the

Yeah, the ending of the bonds of marriage these days is to do with making applications for divorce and just managing that process through where people have typically lived under the same roof. Uh I mean D I mean a difficult circumstance that is, but nonetheless nonetheless that happens a lot now.

And then there was one other thing before we sort of wrap up on divorce for today, which was to do with children and children's names. Because I know this is something that you were explaining to me a little bit earlier, so I'm going to throw that one over to you.

Yeah, so um one of the things that I get asked a hell of a lot and it's always as an afterthought So you go through the parenting orders and the property orders often together and then you get to the end of the matter and then there's the divorce application and then it's at the time that the parties have just got the divorce through. And then one party says, Oh, well I'm gonna change my name back now. I want to change. Right.

No, you can't. That you needed to have um taken that into account in the early that's something that you probably should have agreed upon prior to it and you do need a formal But you can't do that as p it's nothing to do with the divorce per se. Is it that's a specific parenting order?

That's right. And so when you're talking about parental responsibility and things May there may be um a r a restraint on one party to say that you're not allowed The children's names or But if you're a uh if you're a registrar handling um a a series of divorce applications and they tend to do a lot at the same time on the same morning or afternoon.

happily for that registrar, they'll simply be able to say, No. We're not dealing with that. There's no jurisdiction to do that today in Mr. Bloggs, Mrs. Bloggs. You'll have to make a separate application. And a lot of the time it's it's through your state um state courts as well.

I've seen it. They would need an order. A parenting order from your federal courts saying here's a parenting order because the federal courts have that says you, Mr State Court, sir or or rather the state registry is able to and is authorized to now change that child's uh That's how that's how it works.

Right. It's sort of a a slightly eclectic finish to divorce. But um all right, that's where we got to uh for the purposes of today. Um if you have any questions about divorce or any comments about the podcast or about uh any divorce issues affecting you or fa family or friends. Just jibe us generally. Drop us a note or a comment underneath. And thank you very much for listening to Split Happens and the Divorce Down Under podcast. Thanks guys.