People who are going through a separation often think that a ‘divorce’ will resolve everything, including parenting and property issues. That is not correct. A divorce alone will not adequately sever the financial relationship between you and your former partner. To properly finalise your financial interests, you need a property settlement.
So, what is the difference between a divorce and a property settlement?
What is a Divorce?
Divorce is the official, legal ending of a marriage. An Application for a Divorce does not deal with your financial settlement or with parenting arrangements. A divorce is often seen as a mere formality to enable you to remarry.
What is a Property Settlement?
A property settlement is an agreement regarding the division of assets and liabilities following the breakdown of a marriage or relationship. This enables a person to end their financial relationship with their former partner.
You do not need to be divorced to have a property settlement. In fact, it is often desirable to finalise your property settlement prior to your divorce. There are several benefits to this, including:
- It avoids future disagreements over ownership of property;
- It ensures that your financial relationship with your partner is finalised sooner rather than later;
- The value of assets (including Super) may increase or decrease over time, which can affect the outcome of a settlement;
- It gives you peace of mind and allows you to acquire other property without fear that your former partner will make a claim over it;
- You have 12 months from the date of your divorce to apply to the Court for a property settlement.
We recommend you engage a lawyer to help you negotiate this settlement and ensure your best interests, and those of your children are protected.
Am I eligible for a Divorce?
You must be separated for 12 months before you can apply for a Divorce.
The court will not consider reasons as to why the marriage ended. It will only need to be satisfied that the marriage has broken down irretrievably and there is no reasonable likelihood that the parties will reconcile.
Additionally, you will need to prove to the Court that you and your former spouse have been living separately and apart for a minimum of 12 months.
Interestingly, you can be living 'separately and apart' from your spouse even if you are both living under the same roof. There are additional requirements when applying for divorce in these circumstances, if this sounds like you, we recommend you seek legal advice.
Do I have to go to Court?
The circumstances in which you will not be required to attend Court are as follows:
- There are no children under 18; or
- There are children under 18 but the Application has been made jointly.
If there are children of the marriage under 18 and the Application has been made solely (by one party to the marriage) you will be required to attend Court. The same applies to those that wish to oppose a Divorce Application.
Application for Divorce Costs
At Tonkin Legal Group, we can help you finalise your didivorces are charged at fixed fee rates, which are as follows:
Joint Application - $1,100 (including GST)
No children under 18 years - $1,650 (including GST)
Children under 18 years - $1,980 (including GST
Separated under the same roof - $2,530 (including GST)
In addition to the above, the Court filing fee to file a Divorce Application is $930. If you have a health care card, or another type of eligible concession, the fee is reduced to $310.
What work is included in finalising the Divorce?
When finalising your divorce, we will do the following on your behalf:
- Meet with you in conference to take your instructions and to obtain a copy of the Marriage Certificate;
- Prepare the Application for Divorce;
- Make any necessary amendments to Application and meet in conference with you to sign the Application and Affidavit for e-Filing;
- Prepare any further Affidavits in support (for separation under the same roof);
- File the Application for Divorce with the appropriate Court;
- Serve the Application for Divorce on the other party either by mail, via solicitors acting or process server;
- Prepare, complete and file the Acknowledgment of Service, Affidavit of Service and/or Affidavit Proving Signature;
- Attend the Divorce Hearing (if required); and
- Attend to any other incidental matters which arise in relation to the Application for Divorce.
If you would like to know more about the legal process for separation and divorce, we recommend you read our "Helpful Guide to Navigating Separation and Divorce." Our experienced and friendly family law team is also hear to help you. Give us a call on (03) 94359044 and book an appointment today.