12 April 2019

What you need to know about divorce in Australia versus America

The American system of marriage and divorce is, of course, drastically different to the system operating in Australia.
Australia Family and Matrimonial
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If you follow celebrity marriages and divorces, you may have seen that Angelina Jolie and Brad Pitt have recently applied for a "bifurcated judgment" of their marriage. This means that Brangelina will be legally recognised as a divorce couple but have not finalised matters relating to the joint property or care arrangements for their 6 children.

You may also recall Kim Kardashian's misery at remaining legally married to Kris Humphries whilst pregnant with her first child to Kanye West. This was owing to financial matters between Kim and Kris remaining unresolved some 2 years after their separation, being much longer than their 72 day marriage.

The American system of marriage and divorce is of course drastically different to our system in Australia.

Divorce requirements

In Australia, you need to demonstrate the following in order to be granted a Divorce Order:

  1. be an Australian citizen, permanent resident or call Australia your permanent home;
  2. have your marriage legally recognised (if you were married overseas, translation of your Marriage Certificate will be required); and
  3. be separated from your spouse for a minimum of 12 months.

There are of course additional procedural requirements to a divorce for the filing and service of the necessary documents.

It is very important to remember that Australia has what is called a "no-fault jurisdiction" which is again very different to the American system. This means that it is not necessary to establish a reason for separation other than confirming that the marriage has irretrievably broken down. This is established by the parties to the marriage having been separated for at least 12 months.

If you have been married for a period of less than 2 years you will also need to provide a Counselling Certificate to the Family Court. In circumstances of family violence or other serious issues you can apply to be exempt from this requirement.

Property settlement

One of the most common misconceptions family lawyers hear is clients thinking that the Australian system follows the American system and that you must divorce at the same time as dividing the finances. Although the two are of course related, they are dealt with very separately by the Family Court.

The Family Court now even allocates separate court numbers for applications for divorce and applications for property settlement. There is no requirement for divorce and property matters to be finalised at the same time, although some clients do of course prefer both issues resolved at the same time.

It is very important to remember that you have a period of 12 months from the date your Divorce Order comes into effect to apply to the Family Court for property settlement orders (by consent or by way or initiating application). There are some circumstances when the Family Court will allow you to apply for "leave out of time" to proceed with an application however you will need the Court to give permission for this.

For further information on property settlement matters in the Family Court see our article What is Considered Property in Family Law and When Can I Get Rid of His or Her Stuff?

Parenting matters

Determining care arrangements for children can be done at any stage after separation however it is of course preferable to make those arrangements sooner rather than later.

Before making a Divorce Order, the Family Court will need to satisfy itself that there are care arrangements in place for the children of the relationship (or, if no agreement has been reached, that there are proceedings before the Family Court or ongoing negotiations in relation to those care arrangements) as well as arrangements in place for the financial support of children. This information is included in the Application for Divorce and those arrangements will be confirmed at the Divorce Hearing. All application for divorce which involve children under the age of 18 will be required to attend a hearing to confirm those arrangements.

An Application for Divorce can now be filed electronically through the Commonwealth Courts Portal although we recommend that you obtain independent advice from a lawyer experienced in family law before considering applying for divorce, property or parenting orders.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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