1. You are not alone! Approximately 1 in every 3 marriages in Australia ends in divorce, and 1 in 5 people will marry more than once.
2. No fault divorce. In Australia, you do not need to show that one partner was at fault for the breakdown of the marriage. The only ground for divorce is the irretrievable breakdown of the relationship, established by 12 months of separation.
3. Attempt to settle the dispute. The Family Law Rules 2004 require you to have made a genuine effort to resolve a dispute before making an application for property settlement. In the case of parenting matters, you are required to attend family dispute resolution prior to applying to the court except in particular circumstance set out in 60I(9) of the Family Law Act such as urgency or family violence.
4. You do not have to go to court. There are many alternative dispute resolution options including mediation, Collaborative Law and negotiation. If you and your partner are able to reach an agreement, this can be recorded as a Parenting Plan, Consent Order or Financial Agreement and you will not be required to attend Court.
5. You need to wait 12 months after separation to apply for divorce. You do not need to wait 12 months to apply to the court for parenting orders or property settlement.
6. There are time limits. You must apply for property settlement within 12 months of your divorce becoming final in the case of a marriage, and within 2 years of separation in the case of a de facto relationship. If the time limit has passed you can apply to the Court for an extension of time.
7. If you can’t reach an agreement with your former partner, and you have attempted family dispute resolution, you can apply to the Court for parenting, and/or financial orders. The court must determine what is in the best interests of the child in parenting cases and in financial cases, if the terms are just and equitable.
8. You have a duty of disclosure. This means that you must provide full and frank disclosure of all documents and information in your possession which may be relevant to the dispute. If you fail to disclose something in a financial case, and your spouse finds out about it after a final order is made, the Court can set aside the Order.
9. You can split your superannuation. Superannuation interests are now considered ‘property’ and parties can value and split their superannuation entitlements as part of a property settlement. Superannuation does not convert to cash. The balance of the split will be transferred from one spouse’s superannuation fund to the other’s and will be accessible when you reach preservation age.
10. You should update your Will after separation. If you made your Will whilst you were married, it is likely you left everything to your spouse. If you die after you separate and have not updated your Will, your spouse may inherit all or part of your estate. In South Australia, divorce will revoke any gift or power you have given your spouse in your will.