Leading Expat Divorce Lawyer Team
Australia’s Series of Divorce Questions
Contributors
- Will Jones will.jones@sayerjones.com.au
- Emily Dawson emily.dawson@sayerjones.com.au
- Paula Pfingst paula.pfingst@sayerjones.com.au
- Nicola Kahler nicola.kahler@sayerjones.com.au
A. General
In Australia, there are three (3) types of Family Law proceedings, being:
- Divorce proceedings;
- Property proceedings; and
- Parenting proceedings.
You can commence proceedings on any of the above at separate times. There is no requirement for these matters to be dealt with as one (1) proceeding, or in any particular order. It is common for parties to commence parenting and/or property proceedings post-separation. Divorce proceedings are often commenced at a later date as there is a requirement for the parties to be separated for 12 months prior to their Family Court Application.
Family Law proceedings in Australia are governed by the Family Law Act 1975 (Cth). This is federal legislation, meaning the laws do not differ between States. The Family Law Rules 2004, the Federal Circuit Court Rules 2001 and the Family Law Regulations 1984 also govern Family Law proceedings.
B. Divorce Process in Australia
To be eligible to apply for a divorce in Australia, you must be able to satisfy the following requirements:-
- You (or the other party to your marriage) must be able to answer “yes” to at least one of the following:
- Regard Australia as your home and intend to live in Australia indefinitely, or
- Are an Australian citizen by birth, descent or by grant of Australian citizenship, or
- Ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
- Your marriage must have broken down with no reasonable likelihood of reconciliation.
- You have been separated for a period of 12 months and 1 day or longer. This does not necessarily mean you have been living apart for this entire period. You can have separated but remained living under the same roof.
- You have a copy of your marriage certificate. If you were married overseas, you may need to have your marriage certificate translated.
If you are married for a period of less than two (2) years, you will also be required to provide a counselling certificate to show you have made genuine attempts to make your marriage work before filing for divorce.
Provided you satisfy the above eligibility criteria, you may apply for a divorce. In Australia, parties can apply electronically by completing an online interactive application for divorce.
Before you start the application, it is important to consider whether you will be applying for the divorce on your own (sole application) or jointly with your former spouse (joint application). If you are applying solely, you will be considered the Applicant in your divorce proceedings, and your former partner will be the Respondent. You will need to tell the Court this in your application.
The actual application is relatively straightforward and involves confirming your eligibility for divorce and your current circumstances. After it is submitted, the Court will list your application for a hearing.
You will be required to serve a copy of the application and supporting documents on the Respondent if you had lodged a sole application.
Attendance at Court is required if you filed a sole application and there is a child of the marriage under 18 years of age, or if you have indicated on the application that you wish to attend Court. It is recommended you attend Court if further evidence is required to support your application, for example if you separated under the same roof. The Court will make a determination at the Hearing whether or not a divorce should be granted. The Court will require proof that service has been properly effected on your former partner if you filed a sole application.
Once the divorce is granted, it will be finalised one month and one day later unless an urgent application is made. The divorce order will then be made available through the Commonwealth Courts Portal after the order becomes final.
C. Jurisdiction Requirements in Australia
- You regard Australia as your home and intend to live in Australia indefinitely, or
- You are an Australian citizen by birth, descent or by grant of Australian citizenship, or
- You ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
The Family Law Act 1975 (Cth) sets out the grounds for establishing the Court’s jurisdiction in relation to property and parenting proceedings. In these matters, the Court’s jurisdiction will be enlivened if either party is a citizen of Australia; ordinarily domiciled in Australia; or is present in Australia at the time of filing.
In property proceedings, the Court has a general power to make Orders in relation to assets outside of Australia. This therefore will not affect whether or not you are able to commence property proceedings in Australia.
The law becomes more complex in international parenting matters. For example, where you enter into a marriage or have children in a situation that crosses national boundaries and/or cultures. The above jurisdictional requirements will apply in these circumstances, but depending on the facts of the case there may be other requirements the parties must meet to establish the Court’s jurisdiction. This is particularly important in international parenting matters concerning the protection of children.
To make an application for the protection of a child in international matters, the child must fall also within the jurisdiction of the Court. These requirements are set out in Division 4 of Part XIIIAA of the Family Law Act 1975 (Cth) and include, for example, whether the child is present and habitually resident in Australia or a Hague Convention country. The Hague Convention is a multilateral treaty seeking to protect children from international abduction and retention across international boundaries. Both Australia and Singapore are parties to this Convention.
D. Parenting and Property Proceedings
- Participating in a Family Dispute Resolution Conference. This requirement can be dispensed with in certain circumstances. For example, where there has been family violence;
- Demonstrating a genuine effort to resolve your matter; and
- Complying, as far as practicable, with the duty of disclosure. Parties have an obligation to make timely, full and frank disclosure of all information relevant to the issues in dispute. For property matters, this includes documents such as Taxation Returns and bank statements. For parenting matters, this may include school reports or medical reports.
If you wish to commence property proceedings against your ex-partner, there are strict timeframes you must comply with.
If you were married, you must file an application to commence property proceedings within twelve (12) months from the date your divorce is finalised (i.e once the Court has made an Order granting your divorce). this does not preclude you from commencing proceedings prior to divorce proceedings.
If you were in a de facto relationship, you will need to commence property proceedings within two (2) years of the final breakdown of the relationship.
If you do not commence proceedings within the relevant timeframe, you will need to seek leave from the Court for your application to be made “out of time”. In these circumstances, the Court may extend the time limit in certain circumstances, including where you would, your ex-partner or a child would suffer hardship if leave is not granted.
E. Child Issues in Australia
Under the Family Law Act, the most important consideration for the Court in making parenting orders is the best interests of the child. The Act focuses on the rights of the child and the responsibilities of parents in relation to the child, rather than the rights of parents in relation to the child.
Equal shared parental responsibility differs from equal time. Under the Family Law Act, there is presumption of equal shared parental responsibility. That is, both parents are to make decisions in relation to the child with respect to major long-term issues such as health, schooling and religion jointly. This is a responsibility that will prevail irrespective of the time arrangements between the respective parents and the child. For example, unless the presumption is rebutted, a parent would have equal shared parental responsibility for their child regardless of whether they are the child’s primary carer, or only spend one weekend a fortnight with the child. The presumption of equal shared parental responsibility is outlined further below.
Equal shared parental responsibility is not the same as equal time. Equal time is a type of time arrangement between the parents and the child. It provides for each parent to spend an equal amount of time with the child. For example, a week-on, week-off arrangement wherein the child lives with each parent for one week on a rotating basis. There is no presumption of equal time and this arrangement will only be in place where:
- The parents agree to this arrangement; or
- The Court finds this arrangement is in the best interests of the child and is most appropriate in the circumstances. It is important to note that if the principle of equal shared responsibility applies, the Court is required to at least consider whether or not equal time is in the child’s best interests.
Equal shared parental responsibility is a presumption which relates to major long term decisions for the child and will apply automatically to parents unless rebutted. Equal time is a type of time arrangement between the parents and the child and applies only by agreement or Court Order.
In Australia, Family Law matters are determined at the Court’s discretion and on the unique facts of each case. The Family Law Act does not make assumptions about parenting roles and there is no party a child will “usually” reside with post-separation. Parents have responsibility to make arrangements for their children post-separation that are in the best interests of the child. If they are unable to reach an informal arrangement, the parents can apply to the Court for an enforceable agreement. The Court will consider the best interests of the child when making orders in relation to parenting.
Under the Family Law Act, there is a presumption the parties will have equal shared parental responsibility over children under the age of 18 years old. This is different from equal time and applies regardless of who the child lives with post-separation.
Equal shared parental responsibility provides that both parents have a role in making decisions in relation to the child with respect to major long-term issues such as health, schooling and religion.
The presumption of equal shared parental responsibility will be rebutted if the Court considers it is not in the child’s best interests for this principle to apply. The presumption will not apply where there are allegations of family violence.
Both parents have the responsibility to financially support their children. This responsibility is on both parents and is not gender specific, meaning the mother or father could be required to pay child support. Child support is usually paid by the parent who has a greater income and/or spends less time with the child in their care. The process of determining the payment of child support is outlined further below.
In Australia, if your child is born after 1 October 1989, or you separated after that date, your child is covered by The Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989. These acts give the Department of Health and Human Services (“DHHS”) responsibility to administer Australia’s child support regime, rather than the Court.
The Registrar will use an administrative formula to calculate the annual rate of child support payable under an administrative assessment. This formula takes into account:
- The parents’ incomes;
- The percentage of care of the child, and the percentage of the costs met by this level of care; and
- The costs of the child.
By considering the parents’ respective incomes and the child’s current care arrangements, the Registrar will determine who much child support should be paid and by which parent. You can visit the DHHS website and use the Child Support Calculator to obtain an estimate on the child support payable.
The Court will only hear certain types of child support applications and appeals. The Court usually requires you to satisfy the administrative requirements with the DHHS before this can occur. Generally, a parent who disagrees with a DHHS decision can lodge an objection with the DHHS. This is often where the parent or child has “special circumstances“. For example, where the parties are paying private school fees or where the child has special needs. The phrase “special circumstances” is not defined in the Child Support Act. The Court, however has held that “it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary”.
The Court will also hear applications and appeals if, for example, one of the parties is seeking a declaration a person is/is not a parent of a child for the purposes of paying/ not paying child support.
F. Division of Matrimonial Assets in Australia
Determining the matrimonial asset pool can be quite straightforward, but can also be a lengthy and complicated process. In doing so, the Court will take into account the parties’ assets, legal and equitable interests, liabilities and financial resources as at the date of the Final Hearing. It will include assets that are held solely, or jointly by the parties to a marriage.
The High Court of Australia in the 2012 case of Stanford & Stanford emphasised that the Family Law Act requires the Court to first consider whether it is just and equitable to make an order to divide matrimonial assets. If the Court finds it is just and equitable to make an Order, it must consider factors outlined in the Act to what is just and equitable. This overarching principle guides Australian Courts in property proceedings.
When the Court divides matrimonial assets, the law refers to the Court’s action as an “alteration of property interests.” The factors a Court take into Account when determining whether to alter parties’ property interests are outlined in Section 79 of the Family Law Act for married couples and Section 90SM of the Family Law Act for de facto couples.
Generally, the approach the Court would take in altering parties’ property interests:
- Decide whether it would be “just and equitable” to make an order adjusting the parties’ existing legal and equitable interests in property;
- Identify the assets, liabilities, superannuation and financial resources;
- Analysing the contributions each party has made throughout the relationship and since separation. Contributions can include: –
- Direct financial contributions (e.g advancing funds for the purchase of a property, meeting mortgage repayments, paying for repairs, etc.);
- Indirect financial contributions (e.g. paying household bills to enable the other person to meet mortgage repayments);
- Non-financial contributions (e.g performing working on a property, such as renovations);
- Contributions in the role of homemaker or parent.
- Consider any relevant factors listed in Section 75(2) of the Family Law Act, commonly referred to a “future needs” factors. These include: –
- Parties’ respective ages and state of health;
- Parties’ respective incomes and earning capacity;
- Whether a party has the care or control of a child of the marriage under 18 years;
- The length of the relationship and its impact on earning capacity;
- The financial circumstances of any new relationship.
- Assess whether the order the Court proposes to make is “just and equitable” in all the circumstances.
G. Spousal Maintenance in Australia
- By reason of having the care and control of a child of the marriage who has not attained the age of 18 years old;
- By reason of age or physical or mental incapacity for appropriate gainful employment; or
- For any other adequate reason;
What is the overarching principle that guides the Court for spousal maintenance in Australia Victoria?
- Age and health of each party;
- Income, property, and financial resources of the parties;
- Mental capacity of the parties for appropriate gainful employment;
- Whether either party has the care or control of a child of the marriage under 18 years old;
- Commitments of each of the parties that are necessary to enable the party to support himself or herself and a child or another person that the party has a duty to maintain;
- What is a suitable standard of living in all the circumstances;
- The duration of the marriage and the extent to which the marriage has affected a person’s ability to earn an income;
- The eligibility of either party for a pension, allowance or benefit under;
- The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling him/her to undertake a course of education or training or to establish himself/ herself in a business or otherwise to obtain an adequate income;
- The effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
- Any child support that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
- Any fact or circumstance which, in its opinion, the justice of the case requires to be taken into account.
- In circumstances where one party refuses or fails to make spousal maintenance payments, you can apply to the Court for an enforcement order. The Court does not automatically enforce Court Orders, so if you are unable to reach an agreement, you will need to file an application outlining the issue of non-payment of spousal maintenance to the Court.
The law around enforcement of maintenance orders is complicated, and contained in Division 25B of the Federal Circuit Court Rules 2001 if you are applying in the Federal Circuit Court. You may apply to either the Family Court of Australia or Federal Circuit Court of Australia for enforcement of orders, though this may depend on where your matter was originally heard.
The enforcement process to recover money in Family Law is as follows:-
- Obtain information about the payer. This is optional, and includes either:
- Providing written notice to the payer to provide information about their current finances in a Financial Statement to be filed within fourteen (14) days; or
- Applying to the Court for an order for the payer to disclose information about his/her current finances.
Once you have sufficient information, you can then apply to the Court.
- Obtain information about the payer. This is optional, and includes either:
- Apply to the Court for one of the following enforcement processes: –
- Enforcement warrant. This will enable the nominated enforcement officer to seize and sell the payer’s property to enforce the warrant.
- Third party debt notice. You can apply to the Court, without notice to the payer, to issue this notice requiring a person/ organisation who allegedly owes money to the debtor to pay that money directly to you. This commonly includes making an application to garnish the payer’s wages.
- Enforcement hearing. You may apply to the Court for an order requiring the payer to attend an enforcement hearing. At the hearing, the Court can make orders including: –
- Confiscation of property. This is an order for a property to be temporarily placed in the hands of a sequestrator. The sequestrator can then do acts including collect rent from the property, profits from a business or prevent persons from entering the property;
- Receivership. This is an order for the appointment of a receiver of the payer’s income or property. The receiver is thereafter entitled to receive income due to the payer from that property and pay amounts owing to you under the intitial order; or
- Any other order the Court considers appropriate.