The first year and filing for divorce
NOTE—once you have a final divorce order from the court, you only have a year to make an application to the court for property and/or spousal maintenance orders. You can ask the court for an extension but this is not always given, and it can end up costing you more money.
A year has passed, and you’ve survived to tell the tale. (Which you probably do, over and over again, to anyone who will listen. And that’s totally fine and a completely natural response—it’s how healthy people process trauma.)
At the one-year mark you’ve probably started to settle into your ‘new normal’ and you’ve got a bit of a routine going with your ex in terms of co-parenting, if you have kids. Hopefully you’ve got the property settlement well underway, and child support is being paid regularly with no fighting.
So now is the time that you can start to think about filing for divorce. In Australia, you must be separated for twelve months and one day before you can file for a divorce order. A divorce order is made but only becomes final a month after—just in case you both change your mind and decide to get back together. Once the order becomes final, you are both free to remarry.
Divorce order—an order made by a court that ends a marriage.
Obviously, do not remarry before the divorce order is made final, as not only will the new marriage be invalid, you may also get arrested for bigamy and you’ll probably make the news (which might have the bonus of making your seven-year-old’s YouTube channel a bit more interesting).
The twelve-month-and-one-day (don’t forget the one day—the court will reject the application if it is filed a day too early) separation period need not be twelve continuous months. If you reconcile briefly (for three or fewer months) the twelve-month period does not have to start all over again, but can be calculated using the time before the reconciliation and the time after the reconciliation (not the time you were both reconciled). For example, Simon and Ophelia separated in August. In late October they got back together for two months, splitting again just after Christmas. Their date of separation remains as August, but the twelve months is now up in the October of the following year.
If you were separated under the same roof, this may be able to be counted towards the separation period but you will both need to agree that you were actually separated. Being separated means not sharing a bed, not being intimate with each other, not socialising as a couple and not living together as a couple. Doing basic housework and preparing meals for each other is okay, especially if you have kids. If you are making a sole application, you will need to include some independent proof, like an affidavit from a friend or relative.
If you have been married for less than two years, you will have to go to counselling to consider reconciliation before you make an application for a divorce order, unless there are special circumstances (such as violence or abuse). A counsellor must provide a certificate and this certificate can say that the parties have tried counselling, or that counselling was not appropriate. A Family Relationship Centre can provide the counselling and they can be found at the following website: http://www.familyrelationships.gov.au/Services/Pages/default.aspx.
If one or both of you have a new partner, you’re probably keen to get the process underway. Your ex may even have asked you to falsify the date of your separation on your filing papers to get the divorce underway sooner (probably so they can remarry, gross). Don’t do this. It’s a legal document and it’s swearing a false statement, which is an offence.
If you don’t have new partners, then oftentimes filing for divorce might be put off for a while. There’s no legal requirement that separated people actually get a divorce and there’s no legal rush, it’s not like doing your taxes! There’s also no requirement that you have to consent to the divorce. In this chapter, we’ll look at all the ins and outs, complicated legal issues, and other tips and traps relating to divorce.
How do I file for divorce?
Filing for divorce is actually pretty easy, and you can do it yourself if you want to. Go to www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/how-do-i/apply-for-a-divorce/apply-for-divorce.
You can file for a divorce jointly with your ex or on your own. If you make an application for a divorce on your own and you have children under eighteen, you will need to go to the court, as the court must be satisfied that proper arrangements have been made for the children. The court can ask for a family report to be done if they’re concerned that proper provisions for the children haven’t been made.
What is a joint application and a sole application?
A joint application means that you both agree to the divorce, and you both sign the application form. The application doesn’t have to be served on either party and if you have children under eighteen you usually won’t have to go to court.
A sole application is made by one spouse only. You will need to serve the application on your ex and if you have children under eighteen you will need to go to court to satisfy the registrar that your ex has been served, that the court has jurisdiction, that you have been separated for over twelve months and that proper arrangements have been made for your children.
Do I have to consent to the divorce?
You do not need to consent, but it is likely that if the application has been filled out properly, and if there are no major issues such as an international court being the better place to hear the matter, then the divorce order will be made.
Some people (who fall under the ‘mad’ category in the ‘mad, bad and sad’ risk assessment) turn up and inform the court that they do not have jurisdiction to grant a divorce because it was a marriage under God and they are not God and so cannot tear it asunder. This will not prevent the registrar making the order, no matter how earnestly this belief is held. These are the same people who think that writing ‘a natural person’ on all their letters somehow makes a legal difference to their matter. It doesn’t.
Who pays, and how much does it cost?
The filing fees are pretty steep (as at October 2017 $865), and you may be entitled for a reduction of fees, bringing the filing fee down to $290, if you receive a Centrelink benefit, for example. If it is a joint application, then you both must be entitled to the reduction of fees in order to receive it.
If you are making the application on your own, then you will have to pay the whole fee. If it is a joint application, then usually you share it with your ex.
Service of the application
If you are making a sole application for divorce, then you will need to have it personally served on your ex, if you think that your ex will not sign an acknowledgement of service. It is best to have a professional process server carry out the work. Your lawyer can find a process server for you. You could have a friend do the job, but this may put your friend in an awkward situation.
Sometimes people disappear and cannot be found even by a process server. In these circumstances your lawyer can help you. Rebekah has recently had a matter where she was representing the husband, and where the court was satisfied that the wife knew about the proceedings because she sent a nasty message back to Rebekah on her professional Facebook page.
Checklist for the newly separated/divorced person
You’ll have a lot of things that you’ll need to remember to change, such as bank account names, your mortgage, and addresses if you’ve moved. But there are a few things you might not think of, which might not be readily obvious. Make sure:
• Your private health insurance policy has been transferred to your name (and your kids are included on it).
• Your car insurance details are transferred to your name. Lucy didn’t realise there was a difference between compulsory third party and comprehensive insurance—not until she backed into a brand-new Range Rover and discovered she hadn’t transferred her comprehensive cover over, anyway.
• Your car registration has been transferred into your name and new address. Some exes can be very unpleasant and not pass on penalty notices, meaning you end up with even bigger fines, or worse, pulled over by the local constabulary because your licence has been suspended.
• You’ve informed Centrelink of your separation and updated your income estimate (this should have been done within two weeks of you separating, but it’s worth the reminder).
• You have transferred your Medicare details onto your own new card, along with your children’s.
• You have notified the children’s school or daycare of your separation and asked for report cards to be sent to both parents, and for all notices to be sent to both parents.
• The Foxtel or Netflix account has been put in your name. There’s nothing worse than ringing up because the bloody Netflix won’t load when you’re halfway through Offspring and they won’t talk to you because ‘I’m sorry, but you’re not the account holder’.
• You have updated your toll-road accounts. One woman we know inadvertently paid her ex-husband’s tolls for three years.
Moving on
At some point, the odds are very high that you will find new love. The birds will sing, and all of a sudden love songs on the radio will start making sense again. However, be aware that finding new love can be one of the most difficult things in terms of your ongoing relationship with your ex, particularly if there are kids involved. Studies show that even when things were quite amicable, the arrival of a new partner on the scene can make things very icy with your ex all over again.87
The best advice we ever got from our dad the divorce lawyer is to treat your ex like your business partner—someone with whom you are managing the very important business of raising your children together. Now, say you’re quite keen to go into a new joint venture with someone else in a new business. Your business partner in your first business is going to be a bit worried about this. What will it mean for your old business? What does it mean for your shareholders (your children)? How will you manage the conflicts of interest?
Possibly pushing the analogy too far, you have to see your ex as a crucial stakeholder in your various businesses (the old and the new) and assure them that you’ve got a plan for how you’re going to handle it. In business, communication is key. Don’t let your first business partner read about your new associate on Facebook. Don’t rub their nose in your exciting new joint venture.
It’s just good business sense to be a bit respectful and discreet, at least until the dust settles. Research shows that most disputes over new partners occur within the first twelve months of the original couple separating, but substantially decrease after that time. The first flush of new love can make us all do crazy things, so make sure you remember at all times to be the Sane Parent, even when your hormones are telling you that you must spend all your time with your new soul mate.
It’s all very well and good to have an amicable divorce but it’s quite another thing to have another man take your son to cricket training or have another woman brushing your daughter’s hair. It hurts. Be respectful, and take it slow. Keep your exciting new business on the down low for a little while—and enjoy it!
QUESTIONS FOR MY LAWYER ABOUT FILING FOR DIVORCE
As we’ve discussed before, it’s really important before each meeting or telephone conference with your lawyer that you have a clear idea of what questions you want to ask, in order to get the best value for your money. This worksheet is a space where you can write down your questions, and make notes of the answers you get.
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87 www.aifs.gov.au/publications/family-matters/issue-92/effects-co-parenting-relationshipsex-spouses-couples-step.