Michael Tiyce from Tiyce & Lawyers has seen it all in his 26 years as a family lawyer. Specialising in divorce, parenting agreements, property matters, wills and estates, Tiyce says there are 10 common questions most people want to ask him – from how to get a quick divorce to when they can change their name.
1. Can I get a quick divorce?
In Australia, there is no such thing as an instantaneous or a fast divorce. In order to apply for divorce, partners must be separated for a period of at least 12 months. If there is a period of failed reconciliation for three months or more, the 12-month separation restarts. From applying for a divorce to finalising one, typically takes at least four months.
2. What if we have been living together for the separation period?
It’s still possible to get a divorce but you need to provide evidence that you’re separated. This might include ceasing sexual activity, living in separate rooms, having different bank accounts, cooking your own meals and being open about your split to friends, family and even neighbours.
3. We haven’t been married long, does this mean a divorce will take less time?
If you’ve been married less than two years, you and your spouse will first need to attend a mediation session and obtain a certificate from your counsellor. If this cannot be done for special reasons, an affidavit needs to be filed. Afterwards, standard divorce procedures apply, including the 12 month separation period.
4. If my partner doesn’t want a divorce, is it still possible?
As long as you can prove that your marriage has ‘irretrievably broken down’, grounds for divorce are established. However, all partners have the right to know about the divorce hearing and there are strict deadlines in regards to submitting court documents. If your partner opposes a divorce, they can file a response prior to the hearing.
5. Can I remarry immediately after divorce?
Once you receive your divorce certificate, your new marital status is not considered final for another month. So no, don’t remarry immediately – it’s considered bigamy!
6. Will the courts punish me because I had an affair?
Under Australian law there is a ‘no fault’ jurisdiction, which means the divorce doesn’t require blame to be shifted. Instead, the court requires the 12-month separation to see that the marriage has ‘irretrievably broken down’.
7. Does a divorce include parenting and asset arrangements?
You will need to make parenting and property arrangements outside of divorce. If you wish for the courts to engage in your matrimonial asset matters, note that the application needs to be received within 12 months of the finalisation of the divorce.
8. Do the courts always side with wives over husbands?
Australian law is guided by fair principles. For example, if a disagreement over sharing of matrimonial assets occurs, the court takes into account non-financial and financial contribution of each party. In terms of parenting disagreements, the court focuses on what is in the best interest of the child.
9. Do I have to wait until after a divorce to reuse my maiden name?
You are allowed to revert back to your maiden name before, during and after your divorce. For changing the name of children, both parents have to give consent.
10. Is it possible to get divorced without a lawyer?
You can apply for divorce online and attend to the documents yourself. However, by seeking legal representation, you’re going to ensure your rights are represented.
11. If I got married overseas, can I get a divorce in Australia?
If you live in Australia, are a citizen or resident then you can apply for divorce in this country. You’ll need a copy of your marriage certificate and if it’s not in English, there’s some additional documentation you need to provide.
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