If you have questions surrounding the concept of no-fault divorces in Australia, however, it’s highly recommended that you consult with a Family Lawyer to learn whether a no-fault divorce is the right solution for you and your family.

To help drive your own research, our own team of Family Lawyers at Oxford Partners Lawyers are here to provide more information on no-fault divorces in Australia, covering what they are, how they came to be developed, and what benefits a no-fault divorce may provide for you and your family. 

Here’s everything you need to know about no-fault divorce in Australia.

What is a No-Fault Divorce?

As stated in the Family Law Act 1975 (Cth), no-fault divorce is a legal concept that allows married couples to divorce without assigning blame to either party for the breakdown of the marriage. 

The concept of no-fault divorce was introduced into Australia’s legal system primarily to simplify the process of divorce for married couples that are seeking separation or divorce proceedings. Removing the need to examine who is at fault across both parties helps ensure divorce proceedings are easier and more harmonious, supporting Australian families in navigating divorces and separations with reduced conflict and trauma for both parents and children alike.

When was the No-Fault Divorce Introduced in Australia?

No-fault divorce laws were originally introduced into Australian Family Law in 1975. The reasoning behind the introduction of the no-fault divorce legislation includes:

• To remove religious and moralistic approaches to marriage;
• To promote the notion that anyone should be able to leave a marriage equally, without having to be legally held for its breakdown;
• To simplify the process of filing for divorce or separation, making divorce proceedings more accessible for all, including for vulnerable or under-resourced Australian citizens;
• To align laws with ever-changing social and cultural shifts.

The History Of No-Fault Divorce in Australia

Prior to the new laws pertaining to no-fault divorce introduced in Australia in 1975, the process of filing for divorce was much more lengthy and difficult for couples and families. This was because prior to 1975, either party applying for a divorce was required by law to provide evidence of abuse, adultery, alcoholism, insanity, abandonment and a number of other reasons behind the desire to divorce one’s spouse. 

This burden of proof often led to lengthy divorce battles and expensive court fees for everyone involved. Not to mention, the emotional and psychological pain that is often associated with messy divorces.  

Without no-fault divorce laws, there were also elevated risks of spousal abuse, and that individuals who found themselves in an unhealthy marriage would have to remain unhappily married to their spouse. Thankfully, with the simplified processes made possible by introducing the concept of no-fault divorces, these risks have largely been mitigated for Australian families.  

Key Reasons for the Introduction of No-Fault Divorce in 1975

The reasoning behind the introduction of the no-fault divorce legislation includes:

• To remove religious and moralistic approaches to marriage;
• To promote the notion that anyone should be able to leave a marriage equally, without having to be legally held for its breakdown;
• To simplify the process of filing for divorce or separation, making divorce proceedings more accessible for all, including for vulnerable or under-resourced Australian citizens;
• To align laws with ever-changing social and cultural shifts.

What Are The Valid Reasons For No-Fault Divorce in Australia?

The next question you probably have is about the valid reasons for no-fault divorce. In Australia, the only reason you need for a no-fault divorce is the irretrievable breakdown of the marriage. Depending on which side of the pond you are on, this can also commonly be referred to as “irreconcilable differences”, “irremediable marriage issues”, or “incompatibility”.  

Regardless of your situation, with the introduction of no-fault divorce, you can be assured that divorce is possible. The first and most important thing you should do if you are considering divorce is to get in touch with an experienced Family Lawyer.

What Are The Benefits Of No-Fault Divorce?

Here are just a few benefits that no-fault divorce can offer couples: 

• No-fault divorce has made the process of divorce exponentially simpler and more cost-effective for all parties involved. 
• No-fault divorce helps to reduce the potential hostility and conflicts surrounding divorce. Less conflict also results in lowered chances of emotional harm to dependents.
• No fault divorce plays a critical role in empowering victims of domestic abuse and unhealthy relationships to leave a marriage, particularly because there is no need for a victim to “prove” that they have been abused. 
• Financial settlements are based solely on a spouse’s need, ability to pay, and financial contributions to the family as opposed to what they did to cause the divorce. 

Can A No-Fault Divorce Be Contested?

The simple answer to this is yes. If your partner does not agree to a divorce and chooses to contest it, he or she will be required to satisfy the Registrar that there is a procedural reason for why a divorce should not be granted.  A Registrar will need to be satisfied that:

• There was a valid marriage;
• Australia has the jurisdiction to deal with said marriage;
• There is irretrievable breakdown of the marriage;
• Both parties have been separated for a minimum of 12 months prior to divorce applications; and 
• There are arrangements made for any children involved.

For a no-fault divorce application to be contested, the responding party will be required to prove that one (or more) of the above factors are not satisfied. 

Are You Eligible To Apply For No-Fault Divorce?

Some of the current requirements for obtaining a divorce in Australia include: 

• You must have been separated for at least 12 months before you can apply for a divorce.
• At least one party has been residing in Australia for at least 12 months immediately before filing for divorce.
• You must be able to satisfy the courts that there is no reasonable likelihood of resuming married life.
• If you were married overseas and your foreign marriage is recognised in Australia, you must provide the Court with a copy of your marriage certificate that is translated to English, if applicable. 
• Appropriate arrangements are made for the care of minors or children under the age of 18. 

The first thing you should do if you are seeking a no fault divorce is to get in touch with one of our experienced family lawyers who will be able to  help you figure out the process in detail and prepare the Application for Divorce.  To book your free preliminary 30 minute consultation, simply call Oxford Partners at (03) 9670 7577 or complete the form on our contact page and we will get back to you as soon as possible.

Today, we have a look at everything you need to know about applying for divorce in order to make your transition as pain-free as possible. 

Separation Precedes Divorce

Before a couple can apply to the Federal Circuit Court for a divorce, they are required to be separated for a minimum of at least one year. Separation generally means living apart from each other and can be unilaterally initiated by either spouse or mutually decided. For there to be a separation, one party needs to communicate to the other that the relationship is over and they need to act in a way that confirms the intention.

A couple can be separated under one roof as long as an Affidavit is filed to support your contention that you were separated under the one roof. Our experienced team of family lawyers are available to provide more information about living with your partner during separation. 

Applying For A Divorce 

To apply for a divorce, you or your spouse must have been separated for at least 12 months and either:

• be an Australian citizen
• live in Australia and consider Australia as your permanent home, or
• usually reside in Australia and have done so for at least 12 months before the divorce application.

Couples may apply for divorce together (joint application) or on an individual basis (sole application). If you are putting in a sole application and have children under the age of 18 prior to separation, you must go to court unless circumstances stop you from attending. 

What If I Was Married Overseas?

The Family Court has the power to dissolve overseas marriages, provided it has the jurisdiction to hear the Application. The Court’s jurisdiction is enlivened if the applicant:

• is an Australian Citizen by birth, descent or grant;
• a Permanent Resident; or
• considers Australia as their permanent home and intends to live in Australia indefinitely

As long as these requirements are met, you are able to apply for a divorce in Australia. Do note that a copy of your overseas marriage certificate will be required. 

What To Include In Your Application For Divorce

An application for divorce must include the following details:

• Copy of marriage certificate;
• Arrangements in place for any children under the age of 18;
• Details regarding any other agreement or court orders that are already in place;
• Documents to verify citizenship statuses;
• For sole applications, a supporting affidavit together with an affidavit by a supporting witness is additionally required.

There are fees for applying for a divorce, which you will be responsible for. Information about current fees, including information about fee reductions or exemptions, can be found here. 

Serving A Divorce

If you apply solely, you will need to arrange to serve a copy of the application to your spouse. Do note that you cannot personally serve your former partner, but you are able to do so via mail. The Federal Circuit and Family Court have special rules about the service of documents and forms to prove that the other person was served.

• If your spouse is in Australia, the documents must be served at least 28 days before the court hearing.
• If your spouse is overseas, the documents must be served at least 42 days before the court hearing.

Alternatively, you can serve the documents on your spouse’s lawyer. A signed and dated acknowledgment of service from your spouse’s lawyer is required as proof of service. 

What Happens Next? 

Once you apply, you will be given a hearing date. This hearing will take place before the Registrar, and if approved, your divorce will legally come into effect exactly one month and one day following the court listing. To find out more about what to expect during your divorce hearing, click here.

After your divorce is finalised, you are given a time limit of 12 months to file any applications for property and spousal maintenance proceedings.

The Importance Of Seeking Legal Advice 

If you are going through a separation or divorce, it is vital that you seek guidance and advice early. At Oxford Partners, our dedicated team of family lawyers make the process as pain-free as possible. With years of experience under our belt, we pride ourselves on making each client’s family law experience as positive as possible. To book a consultation, call us at (03) 9670 7577 or email us at admin@oxfordpartners.com.au. 

Marriage VS De Facto

One of the common questions we receive when it comes to separation entitlements is whether there is a difference in rights/entitlements for married vs de facto couples. Under the Family Law Act (applicable in all states and territories except Western Australia), de facto couples have the same rights as married couples in relation to the distribution of property. The main difference when it comes to married vs de facto couples is that married couples are not required to be divorced to get a property settlement worked out. 

On the other hand, de facto couples have two years from the date of separation to work out their property settlement, in accordance with section 44 of the Family Law Act. Failure to lodge an application within this timeframe may result in parties being barred from seeking orders about property division unless the Court grants permission to file an application outside of time.

Determining “Property Of The Relationship” 

When it comes to figuring out your rights and entitlements during separation, we first need to identify or determine what constitutes “property of the relationship”. This may include:

• The family home.
• Cars, boats and other vehicles;
• Household and personal items, such as furniture, white goods and jewellery;
• Superannuation;
• Business and property investments;
• Home loan debt; and
• Money owing on credit cards or personal loans.

Mediation Is The First Step 

In most family law cases, mediation is always recommended as the first choice of conflict management. Mediation is cheaper, quicker, more accessible and less stressful than a Family Law Court case. With the help of a neutral mediator, parties can undertake a similar process that is taken by the court to work out a fair settlement for both. Agreements made through mediation can be formalised by the Family Court as binding Consent Orders. 

Mediation is a fantastic way to empower both parties involved and favours a collaborative, peaceful and amicable approach to coming up with resolutions that are fair to all parties involved. If you would like to know more about mediation, be sure to get in touch with one of our team members today. 

If both parties are unable to come to an agreement on a fair settlement, the next step is to allow the courts to handle the settlement. 

How Are Entitlements Sorted Out By The Courts?

Many people believe that when it comes to entitlements, most couples will end up with a 50/50 split. However, this notion is highly inaccurate. In reality, there is a four-step process for working out what percentage of the property each of you should get. This process is used by family lawyers and the courts in determining a fair settlement.

• Step 1: Working out the matrimonial asset pool. The Court must identify and value the parties’ property, liabilities and financial resources. Some of these, as mentioned above, include the family home, motor vehicles, shares, mortgages, personal loans, superannuation, inheritances and gifts. 
• Step 2: Assessing and allowing for contributions to the asset pool. The Court must examine the contributions made by either party, both financial and non-financial, direct and indirect. Both past contributions and contributions made after separation are considered.
• Step 3: Analysing and allowing for the future financial needs of each partner. The Court must consider the future needs of the parties to determine whether adjustments should be made to the percentage of the asset pool that parties are entitled to. Some of the deciding factors may include:
  • Age and health of the parties;
  • Income, property and financial resources of the parties;
  • Care and control of any children involved;
  • Capacity for future employment; 
  • Eligibility for pensions, allowances or benefits;
  • Duration of the relationship;
  • The provision of child support made by the parties; and
  • The terms of any financial agreements binding upon the parties.
• Step 4: Lastly, the Court must evaluate whether the proposed order for property settlement is fair and equitable under all circumstances. The Court must be satisfied with the proposed settlement before it is finalised. 

How Can I Obtain A Settlement? 

The rights and entitlements of separation can be a tricky and time-consuming affair to navigate. We always recommend seeking legal advice as soon as possible, and our team of expert family lawyers are here to assist you through every step of your separation. Call us today at (03) 9670 7577 to find out more.

Also Read the Articles:

• How to Handle Conflicting Needs During Separation Negotiations
• How Therapy Can Support You Through a Separation

Am I In A De-Facto Relationship?

In order to better assess your situation, you will need to ensure that you are in a de facto relationship in the eyes of the law. Under the Family Law Act, a person is in a de facto relationship with another person if:

• Both parties are not legally married to each other; 
• Both parties are not related by family;
• Parties are living together on a genuine domestic basis.

What Does “Genuine Domestic Basis” Mean?

Each de facto relationship and situation is unique and comes with its own set of individual circumstances, but regardless, the Family Court will consider the following factors: 

• The duration of the relationship and whether it is of sexual nature;
• Financial dependence on one another;
• The existence of joint assets;
• Care and support of children;
• The reputation and public aspects of the relationship;
• The extent of mutual commitment to a shared life.

It is also important to note that the Family Law Act recognises that an individual can be in a de-facto relationship even if they are currently married. Similarly, even though it is uncommon, an individual can also be in more than one de-facto relationship. 

Property Division 

If you are in a genuine de-facto relationship that has ended, you are able to apply for property splitting orders if:

• The de-facto relationship has lasted for at least 2 years; or
• You and your partner have children; or
• Your relationship is registered under a prescribed law of your state; or
• During property assessment, it is noted that significant contributions were made by either you or your partner and failure of the court to issue an order would result in serious injustice.

Financial Agreements

Under the Family Law Act, both partners can enter into a Financial Agreement To record your financial arrangement. Your agreement can cover:

• Financial settlement in lieu of a breakup;
• Maintenance in lieu of a breakup;
• Other relevant matters 

Do note that in order for your financial agreements to be legally binding, both parties are required to sign it and get independent legal and financial advice about the agreement prior to signing.

Superannuation

Superannuation that is held by each party can be split either via agreement or court order. The splitting of superannuation is a complex process as each superannuation fund comes with its own set of requirements that need to be fulfilled prior to a split. It is always advised that you get in touch with an experienced family lawyer for assistance with the process. 

Property Settlement

If you are in a genuine de-facto relationship, you may apply for  property splitting orders if:

• The de-facto relationship has lasted for at least 2 years; or
• You and your partner have children; or
• Your relationship is registered under a prescribed law of your state; or
• During property assessment, it is noted that significant contributions were made by either you or your partner and failure of the court to issue an order would result in serious injustice.

Financial Support and Maintenance 

Finally, you are able to apply for ongoing maintenance from your partner if you are unable to support yourself financially. The success of an applicant is heavily reliant on your partner’s ability to pay/provide maintenance and the following factors will be taken into consideration:

• Your age;
• Your ability to work;
• Your financial resources – income, property, dividends and other financial resources;
• A suitable standard of living; and
• If the relationship has in some way impacted or prevented you from earning an income. 

Time Limitations

De-facto parties need to note that whilst there is no time limit on how soon after separation you can apply for property splitting orders, if an application has not been made before the expiration of two years of the date of separation, de facto parties are precluded from bringing an application, without the leave of the Court. 

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If you require assistance or have any questions about your legal rights and entitlements after the breakdown of a de-facto relationship, please contact one of our experienced family lawyers at (03) 9670 7577 or drop us an email at admin@oxfordpartners.com.au to speak to one of our solicitors today.

How Does Billing Work?

Let’s be honest — divorce can be an incredibly costly affair, on top of lawyers fees and court fees. This is why you should never be ashamed of discussing matters such as billing and fees with your divorce lawyer. Working within your budget is of utmost importance, and any reputable lawyer will be upfront and entirely transparent about their hourly rate and fee structure. You should discuss your fee arrangement and also come up with solutions that will help you reduce your costs as much as possible.

For example, it may be more cost-efficient for you to gather all your questions over the week and then email them to your lawyer so that you can schedule a quick phone call rather than eat your client hours up by asking them a few questions every day.

Discuss Communication Rules

Right off the bat, it is important that you discuss your lawyer’s communication rules in order to avoid any misunderstandings in the future. It is important to ask your lawyer how often they will need to communicate with you and what the best means of communication are for not just them but yourself too. Would you prefer having phone conversations over emails? Perhaps you’d rather meet with your lawyer in person to discuss matters surrounding your divorce. Setting expectations early on in the game will help ensure that both you and your lawyer are comfortable and always know what to expect.

What Is Their Approach To The Divorce Process?

Every family lawyer will have a slightly different manner in which they approach the divorce process. Even though the divorce process is relatively the same with each case in terms of paperwork, each lawyer’s approach will differ. Asking your lawyer what their personal approach to the divorce process is and what their strategies are will help you gain invaluable insight into their methodology in order to choose the best lawyer for your specific needs. Some matters to discuss include child custody, financial settlements and other points of conflict. Ask your lawyer about how they have helped other clients reach an amicable outcome when they have worked in similar situations in the past.

Can Your Lawyer Assist With Mediation?

As a general rule of thumb, most family lawyers will try to get couples to settle their differences via mediation. This is often the preferred route for most families as it helps to avoid costly court appearances that may drag out for years. Be sure to ask your lawyer about how they will be able to help you with mediation in order to come to a mutual agreement in order to ensure that you receive a fair settlement without having to fight it out in court.

How Will I Be Able To Monitor The Status Of My Case?

No one likes to be kept in the dark, especially when it comes to their own divorce. This is why you should always ask your lawyer about how you will be able to check up on the status of your case. In cases where divorce proceedings are more complicated, it’s usually possible for divorce lawyers to provide clients with updates by phone or email. In a less complicated divorce, sometimes lawyers will tell their client in person when documents have been filed. Your lawyer will discuss with you the best way to keep you informed about the status of your case.

Is Divorce Law Your Strength?

Last but not least, the most important question of them all — is divorce law your strength? It is important to gather information about your lawyer’s experience in the field of divorce, so don’t be shy to ask them about their success rates when it comes to amicable splits and mediated divorces. Some other questions you should ask include how long they have been practising law or what they would do if they were in your shoes.

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Asking the right questions is a guaranteed way to ensure that you are able to communicate clearly and work with a lawyer who best matches your particular needs. If you require any legal advice from an experienced family lawyer, don’t hesitate to call us at (03) 9670 7577.

Also Read the following Articles:

• Essential Guide to the Divorce Application Process
• Guide to the Divorce Process
• Obligations for Handling Divorce Document Service

1. A Safe Space

Often when tension and emotions are running high, it is almost impossible for separated couples to see eye to eye or even discuss issues surrounding the relationship with a level head. Of course, this comes as no surprise considering how traumatic separation can be, which is why marriage counselling during separation is often highly recommended by family psychologists and psychiatrists. A therapist’s office is a safe and neutral place where both parties can discuss the issues and challenges their marriage is facing without fear of judgement. Without sometime to mediate the situation, in this case a qualified therapist, it is not uncommon for things to get out of hand and for words spoken out of anger to cause more damage to the relationship.

2. To Gain Better Understanding

A lot of the time, it is not just one instance, scenario or mistake that leads couples to separate. More than often, it is an accumulation of resentments, troubles and words unspoken that lead to a rift in a relationship or marriage. Without gaining better understanding about the factors that led to separation, reconciliation is often not possible. By engaging with an experienced therapist who has helped hundreds of couples work through their differences, both parties are better equipped to fully understand the part they play in the breakdown of a relationship.

3. Absorb Unbiased Advice

While most of us tend to share our troubles with loved ones or friends, a lot of the time we find it hard to get an unbiased and entirely objective opinion or view from the ones we love. Loved ones prioritise your feelings and emotions, thus making it a lot more difficult for them to remain unbiased about what is going on in your relationship. A therapist is someone who first of all doesn’t know you or your spouse, and is the most impartial person whom you can seek advice from.
A Chance To Fix Issues Outside of The Home

If children are involved in the separation, the last thing anyone wants to do is to argue or fight in front of them. Observing parents who are at each other’s necks often has an incredibly harmful impact on a child’s self esteem and general mental health, which is why it is always advised that couples keep their issues behind closed doors and in the midst of a therapist who will be able to assist in regulating emotions and feelings.

4. The Ultimate Goal of Reconciliation

Last but not least, if both you and your spouse want to give it another go, it is important that you iron out all the issues you may be experiencing in your marriage in order to repair the relationship and move forward into calmer territory. Clearly something has gone awry in the relationship, and trying to pinpoint this with the help of a counsellor is the best way to avoid encountering the same situation in the future should you choose to reconcile with your partner.

A therapist will be able to equip both parties with the skills and habits they need for better communication which is sure to help a struggling couple rebuild their trust and love for one another. Doing so alone may be a lot more difficult and may even lead to an unsuccessful attempt at reconciliation, so getting the help of an experienced professional is the best thing you can do to save your marriage.

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Enlisting the help of a counsellor, psychologist or couples therapist during and even after your separation is one of the best things you can do for your overall health and wellbeing. If you are in need of any legal advice or counsel to help navigate your marriage separation, do not hesitate to contact one of our team members today.

In tough and highly emotional situations such as a divorce, it is not at all uncommon for people to behave erratically or in a manner in which they wouldn’t normally carry themselves in. We are all only human, and it is completely understandable that we may want to lash out or “get back” at someone who has hurt us.

Unfortunately, when it comes to settling a divorce successfully, trying your best to remain amicable is always recommended. Poor behaviour on either party’s part may result in an unsatisfactory settlement that doesn’t benefit anyone at the end of the day. In today’s article, we look at 6 behaviours to avoid during a divorce, so read on to find out more.

Failing To Communicate

We completely understand that in some circumstances, the last thing you want to do is communicate with your partner. When emotions and tensions are running high, it can be much easier to just block the situation out and turn a blind eye to it. Regardless of your stance, it is important that you don’t fail to adequately communicate your needs with your partner, as difficult and challenging as it may be. We always recommend keeping the lines of communication open, and enlisting the help of friends, family and loved ones who may be able to better bridge the gap between you and your partner. Communication is absolutely vital in court proceedings and avoiding or failing to do so may put up unnecessary roadblocks in an already tough and demanding situation.

Avoid Name Calling

When talking about emotionally charged issues either in private with your partner or in the midst of a lawyer, it can be tempting to start name calling, criticising and insulting one another. Using inflammatory statements against your partner may feel good in the moment, but will only cause unnecessary trauma, anger and resentment in the long run. If your partner chooses to behave in an unruly manner, it is important to stay calm and remind yourself that you can’t control their behaviour. It is also important to remain level headed and not be tempted to stoop to their level if he/she is making disparaging comments about you. Trust us when we say you will thank yourself for your self control and patience at the end of the day,

Don’t Instigate The Children

If you have children with your partner, we highly suggest against trying to instigate your children or turn them against your partner. Divorce is incredibly tough on children, let alone when parents are trying to gain favour or turn the kids against the other party. Putting down or disrespecting your ex — regardless how tempting it may be — only creates anger, sadness, insecurity and guilt which may even lead to childhood depression. Keeping the family unit as cohesive and pleasant as possible should be your main goal, along with keeping the children out of any drama or arguments that may ensue between you and your soon to be ex.

Don’t Emotionally Shut Down

Let’s be honest — divorce is a hell of a ride for all involved and can often trigger feelings of anxiety and depression. During this time of uncertainty, all you may want to do is emotionally shut down and remain oblivious to the world around you. As tempting as that may be, it is important that you express your feelings and emotions. A great idea if you are feeling somewhat emotionally stifled is to enlist the help of a therapist or counsellor who will offer you a safe space to vent your concerns and frustrations. Taking care of your mental health during this trying time is incredibly important and is one step in the direction of healing, letting go and moving on.

Avoid Venting On Social Media

One of the most common things we’ve seen over the last 20 years is people taking to the internet to publicly shame their ex partner or even expose personal details of the relationship that should have no place outside closed doors. Even if you feel like the criticism you have is warranted, we highly recommend keeping this information private and not using social media as a sounding board. Airing dirty laundry on your personal account runs the risk of your co-workers, supervisors and naysayers coming across this information which can inevitably ruin the reputation of both you and your spouse.

Don’t Make False Allegations

Last but not least, it is important that you remain honest throughout your divorce proceedings. It is certainly okay to make light of any injustices that you have experienced during the course of your relationship, but it is also just as important that you don’t throw out false allegations that can never be taken back.

In cases of separation, emotions are high, and it’s possible for things to be said in that environment which may not reflect the beliefs or events in question. However, mistake or not, false allegations can be hugely detrimental to your case if & when they come to light. In the event that your party is found to have knowingly made false allegations, it can lead to your case being lost or complicated, so honesty is always the best course of action.

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Divorces can wreak havoc on your emotional and mental health, but by taking care of yourself and ensuring that you remain level headed, calm and mature throughout your divorce proceedings, you are guaranteed to have a much smoother sailing ride that is less traumatic for all parties involved. If you need advice or information about divorce, do not hesitate to reach out to one of our divorce and separation lawyers who will be more than happy to assist.

What Is The Legal Definition of a De-Facto Relationship?

The official definition of a de-facto relationship for the purposes of the Family Law Act are as follows: A couple that is  not married to each other; are not related by family; but are living together as a couple on a genuine domestic basis. This definition may seem plain and simple upon first glance, but do not be tricked by its short and concise description. In order to meet all the requirements of a de-facto relationship, many factors are taken into consideration, including:

      –     The existence of a sexual relationship

• The nature and extent of any existing common residence
• Public aspects and reputation of the relationship
• Financial dependence and support between the parties
• Mutual commitment to a shared life displayed by both parties
• Care and support of any children
• Nature of the household 
• Future plans and aspirations as a couple 

It is important to know that no singular factor is given more weight than another when the court decides on whether to grant a de-facto status to a couple. Some other factors that can also come into play depending on individual situations include:

      –     Messages, communication and any type of love letters between the parties

• Statutory declarations from friends and family about the relationship
• Photos of the couple at public events and on social media
• Shared bank account statements
• Whether a person is listed as a spouse on the party’s tax return/Centrelink

Registration of Domestic Relationship

Registered domestic relationships are another way to legally obtain a “de-facto” status and can be very helpful in situations where both parties have been in a de-facto relationship for under the 12 month requirement. 

You can apply to register a domestic relationship in Victoria if you are a couple and are both above the age of 18. It is important to note that at least one of the parties will need to reside in Victoria at the time of application. You cannot be married to one another and you must also agree to provide domestic, financial and emotional support to each other. 

Evidence of a De-Facto Relationship

In order to be granted “de-facto” status, couples will have to provide a wide array of evidence to the courts that prove the domestic, financial and emotional support towards one another. 

Evidence for Nature of The Household include:

• The usual occupants in the house and the relationships between them.
• The set up of the home, including a shared bedroom, common area and study area.
• How the household chores are shared – who does the cooking and cleaning? 

Evidence for Financial Aspects include

• Both names listen on a lease/mortgage agreements
• Both names on utility bills such as water, electricity, internet and gas 
• Whether one or both parties are providing financial support to the other, directly or indirectly Claiming dependence on issues concerning taxation, health, insurance, welfare or other purposes
• Joint ownership of major assets.
• Joint liabilities such as mortgage or loans
• One party being nominated as a beneficiary of a will, life insurance policy, superannuation payment or compensation payment
• Evidence of shared bank accounts

Evidence for the Nature of Commitment include:

• If the couple have a mutual commitment to the relationship
• Evidence of emotional support provided to each other, including care provided  in times of physical illness or personal crisis. 
• Long term plans, goals and aspirations as a couple 
• Whether the people involved consider that the relationship is likely to continue indefinitely.
• Personal statements made by both parties on the overall nature of commitment. 

When To Seek Legal Aid 

While married couples simply need to show a marriage certificate to prove the existence and length of their union, de-facto couples often struggle to gather the evidence necessary to make a compelling claim for their relationship. In such instances, it is always recommended that you seek the advice and services of an experienced legal team. 

Working alongside a lawyer will help you ensure that you meet the relationship criteria prior to making your application and to ensure that you are able to provide enough evidence for the Courts to make a declaration of your de-facto relationship. 

Call us at 03 9670 7577 today and one of our expert family lawyers will be happy to assist! 

Getting Ready To Serve Your Documents

The first step and obligation in serving your divorce papers is to ensure that the documents are sealed and served to your spouse. In order for this process to happen, you will have to file your Application For Divorce which will be returned to you stamped with a red court seal. If you have made your application online via the Commonwealth Courts Portal, you will receive an email that contains a link to a PDF attachment of your divorce documents that have been stamped your divorce hearing date and location. Do note that even if you make your application online, you will still be expected to print a hardcopy to serve on your partner.

If you made a paper application, your divorce documents will contain sealed photocopies of your application. The hearing date and location will also be noted on the documents. 

Serving The Divorce Documents

We often get a number of questions regarding the process of serving divorce documents, all of which we will touch on below: 

• Will The Courts Serve Divorce Papers on Behalf?

One of the most frequent things we get asked is if one party is required to serve divorce papers on their own accord or if the courts will handle it. The quick answer here is yes. You must arrange service of the sealed divorce documents on your own unless the court gives you special permission to do otherwise. If you and your spouse have a joint application for divorce, this process is nullified. 

• When Do I Need To Serve The Application For Divorce?
  

In most circumstances, you will need to serve papers at least 28 days prior to your arranged court hearing if your spouse is in Australia. Should your spouse be overseas, you will need to do so at least 42 days prior to the date of your hearing. 

• Can I Do It Myself?

By law, the applicant is not allowed to personally serve divorce documents on their spouse. There are strict laws around this and you are legally required to arrange service by hand or by post on your spouse or your spouse’s family lawyer. You can ask anyone over the age of 18 to serve the divorce papers on your behalf, including friends, family members or a professional process server.

Do note that whoever you have appointed is legally expected to sign an affidavit to prove they have served your spouse within the time limit depending on your individual situation. The server must also have the complete affidavit signed and witnessed by a Justice of the Peace or Notary Public.

• What If My Spouse Refuses To Sign The Papers?

By law, your spouse is not legally obliged to sign anything. However, it is important to note that even if your spouse refuses to sign the documents, the court can still grant a divorce order. In order for this to happen, you will have to prove that your spouse was served the documents in accordance with the rules of your state or area. 

You must fill in the proof of service forms carefully, otherwise the court might order you to serve your spouse again. If you think the court may have questions for you about service, you should attend your divorce hearing. If service is not proved, the court could delay or cancel your Application for Divorce.

Finalising The Divorce

If all goes to plan, your divorce will be  granted and finalised one month and one day in standard situations. You will be able to log into the online portal and choose to receive a notification when your divorce has been granted. Once granted, you will be able to download your divorce order from the Commonwealth Courts Portal.

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Applying for a divorce and serving your divorce papers doesn’t need to be a laborious or stressful task with the help of Oxford Partners. Our experienced team of lawyers have decades of experience in matters of divorce and family law and are able to guide you through the process from start to finish. Call us today on (03) 9670 7577 to find out more.

Seeking legal advice can make the divorce application process smoother. An experienced divorce and marriage separation lawyer can clearly explain the process and how it applies to your individual case, as well as assist you with drafting the necessary paperwork and submitting your divorce application to the court.

No Fault Divorce

In Australia, you don’t need to explain to the court why you’ve made the decision to divorce. The only thing the court considers is if the marriage has broken down irretrievably with no likelihood of reunion. 

Eligibility

Before filling out a divorce application form, you need to make sure you’re eligible to apply. 

The first consideration is citizenship. You or your partner must be an Australian citizen or regard Australia as your indefinite home or have lived in Australia for the past 12 months. You can have been married overseas, and if you have been divorced overseas this will be recognised in Australia as long as your divorce was done under the laws of the country in question.

Same-sex couples can apply for a divorce under the same rules as heterosexual couples, regardless of when or where the marriage took place. However, currently same-sex couples are not able to complete a divorce application online through the Commonwealth Courts portal.

The court will also require that you and your partner have been separated for at least 12 months and one day, to prove that the marriage has broken down irretrievably. ‘Separation’ does not necessarily mean that you and your partner have been living separately, but if you have been living under the same roof you will have to provide an affidavit affirming that the relationship has broken down.

The court also considers length of marriage. If you and your partner have been married less than two years you will be required to attend counselling together and file a counselling certificate along with your divorce application (or file an affidavit explaining why counselling isn’t possible).

Children

Before filing for divorce, the court will require that arrangements be made to provide for the children of a relationship. These arrangements are a separate process from divorce. You will need to draft a parenting plan and file it with the court, or seek orders from the court (after attending Family Dispute Resolution). Once appropriate arrangements have been made, the court will consider your divorce application.

Opposition

There are two kinds of divorce applications: a ‘joint’ application filed by both partners, and a ‘sole’ application filed by one individual partner. Both are valid, though as a sole applicant you will need to ‘serve’ the application to your partner. There are options if you are not able to serve your partner with the application.

If your partner chooses to oppose the divorce application, the court will only consider this if:

• There has not been 12 months and one day of separation
• The court does not have jurisdiction (i.e. neither you nor your partner meet the citizenship & residency requirements)

Attending court

In most cases, attending court isn’t necessary. You will not have to attend if:

• There are no children under 18 of the relationship
• You and your partner apply jointly (even if there are children under 18, if you provide an appropriate parenting plan you will not have to attend court)

You will have to attend if:

• You are filing a sole application, and there are children under 18 of the relationship (your partner will not have to attend unless they oppose the application and have filed the appropriate paperwork)

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The legal process of applying for a divorce does not have to be a complicated or traumatic process. By being aware of what the court will require and consider in your case, bolstered by the help of a legal professional, you can file your application secure in the knowledge that the process will be as easy and smooth as possible. Also Read Part IV Application.