Life Cycle of Your Family Law Matter - Part 1

I recently separated from my former spouse and need a Divorce. Where do I start?

The media often makes reference to ‘getting a Divorce’ after a separation. Wonderley & Hall Family Law Toowoomba provide clarity to what this means.

What is involved in getting a Divorce?

If you have separated from your husband or wife, a divorce is only one of legal processes that will need to happen and we often advise clients that the divorce is the last of those processes. To apply for a divorce, you need to have been separated from your former spouse for at least 12 months. Once this time has been served, you can file an Application for Divorce with the Court, and formally serve on your spouse, or on his or her lawyer. In some cases, formal service is not necessary (e.g. where you have both agreed on and signed a joint Application for Divorce). 

A court date is set, and there is a hearing that no one needs to attend, at which time the divorce is granted. The outcome is recorded on the Commonwealth Courts Portal. In one month and one day, your Divorce Order will come into effect. You will receive a copy of the sealed Divorce Order to show this. From that day on, you are free to re-marry. 

So, in a nutshell, a divorce is an isolated legal process which results in you and your spouse no longer being recognised as ‘husband and wife’.

Does getting a Divorce mean the house is sorted?

No. Just because you are divorced, does not mean there is a final agreement or court Order on how the house, cars, bank accounts, superannuation etc, are divided. 

Sorting out who gets the house (or whether it is sold and how the proceeds are divided), is what is called a ‘Property Settlement’. To finalise a Property Settlement, there are a few practical steps involved, which take a bit longer than obtaining a Divorce Order. 

These steps to a Property Settlement include:

1. Providing Disclosure – This means giving each other full disclosure of what each of you currently own and owe (Assets and Liabilities) including your superannuation balance/s.
   
   
2. Obtaining Valuations – This is only needed if you do not agree on the estimated value of significant items in the pool, such as the house, investment properties, business / company shares, and/or superannuation.
   
   
3. Doing up a Balance Sheet – Now that all disclosure is completed, and valuations are in, both you and your former spouse are in the position to agree to a Balance Sheet.
   
   
4. Reaching an Agreement – This is where you and your spouse have agreed on a percentage or monetary split of the pool, and it is formalised in a Binding Financial Agreement or by completing an Application for Consent Order to file with the Court. In some cases, if an Agreement cannot be reached, it may be advised that the matter go to Mediation. As a last resort, there may need to be litigation.
   
   
5. Settlement Day – This is day the transactions agreed upon are effected. For instance if it is agreed that you keep the house and the mortgage is discharged and refinanced in your sole name, a Settlement Date will be set for the transfer, discharge and refinance. 

Does this mean I should finish the Property Settlement before the divorce?

Yes. Although you may wish for a divorce as soon as possible, our family lawyers will give you tailored advice as to whether it is best to get your Property Settlement sorted first, or at least at the same time as the divorce. The main reasons is that once a Divorce Order comes into effect, you and your spouse will only have 12 months to resolve your property matters before the time limit for filing proceedings for a court ordered property settlement expires. 

In most cases, a person is usually better off obtaining the divorce after the property settlement is finalised. That way you will not be in a position where you are trying to reach a property settlement agreement while the clock is ticking.

Stay tuned for Part 2 of our next blog which will walk you through the process of resolving parenting issues.