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Divorce

Understand Wife Entitlement in a Divorce

Divorce is common to feuding couples, not just in Australia, but in every other country that allows it. To people who do not know much about what happens when couples get a divorce, they tend to think that divorce is the end of the line. 

Most of our ideas of divorce are shaped after the scenes portrayed on television shows. However, it is not as easy as how celebrities and their faux shows portray it to be. It is not as simple as giving pieces of evidence on one day, filing a case ton the other, and after everything’s been said and done, the ex-couple are now free to do whatever they want to. 

The process of divorce is strenuous, specifically on the issues of assets and children, but knowing one’s rights will somehow make the resolution of the issues manageable. Financial and legal protection is necessary for a divorce. For the wives, your rights will be laid down, so keep reading.

Brief History of Divorce

In Australia, for you to be able to apply for divorce, you must be separated for at least 12 months already, and you must be able to prove the irretrievable breakdown of your relationship and that there are no chances of reconciliation. However, if you have been married for less than 24 months, proof that you have visited a counselor must be provided. So if the aforementioned conditions are met, you are good to go. 

Many years back, before the year 1975, divorce in Australia was only granted where there was ‘marital fault’. Some of these grounds included insanity, imprisonment, habitual drunkenness, cruelty, desertion, and adultery. But the family law system in 1975 had been revamped and made ‘irretrievable breakdown’ the sole ground for divorce.

Subsequently, the cost of divorce lessened, and it became much fairer and more accessible. Importantly, the reforms provided women with more legal rights. Thus, those who sought a divorce in the later years had it much easier as opposed to those who have sought it in the previous years.

Divorce Application

What is expected of someone applying for divorce? Serving a legal document to somebody is a formal process. For this reason, you can not serve them on your spouse yourself. The documents can be served by having a post or process server serve them to the party. 

If the documents are served in person, the server should accomplish an affidavit of service as proof that the documents have been served. Commonly, a server serves someone with more than a single method, such as post or electronic service by e-mail. This ensures that the intended receiver of the documents receive them.

If your spouse lives in Australia, they should be served at least 28 days before the date of hearing. On the other hand, if they reside overseas, the limit for serving them increases to 42 days. Considerations concerning the days of service are given to those living overseas.

If you got married overseas, your divorce application could be done in Australia if: 

  • you regard Australia as your home and intend to live in Australia indefinitely, and
  • if you are an Australian citizen, or ordinarily live in Australia and have done so for 12 months prior to the filing for divorce. 

But if the conditions above are not met, consider applying to the country where you reside or where you are a citizen of. Make sure to know every condition of the country where you plan to file your divorce to avoid issues. 

Settlement

A lot of people assume that each party simply claims half of the properties, but different factors could mean that it isn’t that simple. Although, there is also no definite formula to determine the division of property. No one can specifically say what orders the court would make. The decisions would be made after all the evidence is heard, and the officer decides what is just based on the case.

For an agreement to be considered in a property settlement, it should be a valid Binding Financial Agreement made according to the Family Law Act. This will overwrite the court’s authority in determining a property settlement. Take note that in some cases where the Agreement is valid, it is possible that some of its specific terms may be found void sans overruling the entire Agreement. 

The Australian Family Court uses what is known as the five-step approach in determining what you are entitled to in property settlement. These are the general principles that the Court considers in dealing with disputes as found in the Family Law Act 1975. The steps will be tackled in the following paragraphs. 

For the first step, the court will decide whether it is just and equitable for a settlement to occur between parties. They have the discretion to consider each case based on facts and circumstances. In a circumstance where the Court determines that it is not just and equitable for a property settlement, each party walks away from the relationship with the assets and liabilities that they currently possess. 

The second step is the property pool. This refers to all assets and liabilities of the parties, including those of sole and joint properties. The property pool is determined as at the date the documents are filed with the Court, not as at the date of separation. However, if the party spent a large sum of money sans good reason, the amount may be added back to the property pool for the division. 

If a party buys or sells anything after the separation and before the property settlement has been determined by the court, the asset will be included in the property pool for the division. Hence, the best time to determine a property settlement is the time closest to the time of separation, and before any of the party purchases or disposes a property, or else whatever is gained out of the purchase and disposal will automatically be a part of the property pool. 

The next step is to determine the financial and non-financial contributions of the party. This refers to the contributions that have been used to acquire, conserve, and improve the property. Financial contribution includes the finances paid during the course of the relationship and those paid since the date of separation. Financial contributions also include gifts of any kind or inheritance given to either or both of the parties throughout the relationship. 

The second type of contribution is non-financial contribution. This type of contribution includes parenting, homemaking, and caring of the other party and the child of the relationship during a time of serious illness, injuries, or disasters. The court weighs both types of contributions, and the longer the length of the relationship, the more likely financial and non-financial contributions are considered equal by the Court. 

The fourth step is to assess the future needs of the party. These needs include age, health, and the capacity to earn and care for the child. Should any of the said factors apply, the party to whom it applies to is more likely to receive a percentage adjustment for each future need. If any or all of the factors are the same for both parties, then adjustments for future needs might not be appropriate. 

The fifth and final step is when the Court would consider the practical effect of the proposed property settlement, and whether the occurrence of a property settlement is just and equitable. A solicitor will be able to assist the parties in determining whether the proposed or agreed settlement is practical. However, in most cases, the Court finds that it is just and equitable for a settlement to occur. 

Conclusion

The divorce process can be emotionally, physically, and financially draining for the involved. It does not only affect one facet of a person, but it affects almost all of what makes a person. Going through the process is mostly rain than rainbows. However, if one knows how the process works, and what their rights are, then things might be much easier for them.

By Lilian Synan

Lilian is a long time expert on property settlement.

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