Brisbane Divorce Lawyers
Guiding you through the divorce process
Our Brisbane family lawyers are dedicated to helping you navigate one of life’s most stressful events: a separation. We can help you achieve the most positive outcome with as little conflict as possible.
If you and your former spouse are separated and you are ready to finalise your divorce, Attwood Marshall Lawyers can assist you with preparing and lodging an Application for Divorce, or responding to one.
We know that everyone’s family circumstances are different, and everyone will approach the situation in their own way. Your unique circumstances may play a role in how smoothly an application may proceed.
It is important to understand that if you and your former spouse are still living under the same roof even though you have separated, or if you are unable to locate your spouse in order to serve them with an application, that you may need to take some additional steps for your divorce to proceed.
Our team can help you understand the process to follow to ensure your interests are protected and you can move on with your life.
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In Australia, you must satisfy at least one of the below criteria to be eligible to apply for divorce:
- You normally reside in Australia;
- You are an Australian citizen;
- You consider Australia to be your home and you intend to live in Australia indefinitely;
- You have lived in Australia for 12 months immediately preceding filing the Application for Divorce.
An Application for Divorce must be filed in the Federal Circuit Court. Australia’s divorce process is a “no-fault” system, which means the court does not consider which partner was at fault in the marriage breakdown. Therefore, the only requirement before filing the application is that you and your former spouse must have been separated for 12 months or more prior to filing the application.
You can only apply for a divorce after you have been separated for a period of at least twelve months. If you have been separated, but reconciled for a period of time, then the 12-month period starts after the reconciliation came to an end.
In Australia, a court does not consider who was at fault in the breakdown of a marriage.
To apply for a divorce, you must:
- Prove that the marriage has irretrievably broken and that you have been separated for at least 12 months;
- Have been married for at least two years or more or have attended the required counselling with the Family Court.
If you would like more advice about your specific circumstances or to check your eligibility to apply for divorce, contact our Brisbane family lawyers at any time on 1800 621 071.
If you have been married for less than two years and want to make an Application for Divorce, there are some additional steps you will need to take, including:
- Attending a mediation with your former spouse with a court approved family and child mediator where you will need to discuss the possibility of reconciliation. Once you have attended mediation, you must file a certificate completed by the counsellor with your Application for Divorce. If for any reason you cannot attend the mediation, you must file an affidavit outlining the reasons why counselling is not an option.
- You may file an application seeking the court’s permission to proceed within 2 years of the marriage under special circumstances.
In most cases, no, your former spouse cannot refuse the divorce. If the court is satisfied that the marriage has broken down irretrievably and that you and your former spouse have been separated for at least 12 months, there are very limited reasons why the divorce should not be granted. It is your responsibility to prove that your spouse was served the divorce documents according to the rules.
“Service” is the delivery of the court documents to your spouse after they have been filed. By servicing the documents, this ensures all parties have received the documents filed with the court and that everyone is aware of the pending Application for Divorce.
If you still live under the same roof as your former spouse, you will need to provide evidence of the separation to the court. The action of separating must involve a complete and open break from the marital relationship, including:
- Not sharing meals or mutual entertainment at home or outside of the home with your former spouse
- Living in separate rooms
- Stopping all sexual activity
- Operating separate bank accounts
- Not providing household services
- Not representing to family members, friends, or colleagues that the marriage is persisting.
Your unique situation will determine whether you may need to appear in court. An appearance by you or your lawyer will be required if you have children under the age of 18 and the application is not made jointly by you and your former spouse.
If you are living under the same room as your former spouse, it is likely that the court will expect an appearance by you, or your lawyer, to answer any questions regarding the separation.
In certain circumstances the court may be prepared to permit an appearance by telephone. If this is deemed appropriate, Attwood Marshall Lawyers can make that application on your behalf.
We offer a set fee structure for divorce applications. Contact our Brisbane family law team any time on 1800 621 071 to ask about our fees.
In addition to our set fee, the Federal Circuit Court will charge a filing fee for lodging an Application for Divorce. This fee can be reduced if you have a concession card or receive Centrelink benefits.
For more information on the Federal Circuit Court’s fees, visit www.federalcircuitcourt.gov.au (follow the links to the “Fees” page).
Yes! A property settlement and a divorce are two separate legal matters. It is important to note that divorce affects property settlements by triggering a time limitation period, which if lapsed, can cause you difficulty in making a court application for property settlement or spousal maintenance. The time limitation period will commence once your Divorce Order is final (one day and one month after the divorce application hearing date).
If 12 months has passed after your divorce has been finalised, and you have not yet finalised your property settlement, you must obtain the court’s permission before filing any court application.
Yes! It is very important to review your estate plan and update your Will as soon as possible after separating from your spouse. Any gift you have in your Will that you previously had intended to leave to your spouse will become invalid on divorce.
It is also imperative to update your Enduring Power of Attorney or Appointment of Enduring Guardian documents, as you may have previously appointed your spouse to be your attorney or guardian, and your change of circumstances may mean you need to revoke and cancel the existing documents in order to appoint a new attorney or guardian.
You may also need to revise any superannuation and life insurance nominations you have previously put in place.
Our family lawyers can discuss your estate planning needs and help you understand what you need to consider alongside your divorce.
Urgent! You must review your estate planning and update your Will and Enduring Power of Attorney
After separation, it is very imperative to review your estate planning:
- Change your Will immediately, otherwise, your ex-spouse may inherit everything if you die;
- Revoke an existing Enduring Power of Attorney to your spouse and replace it with a new one;
- Look at any jointly-owned bank accounts or property and sever the joint tenancy for property. Bank accounts should be split into individual accounts;
- In your superannuation and life insurance (death cover) policies, change any binding nominations you have put in place, including Self-Managed Superannuation Funds;
- Check on the control of any business entities, such as companies and trusts, to see if any assets need protecting from being transferred or sold.
Book an appointment with our Brisbane divorce lawyers today to ensure your most important legal affairs reflect your current circumstances.