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What you need to know about DivorceBy Vanessa Balnaves, Johnston Withers, Lawyers, Adelaide.

The law about divorce and about family law generally, can be a bit of a mystery. So our Divorce Lawyers in Adelaide have prepared some simple FAQs to help navigate your way through.

I am separated. Can I get Divorced straight away?

You must be separated for at least 12 months before you can apply for a divorce. Only legally married couples can obtain a divorce. People in a de facto relationship cannot. If you have been married for less than 2 years, you may also have to attend marriage counselling before you can apply for divorce.

How long does it take to get a Divorce?

You must firstly be separated for at least 12 months. Once you file your Application for Divorce, it usually takes another 3 months until the final Divorce Order is made. If there are any difficulties with locating your spouse, then the process could take longer. If you think that you will have problems locating your spouse, it is a good idea to speak with our Divorce Lawyers in Adelaide who may be able to help you minimise the delays.

Do I need to do anything to be separated? What if we are both still living in the family home?

Separation happens when you and your spouse or partner stop living together as a couple. It is the same for married and de facto couples. Either of you might make the decision to separate – it does not need to be a joint decision.

Often, one person will tell the other of their decision and one of you might decide to move out of the family home. Sometimes, it is simply not practical to move out due to financial restraints and you might keep living together in the same house. That is viewed as being “separated under the same roof.” No longer living as a couple can be evidenced by having separate finances; no longer sharing a bedroom; no longer attending family events together; cooking and eating separately.

Once you have separated, you might want to inform agencies such as Centrelink and the Child Support Agency, particularly if you have children, as you may be entitled to new or different financial payments as a single person. Our Divorce Lawyers in Adelaide are able to advise regarding these various processes.

Do we both have to agree to get a Divorce?

No. Either one of you can apply for a Divorce once you have been separated for 12 months. You do not have to agree to make that application together. You can oppose the application if you do not agree that you have been separated for 12 months.

What if I got married overseas? Can I still get a Divorce in Australia?

Yes. As long as you meet the requirements of being either an Australian Citizen or are living in Australia permanently or have been for at least 12 months before you make the application for Divorce. You will need a copy of your marriage certificate to include with your application for divorce. If that certificate is not in English it will have to be translated for the Court.

Do I have to go to court?

If you have children aged under 18 years and you have made the application for Divorce individually,  then you, or your Divorce Lawyers in Adelaide will have to attend at the Court for the Divorce Hearing. The Court will need to be satisfied that proper arrangements are in place for the children and may want to ask questions about those arrangements.  Your divorce lawyer can talk on your behalf.

If you make the application jointly with your spouse, neither of you need attend at the Court.

I took my husband’s name when I married. Can I change my name before I am Divorced?

Yes. If you want to use your maiden (or birth) name, it can be as simple as showing your birth certificate to a particular agency, like Medicare. Visit the South Australian Registry of Births, Deaths and Marriages for more information.

Can I change my children’s surnames now that I have separated or Divorced?

You will need the agreement of the other parent or an Order of the Court if you want to change your children’s surnames. Our Divorce Lawyers in Adelaide can give you advice about what to do if you are unable to obtain the agreement of the other parent.

What about the arrangements for my children and dividing up the property? When does that happen?

Getting a divorce is separate to custody issues and dividing up the assets and liabilities that you both might have. You do not have to wait until you are divorced to attend to the other issues.

A divorce is the legal ending of the marriage. It is often the case that people need to sort out arrangements for the children and financial matters fairly soon after they have separated. Importantly, there is only a 12 month period after the divorce is final in which to resolve a property settlement or to apply to court for property orders if you have been unable to reach agreement.  You should talk with our Divorce Lawyers in Adelaide about how to divide up your property and get advice about children’s arrangements as early as you can once you have separated. You will then be able to better make decisions about your future and plan for the changes that follow a separation.

Do I have to get divorced?

No.  You can choose to remain legally married, even though you have separated from your spouse. Of course, your former spouse might make the application for divorce instead. If you want to remarry, you will need to be divorced. It is possible to enter into a de facto relationship if you are separated from your former spouse but not yet divorced.

However, once you have separated there are other issues that you will need to think about, such as updating your Will or making one if you haven’t done so before. You should speak to our Divorce Lawyers in Adelaide about the wider implications of your separation, regardless of whether you were married or in a de facto relationship.

Contact the author directly by email or by telephone.

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