Deciding to file for divorce is a significant and often emotionally charged decision, with various legal implications. One common misconception is that getting divorced automatically resolves all associated matters, including parenting arrangements and property distribution. In Australia, the divorce process only deals with the legal termination of the marriage, and it is important to be aware that parenting and property matters require separate attention.

When filing for divorce, couples are required to be separated for a period of at least 12 months, and there should be no reasonable likelihood of reconciliation. In Australia, the reason the marriage ended or the cause of the breakdown is not relevant when considering if a divorce should be granted. Further, while the court does have regard to parenting arrangements and where the parties are currently residing, a divorce being granted does not automatically finalise all other associated matters.

Parenting matters

The resolution of parenting matters in Australia involves a separate legal process, distinct from obtaining a divorce order. The Family Law Act 1975 outlines the principles guiding decisions related to children, emphasising the child's best interests. Parenting arrangements can be resolved through negotiation, mediation or, if necessary, court intervention. Parenting arrangements can be formalised by way of a parenting plan or order of the court. It is wise to discuss the nature and benefits of both options with a specialist family lawyer as your individual circumstances can affect the best choice for you and your family.

You may elect to formalise your parenting arrangements prior to applying for divorce, or you can consider these options afterwards. However, when determining if a divorce order should be granted, the court will consider if proper arrangements have been made for the care, welfare and development of the children. Whilst this doesn’t require you to have your parenting arrangements formalised prior to a divorce order is made, the Court will require details of the parenting arrangements that are in place at the time of divorce to ensure they are sufficient. Once a divorce is granted, there is no time limit to formalise parenting arrangements and this can be done at any time before a child turns 18.

Property matters

The division of property is also a distinct aspect that requires careful consideration. In Australia, the process involves identifying and valuing assets, debts and financial resources, considering financial and non-financial contributions as well as future needs. Couples may negotiate, mediate or seek court assistance to finalise property matters, and this process may occur before or after divorce. It is important to understand, however, that once a divorce is granted, time limitations apply to financial and property matters. As such, we strongly recommend seeking advice from a specialist family lawyer on the implications of this prior to filing your application for divorce.

Filing for divorce in Australia is a significant step, but it does not automatically conclude parenting and property matters. While the divorce process may touch upon these issues, they require separate attention and resolution. It is essential for individuals navigating divorce to understand the distinction and explore appropriate legal avenues to address parenting and property concerns thoroughly. Seeking professional guidance early on in a separation can not only ensure that all aspects of the separation are handled with care and in accordance with the applicable laws, but also help you feel empowered to negotiate directly with your former spouse and make decisions accordingly.

If you are considering applying for divorce or have recently separated and want to know where you stand, please contact one of our expert family lawyers on 1300 032 806 or at [email protected] to arrange an initial confidential appointment.