Swanwick Murray Roche Lawyers

74 Victoria Parade, Rockhampton QLD 4700   •   (07) 4931 1888

Divorce & Separation

Rockhampton Lawyer – Swanwick Murray Roche

What can we do for you?

Our family lawyers are experienced in providing practical, down to earth advice always designed to get you a fair and reasonable result in a divorce or separation.

Our family solicitors know that divorce and separation is an emotional and confusing time – so we are skilled at giving you the necessary advice to deal with all the legal issues that you may encounter. This can include the following areas of law:

Unsure what your options are? We can help…

It is important to get the right advice, as early as possible. Getting the right advice early can help you to settle the matter early – especially if you know legally what you are and are not entitled to in the event of a divorce or separation.

We can help you:

  • know your rights and options and what you can expect from a divorce or separation;
  • create a strategy for your dispute;
  • outline ways to resolve the dispute as quickly as possible;
  • help you seek support to reduce the effect of the dispute on yourself and any children.

Our lawyers understand what you are going through. We can help you. 

Why do people divorce or separate?

There are a number of reasons why people might choose to divorce. Understanding why people might divorce can help you to understand and accept your own divorce. Here are some of the most common reasons for divorce in Australia:

  • Growing Apart – Many marriages degrade over time rather than falling apart suddenly. As couples get older, they sometimes start to lead increasingly separate lives.
  • Infidelity & cheating – Despite being founded on lifelong commitment, many marriages end due to cheating. Couples can try to move past infidelity, but a serious breach of trust often leads to divorce.
  • Fighting & sniping – It’s perfectly normal for couples to have the occasional argument, but constant bickering can lead to a build-up of resentment over time and eventually, divorce.
  • Money – From financial hardship to incompatible spending habits, money is a common cause of divorce.
  • Abuse – Whether it’s caused by drug or alcohol abuse, jealousy or anger management problems, both physical and verbal abuse can bring a marriage to an end.

What is a divorce or separation?

Divorce is the official ending of a marriage. You cannot remarry until your divorce is finalised.

Your partner does not need to agree to the divorce and you do not need to decide or prove who was “at fault” or responsible for the marriage breakdown. A divorce can be established by the irretrievable breakdown of the marriage which can be established as follows:

  • You are able to prove that you are in a legally valid marriage (a marriage certificate will suffice)
  • Either you or your partner are an Australian citizen
  • You have resided in Australia for the last 12 months
  • You and partner have been legally separated for a minimum of 12 months.

Separation, legally, occurs when an unmarried de facto couple stops living together as a couple. Separation occurs when:

  • at least one person in the relationship makes the decision to separate, acts on that decision and tells the other person;
  • your partner doesn’t have to agree to the separation;
  • you can be separated and still be living in the same home (called “separation under the same roof”) but you need to prove that the relationship has ended. This can be proven by any number of factors including:
    • you no longer sleep together
    • you no longer have sex or sexual activity
    • you no longer share meals and domestic duties (in a different way to when you were married)
    • you no longer share money and bank accounts
    • family and friends think of you as separated

How to Separate

There are no legal processes to separate. You don’t have to apply to a court, to a government organisation, or fill in any forms. You won’t get a certificate saying you are separated, but you may need to:

  • tell organisations such as Centrelink, the Child Support Agency and Medicare
  • make proper arrangements for any children involved
  • tell your family and friends
  • sort out your financial affairs—work out how debts and loans will be paid, whether you have joint bank accounts, what your superannuation or insurance entitlements are and change your will. You’ll need to tell your bank/s, and superannuation and insurance companies that you’ve separated.

How to Get a Divorce

Getting a divorce is not usually an instant process. After the 12 months separation the application can take several months. Filing for divorce involves:

  • Separation – A married couple can only divorce once they have been separated for at least 12 months. If neither spouse can afford to move away from the family home, a couple may live ‘under the same roof’ while still being classified as separated.
  • Divorce Application Form – This form needs to be filled out and submitted to the court. If you are applying for a divorce as a sole party, the application must be formally served on the other party.
  • Divorce Order – Once your divorce application has been filed with the court, a hearing date will be set. If your application is approved by the court, you will be granted a divorce order.

You do not need to have resolved property settlement or child custody matters.

Common questions about divorce and separation…

Can a Divorce Application Be Contested?

Divorce applications can only be contested under exceptional circumstances. For example, if:

  • A couple have been separated less than 12 months
  • The court does not have jurisdiction to grant a divorce.
  • The court is not satisfied that appropriate arrangements are in place for the ‘welfare of the children’.

You can oppose a divorce application by filing a Response to Divorce. If you choose to do this, you will be asked to present a valid reason as to why you think the divorce should not be granted. Our experienced divorce solicitors can advise you on the process involved.

Children’s Role in Divorce

A Divorce Order does not resolve children’s arrangements or property matters. Although these matters are dealt with separately, you must be able to show in a Divorce Application that you have made appropriate arrangements for the welfare of your children. A divorce order will not be granted unless you satisfy the court that reasonable arrangements are in place for the welfare of the children.

How much will a divorce cost?

Fees can vary depending on your circumstances. Beyond the court filing fee of $1,100 (including GST) (current as at March 2019), the minimum solicitor’s cost for applying for a divorce in Queensland is around $1,000 however this can vary depending on your circumstances and other things that might need to be resolved.

How long does it take to finalise a divorce?

In addition to the 12 month separation period, a divorce application can take an extra seven months or so to resolve. This can take longer if your case is complicated or you do not carry it out in a fast manner.

What if I have been married for less than 2 years?

If you have been married less than 2 years and wish to divorce then you must either attend couple’s counselling or seek special permission from the court to start a divorce application without the couple’s counselling certificate.

What if I don’t know the location of my spouse?  

You can still apply for divorce even if you don’t know where your spouse is, however, you must show that you did attempt to contact them.

Can I still get divorced in Australia if I was married overseas?

You can still file for a divorce in Australia even if your marriage took place abroad, provided that you meet these conditions:

  • You are an Australian citizen or an Australian resident
  • You regard Australia as your permanent home.

If your marriage certificate isn’t in English, you will need to provide a translated version.

Do I have to attend court?

Unless you are required to attend court in person (which may depend on your personal circumstances), the lawyers handling your divorce will usually attend for you.

Will I need to change my Will or Enduring Power of Attorney? Anything else?

Following a divorce (or even beforehand), you should update your superannuation nominations, last Will and Testament, Enduring Power of Attorney and any other legal documents that give your spouse control over your assets or life. You should seek advice to ensure that everything is handled properly. It is important that you do not accidentally leave your spouse appointed on legal documents – particularly if you do not want them to be so appointed.

Why are we different?

Our experienced lawyers know that you need:

  • someone who understands the emotions and attitudes of the people involved in your situation;
  • your concerns; especially around financial security, child custody, personal safety and so on;
  • someone who will provide upfront information about pricing and legal costs (and keep you updated as the matter progresses);
  • a lawyer who will provide practical, results-focused advice.

Our family lawyers know that family law clients are usually experiencing one of the most emotional times of their life – a fear of the unknown, concern over financial security, worry for future care of children, anxiety around personal safety and so on. Added to this, most people don’t know what their legal options are – especially when well-meaning friends or family offer advice that may or may not be correct. Our family lawyers see your whole matter and not just the court documents that need to be drafted.

Our lawyers cut through these issues and provide you with legal advice and a strategy based on decades of legal experience to give you the confidence to move forward with your life. 

At your first appointment:

  • you meet with an experienced lawyer;
  • you are advised in frank terms about legal costs and estimates to the end of your matter;
  • our lawyer listens to you and understands your matter;
  • our lawyer gives you some basic advice about how we start and handle your matter going forward.

Our family lawyers

Our team is well trained and regularly participate in specialist seminars, reading industry updates, court decisions & legislative amendments. Our team stays in contact with industry professionals (such as forensic accountants, investigators, valuers, real estate agents and so on) to ensure we have good working relationships with the right people when you need it.

Click on our staff profiles to learn more about each of our experienced family law team members:

Resources

Check out some of our recent legal updates and property resources that you might find useful on this Family Law Resources link. Please remember that these updates and resources are general guidance only. If you need legal advice, you should contact us to discuss your matter as your personal circumstances may not suit the circumstances described in the updates and resources.

During family law legal matters, many issues come up that require the support of experienced social support works and other professionals. Here are some links to support resources that may help you (please ensure that you make yourself familiar with any confidentiality rules or seek advice from us):

Divorce & separation

Property settlements

Relationship support

Contact 

To talk about your matter – reach out to us via any means to start a conversation. All of our contact information is listed here on our Contact Page.

 

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