A divorce is often confused with a property settlement. Simply put, a divorce is a legal process which formally ends a marriage. A property settlement, however, is the process of severing the financial relationship between parties to a marriage once and for all. They are two different legal processes.
When can I apply for a divorce?
You can apply for a divorce once you have officially separated from your spouse for 12 months. You can be separated but still live under the same roof, however, additional evidence must be filed with the Court explaining the circumstances under which you were separated, to prove that you were not in a relationship during that time.
It is important to note that, once a divorce has been granted, you have 12 months to finalise your property settlement or spousal maintenance matters, or to otherwise start court proceedings for property settlement or spousal maintenance. A failure to do so could result in you losing your rights to make an application in court for a property settlement or spousal maintenance.
What if my spouse does not agree to sign the divorce papers?
It is possible to apply for and obtain a divorce without your spouse’s consent. However, if you believe that your spouse may be prepared to participate in the divorce process, a joint application for divorce is likely to be the most favourable option.
Joint Applications
A joint application can be filed with the Court when both parties agree to file for divorce. Joint applications are the simplest and most cost effective way of applying for a divorce, as you are not required to serve the other party with the Application for Divorce after it has been filed.
Further, if you have children who are under 18 years of age, you may elect to not appear before the Court for a divorce hearing (something which is required for a sole application where there are children under the age of 18). The parties to a joint application may elect to share the costs of the application, or one party may agree to pay the entire costs of the application.
Sole Application
A sole application is necessary where one party cannot obtain an agreement from the other party to participate in a joint application.
Sole applications require your spouse to be formally served with the filed application. Further affidavits are also required to prove to the Court that the other party has been served. If you have minor children, and you file a sole application for divorce, it will be necessary for you to appear in Court on the day of your divorce hearing. We would be pleased to provide further advice regarding the divorce hearing and the benefits of a joint application at an initial consultation.
Can I get a property settlement without a divorce?
Yes, you can formalise your property settlement without applying for divorce.
Property settlements and divorces are filed in Court through separate applications, neither of which rely on the other to be made. As a divorce is the legal end to a marriage, there may be certain circumstances where the parties decide not to formally divorce, but they may wish to finalise their financial relationship.
Circumstances may also arise where parties wish to progress their financial settlement within the first 12 months following separation, and they do not wish to wait until they are eligible to file an Application for Divorce before they attempt to finalise their financial separation.
If you have questions regarding the process for property settlement, we invite you to contact our office for a consultation.
Contact us
Please contact our office to speak to one of our experienced family law practitioners for professional legal advice regarding your specific circumstances.
Call today on 07 4637 6300.
This article was prepared by Angelika Dearling, Lawyer, with collaboration from Vince Hede, Director and head of the Family Law Team.
