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Divorce & Division of Property

In Australia, there is only one ground for divorce, and that is the irretrievable breakdown of the marriage.  The breakdown is substantiated by the parties living apart for a continuous period of twelve (12) months.  The parties have to satisfy the Court that they have lived apart for a continuous period of twelve (12) months and that there is no prospect of them resuming cohabitation.  Living apart does not mean living physically under separate roofs.  It means not cohabitating and not living as man and wife.  It does mean a significant change in the normal married behaviour of a couple.

The Court grants a divorce in two parts.  A rule nisi is granted on the day of the divorce and it becomes absolute one (1) month later.  It is important to review your Will once the divorce is finalised.

Division of the property could be settled prior to the divorce, or has to be done within twelve (12) months from the date the divorce becomes absolute.

Property includes, but is not limited to:

  • Bank accounts.
  • Real Estate.
  • Life Insurance.
  • Shares.
  • Cars.
  • Interests in Businesses.
  • Business partnerships.
  • Superannuation.
  • Long service leave.
  • Redundancy payments.
  • Household contents.

 

Domestic Relationships

When determining whether a domestic relationship exists, the following, amongst others, should be taken into account:

  1. The extent of a common residence.
  2. The length of the relationship.
  3. Sexual relationship.
  4. The degree of dependence on each other.
  5. Financial dependence.
  6. The ownership, acquisition, and use of property.
  7. The commitment for a shared life.
  8. The care and support for the children.

There are issues as regards domestic relationships on separation relating to property rights, maintenance, child support, and parental rights.  On death, there are issues relating to division of property, right to compensation, and superannuation.  When real estate is acquired in domestic relationships, it would be best to seek legal advice on how it should be acquired, whether joint tenant or tenants in common.  Our office will guide you on these issues.

Note that the new Relationships Act 2008 came into effect on 01 December 2008.  Just as married couples have marriage certificates, persons registering their relationship will have a “Registered Relationship Certificate”.  For the first time in Victoria, domestic partners (de facto and same sex partners) can enter into certified Relationship Agreements (cohabitation or separation agreements).  This may make the provisions under the Property Law Act 1958 redundant.  Courts make property orders under Section 285 of the Property Law Act and may consider financial and non-financial contributions, contributions made as homemaker or parent or any written agreement by domestic partners.  The Family Court now has jurisdiction to deal with such property / financial matters.

We appear in the Melbourne Federal Circuit Court and Family Court in relation to property, financial and children matters.

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