Separation essentials: Nine things to know after separation

9 THINGS TO KNOW AFTER SEPARATION

1. Timeframes are important! If you have been in a de facto relationship, you have two years from the date of separation to formalise your property settlement. If you are married, you have 12 months from the date of divorce to formalise your property settlement. You must be separated for 12 months before applying for divorce.

2. Divorce proceedings are separate to Court proceedings relating to parenting and property matters. The divorce application process is generally a relatively quick and simple process.

3. Delay is risky. It is advisable to formalise a property settlement as soon as reasonably practicable after separation, to ensure that there is not any significant change in the financial circumstances of parties from that which existed during the relationship.

There are also risks associated with delay in parenting matters. For example, if there are unsatisfactory parenting arrangements in place, it can become increasingly difficult to change any “status quo” which may come about, the longer that those arrangements are in place.

4. Transparency is required regarding your respective finances while negotiating a property settlement. All parties are required to provide full and frank disclosure of their financial circumstances, including income, property in their name or possession, and any financial resource available to them. If a party has failed to provide disclosure, there could be scope for the other party to have any Binding Financial Agreement or Court Orders set aside, on the basis of that non-disclosure.

5. You are entitled to obtain independent legal advice, and should do so. Each party ought to obtain legal advice from different lawyers. Your solicitor’s job is to give objective and realistic advice to assist you in resolving any dispute. Anything that you discuss with your solicitor is confidential.

6. Children should not be involved in discussions regarding property or parenting arrangements. It is important for children to be protected from conflict, and not placed in a position where they are exposed to any unkind comments made about a parent or other family member.

7. There are a range of alternative dispute resolution options available to parties, including collaborative law, mediations, arbitration. These alternative options of dispute resolution are aimed at reducing the conflict, delay, and cost which can be associated with more traditional methods of dispute resolution, and of course to avoid Court where possible.

8. Most matters resolve without litigating. Those who have recently gone through a separation are sometimes understandably concerned about the risk of being involved in stressful and costly litigation. The vast majority of people reach agreement without being involved in Court proceedings, and only approximately 5% of matters before the Court progress all the way to a final hearing. Litigation is a last resort, and should be treated as such, unless there are safety issues or in matters of urgency.

9. You, and your loved ones, are entitled to feel safe and if you have any concerns about your safety you should urgently obtain advice, including in relation to the possibility of obtaining a protection order to cease or limit contact with another party.

To obtain specialist family law advice in relation to your separation, contact Robinson + McGuinness to arrange an initial appointment. Contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

Author: Margot McCabe

What If I Can’t Serve My Divorce Application?

If you have filed a sole Application for Divorce, you will need to serve the application on your spouse. The application and supporting documents can be served by hand or by post.  If your spouse lives in Australia, you must serve the documents at least 28 days before the divorce hearing. If they live overseas, you must serve the documents at least 42 days before the hearing.

If you are no longer in contact with your spouse, it can be difficult to serve your divorce application. They may have changed their contact details or moved interstate or overseas. If you are unable to locate your spouse, you should make attempts to contact them or locate them in other ways, such as through their family, friends or employer. You should also try searching the electoral roll if possible.

If you are still unable to locate your spouse despite making all reasonable enquiries, you can make an Application in a Proceeding seeking:

1. Substituted service; or

2. Dispensation of service.

It is important from the Court’s perspective that your spouse has an opportunity to respond to your Divorce Application if they wish to.

Substituted service

Order for substituted service allows you to serve your spouse in another way. For example, if you are aware of your spouse’s email address, you could seek an order that allows you to serve the application by email. You can also seek an order that you be permitted to serve the documents to a third party, such as a relative, who can pass the documents on to them. You must be sure that the method of substituted service will be successful.

Dispensation of service

An order to dispense with service means that service is no longer required. This order can be made with or without conditions. The Court must be satisfied that you have taken all reasonable steps to serve your application and that the requirements for divorce have otherwise been met.

Procedural requirements

An application for substituted service or dispensation of service requires an Application in a Proceeding and a supporting Affidavit. Your Affidavit should set out the attempts you have made to serve your spouse, including:

1. Your attempts to contact and locate your spouse, including copies of any messages/emails;

2. The last known address of your spouse and details of your last communication with them;

3. Enquiries you have made of your spouse’s family or friends and any replies received;

4. Enquiries you have made with your spouse’s employer and any replies received;

5. Details of any child support or maintenance orders, including any correspondence with government departments;

6. Details of any jointly owned property;

7. The costs you have incurred trying to serve your spouse and whether further costs would create financial hardship for you;

8. If you are seeking substituted service, details of the way you propose to serve documents and the basis upon which you believe it will be successful; and

9. Any other relevant information.

The application will generally be heard at the same time as your divorce hearing. You should attend the hearing as the presiding Court Officer may ask you to provide further information.  

You may wish to seek specialist family law advice before applying for substituted service or dispensation of service. If you would like to discuss your matter and how we can assist you, please contact us today at (02) 6225 7040 by email at info@rmfamilylaw.com.au or get started now online.

Author: Amy Davis

Divorce Applications – what are the service requirements?

A Divorce Application has been filed and you have been listed before a Judicial Registrar or Deputy Registrar for a Divorce Hearing. What do you need to do to ensure that the Application can proceed at the Divorce Hearing?

In the event you have filed a joint Application for Divorce, there is no requirement for you to serve the Application upon the other party.

If you have filed a sole Application for Divorce, you will need to ensure that you have affected service no less than 28 days prior to the Divorce Hearing.  This is to ensure that the Respondent is aware of the Application and has an opportunity to respond should they choose to do so.

A failure to serve an Application for Divorce in accordance with the Federal Circuit and Family Court Rules 2021 may result in the Divorce Hearing being adjourned to a later date.

What documents need to be served?

The following documents will need to be served on the Respondent:

1. The sealed Application for Divorce and supporting documents;

2. The Marriage, Families and Separation brochure published by the Court; and

3. An Acknowledgement of Service (Divorce).

How do I serve the documents?

In accordance with the Federal Circuit and Family Court Rules 2021 service of an Application for Divorce can be affected in two ways; (1) by hand / personal service (i.e. a process server) or (2) by post. You cannot serve it on the other party yourself.

In the event you choose to serve the Application for Divorce by post, you will need to provide the Respondent with a pre-addressed return envelope to your address for service, and if the Respondent is in Australia, the correct postage for the envelope to be returned to you.

Once you have affected service, and prior to the Divorce Hearing, you will need to arrange for the relevant Affidavit of Service to be filed with the Court, proving you have done so.  In the event service of the Application for Divorce was affected by a person who does not know the Respondent (i.e. a process server), the Applicant will also need to file an Affidavit Proving Signature prior to the Divorce Hearing.

What if I was unable to serve the Application?

If you have been unsuccessful in serving the Application for Divorce despite your attempts, you may need to make a separate Application to the Court and seek Orders dispensing with the requirements for service, or an order that provides for the documents to be served in another way (i.e. via email). Your application will need to be supported by an Affidavit setting out the steps you have taken to try to serve the other party.

It is important that all necessary steps are taken to comply with the service requirements of an Application for Divorce. A failure to do so may result in the Application being delayed, or in some instances, it may be dismissed.

The service requirements for an Application for Divorce have changed since the Federal Circuit and Family Court Rules 2021 commenced on 1 September 2021. If you are unsure how to serve an Application for Divorce, or the Application itself you should seek advice from a specialist family law solicitor.

As specialist family lawyers, we at Robinson + McGuinness will be able to advise you and act for you in relation to your Application for Divorce.  We offer fixed fees in relation Divorce Applications.  We can also act for you in the event an appearance is required by you or on your behalf at Court.

If you would like advice in relation to your family law matter, contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

 Author: Peta Sutton