Insight Legal Solutions: husband signing paperwork during divorce without consent

There have been countless times over the past decade that I have heard a client say their ex will not sign the divorce papers until this happens, or that happens.  This usually revolves around using the divorce as a bargaining chip to negotiate parenting arrangements, financial agreements or property settlements.

My clients in these situations are always so happy to hear me say “you don’t need their consent … you can do a sole application!”  There are very limited grounds upon which someone can object to a divorce application noting that the main thing you need to show the court is that there has been an irretrievable breakdown of the marriage – which is usually evidenced by a separation period exceeding 12 months.

There are two ways to obtain a divorce in Australia – a joint application and a sole application. 

  •  A joint application is handy where possible, particularly if you have kids under 18, as it means no one has to go to court and no one needs to serve documents on the other. A joint application is signed by both parties, filed with the Court online and in due course it will be looked at by a Registrar of the Court and the divorce order will be issued.  
  • sole application is a bit trickier but a great option if you are not so amicable with the other side, if they are using the divorce as a bargaining chip or if they do not want to ‘consent’ to the divorce. The application is signed and filed by just one party and then served on the other party. You then must prove to the Court that the other party has been served properly in accordance with the Rules of the Court.  If there are children of the relationship who are under 18 then you or your lawyer will need to appear at the divorce court hearing before a divorce order is made.   The reason why an appearance is required is so that the Court can satisfy themselves that there are proper arrangements in place that provide for the children’s care, welfare and development.  This usually is not a difficult hurdle to jump over and the divorce is usually granted at the divorce hearing and a divorce order is issued in due course.

Other things that might interest you about applying for a divorce:

  • You have to be separated for 12 months before a divorce can be applied for.
  • You can be separated under the one roof but special conditions apply, requiring some additional information needing to be provided to the Court.
  • Divorce applications can be objected to but only on very few grounds given Australia’s no-fault divorce theory.
  • A divorce order is not effective until 1 month and 1 day after the divorce order is made by the Court  (so approximately one month after your divorce hearing).
  • Once a divorce is granted, the clock starts ticking on limitation periods relating to property settlements.

For more information on how we can help you with your divorce (at a fixed fee!) please contact us on 02 4408388 to make an appointment.

Insight Legal Solutions: Young woman reviews estate planning after separation

The short answer is that estate planning is very important. It’s important for reasons that might surprise you.  Whilst it may not be a nice thing to think about, talking about your wishes and getting proper advice can make things a lot easier for your loved ones later on.

Why is it important?

  • When you die, your estate may be distributed in ways that you had not intended:
    •  If you are not formally divorced, your spouse may inherit your estate either because you haven’t updated your current will or you don’t have a will at all – do you want that??
    • If you are divorced, your Will, or parts of it, may be considered revoked and your estate may be distributed in a way that you did not intend.
  • Even if your estate goes to your kids like you may have wanted, who is to manage this money until they become an adult? Your former partner? And their new partner? You might not be ok with this and a properly constructed Will allows you to appoint a trustee to manage your children’s inheritance until they are adults.
  • Your power of attorney and enduring guardianship appointments are not revoked just because you are separated or divorced. Would you want your former partner controlling your finances or to be making decisions about your health care including life and death decisions?
  • Superannuation is easy to forget about it – its money that we have never even seen!!! But often it is quite a significant asset and your trustee of the fund determines where it is paid, NOT your will.  If you have taken the right steps, your trustee may very well determine that your ex is still the primary person to benefit from your superannuation despite your separation.
  • If you have entered into a new relationship, do you want to make sure your children still receive the inheritance you hoped to provide them? In absence of a will, your children could end up with less than you expected. If you have a will but it doesn’t properly provide for your partner, this could lead to costly disputes.  Estate planning for blended families is essential in order to balance your responsibilities and to achieve the intended outcomes as much as is possible.

Post-separation is a period of huge change in your life. Regular revision of your Will, Power of Attorney and Enduring Guardian is recommended and provides a chance for you to take control of your life so that you and your loved ones are properly protected.  Contact us today and we can help you ensure your wishes are properly documents.