Step 1: Emotional Separation

Separation marks the beginning of a shift in the dynamics of the relationship. It's the stage where couples decide to end their relationship and live separately, either under the same roof or in different residences. Importantly, in Australia, separation is not solely determined by physical living arrangements. It is also about the emotional and psychological aspects of a relationship coming to an end which includes the withdrawal of the elements we associate with marriage, as we have set out above.

Step 2: Legal Separation

Legally, a couple is considered separated when they no longer live together as a couple. However, separation alone does not grant any legal rights or responsibilities. It's a period of reflection and adjustment, which allows individuals to assess their feelings and make informed decisions about the future of their relationship.

Frequently referred to as a trial separation, couples can decide the take a break and work out whether the problems in the relationship can be resolved, or whether the marriage has irretrievably broken down.  If it has irretrievably broken down, the next step for a separated couple can be divorce.

Step 3: The Divorce

Divorce is the legal process that formally dissolves a marriage. In Australia, we have a 'no-fault' principle, meaning that fault or wrongdoing is not required for the divorce to be granted. Instead, the sole ground for divorce is the irretrievable breakdown of the marriage, demonstrated by a couple being separated for 12 months (‘the separation period’).

After the separation period, either party can apply for a divorce through the Federal Circuit & Family Court of Australia. It's essential to note the divorce process is distinct from the resolution of financial and parenting matters. Even after obtaining a divorce, couples may still need to address these aspects.

To initiate the divorce process, one party, or both parties jointly, must complete and file an Application for Divorce form with the Court. The application is submitted online, long with the necessary supporting documents such as the marriage certificate, certificates of citizenship and, if applicable, documents related to proving the date of separation under the one roof.

After filing the application, the Application is given a Hearing date.  If there are no children of the marriage, you do not need to appear before the Court and the order will be made in your absence, if the Court is satisfied the marriage has broken down irretrievably.  If you have children, you will need to appear before telephone and ensure the Court is satisfied appropriate arrangements for the children have been made.

Once the Order granting the divorce has been made, there is a waiting period of 1 month before the divorce takes effect.

At the end of that period of time, the court issues the certificate called ‘Decree Nisi’, which is the formal divorce certificate, and the marriage is officially terminated.  

While the divorce process primarily addresses the legal dissolution of the marriage, it's essential to note that additional legal steps may be required to settle financial and parenting matters.  You can learn about those steps and how The Divorce Studio can help you.  Go to our page on Reaching & Documenting a Settlement Agreement – The Legal Stuff.

Step 4: Financial and Parenting Issues

While divorce addresses the legal dissolution of the marriage, property settlement and parenting arrangements can be addressed at the same time, or separately. They can be dealt with before you file the Application for divorce, which means you do not have to wait 12 months to begin negotiations or document a settlement agreement.

Most separating couples agree on how to divide their property and finances without going through the court. Agreeing on a property split without disputing the issues in court saves families from the emotional and financial costs associated with a contested hearing, and gives people greater autonomy over how they divide their property.

Arriving at a negotiated outcome is known to create better post-separation parenting relationships, and having property orders made gives you certainty and finality in relation to your financial circumstances, now and in the future.

The Divorce Studio has been developed to assist parties to understand the steps you need to take to finalise your property settlement by:

  • Helping you move through separation amicably;
  • Helping you negotiate a settlement agreement for financial and parenting issues;
  • Documenting your agreement reached – Financial Orders & Parenting Orders;
  • Producing Orders which are enforceable and can be actioned to move the assets between separating couples, and ensure children spend time with both parents in a child focused way
  • Helping you comply with the Laws required to avoid duties and taxes on the transfer of existing assets – houses, land and shares;
  • Ensuring you are protected from the debts and tax liabilities created during the relationship; and
  • Ensuring superannuation orders can be carried out by the Superannuation Trustee. 

To find out how, go to the Separation Suite.

Step 5: Moving Forward

The completion of legal formalities doesn't mark the end of the journey. Moving forward involves rebuilding life post-divorce, embracing new opportunities, and, if applicable, co-parenting in a way that prioritises the well-being of any children involved.

Navigating the steps from separation to divorce requires a blend of emotional resilience and a little legal & administrative know how. By maintaining open communication, and embracing a solution-focused approach, The Divorce Studio can help you pave the way for a smoother transition into the next chapter of your life.